RELIGION IN DISPUTES

This page intentionally left blank

 RELIGION IN DISPUTES

PERVASIVENESS OF RELIGIOUS
NORMATIVITY IN DISPUTING PROCESSES

Ed i t e d b y

Franz von B enda-B eck m a n n ,

Kee b e t von B enda-B eckm a n n ,
Ma r tin R ams ted t ,
and
B er tram Tur ner
RELIGION IN DISPUTES
Copyright © Franz von Benda-Beckmann, Keebet von Benda-Beckmann,
Martin Ramstedt, and Bertram Turner, 2013.
Softcover reprint of the hardcover 1st edition 2013 978-1-137-32204-3

All rights reserved.

First published in 2013 by
PALGRAVE MACMILLAN®
in the United States— a division of St. Martin’s Press LLC,
175 Fifth Avenue, New York, NY 10010.
Where this book is distributed in the UK, Europe and the rest of the
world, this is by Palgrave Macmillan, a division of Macmillan Publishers
Limited, registered in England, company number 785998, of Houndmills,
Basingstoke, Hampshire RG21 6XS.
Palgrave Macmillan is the global academic imprint of the above companies
and has companies and representatives throughout the world.
Palgrave® and Macmillan® are registered trademarks in the United States,
the United Kingdom, Europe and other countries.
ISBN 978-1-349-45824-0 ISBN 978-1-137-31834-3 (eBook)
DOI 10.1057/9781137318343
Library of Congress Cataloging-in-Publication Data
Religion in disputes : pervasiveness of religious normativity in
disputing processes / edited by Franz von Benda-Beckmann, Keebet von
Benda-Beckmann, Martin Ramstedt, and Bertram Turner.
pages cm
Includes index.

1. Peace—Religious aspects. 2. Conflict management—Religious

aspects. I. Benda-Beckmann, Franz von, editor of compilation.
BL65.P4R445 2013
201⬘.7—dc23 2013006560
A catalogue record of the book is available from the British Library.
Design by Newgen Knowledge Works (P) Ltd., Chennai, India.
First edition: August 2013
10 9 8 7 6 5 4 3 2 1
 CONTENTS

Introduction: On the Pervasiveness of Religious

Normativity in Disputing Processes vii
Franz von Benda-Beckmann, Keebet von Benda-Beckmann,
Martin Ramstedt, and Bertram Turner

1 Interminable Disputes in Northwest Madagascar 1

Michael Lambek
2 Dispelling Dispute in Native American Church Healing 19
Thomas J. Csordas
3 Religion, Crisis Pregnancies, and the Battle over Abortion:
Redefining Conflict and Consensus in the American
Pro-Life Movement 37
Ziad Munson
4 Religious Subtleties in Disputing: Spatiotemporal Inscriptions
of Faith in the Nomosphere in Rural Morocco 55
Bertram Turner
5 “God Moves Big Time in Sophiatown”: Community
Policing and “the Fight against Evil” in a Poor
Johannesburg Neighborhood 75
Julia Hornberger
6 Toward Reconciliation: Religiously Oriented
Disputing Processes in Mozambique 93
Carolien Jacobs
7 Religion and Disputes in Bali’s New Village Jurisdictions 111
Martin Ramstedt
8 Sanctity and Shariah: Two Islamic Modes of
Resolving Disputes in Today’s England 129
John R. Bowen
vi Contents

9 Forum Shopping between Civil and Shariʿa Courts:

Maintenance Suits in Contemporary Jerusalem 147
Ido Shahar
10 Legal Pluralism in the Supreme Court: Law, Religion, and
Culture Pertaining to Women’s Rights in Nepal 165
Rajendra Pradhan
11 Natural Law, Religion, and the Jurisprudence of the
US Supreme Court 183
Lawrence Rosen
12 Divine Law and Ecclesiastical Hierarchy 201
Matthias Kaufmann
13 Religion, Modernity, and Injury in Thailand 215
David M. Engel
14 Law and Religion in Historic Tibet 231
Fernanda Pirie

Notes on Contributors 249

Index 253
 INTRODUCTION: ON THE
PERVASIVENESS OF RELIGIOUS
NORMATIVITY IN DISPUTING
PROCESSES

Franz von Benda-Beckmann,

Keebet von Benda-Beckmann,
Martin Ramstedt, and Bertram Turner

R eligion in Disputes: On the Pervasiveness of Religious Normativity in

Disputing Processes is the result of a fruitful encounter between anthro-
pologists of religion and law, religious scholars, and legal philosophers
exploring variegated manifestations of the religious in disputing processes
in a variety of social and geographical settings. In their in-depth ethno-
graphic and historiographic analyses of cases from Germany, Great Britain,
the United States, Israel, Morocco, Mozambique, South Africa, Nepal,
Tibet, Indonesia, and Thailand, the authors show how “the religious”
may enter into, be substantiated in, and affect the course and outcome,
the scope and scale of disputing processes at different moments of their
unfolding. In the event, the dynamics of the disputing process also affect
“the religious” in that its tenets and practices may undergo significant
transformation through code switching, idiom and forum shopping, and
up- and downscaling.
Disputes are seen as being simultaneously embedded in the sociopoliti-
cal dynamics of local societies, as well as in processes at larger geographical
and social scales. This book illustrates how global legal processes affect
local dynamics, either as a reaction against or an acceptance of newly
imported modes of dispute management and discourses about rights, jus-
tice, and religious life (Jayasuriya, 2012; Porter, 2012). The fine-grained
analyses add new insights to the imbricated debates on disputing, the role
viii I n t r o du c t i o n

of religion in plural legal constellations, dynamics of legal pluralism, and

religious modernities (see also Gaonkar, 2001). Building on earlier schol-
arly work on the dynamics between religion and law,1 this volume offers
a new perspective on the entanglements of religious and legal normativi-
ties by focusing on the creative ways in which actors draw upon different
normative registers that reveal illuminating overlaps and semantic shifts.
The contributions transcend more conventional accounts of disputes in
religious tribunals or courts and religious processes of alternative dispute
settlement by showing how time-honored tenets of faith and newly emerg-
ing eschatological imaginations, along with different ritual sensibilities,
become manifest in a broad array of disputes. They address processes of
decision making by religious authorities, disputes in nonreligious forums
in which actors use religious repertoires, and processes in which actors
pursue religious goals in secular forums and via secular argumentations,
thus engaging in what Engelke referred to as “strategic secularization”
(Engelke, 2009, p. 39). Moreover, specific tenets of faith may enter more
mundane considerations that motivate and inform actors’ disputing behav-
ior and decisions, and that thus may engender alternative normative reper-
toires generating their own normative dimensions in the process.
The chapters furthermore demonstrate how disputes often illuminate
seemingly contradictory trends at larger spatial and temporal scales that
demand a more nuanced interpretation. Two major trends in particu-
lar have acquired prominence in academic and public debate: one is the
increasing juridification (see also Teubner, 1987) of political and moral
principles engendering a proclivity for “lawfare” (Comaroff, 2009) and
“rights talk” (Eckert et al., 2012) at all political levels throughout the
globe. The second trend concerns the re-enchantment of the public
sphere, which has stimulated debates about secularization, multicultural-
ism, and diversity. These trends have been largely discussed in isolation
from each other, and with little consideration for their scalar implica-
tions.2 This volume shows that the two trends not only unfold in paral-
lel, but also significantly reinforce each other. The chapters also suggest,
though, that the trends may not be as universal as is sometimes assumed.
For all the authors in this volume, “the religious” transcends the
bounds of conventional understandings of religion. We do not intend
to propose a new concept here,3 but want to stress that as compara-
tive social scientists we need a comparative analytical understanding of
religion.4 We therefore propose that “religion,” as an analytical cate-
gory, refers to a specific kind of Weltanschauung that consists of a more
or less explicit cosmological order through which the visible world is
interpreted in light of a sacred or spiritual grand design beyond the
visible world. It also commonly includes an eschatological order that
describes how to lead a good life, and what to expect in the afterlife.
 I n t r o du c t i o n ix

Besides dealing with different versions of “classical” religions (i.e., Islam,

Christianity, Hinduism, and Buddhism), several contributions discuss
how modern forms of witchcraft, as well as inchoate forms of spirituality,
may be involved in present-day disputing. One of the main properties of
religions is belief in the existence of superhuman and supernatural forces
that exist in an otherworldly realm but often intervene actively in social
life. They may be the object of veneration and worship, and a cause for
inspiration that provides as much a sense of security, belonging, and even
pride as it does anxiety and awe. Religious webs of meaning thus offer
emotional and cognitive orientations with explanatory and justificatory
power that construct, in a more or less mandatory manner, the relations
between human beings, invisible forces, and the other-worldly life, link-
ing past, present, and future.
Religious systems are typically part of highly complex constellations of
normative and institutional registers with which they are deeply entan-
gled. Moreover, virtually all religions are characterized by plurality—at
a minimum, they exhibit differences between the official, orthodox reli-
gious systems as understood by religious scholars and other experts, and
localized, often syncretic folk registers. To different degrees, aspects of
religious schemes of meaning have been juridified as religious law, as
rules and principles, prescriptions, options and proscriptions, standards of
evaluation, and sanctions. Such religious law may be a rather undifferen-
tiated dimension of the encompassing religious universe, but it may also
be separated out as a relatively bounded and sophisticated body of expert
knowledge with its own experts, a separate field of study, and instructions,
as is the case with the major world religions.
Religious law nowadays usually coexists in different relations of inter-
dependence with other forms of law (state law, international and trans-
national law, traditional laws of ethnic groups), all of which may have
themselves incorporated either pure or secularized versions of religious
values and principles. This constitutes an important qualification of
Sandberg’s useful distinction between “religion law” and “religious law”
(Sandberg, 2011). While the latter refers to religion as a normative order
and register of rules, the former refers to the ways religion is framed
by the law of the state in its relation to other legal orders. In contrast
to older literature on law and religion, which tends to employ a binary
opposition of law and religion, this volume shows that legal and judicial
institutions may be considered more or less religious, the difference in
degree consisting in substance, legitimation, and authority of interpreta-
tion. How hybrid combinations of law and religion are perceived, and
whether the religious properties are emphasized and the legal character
downplayed or vice versa, depends on what social actors want to highlight
in the pursuit of their interests (F. and K. von Benda-Beckmann, 2009).
x I n t r o du c t i o n

The contributions in this volume illustrate how actors make use of these
different legal and religious properties and combine or disconnect them
in ways they consider conducive to realize their own individual and col-
lective agendas.

T HE E NTANGLEMENT OF R ELIGION AND

L AW IN D ISPUTING P ROCESSES
This volume in part builds on the seminal work on disputing by Felstiner
et al. (1980), Comaroff and Roberts (1981), and von Benda-Beckmann
(1981), which has drawn attention to the transformations disputes
undergo in the process of dispute management, and to the dynamics of
forum shopping, idiom shopping, and code switching involved in these
transformations. However, the central concern of this volume is not so
much who wins in disputes on the basis of what grounds, but rather what
is negotiated in disputes alongside or even beyond the specific issue of
a particular dispute, such as identity, access to justice, citizens’ rights,
modes of reconciliation, the attainment of social harmony, and so forth.
The resultant bricolage of issues and associated reasoning in disputing
offers new perspectives on the range of social agents and the entangle-
ment of diverse normativities, as well as new insights into the more gen-
eral debates on the religious-secular divide. The individual contributions
bring into focus the following set of issues in particular.

A GENTS , A GENCY , AND L OGICS OF C AUSATION

A focus on hybrid combinations of law and religion expands our notion
of social actors beyond the limits of humanity by also including ancestors,
witches, spirits, and angels into the circle of disputing parties, decision
makers, and publics. These spiritual agents are endowed with superhuman
power. Some are embodied in human bodies, like the witches and healers
in Jacob’s case. Others are more abstract, disembodied or dwell in non-
human bodies, like the Pentecoastal angels mentioned by Hornbacher,
the ancestor spirits referred to by Lambek and Ramstedt, or the spiri-
tual animals in Jacob’s chapter. This reference to nonhuman actors points
to the role of spiritual and eschatological truth in disputing processes.
Human actors perceive spiritual agents and agencies as capable of retali-
ating and punishing offenders, explaining events, unraveling mysteries,
finding offenders (Jacobs), concluding contracts, correcting disputants
(Lambek), spiritually protecting (Turner) or governing space (Ramstedt),
or altogether losing interest in the destinies of humans and withdrawing
their protection (Engel). This volume shows that such convictions are by
no means remnants of a disappearing era.
 I n t r o du c t i o n xi

F ORUM S HOPPING AND S HOPPING F ORUMS

The contributions by Shahar and Bowen inquire specifically into how
and on what grounds disputing parties voluntarily choose from among
divergent religious institutions or dispute-resolution forums or, alterna-
tively, are forced to take their disputes to one or another of these different
forums. Such forums can, in turn, engage in shopping for disputes, when
they try to attract specific cases and disputants only and discourage other
disputants from turning to them with their cases (von Benda-Beckmann,
1981). What is examined here is the extent to which religiosity plays a
role in processes of forum shopping and in disputes prompted by the
existence of shopping forums. In his analysis of forum-shopping practices
in present-day Jerusalem, Shahar shows how strategic decision making
and forum shopping occur at the crossroads of law, politics, and faith.
Muslim women wishing to obtain an executable maintenance order have
the choice of filing claims in two different legal forums that are both
institutions of the Israeli state: a civil family court and a religious shari’a
court. Although the civil court often provides women with better finan-
cial arrangements than the shari’a court, it also constitutes an alienat-
ing, sometimes even hostile environment for Muslim Palestinian men
and women alike. Shahar shows how litigants navigate this legal pluralism
most frequently by chance and coincidence, on the basis of instrumental
considerations or references from their personal social networks rather
than on the basis of conscious ideological decisions.
Bowen illuminates the variegated ways in which British Muslim scholars
have combined religious legitimacy, quasi-judicial procedures, and social
outreach to create new kinds of Islamic institutions. He zooms in on two
of these. One is a Sufi college-cum-arbitration board in which the spiritual
leader hears appeals from disputants in a sanctified environment, the atmo-
sphere of which is intended to move them toward resolution. The other
is a shari’a council that invokes the legitimacy of jurisprudential knowl-
edge and fair procedure to elicit recognition of the religious divorces it
grants. While the college seeks to array a wide range of activities under the
umbrella of a Sufi saint’s spirituality, the shari’a council seeks to justify a
narrow set of fair procedures based on Islamic jurisprudence. As Bowen
argues, both institutions signal sensitivity to their legal environment and
provide avenues for the integration of an Islamic approach to family dis-
putes among British Muslims, as these religious procedures are embedded
in a wider framework in which law encounters religion and politics.
Shahar’s and Bowen’s chapters, as well as Lambek’s account of the
disputing strategies of the rival royal clans in Madagascar, show that the
secular and religious character of forums for dispute settlement and their
standard normative repertoires affect but do not determine the choices
disputants make, nor their arguments and objectives.
xii I n t r o du c t i o n

R ELIGIOUS P LURALITY IN D ISPUTES

Several chapters discuss cases of religious plurality in which actors move
between competing religious registers of argumentation that reflect
struggles for supreme interpretative authority. Kaufmann, for example,
analyses layers of legal pluralism within the realm of Christian religious
law, that is, the plurality of the diverging Protestant and Catholic laws
and the pluralism within Catholic law itself. The respective debates within
the Catholic Church in contemporary Germany concern the fault lines
between the sacred and the secular within ecclesiastical law, and the
boundaries between “mere” canon law and divine law. Kaufmann illus-
trates this with a conflict that emerged between a German bishop and
the council of his diocese over the legality of the suspension of a priest.
In 2005, this conflict was brought to the highest court of the Catholic
Church, which ultimately left open the question of whether, according to
divine law, a bishop can overrule canon law. This case supports Lambek’s
contention (in this volume) that disputes over what constitutes the sov-
ereignty of “the religious” are difficult, if not impossible, to bring to an
effective and satisfactory conclusion.
Turner analyses disputes that occurred during a weekly market in rural
Morocco, showing that in certain localities normatively defined fault lines
between the secular and the sacred may fluctuate along temporal vec-
tors. Convergences of faith-based considerations and profane ideas about
the maintenance of social and normative order testify to a rather fluid
approach to “world-making” that is attuned to the vagaries of Moroccan
agricultural life. This fluidity has recently been challenged by represen-
tatives of political Islam, who try to assert the superiority and absolute
authority of their dogmatic reading of the religious in the management
of disputes. Islamic activists use local disputes to push for a universally
fixed hierarchical divide between “religion” and “nonreligion.” In so
doing, they challenge local actors’ understanding of the religious as being
inscribed in the wider nomosphere where all spheres of human life inter-
sect (see also Delaney, 2010).
Jacobs discusses the uneasy interplay of religious orientations in the
search for reconciliation in disputes in the highlands of Mozambique.
Although generally perceived as distinct religious systems, both
Christianity and traditional African religion inform the religious convic-
tions of most villagers. In practice, this allows for considerable forum
shopping. Parties in disputes approach those authorities whose exper-
tise in matters concerning the superhuman they deem to be most suit-
able for solving the problem at hand. The registers of faith that these
authorities employ have important implications for the ways reconcilia-
tion is attained. While pastors emphasize forgiveness as a necessary pre-
requisite of reconciliation and suggest joint prayer and Bible readings
 I n t r o du c t i o n xiii

as reconciliatory practice, spirit mediums first of all establish the truth

and exhort their “clients” to appease wronged spirits through retaliation
and/or punishment.

I DIOM S HOPPING AND C ODE S WITCHING

Normative repertoires and idioms are a crucial factor in the transforma-
tive processes of disputes because they determine to a substantial degree
the relevance or irrelevance of grievances and claims. The choice of idiom
and normative repertoire therefore often forms a major point of dis-
pute, and disputants may strategically draw on different idioms to frame
their dispute, freely moving from one to another.5 Code switching often
occurs in the process of framing the dispute, in the justification of choices
between different procedures, and also within one and the same proce-
dure. Religion may affect disputing procedures as a kind of atmospheric
framework that leads to a reconsideration of the basic codes that are at
stake; for instance, the promise of salvation may prompt disputants to
want to reach consensus. Religious instructions often appeal to emotions
in that they may have a calming, soothing, or, by contrast, rousing effect.
One reason why code switching and idiom shopping are so important is
because they have systemic implications that go far beyond the specific
conflict or dispute. Resistance to the application of one legal system in a
specific dispute often can only be understood in light of these systemic
implications.
As several contributions to this volume show, such code switching
and cooptation of different normative repertoires and idioms are crucial
for the transformation of secular disputes into religiously tinted disputes
through faith-driven motivations and vice versa. With respect to the latter,
what has thus far received little attention in theoretical analyses of dispute
management are healing rituals that may transmute into some kind of
legal procedure, and may thus constitute surprising avenues for otherwise
unattainable dispute resolution. A case in point is Csordas’s account of a
particular Native American Church healing ritual revolving around the
sacramental use of the peyote cactus. During the ritual, a semantic shift
took place: secular concerns in the form of personal injury caused by con-
flict at the workplace became articulated in the categories of a particular
religious–spiritual discourse. This allowed their conflictive aspects to be
addressed in a wider cosmological context, which in the end made these
aspects therapeutically accessible and solvable. This case reveals striking
parallels between the sequences of the ritual on the one hand, and the
various stages of disputing processes on the other, rendering “healing”
and “conflict resolution” as mutually implicated in one another (see also
Jacobs in this volume).
xiv I n t r o du c t i o n

R ELIGION IN S ECULAR S ETTINGS

A shift toward a religious idiom in secular disputing processes or wider
societal debates may bring together initially incommensurable categories,
such as just or correct procedure, love, mutual agreement, truth, forgive-
ness, ransom, sin, expiation, or atonement, to name but a few. Such a
shift may then affect all further phases and sequences of a disputing pro-
cess, from the ways a grievance is voiced to the production of evidence to
witnessing (of which oath taking and ordeal are perhaps the most well-
known techniques), so that eventually an outcome will be reached that
is in accordance with religious truth. Hornberger and Munson demon-
strate in their respective chapters how tenets of faith infiltrate, as a kind of
add-on package, basically mundane societal discourses in which religious
wisdom is translated into categories of social life, thus blurring the bound-
aries between faith-driven, judicial, and other societal means and ends.
Hornberger brings into focus an unexpected liaison between
Pentecostals and the police in community policing of post-apartheid South
Africa. Since 1994 community policing forums have been set up. In the
case of Sophiatown, a poor neighborhood of Johannesburg, Pentecostals
have been able to enter into an intimate partnership with the local police
by praying for them and helping with administrative chores. Hornberger
argues that the Pentecostals, while seeking to enhance their authority vis-
à-vis their particular interlocutors, follow different strategies depending
on the audience they are addressing. To the police, Pentecostals have
managed to present themselves as representatives of the community,
whereas in their dealings with the community, they gain authoritative
power because of their proximity to the police. As a result, the police’s
mission to combat crime has acquired a religious overlay as “spiritual war-
fare against Satan,” and secular state agencies have been enlisted unawares
into divine service.
Munson highlights the cooptation of nonreligious, technical, and
medical-therapeutic discourses in religious strategies by looking at pro-
cesses of idiom shopping and code-switching that translate religious truth
into an a priori nonreligious environment. Alongside its classical activ-
ism in political and legal arenas, the American pro-life movement has
recently inscribed itself into the medical arena and the therapeutic market
by establishing the so-called crisis pregnancy centers (CPCs). The medi-
calization of its message has allowed the movement to downplay religious
disputes over the issue of abortion while harnessing the normative power
of technology as a means to acquire supposedly neutral, impartial data in
support of its stance.
Rosen relates yet another case in which religion is obliquely transported
into a secular context. He addresses the seeming paradox that, while reli-
gion in the United States is increasingly seen as a purely private matter,
 I n t r o du c t i o n xv

it is at the same time becoming more and more acceptable for religious
convictions to enter into the decisions of judges and other public offi-
cials. Looking at the selection procedures of Supreme Court judges and at
the decisions of conservative Catholic Supreme Court judges, the author
argues that religion is penetrating these realms of public life through ref-
erences to religious forms of natural law. This is part of a broader process
in which both Catholics and Evangelicals invoke tenets of natural law in
public discourse. In the process of this common invocation, the tenets
acquire a meaning that transcends their specific historical roots in Roman
Catholic canon law, and that serves to underscore a shift from a commu-
nitarian to an individualized notion of religion.

W ITHDRAWAL OF R ELIGION FROM P UBLIC S PACE

The examples related in the previous section all highlight the encroachment
of religion upon secular debates and disputes through the open endorse-
ment or silent introduction of religious agents, principles, and values. The
contributions by Engel and Pirie, on the other hand, attest to a reverse
development, namely, that the significance of religious values and agents in
the management of disputes may under certain conditions remain unim-
portant or become less important in predominantly religious societies.
In order to explain the recent absence of litigation in Lanna, northern
Thailand, Engel analyzes the history of disputes about injuries in that
region. He argues that the traditional link between spirits and village com-
munities in local dispute management has been severed due to aggressive
state promotion of a uniform and modernized type of Buddhism. This
in effect delegitimizes localized forms of Buddhism imbued with spirit
worship. Urbanization and mobility, furthermore, render community-
based dispute management not only illegitimate but also ineffective. As
the tort law of the state offers local victims of injuries no viable alternative
for framing their claims, they are left without means of redress, which
explains the recent decline of tort litigation in Lanna.
In a similar vein Pirie discusses the historical factors of state forma-
tion that elucidate why Buddhist ideas have not more obviously perme-
ated disputing behavior in rural Tibet through the centuries. Her analysis
describes the shifts in the ideological underpinnings of the construction
of the Tibetan political order in which certain Buddhist tenets became
dominant only at a relatively recent stage. In contrast to the case of
Lanna, official Buddhist interpretations of the political order of the state
have hardly affected rural dispute management in Tibet. Far away from
urban centers, local modes of dispute management have remained intact,
while the monks who occupied major positions in the state administra-
tion of the Dalai Lama and other high officials have remained reluctant to
involve themselves in dispute management.
xvi I n t r o du c t i o n

S CALE
All disputes, as we have noted, are situated in concrete circumstances with
particular configurations of disputants. However, in the course of time,
configurations of disputing parties may narrow down or expand, involving
smaller or larger support groups and audiences. Consequently, the scope
of a dispute may shift, widen, or contract, and this again has implications
for the scale of the original dispute. In the event, such transformations of
disputes may, depending on the normative and institutional environment,
also encourage or discourage forum shopping by the disputing parties
or dispute management authorities, as well as idiom shopping and code
switching. Conversely, idiom shopping and code switching may encour-
age or discourage certain modes of forum shopping, as well as an increase
or a decrease in the scale of social actors involved in the disputing pro-
cess. The contributions by Ramstedt, Csordas, Turner, and Lambek, for
instance, show that the shift to a religious idiom or the involvement of
religious institutions indeed widened the scale of participants in the origi-
nal dispute. Turner furthermore shows that the way in which disputes
are framed has an impact not only on the social scale, but also on spa-
tial and temporal scales. For example, sacred spaces usually require more
constrained behavior than secular spaces, and a particular behavior may
be evaluated entirely differently in religiously heightened periods (such
as Ramadan) than in ordinary times. Turner argues that such scaling up
in the number and variety of social actors―support groups, judicial and
religious authorities, mediating agencies, new plaintiffs and claimants,
and so on―often seems to occur precisely when the economic issues
being disputed are framed in religious terms. However, the development
may also go in the reverse direction. In the case described by Engel, for
example, the relevant scale of social actors in local disputes shrank to zero
as the spiritual relations between local communities and spirits in Lanna
were made irrelevant for adjudication.

C ITIZENSHIP AND N ATION B UILDING

Finally, particular framings of disputes may open a window onto some
broader political and social issues. A number of chapters address ques-
tions of how the decision to invoke religious arguments is sensitive to
social stratification and gender, to what extent reference to religion works
in favor of low-status persons, and under which circumstances reference
to religious norms and religiosity benefits the powerful (see also Bowen,
2000). Shahar and Pradhan argue that the turn to religion may serve as
a way for persons of lower status to avoid the disadvantages of class and
status differences implied in other legal systems and institutions of dispute
settlement. Pradhan and Rosen discuss examples in which disputes affect
 I n t r o du c t i o n xvii

local understandings of personhood and citizenship, while Pradhan, Pirie,

Engel, and Ramstedt demonstrate how religion is invoked or sidelined in
disputes in ways that serve nation-building projects.
In his discussion of gender-related disputes before the Nepal Supreme
Court, Pradhan argues that gender and family relations are being
reconstructed by reference to a wide array of normative orders, includ-
ing Hindu norms and international human rights legislation, and that
these contestations are seen as threatening the traditional social order
particularly in non-Hindu communities dominated by the Hindu major-
ity. Orthodox upper-class Hindus, for instance, refer to Hindu norms as
underscoring gender inequality. Those who favor emancipated, indepen-
dent women therefore invoke not only the gender equality propagated in
Nepal’s national laws and international human rights discourses, but they
also often refer to nondominant emancipatory interpretations of Hindu
norms. Pradhan thus highlights court cases as arenas for cultural con-
testations over the status of women, with clashing legal paradigms the
weapons of choice. In the course of the disputing processes, semantic
shifts occur as litigants attempt to challenge or upset traditional religious
constructions of women, which in turn prompts new cultural renderings
of citizenship.
In his chapter Ramstedt demonstrates how, since 2001, an alliance
of Balinese politicians, administrators, journalists, Hindu intellectuals,
and representatives of the local tourist industry has successfully lobbied
for the enactment of a number of new legal regulations at the provin-
cial level. These ordinances have redefined citizenship by inextricably
linking it to a ritualistic notion of “Hinduism” long sidelined by official
Indonesian Hindu authorities, thereby defining citizens’ entitlements and
duties through local rather than national-level frameworks. This redefini-
tion of citizenship has enabled the Hindu Balinese majority in Bali to
regain a hegemonic position in terms of access to land, political decision
making, and economic development vis-à-vis the growing population of
non-Hindu immigrants from other parts of Indonesia. The successful
institutionalization of the religiously defined notion of local citizenship
has, moreover, also engendered a series of new local disputes revolving
around issues of “caste.”
This volume, then, shows how a focus on the role of religion in dis-
putes offers new insights into the dynamics of how our world today gets
both re-enchanted and dereligionized, namely, through forum shopping,
idiom shopping, code switching, and shopping forums. It demonstrates
how in such processes other, often larger issues are negotiated too, such
as citizenship, social hierarchy, and nation building. It is precisely in these
complex entanglements that the domain of the religious is sometimes
extended and sometimes shrunk. The volume also shows that not every-
one is comfortable with these entanglements, and that there are always
xviii I n t r o du c t i o n

some who try to keep the boundaries between the secular and the domain
of faith clear, thereby creating new disputes. The thesis that we are living
in a rapidly re-enchanting world is hence only partly true, as there are also
striking examples in which religion is becoming less important in dispute
management and in the public domain in general.

N OTES
1. See, for example, Mehdi et al., 2007; Sarat et al. 2007; Kirsch and Turner,
2009; Sandberg, 2011; Ramstedt and Thufail, 2012.
2. See, for example, Norris and Inglehart, 2004; Levey and Modood, 2009;
Putnam and Campbell, 2010; Warner et al., 2010.
3. Decades of discussions about the concept of religion and closely related
concepts such as faith and belief have still not generated a definition on
which most scholars agree (see, e.g., Geertz, 1966; Spiro, 1966; Asad,
1993; McCutcheon, 1995; Saler, 2000).
4. See also Cantwell Smith, 1992; McCutcheon, 1995; Berliner and Sarró,
2007.
5. With regard to “idiom shopping,” see also Spiertz 1986.

R EFERENCES
Asad, T. Genealogies of Religion. Baltimore: The Johns Hopkins University Press,
1993.
Cantwell Smith, W. The Meaning and End of Religion: A New Approach to the
Religions of Mankind. New York: Macmillan, [1962] 1992.
Benda-Beckmann, K. von. “Forum Shopping and Shopping Forums: Dispute
Processing in a Minangkabau Village.” Journal of Legal Pluralism 19, (1981):
117–59.
Benda-Beckmann, F. von, and K. von Benda-Beckmann. “Beyond the Law-
religion Divide: Law and Religion in West Sumatra.” In Permutations of Order:
Religion and Law as Contested Sovereignties, edited by T. G. Kirsch and B.
Turner, 227–46. Farnham: Ashgate, 2009.
Berliner, D., and R. Sarró, eds. Learning Religion: Anthropological Approaches.
New York: Berghahn, 2007.
Bowen, J. “Imputations of Faith and Allegiance: Islamic Prayer and Indonesian
Politics outside the Mosques.” In Islamic Prayer across the Indian Ocean:
Inside and Outside the Mosque, edited by D. Parkin and S. C. Headley, 23–38.
Richmond: Curzon, 2000.
Comaroff, J. “Reflections on the Rise of Legal Theology: Law and Religion in the
Twenty-first Century.” In Contemporary Religiosities: Emergent Socialities and
the Post-nation State, edited by B. Kapferer, A. Eriksen, and K. Telle, 193–216.
New York: Berghahn, 2009.
Comaroff, J., and S. Roberts. Rules and Processes: The Cultural Logic of Dispute in
an African Context. Chicago: University of Chicago Press, 1981.
 I n t r o du c t i o n xix

Delaney, D. The Spatial, the Legal and the Pragmatics of World-making: Nomospheric
Investigations. Abingdon: Routledge, 2010.
Eckert, J., B. Donahoe, C. Strümpell, and Z. O. Biner, eds. Law against the
State: Ethnographic Forays into Law’s Transformation. Cambridge: Cambridge
University Press, 2012.
Engelke, M. “Strategic Secularism: Bible Advocacy in England.” Social Analysis
53, no. 1 (2009): 39–54.
Felstiner, W. L. F., R. L. Abel, and A. Sarat. “The Emergence and Transformation
Disputes: Naming, Blaming, Claiming.” Society Review 15, no. 3–4 (1980):
631–54.
Gaonkar, D. P., ed.Alternative Modernities. Durham: Duke University Press,
2001.
Geertz, C. “Religion as a Cultural System.” In Anthropological Approaches to the
Study of Religion, edited by M. Banton, 1–46. London: Tavistock, 1966.
Jayasuriya, K. “Institutional Hybrids and the Rule of Law as a Regulatory Project.”
In Legal Pluralism and Development: Scholars and Practitioners in Dialogue,
edited by B. Z. Tamanaha, C. Sage, and M. Woolcock, 145–61. Cambridge:
Cambridge University Press, 2012.
Kirsch, T. G., and B. Turner, eds. Permutation of Orders: Religion and Law as
Contested Sovereignties. Farnham: Ashgate, 2009.
Levey, G. B., and T. Modood, eds. Secularism, Religion and Multicultural
Citizenship. Cambridge: Cambridge University Press, 2009.
McCutcheon, R. T. “The Category ‘Religion’ in Recent Publications: A Critical
Survey.” Numen 42, no. 3 (1995): 284–309.
Mehdi, R., H. Petersen, E. Reenberg Sand, and G. R. Woodman, eds. Religion
and Law in Multicultural Societies. Copenhagen: DJØF Publishing, 2007.
Norris, P., and R. Inglehart. Sacred and Secular: Religion and Politics Worldwide.
Cambridge: Cambridge University Press, 2004.
Porter, D. J. “Some Implications of the Application of Legal Pluralism to
Development Practice.” In Legal Pluralism and Development: Scholars and
Practitioners in Dialogue, edited by B. Z. Tamanaha, C. Sage and M. Woolcock,
162–96. Cambridge: Cambridge University Press, 2012.
Putnam, R. D., and D. E. Campbell. American Grace: How Religion Divides and
Unites Us. New York: Simon & Schuster, 2010.
Ramstedt, M., and F. I. Thufail (Guest-editors). Asian Ethnicity 13/4: Special
Issue: Law and Religio-ethnic Identity in Post-new Order Indonesia. Abingdon:
Routledge, 2012.
Saler, B. Conceptualising Religion: Immanent Anthropologists, Transcendent
Natives, and Unbounded Categories. New York and Oxford: Berghahn, 2000.
Sandberg, R. Law and Religion. Cambridge: Cambridge University Press, 2011.
Sarat, A., L. Douglas, and M. M. Umphrey, eds. Law and the Sacred. Stanford:
Stanford University Press, 2007.
Spiertz, H. L. J. “Vreemde Gasten: Een Casus uit Bali.” In Recht in Ontwikkeling:
Tien Agrarisch-rechtelijke Opstellen, edited by W. Brussaard, P. de Visser, B.
Dam, G. M. F. Snijders, C. P. A. Geppaart, M. van der Velde, F. von Benda-
Beckmann, H. L. J. Spiertz, A. van Eldijk, F. J. A. Bouman, R. Houtman and
J. M. Polak, 111–32. Deventer: Kluwer, 1986.
xx I n t r o du c t i o n

Spiro, M. E. “Religion: Problems of Definition and Explanation.” In Anthropological

Approaches to the Study of Religion, edited by M. Banton, 85–126. London:
Tavistock, 1966.
Teubner, G. “Juridification: Concepts, Aspects, Limits, Solutions.’ In Juridification
of Social Spheres: A Comparative Analysis in the Areas of Labor, Corporate,
Antitrust and Social Welfare Law, edited by G. Teubner, 3–48. Berlin and
New York: Walter de Gruyter, 1987.
Warner, M., J. Vanantwerpen, and C. Calhoun, eds. Varieties of Secularism in a Secular
Age. Cambridge, MA and London: Harvard University Press, 2010.
 1

INTERMINABLE DISPUTES IN NORTHWEST

MADAGASCAR

Michael Lambek

The literature in the anthropology of religion has queried not only

how to define religion but also whether religion can be defined at all
and whether, as an object, it is a product of the modern state.1 Insofar
as there is some truth to the latter (Asad, 1993; 2003), religion is, in
part, constituted by means of law, but simultaneously as something that is
constituted to stand at arm’s length from the law. Hence, it is no straight-
forward matter to describe the relationship between religion and law—as
though the law could readily interfere in religious disputes or religion
in legal ones (cf. Kirsch and Turner, 2009). When I began to write, I
had in mind to contrast this relationship between religion and law in the
modern state (“secularism”) with the relationship pertaining in a society
in which law and religion were not disembedded from a social whole, in
this case a sacred monarchy. The problem in the monarchy was not the
separation between religion and law, however convoluted, but the lack
of distinction between them. If we begin not with the modern state and,
hence, not with the way law circumscribes religion, but with the sacred
monarchy and, hence, with the constitution of and contestation over the
sacred, then the picture looks rather different. In both models, religion
and law are inextricably entangled; one starts with features intrinsic to
law, whereas the other starts with features that (it claims) are intrinsic to
religion. In so doing, it is a point of similarity rather than a difference that
is marked across the secular/nonsecular division.2
The central theme of this chapter is the impossibility or near impossibil-
ity of reaching a satisfactory resolution in certain kinds of disputes.3 These
are not resolvable in the kind of polity, call it, uneasily, a sacred monarchy,
that I describe here, nor, I venture, in the kind of social fields, call them,
2 Michael L ambek

uneasily, religions, that are the subject of so much current excitement

and discourse. I briefly review two conflicts—in effect, two distinct kinds
of conflict—in the sacred monarchy: first, a long-standing factional split
and second concerning appropriate governance of the main shrine. I use
each to make a slightly different point and illustrate how they remain
interminable—unless one considers either succession—definitively replac-
ing one contender or one form of authority by another—or secession—a
permanent splitting of the contending parties—to be forms of closure.
Neither (suppression of) “voice” nor “exit” of this kind (transformations
in time and space, respectively) are forms of “resolution” in the sense of
fairness, compromise, or mediation.4
The sacred monarchy is that of the Sakalava polity of Boina in north-
west Madagascar.5 I write “sacred monarchy” rather than “sacred king-
ship” because reigning monarchs are often women. From the origin of
the polity around 1700, neither religion nor law were institutions disem-
bedded from the political and social whole. Yet today of course, the mon-
archy is encapsulated within the secular state of Madagascar and, hence,
is subject to similar kinds of legal circumscription as religion in Europe.
Sakalava are state citizens and subject to state law and institutions. Many
are Christian or Muslim, while others declare that they are neither and yet
(as Asad would appreciate) do not explicitly identify their attachment to
ancestral practice as a “religion.” In fact, many Christians and Muslims
also participate in “ancestral practice.”
The most vivid manifestation of attachment is spirit possession, which
occurs not through conversion but through practical experience, whether
it is a matter of particular spirits choosing to manifest themselves in the
body of a particular person, who thereby becomes a medium, or through
solicitation, deference, or other forms of social interaction people have
with spirits manifest in the bodies of their kin or neighbors. The spirits,
tromba, are distinct social actors and are (for the most part) deceased
members of the royal clan; the earlier their generation, the more sacred
they are. Spirits collect funds to support their respective ancestors as well
as the living monarch and the ongoing reconstruction of sacred enclo-
sures, requesting contributions from their mediums and clients. In recent
decades, mediumship has become increasingly widespread, both in sheer
numbers and in the kinds of people who become possessed, includ-
ing many non-Sakalava throughout Madagascar and in Mayotte, the
Comoros, Réunion, and metropolitan France. The financial contributions
of the latter are substantial.
With the conquest of Boina by the Merina in the early nineteenth
century and then the French conquest of the entire island, the power and
autonomy of Sakalava were drastically curtailed. The following vignette
illustrates a contemporary manifestation of subjection to the state. At the
end of the large annual ceremony, the Great Service (fanompoabe), held
 I n t e rm i n a b l e D i s p u t e s 3

in 2007, the officiating but still provisional monarch was consulting with
several ancestral diviners who had manifested themselves in spirit medi-
ums who had come from the countryside for the ceremony. The living
show great respect and deference to spirits, but this time the consultation
was suddenly interrupted when the king’s cell phone rang and he took the
call. It was from a senior government official with whom it was even more
important that he remain on good and deferential terms than with the
spirits. Nevertheless, despite this power to interrupt, there remains some
confusion on the part of successive governments as to how to handle the
ancestral polity and in what respects to treat it as primarily a political,
religious, or cultural institution. While there has been little consistency,
many state officials would prefer not to bear responsibility for resolving
the polity’s internal affairs, notably the disputes among factions of the
royal clan concerning proprietorship of the ancestral relics and shrine that
form the axis of contemporary practices, where interference could have
profound public repercussions.

W HO H AS R IGHTS TO THE S ACRED ?

The relics of the founding ancestors of Boina are housed at the Doany
Ndramisara (the shrine of Ndramisara) on the outskirts of the city of
Mahajanga. They are visited by devotees throughout the year and espe-
cially at the annual ceremony during which the reliquaries are bathed
(Lambek, 2002). The Great Service attracts thousands of people, and a
good deal of money and other gifts pour in to the ancestors and the shrine
that houses them. The relics provide for the well-being of their descen-
dants, subjects of the monarchy, and other devotees. The relics are equally
a responsibility; their continuing sanctity and power are understood to
be dependent upon the respect and proper treatment they receive. They
are the most sacred objects in northwest Madagascar, and their sanctity
is preserved through the means by which they are housed, cared for, and
protected from a variety of pollution. They are sacred precisely in the
Durkheimian sense of being “set apart.”
As sacred objects, the relics are the sort of things that anthropolo-
gists refer to as inalienable possessions. However, this begs the question,
inalienable from whom? While all devotees, especially spirit mediums and
active custodians of the shrine, assume certain rights of access to the rel-
ics, members of the royal clan—that is, descendants of the persons mani-
fest in the relics—claim a special relationship. Indeed, because members
of this clan do not fully die but continue in a half-life of ancestorhood, in
which they are capable of manifesting themselves in the bodies of spirit
mediums, all the descendants of the senior ancestors, both living and
semideceased (hence ancestors themselves), could be said to share in the
rights and obligations toward them. In particular, it is a living descendant,
4 Michael L ambek

the reigning monarch of the region, who oversees the shrine and who is
the immediate recipient of the gifts brought to the Great Service. Because
descent among Sakalava moves through both women and men, produc-
ing numerous collateral lines, royal succession is not straightforward;
there are multiple claimants to the throne and to responsibility for the
relics. Hence, the inalienability of the relics from the royal clan and from
the people (vahoaka) goes hand in hand with a great deal of conflict,
especially between two factions of the clan who never resolved ancient
claims of succession, both of whom claim rights to and responsibility
over the relics and accuse the other of alienating the relics from them.
Indeed, since the French colonial period and explicitly continuously since
at least 1956, the two factions have been involved in a struggle with one
another. For a time, they established a division of ritual labor, each side
having complementary rights and responsibilities at the shrine, enacted
and displayed during the annual ceremony. However, this was followed by
accusations of arson, theft, counter-theft, mishandling, and misappropria-
tion and included the construction and eventual destruction of a second,
competing shrine.
Not being able to resolve the conflict themselves and seeking any means
to win, the two factions each turned to the state for assistance. During the
colonial period, they hired French lawyers, and they have been engaged in
legal actions, appeals, and counter-appeals ever since. However, the mod-
ern state has been no more successful than the ancestral polity at resolv-
ing the conflict. Marie-Pierre Ballarin (2000) has shown in fascinating
detail all the reasons why recourse to the courts has failed. These include
cultural misunderstandings (e.g., whether the relics are to be treated in
the law as objects or persons); confusion or even outright contradiction
between judicial and executive or administrative pronouncements and
actions; use of multiple levels of the court system (regional, national,
appellate, etc.); political interference in the judicial process; questions
about whether the appropriate jurisdiction is one of customary law and, if
so, what are the correct customary precepts; and most of all, the fact that
whenever a judgment has gone against one or the other of the two fac-
tions, they have been able simply to ignore it.6 Resolutions by the courts
have been ineffective and also not fully authoritative because their inde-
pendence and disinterestedness are always questioned. The conflict has,
thus, been interminable; there have been de facto winners and losers,
but the dispute intensifies again when the means become available to the
aggrieved party.7
In sum, the fact that relics are inalienable, in principle, makes their
disposition all the more contentious insofar as there are competing par-
ties who consider the relics inalienable from them in particular. In the
face of this, my argument is neither how religion helps solve nonreligious
 I n t e rm i n a b l e D i s p u t e s 5

disputes, nor how the law helps solve religious disputes, but how both
“religion” (here the ancestral polity) and the law (here the judicial system
of the Malagasy state) appear to be inadequate to the task of resolving
the dispute at issue. I suspect this is true of disputes over the sacred in
general. This is because sacred objects (or words, texts, etc.) are both
inalienable and foundational; it is precisely the sacred objects themselves
that confer legitimacy to do things like adjudicate and resolve conflicts.
Because both Sakalava factions claim rights over the vehicles of sanctifica-
tion that are themselves essential to effective and authoritative resolution,
this case illustrates something more general. If, as argued by so many
Durkheimian anthropologists, the performance of certain kinds of rituals
can resolve conflict or affirm group unity, what happens when the conflict
occurs over the right to perform, officiate, or participate in the rituals in
the first place?
Theoretically, a concept of the sacred as described here precedes any
kind of institutional distinction between religion, politics, and the law; it
is, rather, the very ground on which such distinctions might be legitimated
(Derrida, 1989−1990). Hence, neither religion nor the law is adequate to
resolve conflicts with respect to sanctity (although religion may be able
to restore sanctity when it has been displaced or eroded by conflict). In
this view, both “religion” and “law” draw from the property of sanctity.
As elucidated by Roy Rappaport (1999) and summarized here, ritual pro-
duces a kind of performative truth and certainty, and this truth, encoded
in what he calls “ultimate sacred postulates” (but that for Sakalava are the
relics themselves), is used to legitimate or sanctify more mundane forms
of utterance, including statements and adjudications. Sanctity provides
the contract underlying the contract, so to speak; that is, it provides the
grounds from which more substantive or particular truth claims and laws
are able to draw their authority. In the United States, this is exemplified
by the act of swearing in witnesses with a hand placed on the Bible and
in the phrase “In God we trust” on US currency. God is the ultimate and
inalienable guarantor of the validity of American finance and law. Thus,
despite the ostensible separation of church and state, at a more basic level,
there is a connection (cf. Bellah, 1991 [1967]).
In Rappaport’s model (1999, pp. 441í445), a distinctive feature of
the most sacred postulates is that, while deeply meaningful, they are rela-
tively informationless, that is, they are socially unspecific. Sanctity best
serves the law by remaining neutral or disinterested with respect to the
outcome of specific cases or political platforms. When religion fails to
maintain this neutrality by overspecifying and substantiating the sacred, it
suffers from idolatry.
If religion, in the sense of sanctification, helps ensure the authority of
the law by rendering possible the enactment of valid forms of adjudication
6 Michael L ambek

and dispute resolution, Rappaport’s argument leaves open the question

of what happens when the sacred postulates themselves are in question.
Indeed, in Rappaport’s formulation, the absence of information (substan-
tive content) in the reiterated postulates renders them unquestionable
and, hence, unlikely to be contested. What can arise are conflicts over the
felicity conditions of their invocation (Austin, 1965): who has the right
to utter the postulates, in which circumstances, with what manner and
means, and so forth. Indeed, the conflicts I describe are precisely over
the felicity conditions surrounding the maintenance of the relics, not over
their sanctity. The more closely or directly the conflict is centered on
what is ultimately sacred, the more we might call it a specifically religious
conflict, but equally, the more difficult the means of resolution will be
and the more likely the conflict will result either in silencing or replac-
ing one authority with another (“succession”) or in schismatic splitting
(“secession”). Secessionʊthe peeling away of new sects or denomina-
tions, whether by expulsion or designʊhas been a characteristic feature
of Christianity from its inception.
In sum, the central issue raised here is, If the sacred underpins the
legitimacy of the law and hence the authority to resolve conflicts, what
happens when conflicts arise over the sacred itself? What means are there
to resolve conflicts over sanctity?

M ECHANICAL D IVISION , S ECESSION , AND

C ONFLICT OVER THE R ELICS
Durkheim (1965) famously described law as the nervous system of society
and an index of social solidarity. Hence, he felt it would manifest differ-
ently according to whether a society were organized primarily by means of
a mechanical or an organic division of labor. Anthropologists understood
African chiefdoms and precolonial states largely as segmentary systems,
maintained primarily by means of mechanical solidarity (likeness or equiv-
alence of the parts). I argue, however, that the Sakalava polity can only
be understood if one recognizes the complex intersection of the division
of labor along at least three dimensions.8 I use the mechanical division to
analyze the first conflict over the relics, but then complicate the picture
with respect to what I call organic and particularist divisions. “Labor”
itself is an appropriate concept as it is very close to the Sakalava terms
for ritual (fanompoa, asa), formed the main subject of colonial strug-
gle (Feeley-Harnik, 1991), and serves as the way Sakalava understand
their polity as a distribution of tasks among distinct “kinds” of people
(Lambek, 2002).
Sakalava locate sanctity in living and especially deceased members
of the royal clan, particularly those who have reigned. The most sacred
are the founding ancestors of the polity, that is, those with genealogical
 I n t e rm i n a b l e D i s p u t e s 7

precedence. They are manifest both permanently as relics and periodically

in the bodies and performances of spirit mediums. The power of the relics
as persons is manifest for Sakalava in their immobility, silence, and perdur-
ance. However, as objects, it is a property of the relics that they can be
removed or destroyed. Their current location is intensely contested.
I was first directed to Mahajanga in 1992 by a Malagasy intellectual
who hoped my research might help resolve or at least bring clarity to
the disposition of the relics (Lambek, 1997). The conflict opposes two
factions of royal descendants, each claiming rights over the relics and
the right to officiate at the annual ceremony during which the relics are
bathed and prestations flow in to the living member of the royal clan
who holds authority at the shrine. The Bemihisatra faction has held the
relics since it seized them from the Bemazava in 1973, and its members
have been worried ever since that they will be removed in the same way.9
The Bemazava maintain their own shrine a few kilometers away, bereft
of relics.
The case had been taken repeatedly to state authorities, first those of
the colonial state and later those of the independent republic. Officials
of both the judicial and executive branches at both regional and national
levels, some of whom were related to members of one or the other or
both factions, sometimes took sides but were never able to resolve things
consistently, completely, permanently, or authoritatively. Although the
courts had, on more than one occasion, sided with the Bemazava, the rel-
ics remained firmly in the hands of the Bemihisatra, who used increasingly
stronger measures to prevent seizure by their rivals. The Bemihisatra power
came from several sources, including better connections to government
officials and a much larger number of mediums to channel money.10
The conflict originally seemed, to my friend, an unusual and painful
situation, badly in need of resolution, and to me a particular and contin-
gent event. However, in the face of its continuity and the emergence of a
subsequent conflict within the Bemihisatra faction itself, I have come to
realize that the state of affairs might not be exceptional and to appreciate
that rivalry is an intrinsic feature of the system.11 I might have known this
from the outset had I attended more carefully to the political anthropol-
ogy of Africa, especially the work of Max Gluckman. Reading Gluckman
today is a humbling experience, even if one rejects his more extreme state-
ments about the functions of conflict and rebellion (Gluckman, 1963a). As
Gluckman might have predicted, the main conflict over the relics was not
resolvable, and neither fairness nor justice, as both Sakalava and I under-
stand them, has been a possible comprehensive outcome of the dispute.
Drawing on the work of fellow Africanists, Gluckman argued that
political conflict was intrinsic to the logic of segmentation and observed
two ways that it might be addressed: the first being secession or fission and
the second recurrent struggles over succession, symbolically expressed in
8 Michael L ambek

“rituals of rebellion.” Sakalava correspond to his model insofar as in the

past conflicts over succession could be resolved by secession: unsuccessful
siblings could hive off and possibly develop ancestors and relics of their
own. If they could not take the older relics with them, they remained in
principle subordinate or deferential to the branch that possessed them,
but they could attempt to steal the relics or defeat the segment that held
them (in effect, the same thing).
Secession became more difficult, if not impossible, for reasons having
to do with the power of the encapsulating state and internal population
movement and growth. Processes of both mechanical cohesion and divi-
sion (fusion and fission) have been constrained by the colonial and postco-
lonial states’ attempts to fix group identities and boundaries of territorial
jurisdiction, thereby limiting both the expansion of the ancestral polity and
the hiving off of junior segments. The inability to move to new frontiers
or conquer other polities perpetuates internal conflict and competition,
rendering such conflict endemic. In effect, the curtailment of secession as
a means of resolution has put more pressure on succession. It has also left
these conflicts subject to the legal system of the encompassing state, but
insofar as that state has lacked the means, will, or ability to resolve these
conflicts, they remain simmering. Thus, the situation in Boina is that of a
kind of incomplete fissioning. It is incomplete because there is only one
set of sacred relics, and the very inability to hive off and form autonomous
polities increases the value and attention placed on them.
Mechanical solidarity and conflict among Sakalava refer primarily to
the segmentary structure of the royal clan, which is remembered in no
small part through spirit possession and which reproduces each link in
the complex genealogy (Lambek, 2002). Norms of kinship play a signifi-
cant role because they simultaneously provide the basis for conflict and
the ideology for solidarity within the clan. In Sakalava mythopraxis, par-
ticularly as exemplified in the relations displayed among ancestral spirits
when they possess people, conflict is expressed as a matter of rivalry and
jealousy among siblings, as well as between fathers and sons and husbands
and wives (similar to Greek mythology and Old Testament narratives).
Sakalava addressed sibling rivalry by attempting to reduce the number of
births of reigning monarchs (Feeley-Harnik, 1991) and arguing that the
key positive kinship relation and, in effect, mode of succession, should be
that between mothers and sons (Lambek, 2007).12 While the mythopraxis
helps articulate and interpret factional conflict, it cannot resolve it.
Gluckman argued that mechanical solidarity was reproduced in
annual ceremonies, which, as he famously noted and as is also true for
the Sakalava Great Service, offer frank expressions of both political order
and conflict. In the Sakalava ceremony, the order is found in the way
that different constituencies, including neighboring polities, send offer-
ings and representatives. Conflict is represented in the performance of a
 I n t e rm i n a b l e D i s p u t e s 9

highly stylized dance, rebiky, representing competing royal siblings from

a segmentation dating back to well before the Bemihisatra and Bemazava
split (Feeley-Harnik, 1988; Tehindrazanarivelo, 1997). While the annual
performance still retains deep political and religious effects and meaning
and takes place by means of a careful calibration of forces and interests,
conflict is more evident in the actual production than in the symbolic
representation. In addition, the state has attempted to resignify it as a
manifestation, and ostensibly static display, of “culture.”
If for Gluckman the expression of ceremonial conflict was largely sym-
bolic, real conflict was manifest at succession. The kingship provided a
common point of orientation and a source of value; when a ruler died,
segments competed for his or her office, an office that simultaneously
put them in conflict and united them in service. These insights (without
their causal/functionalist assumptions) remain valid for Sakalava, except
that in Boina each major faction maintains its own living ruler and line of
succession.

C OMPLICATING THE D IVISION OF L ABOR

While the Sakalava polity is certainly characterized by a segmentary or
mechanical division of labor that produces fissioning, this is comple-
mented by two other divisions I refer to as organic and particularist
(Lambek, 2002). These are particularly manifest in respect to what one
could call the ritual or religious domain, but which is also intrinsically
political. I suggest that each mode of division produces its own charac-
teristic forms of conflict or competition and raises its own questions and
means of resolution. Of course, in practice, as Gluckman recognized, the
divisions crosscut and interact with each other.13 The critical point is that
conflicts within the organic division of labor cannot be resolved by fis-
sioning or simple succession to office. Rather, they are resolved either by
face-to-face negotiation—coaxing (mitambitamby), apology, redress, and
compensation—or indirectly by various face-saving measures. In some
instances, the offense is so extreme that resolution is not possible. The
organic division itself could only be undone by revolution or disinterest.
What I call an organic division of labor is among Sakalava manifestly
not constituted along the lines of the distinct institutions familiar to us-
religion, law, and so forth. I sketch briefly what is actually a very complex
system. The division may be seen in two ways, first between the realms of
the living and the partially dead, and the latter composed of ancestors as
well as the spirit mediums and the tomb guardians who manifest and care
for them. The system is also hierarchical in that it is virtually only mem-
bers of the royal clan who emerge as ancestors or have permanent guard-
ians at their cemeteries. The servants of both living and dead members
of the royal clan are known collectively as “ancestor people” (razan’olo)
10 Michael L ambek

and are themselves divided into a number of “kinds” (karazaña), each of

which once had quite specific obligations.14 “Kindedness” in this sense is
passed on bilaterally, but generally today only one offspring need replace a
parent in this role (although other siblings may pass it on to their children
in turn). While some “kinds” were formerly slaves and may remain some-
what deferential today, each of them have specific privileges and sources
of pride. Most Sakalava are neither primarily members of the royal clan
nor “ancestor people,” but as a result of bilateral descent and exogamy,
they have genealogical connections to one or more status groups that can
be activated.
Crosscutting both hierarchy and the specificity of “kinds of people” is
spirit mediumship, as mediums come from all walks of life and levels of
society. Mediumship illustrates a third kind of division of labor that I call
particularist because mediums work on behalf of the particular ancestors
(always more than one) who possess them. Furthermore, each ancestor
has his or her own specific tomb guardian and chief medium, as well as
particular clients or devotees among the general population. As described
elsewhere (Lambek, 1998; 2002), this division enables simultaneous voic-
ing of the distinct historical periods from which the various ancestors come
(i.e., when they lived). At moments of debate over procedure, ancestors
assert or propose answers derived from their particular historical, politi-
cal, and, sometimes, psychological perspectives, enabling different kinds
of opinions and interests to be heard. At times, their respective interests
may be posed against each other, even (and perhaps most saliently) within
the body of a single medium. When speaking in the public domain, ances-
tral spirits have two major concerns—ensuring the sanctity of the shrine
(organic) and speaking on behalf of the genealogical segments and posi-
tions they represent (mechanical). Mediums of one and the same spirit
or of closely related ones develop informal working alliances with one
another, although these may be undermined by competition over public
roles (e.g., having the ear of a ruler) and, increasingly, over access to
wealthy transnational clients.

O RGANIC D ISSENSION AT THE S HRINE

On May 4, 2009, my Malagasy friend called in some trepidation. He said,
in summary, that the shrine in Mahajanga had lost its sacredness. It had
been attacked by a large mob and subsequently closed. He doubted the
relics were still there. In fact, the conflict concerned unresolved royal suc-
cession following the demise of the previous ruler some two years earlier
(Lambek, n.d). The “attack” was carried out by the followers of one of the
contenders, concerned that the other contender had taken over the shrine
illegitimately and frustrated that he refused to negotiate or attend meet-
ings called by the provincial administration. The so-called attackers came
 I n t e rm i n a b l e D i s p u t e s 11

ostensibly to take back the sacred drum associated with the senior ancestor
spirit, Babilahy, who championed their cause. The defenders trampled in
the mud this senior spirit’s garments, which had been stored at the shrine.
The police eventually stopped the fight and closed down public access
to the shrine for a period. Moreover, because blood had been shed (one
death), the shrine had become highly polluted. At this point, the ances-
tors took over. At the request of Babilahy, all the ancestors, from every
generation of the genealogy, gathered at the shrine to cleanse and repurify
it. Mediums came from the surrounding region and cattle were sacrificed,
their blood being the only means to redress the spilling of human blood.
I was told the activities took a month to complete.
My friend’s concerns proved premature; the sacredness of the shrine is,
in fact, remarkably resilient, but this is thanks less to the members of the
royal clan or the shrine managers than to the energy and moral conviction
of the spirit mediums. The question of maintaining sanctity in the face
of conflict and change had been highly salient throughout my fieldwork
(Lambek, 2002). My main consultants were active spirit mediums, and
they directed my attention to the growing disquiet among worshippers,
especially mediums and shrine servants, about the actions of the reigning
monarch and the shrine manager, particularly their increasing authoritari-
anism, sense of entitlement, and specifically the ways in which they cut
corners with respect to the elaborate traditional division of labor. They
were also concerned with the lack of transparency over the redistribution
of money and resources. Finally, they worried about the ways in which
new forms of privilege polluted the shrine (e.g., deferring to state officials
and admitting strangers into the sacred precincts).15
Thus, whereas factional conflict concerned who had control over the
sacred relics, this conflict concerned the manner in which the relics were
cared for and their sanctity preserved. This could not lead to fissioning or
civil war because it expressed the organic division of labor; it was a dispute
over responsibility and the right way to do things, and consisted primar-
ily of what one could call an ethical disquiet and critique.16 Ultimately,
it concerned the kinds of practices that were necessary to maintain the
sanctity and power of the relics themselves against the practical challenges
of the present and the tension between short-term and long-term gains. If
the relics were polluted or profaned, as some saw it, they lost their ability
to establish the truth of things.
Despite the depth of feeling, people were reluctant to express their
concerns publicly or to provoke open confrontation with the ruler and
the shrine authorities. The relics attracted numerous spirit mediums and
worshippers, who told me repeatedly that their allegiance was less to the
living ruler than to the ancestors, as manifest primarily in the relics. They
said that the factional fighting was restricted to members of the royal
clan and had nothing to do with them. The fact that the ruler appeared
12 Michael L ambek

to skim off donations to the shrine and to exploit the shrine servants
irritated people, but not to the point where they withheld their contribu-
tions. They were honoring the ancestors by their donations and sacrifices;
as to what the living ruler did with them, they said, Zahay s’en fou (“We
don’t give a damn”). The living ruler’s wrongdoings would be punished
eventually by the ancestors, and it was not for other members of society
to interfere.
Thus, people were unwilling to rebel openly, claiming loyalty to the
ancestors and the system rather than to any particular living royals, in
a manner that calls to mind Gluckman’s argument (following Maine,
Evans-Pritchard, and others) concerning the significance of the office
relative to the office holder. As John Comaroff (1978, p. 3) said about a
Tswana chiefdom, “While they conceive of the chiefship as the epicentre
of their political universe, the Tshidi combine an esteem for the office with
a highly critical attitude towards its holder. The chief, although entitled to
formal respect and ceremonial precedence, is regarded as a fallible human
being who may or may not be powerful, and who may rule efficiently or
ineptly.” Sakalava hold exactly this view about their monarchs and simul-
taneously conceive their own action and devotion as directed toward their
predecessors, the royal ancestors, irrespective of their ambivalence toward
the incumbent.
However, corruption on the part of office holders could not simply be
disregarded when it was seen that their actions not only supported their
personal affairs at the expense of the community but also insulted the
ancestors and, much more seriously, threatened to undermine the entire
structure by wearing away the sanctity of the shrine and relics, thereby
weakening the ancestors themselves. Among the concerns was the way
the shrine manager gave powerful or wealthy guests access to the relics
in ways that broke the major taboos associated with the shrine. Thus, the
disquiet was not simply about particular office holders, but their impact
on the nature of the shrine. In other words, if ancestors are the source
of sanctity and grant legitimacy to the acts of living rulers, what happens
when acts are permitted that pollute or weaken the ancestors and, hence,
threaten the very grounds of sanctity itself? At least such was the concern
of the more thoughtful spirit mediums. The rulers might have said that
their authority now stemmed from state law; this, however, was hardly
the avenue to encourage popular devotion, and hence, they would have
miscalculated.

V OICES OF THE S PIRITS

It took me some time to get over the assumption that the ancestral spir-
its who rose in charismatic spirit mediums could and should assert their
points of view, “speak truth to power,” redress wrongdoing, resolve
 I n t e rm i n a b l e D i s p u t e s 13

conflict of this sort, impose sanctions on the miscreants, or serve, as the

judicial systems of Western states are supposed to do, as a check and bal-
ance to the executive branch. In fact, the spirits and their mediums with
whom I worked were careful to avoid interfering explicitly in conflicts
among members of the royal family, despite the fact that the living mem-
bers of the royal clan who were in conflict with one another were all
descendants of the more senior spirits. At the same time, each faction
and royal protagonist did have access to some loyal mediums, who were
thereby also factionalized, even when the mediums of different factions
were possessed by the same ancestors. These mediums could, however,
lose popular authority and risk being declared impostors if they took sides
too clearly. The mediums with whom I worked were often torn between
their feelings of support for one protagonist and the need to remain neu-
tral and disinterested.
When spirit mediums disapproved of what living members of royalty
were up to, they were often afraid to speak out directly. The ancestral spir-
its, too, often spoke obliquely or took out their anger on their mediums
rather than on the culprits themselves.
Thus, when the shrine managers called upon Babilahy, the senior
Bemihisatra ancestral spirit with direct authority over the shrine, to
request permission to conduct a renovation of the sacred enclosure and
then promptly ignored what the spirit had told them they needed to do
in order to purify or sanctify the changes, it was the medium herself who
was the victim of the ancestor’s displeasure. She developed a painful swol-
len cheek, as though she had been slapped. The royal clothing belong-
ing to Babilahy that was stored at the shrine also disappeared. When the
clothes were discovered missing, the other ancestral spirits and mediums
gathered in support at a night-long ceremony at the shrine during which
the spirit was invested with new clothing. This was a showing of great
solidarity among the ancestral spirits in the face of the insult perpetrated
by the shrine manager, and while it caused the swelling on the medium’s
cheek to recede and perhaps restored to the ancestors and the shrine some
lost dignity, it did nothing to directly redress or punish the actions of the
shrine manager and reigning monarch (Lambek, 2002, pp. 227í230). It
illustrated that mediums and devotees are at least as vulnerable to ances-
tral anger as members of the royal clan. It was only some time after the
fact that it was learned, by the medium herself as well as by everyone else,
that it was Babilahy (rising in the medium in the absence of any witnesses)
who in anger had thrown away his own clothing.17
One could argue that in refusing to get directly involved in face-to-
face conflicts with the monarch and shrine manager, the mediums were
attempting to preserve their distance and the source of their sanctity. In
Rappaport’s (1999) terms, they were refusing to resort to specific infor-
mation or interest (idolatry) and risk the very thing of which they accused
14 Michael L ambek

their opponents, namely of undermining the sacred. Indeed, as I have

indicated, the larger concern of the more reflective among them was to
protect the very basis of sanctity at the shrine. To have reacted too quickly
to particular faults or to have taken sides in relatively petty political battles
would have weakened ancestral authority and sanctity and been, in effect,
self-contradictory.
While specific conflicts could be worked out between the mediums/
spirits and shrine managers, it is apparent that over the long-run mediums
and spirits serve as both the upholders and manifestations of sanctity.
Hence, they do serve as a kind of check to royal power, as ethical watch-
dogs vis-à-vis the executive branch, and sometimes as vehicles for voicing
popular dissent. Although their agency in the political realm is self-limit-
ing, the potential for standing in disagreement with respect to the living
rulers is also an intrinsic part of the politico-religious system. Conversely,
wise monarchs and managers attempt to keep the ancestors happy, but
cannot submit to all their demands. The smooth running of the shrine
entails mutual deference and continuous efforts to maintain a balance
among the interests of the various constituencies (especially between the
present and the past, the short term and the long term, and the contin-
gent and the continuous), but the effect is not to resolve all conflict so
much as to leave the spirits some room to voice autonomous and possibly
critical opinions.

C ONCLUSION
If this volume concerns the role of religion in disputes, my own contribu-
tion has been to inquire about disputes within religion itself, and espe-
cially in contexts where there is no autonomous or effective legislative or
juridical body at arm’s length from religion. If sanctity authorizes law,
what happens when the conflicts engage sanctity itself?
I have addressed these issues with respect to an ancestral polity within
the present-day state of Madagascar, examining, first, conflict over con-
trol of sacred relics by competing royal factions, and, second, conflict over
the appropriate governance of the shrine at which the relics are housed. I
described these as mechanical and organic divisions of labor, respectively,
and suggested that the former can be resolved only by secession or suc-
cession. Implicitly this raises the question concerning what constitutes
“resolution” and what is the “other” to resolution? In the absence of
clear succession or secession, this “other” might be continuous squab-
bling, but it could equally well be conceptualized as the ongoing conduct
of political life, as characterized by the ordinary exercise of responsibility.
If dispute resolution gives way, on the one side, to political solutions, on
the other it defers to ongoing ethical practice (Lambek, 2010). I think
that is what characterizes the actions of the spirits and spirit mediums in
 I n t e rm i n a b l e D i s p u t e s 15

the second conflict insofar as it entails tensions between individual and

collective interests and between short-term, present-oriented pragmatic
solutions and long-term, past-oriented system-maintaining ones, and it
requires continuous practical judgment. The guardians of the sacred can-
not invest too heavily in politics without thereby undermining the force
of sanctity itself.
The first conflict could not be settled because there was no autono-
mous and authoritative structural position for a neutral mediator beyond
the mechanical divisions; mediators who emerged were rapidly factional-
ized themselves. The second conflict concerns preserving a balance in the
organic division of labor and respect for independent, if suitably culti-
vated, voices. Things became heated when the king and the manager tried
to take the spirits and mediums for granted, and the latter were unwilling
and unable to be fully silenced.
Although the central theme of this volume concerns the blurring of
boundaries as religion becomes increasingly subject to juridification and
the law to religious argumentation and idiom, this chapter has analyzed
a different kind of social formation in which religion and law have never
been fully disembedded in the first place (albeit in a particular postco-
lonial context). Yet the question of the limits to what constitutes “reso-
lution” might hold for religion more generally. Just as certain kinds of
conflicts in polities such as the Sakalava or those described by Gluckman
can be resolved only by means of succession or secession, so too for con-
flicts in what have come to be disembedded and objectified “religions”
or religious institutions. When the autonomy or authority of the sacred is
contested or eroded, there is no other resolution possible. “Succession”
happens when the stronger voice or contestant prevails over the weaker;
“secession” happens when one party exits or is forced out to found its
own sect or denomination. Serious dissent is only resolved by some
kind of revolution or structural transformation, whether with respect to
the nature of the sacred itself (hence “religious”) or with respect to the
authority or power of the custodians of the sacred (hence “political”).
Without revolution, certain disputes are interminable.

N OTES
1. This chapter was written for the workshop “Religion in Disputes”, held
at the Max Planck Institute for Social Anthropology in Halle/Saale,
Germany, October 27−29, 2010, and benefited from insightful com-
ments there as well as at the Department of Anthropology, University
of Toronto. I am indebted to the SSHRC, the Canada Research Chairs
program, numerous consultants in Madagascar, my host family there,
and Jackie Solway and Franz von Benda-Beckmann for extremely helpful
suggestions.
16 Michael L ambek

2. Deep connections between the law and the sacred are postulated by
Agamben (1998) and Derrida (1989−1990), among others. Discussion
of their arguments is beyond the scope of this chapter.
3. My title is intended to evoke Freud’s (1937).
4. “Voice” and “exit” are terms borrowed very loosely from Hirschman
(1970).
5. I conducted ethnographic research over the course of six visits between
1993 and 2001, and again in 2007 and 2009.
6. Ballarin’s work, conducted in the archives and through interviewing the
lawyers and other leading protagonists, corresponds in its event history
and general conclusions with my own account, based almost entirely on
informal interviews within the community of ancestral practice.
7. As Franz von Benda-Beckmann suggests (personal communication), the
very existence of the state avenue may have served to prolong the conflict.
The analogy with current disputes over the presidency of Madagascar is
striking.
8. Class could be a fourth.
9 Here, I overlook the distinction between the relics—small bones, teeth,
hair—and the reliquaries—their ornate containers. For a broader discus-
sion of conflicts arising from materiality, see Keane 1997.
10. Bemazava restrict possession to fewer mediums, conforming more closely
to precolonial practice (Lambek, 2006).
11. Analysis of the succession dispute is developed in a separate paper
(Lambek, n.d.).
12. In reality, succession obviously cannot operate in this way in every genera-
tion. In fact, there are a number of different and potentially conflicting
criteria for selecting a new monarch (Lambek, n.d.; Gluckman, 1963c).
13. Gluckman (1963b) observed that fission and fusion needed to be ana-
lyzed in relation to one another and pioneered the analysis of crosscut-
ting mechanisms. He also brilliantly analyzed juridical case-based dispute
resolution among the Lozi (1955), very different from what is effected
by means of cycles of ritual performance. I am unaware of parallel institu-
tions among Sakalava, although, in the past, there must have been the
means to resolve such disputes, and the monarch was defined as the per-
son who made the final decision as he “cut speech” (manapaka volaña).
14. In the past, handing out specific duties such as authority over commu-
nities of the dead (and thus receipt of cattle brought to the cemeter-
ies) was one means to satisfy junior lines of royalty. Later, colonialism
encouraged a politics of the dead by curtailing the politics of the liv-
ing (Feeley-Harnik, 1991). It is hard today to know the salience of the
dead in the past, but it is likely that they were always significant. Where
and with whom one is buried are critical throughout Madagascar (Astuti,
1995; Bloch, 1971; Middleton, 1999). Moreover, there was a complex
division of labor among the kinds of services owed to dead royalty. In
recent decades, there has been a reduction in the kinds of people and
practices associated with royal burial. At the same time, spirit mediumship
 I n t e rm i n a b l e D i s p u t e s 17

has vastly expanded, albeit as the authority of individual mediums has

decreased.
15. All these issues resonate for me with concerns over the neoliberal man-
agement of universities.
16. This disquiet was no doubt fuelled by the failure to resolve the factional
conflict.
17. Mediums are not conscious of what transpires while they are actively
possessed.

R eferences
Agamben, G. Homo Sacer. Stanford: Stanford University Press, 1998.
Asad, T. Genealogies of Religion. Baltimore: Johns Hopkins University Press, 1993.
——— Formations of the Secular. Stanford: Stanford University Press, 2003.
Astuti, R. People of the Sea. Cambridge: Cambridge University Press, 1995.
Austin, J. L. How to Do Things with Words. Oxford: Oxford University Press,
1965 [1955].
Ballarin, M.-P. Les Reliques Royales à Madagascar: Source de Légitimation et Enjeu
de Pouvoir. Paris: Karthala, 2000.
Bellah, R. “Civil Religion in America.” In Beyond Belief: Essays on Religion in a
Post-traditional World, edited by R. Bellah, 168–87. Berkeley: University of
California Press, 1991 [1967].
Bloch, M. Placing the Dead. London: Seminar Press, 1971.
Comaroff, J. “Rules and Rulers: Political Processes in a Tswana Chiefdom,” Man
13, no. 1 (1978): 1−20.
Derrida, J. “Force of Law: The ‘Mystical Foundation of Authority’,” Cardozo Law
Review 11 (1989–1990): 920−1045.
Durkheim, E. The Division of Labor in Society. Glencoe: The Free Press, 1965.
Feeley-Harnik, G. “Sakalava Dancing Battles: Representations of Conflict in
Sakalava Royal Service,” Anthropos 83, no. 1–3 (1988): 65−85.
——— A Green Estate: Restoring Independence in Madagascar. Washington, DC:
Smithsonian, 1991.
Freud, S. “Analysis Terminable and Interminable,” International Journal of
Psycho-Analysis, 18 (1937): 373−405.
Gluckman, M. The Judicial Process among the Barotse of Northern Rhodesia.
Manchester: Manchester University Press, 1955.
——— “Introduction.” In Order and Rebellion in Tribal Africa, edited by M.
Gluckman, 1–49. London: Cohen and West, 1963a.
——— “An Advance in African Sociology.” In Order and Rebellion in Tribal
Africa, 50–83. London: Cohen and West, 1963b.
——— “Succession and Civil War among the Bemba.” In Order and Rebellion in
Tribal Africa, 84–109. London: Cohen and West, 1963c.
Hirschman, A. Exit, Voice, and Loyalty. Cambridge, MA: Harvard University
Press, 1970.
Keane, W. Signs of Recognition. Berkeley: University of California Press, 1997.
Kirsch, T. G., and B. Turner, eds. Permutations of Order: Religion and Law as
Contested Sovereignties. Aldershot: Ashgate, 2009.
18 Michael L ambek

Lambek, M. “Pinching the Crocodile’s Tongue: Affinity and the Anxieties of

Influence in Fieldwork,” Anthropology and Humanism 22, no. 1 (1997):
31í53.
——— “The Sakalava Poiesis of History,” American Ethnologist 25, no. 2 (1998):
106−27.
——— The Weight of the Past: Living with History in Mahajanga, Madagascar.
New York: Palgrave Macmillan, 2002.
——— “What’s in a Name? Name Bestowal and the Identity of Spirits in Mayotte
and Northwest Madagascar.” In The Anthropology of Names and Naming,
edited by G. vom Bruck and B. Bodenhorn, 116–38. Cambridge: Cambridge
University Press, 2006.
———“How Do Women Give Birth?” In Questions of Anthropology, edited by R.
Astuti, J. Parry, and C. Stafford, 197–225. Oxford: Berg, 2007.
——— Ordinary Ethics. New York: Fordham University Press, 2010.
——— “Succession or Secession? Reflections on a Recent Conflict in a Sakalava
Monarchy,” Unpublished Paper, n.d.
Middleton, K., ed. Ancestors, Power, and History in Madagascar. Leiden: Brill,
1999.
Rappaport, R. Ritual and Religion in the Making of Humanity. Cambridge:
Cambridge University Press, 1999.
Tehindrazanarivelo, E. “Fieldwork: The Dance of Power,” Anthropology and
Humanism 22, no. 1 (1997): 54−60.
 2

DISPELLING DISPUTE IN NATIVE

AMERICAN CHURCH HEALING

Thomas J. Csordas

I NTRODUCTION
The anthropological study of religion has never been only about describ-
ing the internal logic of symbol systems, documenting exotic practices,
exposing the mystification of the material conditions of society, or unrav-
eling the problem of rationality. Insofar as it is also about elaborating
existential meaning, the anthropology of religion has as a prime concern
the intersection of imagination and experience. There are few domains of
religion in which this concern is played out more vividly or compellingly
than the ritual use of hallucinogens, where existential meaning is engaged
in a manner as profoundly personal as could ever be envisioned by James
and as deeply collective as could be expected by Durkheim. Yet another
of those few religious domains is ritual healing, in which existence faces
the experiential starkness of suffering and the absurdity of mortality, and
embraces the imaginative challenge of transformation.
In this chapter, I take up an instance of both at once: ritual healing
using peyote in a local variant of the Native American Church (NAC). I
will first briefly outline the basic NAC ritual, then introduce a particular
healer, and describe a healing ceremony she performed, examining the
experience of the patient and elaborating four existentially meaningful
dimensions of this episode. The account is oriented around four emotion-
ally troubling disputes involving the patient that were addressed in the
healing process: a dispute with the healer, a dispute with her coworkers,
an internal dispute over her own self-worth, and one with a family she
encountered in a health investigation.
20 Th o m a s J. C s o rda s

NAC H EALING
The NAC, also known as peyotism, the peyote cult, or the peyote reli-
gion, has been an important feature in the religious landscape of Native
North America since the early twentieth century (Slotkin, 1956; Stewart,
1987; La Barre, 1989; Anderson, 1996; Hultkranz, 1997; White, 2000).
It is based on the sacramental use of the peyote cactus, which contains
several psychoactive alkaloids, most important among which is mescaline.
Peyote is regarded as both a spirit and a medicine, filled with transfor-
mative healing power for those who use it appropriately (Schultes, 1938;
Brito, 1989; Wiedman, 1990; Jilek, 1993; Lyon, 1996). The peyote ritual
was developed in its contemporary form by Plains Indians, whose tradi-
tional religion cultivated the possibility of visionary experience, and hence,
a vision-inducing medicine was accepted with little hesitation. It was not
until the 1930s that some Navajos began to take up peyotism, but not
without controversy. Traditional Navajo religion is highly liturgical, with
an elaborate philosophy and cosmology, and the new religion was regarded
as a dangerous foreign encroachment. Indeed, the Navajo tribal govern-
ment made the peyote religion illegal, and arrests were frequent until the
laws were finally relaxed in 1968 (Aberle, 1991). Although worship and
healing are both important goals of peyote ceremonies across tribes and
branches of the NAC, in accord with its prominence in traditional Navajo
culture, healing is highlighted in Navajo peyotism, and there is invariably a
designated patient in the ceremony who is the focus of participants’ prayers
and the primary beneficiary of the ceremony’s healing powers (Calabrese,
1994; 1997; Huttlinter and Tanner, 1994; Quintero, 1995; Lewton,
1997; Davies, 2001; Garrity, 1998; Csordas, 2000; 2002).
Partly under the influence of Christianity, partly in order to have
grounds for invoking the constitutional right to freedom of religion in
the face of federal and state laws that outlawed peyote as a dangerous
drug, and partly perhaps to facilitate pan-tribal organization on a con-
tinental scale, Plains Indian adherents of the peyote religion quite early
incorporated the NAC of North America. Later, as peyotism outlived
legal challenges in the Navajo Nation, a separate organization called the
NAC of Navajoland was incorporated. The separation reflects not only
the Navajos’ desire, given the large size of the Navajo Nation and its
population, to control their own affairs, but also the cultural distinctions
between the Navajo and their Plains brethren. The difference between the
two branches of peyotism can be roughly analogized to that between the
Roman Catholic Church with its universalist and transnational orienta-
tion and the Anglican Church with its nationalist interpretation of what
was at least originally a virtually indistinguishable version of Christianity.
Despite these distinctions, the basic ritual of the peyote religion is fun-
damentally the same, consisting of an all-night prayer meeting that lasts
 D i s pe l l i n g D i s p u t e 21

from dusk till dawn of the following day. Peyote meetings typically take
place in a Plains-style tipi erected specifically for the purpose, although
they may also be held in the one-room, hexagonal-shaped traditional
Navajo dwelling called a hogan, which is also the site of traditional Navajo
ceremonies (this option is available regardless of whether participants
belong to the NAC of North American or NAC of Navajoland). In the
NAC, a person who runs peyote prayer meetings and heals or “doctors”
others is called a “road man” because he leads others on the spiritual path
of life, called the “peyote road.”
The road man has a set of paraphernalia or ritual instruments in a
wooden case that he brings to the meeting. Foremost among these objects
is the chief peyote, a large peyote cactus button that is the center of ritual
attention, a venerable representation of the peyote spirit that often has
been bequeathed to the road man by his mentor, from whom he learned
how to conduct a ceremony. Other vital instruments include an eagle bone
whistle, eagle feather fan, staff or cane, drum, rattle, the peyote medicine
itself—often in the form of a dried powder and/or a tea (less frequently
today in the form of whole peyote or peyote “buttons”)—and cedar to be
burned for its purifying smoke. If the ceremony is held in a tipi, an open
fire is built in the center and vented through the hole at its apex, and
an earthen altar is made just to the west of the fire. In some versions of
the ceremony, the shape of the altar is that of a crescent moon wrapping
around the fire, low and narrow at both ends and becoming thicker and
about six inches in height at the center. The crescent represents the pey-
ote road, the life trajectory of the human being from the small beginning
to the prime of life in the center, and diminishing to the end of life at the
other end of the crescent. The ceremony is divided temporally into two
parts: the time before midnight and the time after midnight. Participants
sometimes say that their experience is qualitatively different in the two
parts, in that they may have more difficulty handling the effects of the
peyote medicine before or after midnight. There are standardized prayers
or types of prayers during certain parts of the ceremony, but much of the
prayer and song is improvised. During the meeting, participants consume
peyote, which is passed around as people take turns singing (each person
sings four songs before the turn passes to the next person) and praying
or addressing the patient and participants. The peyote is typically passed
at least once before midnight and once after midnight, and likewise the
drum and rattles are passed around the circle of participants at least once
before and once after midnight.

H EALING L OUISE
In the course of researching therapeutic process in Navajo healing
(Csordas, 2000; 2002), my assistant and I worked with a healer who
22 Th o m a s J. C s o rda s

practiced the peyote ceremony, which she had learned from her father.
Effie is a rare example of a road woman—although female healers are
not unheard of among the Navajo, males predominate by far (Csordas,
2005). Sixty-seven years old when she began participation in our project,
Effie had been married for 44 years. She has had only a few years of for-
mal schooling, and speaks Navajo almost exclusively. She has part-time
employment providing home day-care for senior citizens, but much of her
time is spent in her healing practice.
The ceremony I will describe was held for the benefit of Effie’s daugh-
ter Louise, who had been suffering from back pain since falling off a
fence the previous year. Louise was 51 years old at the time. Both of her
parents were still living, and she had an older brother and two younger
sisters. She was a high-school graduate with some college, having taken
college courses while working full time in a public health–related posi-
tion, but she dropped out in her sophomore year for family reasons. She
enjoyed her work, which included contact with the public and commu-
nity education, but was deeply disappointed that she did not receive the
same degree of recognition as her fellow employees. She had never been
married or had children of her own, but had raised a nephew who was
18 years old and starting college and cared for her nine-year-old niece,
living with her parents all the while. Louise treated both her nephew
and niece as if they were her own children and spoke of them as such.
Reserved by nature, Louise reports having been really shy until the peyote
medicine taught her to be more outgoing. She also reports having been
quite skinny, weighing only about 140 pounds, but she has gained weight
over the past eight years and now weighs 180 pounds.
Louise had been involved in the NAC since infancy, but, although she
took peyote as a medicine, she never consistently participated in ceremo-
nies until her mother took over as the leader of the prayer meetings fol-
lowing the death of her grandmother. Then one day driving home from
college, she had a transformative experience:

All of a sudden, some type of feeling came over me, then I started think-
ing about how God has created us feeling—you know, like even down to
our nails—and how these, you know, all the blood vessels are constructed
and the heart and the oxygen. So at that moment, you know, I was in tears
because life is so beautiful because it was created. So after that, I dropped,
you know, back over here, back into the hogan where I was supposed to
be at, to help me go forward. So I started going, and then I never missed a
meeting. That was almost twenty years ago.

Although she participated in peyote meetings on a regular basis, she had

been the principal patient in such a ceremony only once, 16 years ear-
lier when she had just come through a stressful episode at work. In her
 D i s pe l l i n g D i s p u t e 23

account, coworkers mistook her input for criticism and turned against her.
Since that time, regular peyote meetings have been a source of strength:

Whenever [sighs] my job gets really tough, because you have to do a lot of
thinking, you have to have an answer for somebody when they ask you all
these questions . . . so I have to be ready. So I’ve been coming into the meet-
ings and getting help. So it has helped me a lot. I get help when there’s a
meeting going on, you know? Before we come in—I’m close with my mom,
and I talk with her about my problems at work. So this is my life, my job,
and then my future.

Louise felt that the peyote medicine brought her acuity and performance
up to the level of her coworkers, even though they had bachelor’s degrees
and she did not. In the current situation, she cites the reason for the cere-
mony as “just being stressed out. I’m so tired that, you know, I don’t feel
like even going to work. I have all these worries, like, ah . . . my cousin’s
in the hospital, and I’m feeling tired and tired, even though I still work. I
work and then I come back here and I weave.”
She had been feeling this way for several months, ever since she had
fallen on her back while tending animals in the family corral. At that
point, she says, it was “like you drop something and then there’s some-
thing that came out—the main strength [laughs]; it just go out of you.”
Indeed, her back pain was the ostensible problem for which Louise pre-
sented herself as a patient.
The ceremony proper began just before 11 p.m. on a Saturday night.
It took place in a hogan with a wood stove at the center. Characteristic
of the Water Way variant of the ceremony practiced by Effie, instead of
the typical earthen altar, a circular path of water was sprinkled around the
stove, with the cardinal directions marked in cross-hatches of sprinkled
water. Effie gave some words of introduction, as did Louise. There were
only ten people in the hogan, all family members, including Louise’s
adopted daughter. Participants sat against the walls of the hogan on blan-
kets on the floor. Beginning at the door on the eastern side of the hogan,
the “fireman” (the ceremonial officiant responsible for tending the fire
throughout the night) sat just north of the door. Immediately south of
the door was the armchair in which Effie would later sit while diagnosing
and treating the patient. Two male relatives sat in the southeastern part of
the hogan, next to the armchair. I sat to their left, in the southern section
of the hogan, and my research assistant sat next to me. Next to him there
was a woman, and then Effie, who sat in the western part, directly oppo-
site the door. Louise, the patient, was next to her, with Louise’s daughter
and my assistant’s wife in the northern quadrant of the hogan.
After several opening songs by Effie the medicine was passed, in both tea
and powdered forms, and there were two rounds of singing by participants.
24 Th o m a s J. C s o rda s

Effie then crossed the hogan to the diagnosing chair, and Louise approached
her. She was instructed to make several circuits on the water path around
the fireplace, pausing at the cardinal directions to take deep breaths while
stretching her arms up above her head. As we learned later, while Louise
walked on the water path, both she and Effie experienced mental imagery
that revealed something wrong with her back. In addition, Effie learned
through such revelation that Louise had some disturbance in her reproduc-
tive system and was in emotional distress as well. When Louise came back
to Effie, the healer said a very long prayer. At about 2 a.m. in the morning,
water was brought in for participants to drink, and then we took a break
and went outside. The break lasted about a half hour.
During the second half of the ceremony, Louise received a lot of atten-
tion from Effie at the diagnosing chair. The patient here is in a very uncom-
fortable position, crouching or bent over, talking in the healer’s ear, while
singing and drumming continues all around. The healer perches on the
edge of her seat, leaning over to hear, much like the position of a Catholic
priest in the confessional. The healer and patient went back and forth
from their places on the west side of the hogan to the chair several times,
and during the longest of these consulting periods, Louise must have
circled the fireplace seven or eight times. In addition, during this time,
several people spoke, offering quite lengthy prayers for the well-being of
the patient and thanking the healer and other participants for their mutual
support. Peyote was passed again only once during the second half, and
only in the form of tea. Effie took some more peyote when it was nearly
dawn, and I think Louise did, too. It appeared that they finished all the
tea in the pot, since it was placed on the floor next to the water table after
the meeting. The ceremony ended as it began, with several songs by Effie.
The characteristic morning ritual meal of water, corn, fruit, and meat was
brought in by Effie’s sons (not by a woman, as is most common in NAC
ceremonies), and there was no special prayer to go along with it.

A FTERMATH : A M ATRIX OF D ISPUTE

In the history of anthropological studies of ritual healing, descriptions
of ceremonial activities were often followed by speculative interpreta-
tions of how such healing might work—if indeed it did—perhaps oper-
ating as a form of indigenous psychotherapy distinctive to a particular
cultural milieu (Kiev, 1964; Frank and Frank, 1991; Csordas, 2002).
The late 1970s marked a decisive departure from this orientation.
Bourguignon’s (1976) definitive review of the literature to that point
posed the problem of accounting for the multiple factors in terms of
which the effectiveness of healing must be determined, while Kleinman
 D i s pe l l i n g D i s p u t e 25

and Sung (1979) asserted that healing was ipso facto effective because
it defined its own terms. Recognizing the need to go beyond broad
descriptions of healing systems and even of words and actions within
actual ritual performances, these works initiated a turn toward the con-
crete experience of patients and healers. It became possible and even
necessary to ask participants what they were going through in the pro-
cess of healing, attending to the manner in which ritual addresses not
only physical and emotional suffering but also the existential issues faced
by people in everyday life as well as in extreme circumstances (Kleinman,
1997; Csordas, 2002). In this tradition, we proceed now to consider
how both Louise and Effie experienced and understood what happened
during the peyote ceremony, with particular focus on disputes that were
identified and addressed.

M OTHER –D AUGHTER D ISPUTE

Louise volunteered to be the patient in this ceremony because no one
else was available to fill that role, and Effie had promised to hold a cer-
emony on a certain date to accommodate the participation of me and my
research assistant. I determined that this was methodologically accept-
able and not inordinately artificial or “staged” both because it is not
unusual for family members to be patients, and because Louise asserted
that a ceremony on her behalf was overdue in any case. However, tension
arose because, regardless of kin relations, a patient is expected to pay the
healer, but, in this instance, Louise felt that she was doing a favor both
to us and her mother by becoming a patient and was reluctant to pay. In
her words,

You know, I’m such a stubborn lady [laughs softly]. So, um . . . well, my
mom was talking about all the money, because I don’t have any money now.
I don’t get paid until next week. And I have a truck that I pay on . . . and it
takes all my money . . . You know, when we have a meeting like that you [the
patient] have to pay so much [to the healer]. And I say, “OK, big deal; I’ll
just sit in there and say nothing.” And so I went in there with that attitude,
but then, um . . . as I took the medicine, you know . . . I sang the words, “I
ain’t got anything.” Then I started talking to her [at the diagnosing chair],
and I could see all these problems, you know. See, I never see those things
myself—realize that I’m stubborn. I can get really stubborn if I want to. So
anyway, I started seeing those things; I could feel it [the medicine].

Ultimately, in short, the power of the medicine made Louise realize that
she, in fact, was the beneficiary of the healing, and the victim of her own
stubbornness. Her resistance to the medicine and the therapeutic process
26 Th o m a s J. C s o rda s

dissipated. (I never found out whether she actually ended up paying her
mother or not.)

D ISPUTE WITH C OWORKERS

Recall that Louise told us that the last ceremony in which she had been pri-
mary patient addressed a stressful episode at work. During the current cer-
emony, which began with back pain as the presenting complaint, she dealt
with an instance in which coworkers did not give her adequate credit for
work she had done, and in fact portrayed her work as their own. She said,

We talked about a lot of things. I said, how about, you know, I done things,
like, in my mind I would criticize a person. [Co-workers] never ask me for
help directly, but yet they use my reports, you know. And they think of me
as, just like, uh, another Navajo that they, you know, went to college, but
with this peyote . . . it’s a controversy . . . They sort of blame me for making
more work for them because of my report that I did. To the point, precise,
and all that. And I said, “What did you guys think of that good report?
You guys do it your way, you don’t have to follow, you know, mine.” But
the acting district director told everybody that they have to do their report
according to what I had done. And that’s why they said I created more
work. If a bilagaana [white person] did that, they’ll follow it, they’ll dis-
sect it. But it was just a Navajo without a degree. And who, who is she,
you know, to be higher than us, without the paper? One [co-worker] is an
Anglo [white person], two others are Navajos who both have four-year B.S.
[degrees], and one of them has a one-year A.S. So, accidentally they threw
one of that lady’s reports in my box. And then my head starts hurting.
Because when I finished that, a pretty good-sized report, word for word,
it’s just what I had said. I said, Uh-huh, they did use my report. Things like
that, you know.
That depresses me, like, OK, I don’t give, you know, I don’t give um, well,
I have bad words for that, but in real life I don’t care. I worked so hard for
what I am, and what I have, and all the kids and all have a good life. Worked
so hard for that. And all these people, you know, I’m trying to help them,
they turn around and stab me. That’s no way, I thought. I don’t care. I just,
I’ll just take life as, you know, the days, the hours.
You know my own family, they appreciate me. So why should I care?

In this account, Louise exhibits bitterness, depression, resignation, and

an awareness that her family is her source of refuge and solace. My sense
of the locus of therapeutic action in this instance was not so much that a
dispute was resolved or transcended, nor that Louise really “let go” of her
feelings, but rather that she was able to face and experience them in a way
that was both intense due to the effects of the medicine and safe because
of the nurturing environment and skill of the healer.
 D i s pe l l i n g D i s p u t e 27

I NTERNAL D ISPUTE ABOUT S ELF -W ORTH

In the wake of her troubles at work, the specter of depression was raised;
this came out during the ceremony in conjunction with the feeling of
being beaten down and devalued:

And so, I was thinking [during the ceremony] about, you know, the
two kids that I have in my life. I was thinking, just last night, that I want
to go to the personnel department today and file the papers, if I should
die who gets the money, uh, to split it for those two kids that I have.
Nobody else. So I was thinking that, out of the blue I was thinking that.
And then, then there’s that little faith or hope that still lights inside me,
it’s like, it just shut me off. Oh well, you know, god has given me this
life, and then uh, you know, it’s up to him to show me the way, to help
me, do this again. Oh well, I’ll just leave it up to God and see what
happens. At the same time, I was thinking all about this negative stuff
and even, even I knew that inside me was beginning to not like meat, I
eat just a little bit when I get home. So the food [appetite] was going
away from me. I noticed that. And then, you know, everybody was just
fat. I was always, like, skinny. Underweight. Um, I never got this fat. So
last night was like, I have to find out if all those things I been dealing
[with] serve a purpose or something in my life. It’s the mistakes that I
have made. You know, it’s not like doing it with my hands, just like in
my mind. So, I think I almost struck [i.e., damaged] my life without
knowing, ’cause I kept thinking, oh well, who cares? I don’t care. So
I guess that’s, that’s how it is when you’re depressed? You stop caring
and stop eating.
My mom was looking at the whole thing, the whole picture. [She saw
that] I’d totally given up. And that’s where my mind was trapped.
Um, it’s just like, you’ve given up life, so I don’t care. I got to do
all these preparations. You know, preparations for what? There were
times, especially last week, when I think about my kids, I have a tear
in my eye. You know, when you’re about to cry you have this hurt in
your throat? It started doing that. So my mom was telling me that, in
this peyote meeting, through the word of God you can still walk back
here. She explained to me where I will be walking during the different
times going around the stove, like walking back here, receiving a good
life . . . That’s what we did last night. Like I walk back into a good life.

In this account, Louise indicates that Effie’s ministrations brought her

back from the edge of a depressive abyss. The internal dispute is that of a
depressive logic of negative thoughts and self-denigration that was coun-
tered by her openness to a good life into which she was led by the physical
act of walking around the stove, the fire at the center of the hogan provid-
ing life-enhancing light and heat.
28 Th o m a s J. C s o rda s

D ISPUTE OVER R OTTEN P EYOTE

As part of her work, Louise was called to investigate a case in which some-
one became extremely ill after a peyote ceremony. Louise determined
through laboratory analysis that the peyote used had not been stored
properly and became rotten, making the man sick. The sponsors of the
ceremony were extremely offended, having maintained that the sickness
was caused by witchcraft, and turned on Louise. The following account
was given by Effie:

Did she tell you about the [public health investigation]? The people got
mad at her and they were saying that it wasn’t the rotten [peyote that made
a man sick] and it was just witchery. The man almost died from that and
now he isn’t speaking clearly and his mouth is crooked. [They said] that
Louise blamed the peyote and that she responded to a person in a mean
way. I guess she shook them up and they got mad at her. She was all by
herself and [they threatened that] it’ll catch up, hook you up with it, I
guess they said something like that. I guess later on when that person got
better and came out of the hospital they used the tobacco and held a peyote
meeting against Louise and they were saying that it was her fault because
she blamed the peyote.

Effie explained that peyote has a good side and a bad side, in the sense
that it can be used both to heal and to harm. In this instance, the medicine
itself—the sentient Peyote Spirit—led Louise into the ceremony through a
kind of subliminal influence established through her long-standing devo-
tion. For Effie, this was proven by the fact that Louise had not consciously
decided to seek healing, but ended up in the role of patient through what
at first appeared to be the happenstance that no other patient had come
forward. Indeed, Effie herself had not known Louise was as sick as she
was. Thus, Effie concluded that the presence of the researchers had actu-
ally helped Louise―or perhaps more precisely, the Peyote Spirit made
use of the researchers in order to help Louise.

E XPERIENCE , E FFICACY , AND N ORMATIVITY

The disputes that emerged in this healing ritual were addressed insofar as
they were understood to have produced harmful effects on the patient. In
other words, it was the injurious aspect of the disputes that was addressed,
and the ritual healing was performed to heal the injury. On the basis of the
insights offered by these accounts, can we then say that Louise was healed
in this ceremony? If we judge the therapeutic process by the criteria of the
patient’s predisposition to be healed, experience of the sacred, elaboration
of alternatives for her life, and actualization of change (Csordas, 2002),
we can provisionally say yes. Her predisposition as a lifelong peyotist, a
 D i s pe l l i n g D i s p u t e 29

daughter who trusted her mother (despite some superficial tensions over
payment for the ceremony), and a mother committed to her children
made her an ideal candidate for ritual healing. She experienced the sacred
in the form of peyote visions entrained by sacred songs, in the form of
walking her illness away around the path of water, and in the form of
the revelation of just how much in need of healing she really had been.
The alternatives presented to her through the ritual process of diagnosing
and talking through her troubles included thinking in terms of life rather
than death, hope rather than depression, and the strength of her family
rather than the disappointment of her working life. The actualization of
change, although it is something that remained to be consolidated both
in everyday life and in a future ceremony of thanksgiving, was evident in
her conclusion that she had been hurting herself and her resolve to build
up her self-esteem and walk back into a good life.
We can take the discussion a step farther, however, specifically with
respect to this volume’s concern with the role of dispute in reproduction
and change within the wider complex of religious and nonreligious nor-
mative orientations. Louise and Effie both presented coherent accounts of
what mattered to them experientially and therapeutically in this instance of
ritual healing, and for the most part their accounts are in accord with one
another. More important for an intersubjectively attuned anthropology of
experience, however, is the fact that, although their life world is defined
within a particularistic cultural and religious context, their understand-
ings are accessible in broader normative, existential terms. To be precise,
we can identify four existentially meaningful normative dimensions of this
episode: moral, spiritual, psychological, and physical. I will briefly demon-
strate this conclusion by parsing from the post-healing experiential com-
mentaries of the patient and healer the principal elements within these
four dimensions of their existential situation.

T HE M ORAL
The moral element most in evidence among participants in this instance
of spiritual healing is care. Care inheres in the bond between mother and
daughter, in the moral support provided by members of a closely knit fam-
ily, and in the concern of the patient herself with providing for her adopted
children in case she does not survive. Such care is not unique to the Navajo,
but what places it in cultural relief is the fact that the family has both a
powerful medicine in the peyote administered by an experienced healer and
a ceremonial setting in which to articulate both distress and concern for
that distress. Within this matrix of care, a modicum of mother–daughter
tension was evident in Louise’s objection to her mother raising the issue
of the healer’s fee. This tension did not appear so much as a product of
their personal relationship, however, but rather because Louise felt a fee
30 Th o m a s J. C s o rda s

was inappropriate insofar as she was doing a favor by volunteering to be the

patient for a ceremony organized to coincide with the ethnographers’ visit.
In any case, the tension did not interfere with the provision of care.
We can gloss a second element of the moral dimension as that of good
versus bad, encapsulated in the perceived unfairness that Louise suffered
at the hands of her coworkers. Louise did not express this unfairness in
terms of White racism against Indians (after all, some of her coworkers were
Navajo), but in terms of a prejudice of the educated against the less edu-
cated. Not only was Louise denied credit for the report she had written, but
also she felt taken advantage of by coworkers who incorporated her words
verbatim into their own reports. The moral valence of this unfairness—its
“badness”—lies not in that she was harassed, picked on, or treated meanly,
but that she was devalued, disrespected, and rendered inconsequential.
A third moral element is that of good versus evil, and here we refer
to the curse placed on Louise by a family who perceived as an insult her
determination in a public health investigation that they were negligently
responsible for an illness, and who wanted revenge. Note that this curse
was perpetrated by invoking the power of peyote itself. Effie made it clear
in her teaching that the power of peyote is, to loosely invoke Nietzsche’s
famous title, beyond good and evil. It is the intent of the user that mat-
ters, such that good and evil are clearly characteristics of the human spirit
and not of the divine spirit of the medicine.

T HE S PIRITUAL
It is perhaps not unusual for a mother to be only partially aware of her
adult daughter’s overall condition and degree of distress, and not unlike
either a healer or a mother to be skilled at discerning a deeper level of
pain than appears on the surface. What is more unusual is the availability
of a highly elaborated spiritual resource such as the peyote ceremony,
and the status of the mother as a cultural specialist. Both the patient and
healer frame the diagnosis in spiritual terms as a form of revelation, but
in fact it is impossible to determine how much can be attributed to prior
knowledge, how much to intuition, and how much to inspiration. Effie’s
reported visual imagery of Louise’s back is diagnostic of how the injury
affected her, while Louise’s visual imagery of her own back is therapeutic
in its focusing of attention on the problem, but both are experiences
of the sacred. It is likely that, for both patient and healer, vision in the
state of enhanced consciousness induced by the peyote medicine is best
described as (1) vividness of imaginal-perceptual focus, as when Effie visu-
alizes Louise’s back and internal organs and thereby determines or “sees”
what is wrong and (2) conviction that one has penetrated to the heart of
the matter, as when Effie definitively and empathetically determines or
“sees” the extent to which Louise is in fact depressed.
 D i s pe l l i n g D i s p u t e 31

The peyote medicine and the NAC ritual constitute a distinct spiritual
locus for healing. Louise considered peyote to be a source of strength in
everyday life, a remedy for shyness, and a means for boosting her cogni-
tive skills. She expected the healing effects of her ceremony to endure
for years, the point being that although the ceremony’s spiritual influ-
ence could indeed wear off eventually, it was nonetheless profoundly and
durably transformative. Effie articulated the importance of this spiritual
locus by consistently distinguishing and distancing her practices from
those of traditional Navajo religion. In her discussion of the family that
attacked Louise following her public health investigation, she made it
clear that the negative use of peyote was at issue and not traditional
Navajo witchcraft. In general, her attitude toward traditional Navajo reli-
gion was sometimes dismissive, sometimes respectful; sometimes she was
willing to point out corresponding features or interpretations from the
traditional way, but invariably she asserted the superiority of the NAC.
Finally, insofar as the problems addressed in this instance were deter-
mined by Effie and recognized by Louise as more severe than antici-
pated, even the fact that the ceremony was performed for the benefit
of the ethnographic team was brought under the spiritual aegis of the
peyote medicine. We were understood, in effect, as instruments of the
divine, insofar as peyote as a spiritual actor brought the researchers in as
a pretext for helping Louise.

T HE P SYCHOLOGICAL
The psychological dimension of this episode appears in a way that sup-
ports the aforementioned analogy between ritual healing and psychother-
apy. This is evident first of all in the language adopted to describe Louise’s
trouble. The notion of “stress” plays a central role in the discussion of
her work environment, and this is linked directly to a diminished sense
of “self-esteem.” The concept of “depression” is central to describing
Louise’s existential state, and this is linked directly to symptoms includ-
ing loss of appetite and the sense of wanting to “give up” on life. The
power of one’s negative thoughts about one’s own body to bring physi-
cal harm on oneself is an indigenous psychosomatics articulated as “the
thoughts in your mind will stop somewhere inside your body.” This mate-
rial suggests that the bodily locus of thoughts can have both physical and
emotional effects. It is critical to note that Louise reflects her mother’s
insistence that, contrary to traditional Navajo therapeutic philosophy, this
effect of negative thinking is not to be understood as a result of witchcraft
that can be treated by ritually sucking out the material or object inserted
by the witch. This goes beyond the spiritual preference for the NAC over
traditional understanding and exhibits more a preference for psychologi-
cal over spiritual etiological interpretation.
32 Th o m a s J. C s o rda s

In addition to these conceptual and terminological elements that con-

form to the psychotherapy analogy, we can also point to elements of pro-
cess reminiscent of psychotherapy. Thus, in the course of this episode,
Louise demonstrates some lack of insight until an issue is brought out
in therapy, then a sense of gaining perspective on her own situation, and
an arrival at a new stance on how to comport herself. This is achieved in
intimate dialogue with the healer, who does not present herself as all pow-
erful, but expects both personal disclosure and the taking of responsibility
by the patient for her own improvement, albeit with divine assistance.

T HE P HYSICAL
Effie’s healing ministries are initially addressed to a physical problem,
namely, back pain due to an injury sustained in a fall. We can interpret the
trajectory of the therapeutic process by further elaborating our under-
standing of the implicit indigenous psychosomatic theory already men-
tioned above. In Louise’s preceremony interview, she told of an earlier
instance in which work stress made her susceptible to a back injury, and
in the current instance a fall that deprived her of energy made her sus-
ceptible to work stress. This suggests that if the indigenous psychosomat-
ics includes a causal vector from stress and negative thoughts to physical
distress, it also encompasses a reverse causal vector from physical injury
to psychological distress. Moreover, the physical injury led to something
deeper both in a bodily sense, as evinced by Effie’s determination that
the shock had affected Louise’s womb and menstrual period, and in an
emotional sense, as the psychosomatic vulnerability created by the fall
initiated an affective constellation of hopelessness, irritability, dysphoria,
and loss of appetite. It is important to note here that in Navajo philoso-
phy the breath or wind that inhabits a person constitutes that person’s
spirit. Thus, to say that a fall “knocked the wind out of me” might mean
something of significantly greater import to a Navajo than to a Euro-
American. Meanwhile, since the physical problem can be presented as the
overt purpose of the ceremony, the emotional and existential complexity
of the situation can be dealt with between healer and patient in privacy.
Another aspect of the physical dimension of the healing experience has
to do with sensory experience, space, and movement in the ritual setting.
In the first place, NAC peyote meetings are characterized by multisensory
engagement including the sound of song, drum, and rattle; the smell of
cedar smoke used as a form of blessing; the feel of heat from the fire; the
visual immersion in darkness; and the taste of the bitter peyote medicine
and the ritual meal near the end of the ceremony at dawn. In the variant
practiced by Effie, there is in addition a number of meaningful alterations
in the configuration of space. The primary alteration is the reposition-
ing of the healer from sitting on the earthen floor at the western end of
 D i s pe l l i n g D i s p u t e 33

the room to sitting in a chair next to the door at the eastern end during
moments when diagnosis and patient–healer dialogue are the main activi-
ties. In these moments of soul-searching the space by the door takes on an
air strongly reminiscent of a Roman Catholic confessional. Second is the
substitution of a closed wooden stove for an open fire, and the marking of
a circular path of water around the stove marked with cross-hatches at the
four cardinal directions. A third alteration is conducting the ceremony in
a Navajo hogan rather than the more typical Plains-style tipi, a move that
emphasizes the home-grown innovation of Effie’s ceremony.
Movement plays a significant role in the therapeutic process, again
with enhanced meaning, in contrast to more typical NAC ceremonies in
which the patient as well as other participants remain largely stationary
throughout. This is most profoundly evident in the practice of instruct-
ing the patient repeatedly to circumambulate the stove and traverse the
sacred path of water around the four cardinal directions, thereby walking
away the problem in a way that is like “walking back into a good life.”
In a simultaneous but more esoteric movement, while treading upon the
water-sprinkled earth, “the pain was lifted up from there with the vapor
also,” in the sense that the evaporating water carried the affliction away.
Finally, in Louise’s case there was an additional element of movement as
Effie instructed her several times to stop her circumambulation at the
cardinal points and stretch her arms over her head, a movement best
described as a kind of spiritually imbued physical therapy.

A Q UESTION OF B ALANCE
There is plenty of room for argument over whether the terms moral,
spiritual, psychological, and physical stand for universal human catego-
ries, whether they are culturally constituted devices for cutting up the pie
of human experience, or are contingent but valuable heuristic markers
for parsing aspects of the phenomenologically undifferentiated fabric of
being. What we can assert, however, is that in this instance of Water Way
healing we have at once encountered a set of individually unique circum-
stances that are still more or less immediately recognizable as intrinsi-
cally human moments of suffering and healing, cast within a local world
characterized by culturally distinct practices that are still more or less
immediately recognizable as intrinsically human modes of engaging the
affliction of self and others. Moreover, it is abundantly evident that the
healing ritual was not primarily a form of “dispute resolution” in the sense
that antagonistic parties are brought together to negotiate a settlement
or submit to arbitration. The patient’s coworkers and the complainants in
her public health investigation were in no way involved; the dispute with
her mother emerged immediately in the interactive situation and was just
as immediately resolved; and the dispute within herself was subject only
34 Th o m a s J. C s o rda s

to the intervention of the healer and the medicine. The sense in which
all of these disputes can be said to have been resolved is in the immediacy
of recognizing them, of coming to terms with their consequences, dis-
sipating their effects, and transcending their pain. Another way of asking
Kleinman’s (2006) question about “what really matters” or what is truly
at stake in human experience is to ask, “What hangs in the balance?” The
answer we can derive from an instance such as the one we have been con-
sidering is precisely the existential moment identifiable as the despair of
suffering balanced by the hope of healing.

A CKNOWLEDGMENTS
This chapter is based on the Navajo Healing Project (NHP), funded by
National Institute of Mental Health grant 1RO1 MH50394. The NHP
was carried out under Navajo Nation Cultural Resources Investigation
Permit C9708-E and with the endorsement of five Commmunity Health
Advisory Boards in regions of the Navajo Nation where the research was
conducted. I thank the members of the NHP research team, and espe-
cially my assistant Wilson Howard, who worked closely with me during
the ceremony discussed in this chapter.

R eferences
Aberle, D. F. The Peyote Religion among the Navajo, 2nd edn. Norman: University
of Oklahoma Press, 1991.
Anderson, E. F. Peyote: The Divine Cactus, 2nd edn. Tucson: University of Arizona
Press, 1996.
Bourguignon, E. “The Effectiveness of Religious Healing Movements: A Review
of Recent Literature,” Transcultural Psychiatry 13, no. 1 (1976): 5–21.
Brito, S. J. The Way of a Peyote Roadman. American University Studies, Series 21,
Regional Studies, vol. 1. New York: Peter Lang, 1989.
Calabrese, J. D. “Reflexivity and Transformation Symbolism in the Navajo Peyote
Meeting.” Ethos 22, no. 4 (1994): 494–527.
——— “Spiritual Healing and Human Development in the Native American
Church: Toward a Cultural Psychiatry of Peyote.” The Psychoanalytic Review
84, no. 2 (1997): 237–55.
Csordas, T. J., guest ed. Ritual Healing in Navajo Society. Theme Issue of Medical
Anthropology Quarterly 14, no. 4, (2004): 463–625.
——— Body/Meaning/Healing. New York: Palgrave, 2002.
——— “Gender and Healing in Navajo Society.” In Religion and Healing in
America, edited by L. Barnes and S. Sered, 291–304. New York: Oxford
University Press, 2005.
Davies, W. M. Healing Ways: Navajo Health Care in the Twentieth Century.
Albuquerque: University of New Mexico Press, 2001.
Frank, J. D., and J. B. Frank. Persuasion and Healing: A Comparative Study of
Psychotherapy, 3rd edn. Baltimore: Johns Hopkins University Press, 1991.
 D i s pe l l i n g D i s p u t e 35

Garrity, J. F. “The Ethos of Power: Navajo Religious Healing of Alcohol and

Substance Abuse.” PhD diss., Case Western Reserve University, 1998.
Hultkranz, A. The Attraction of Peyote: An Inquiry into the Basic Conditions of the
Diffusion of the Peyote Religion in North America. Stockholm: Almqvist and
Wiksell International, 1997.
Huttlinter, K. W., and D. Tanner. “The Peyote Way: Implications for Culture Care
Theory.” Journal of Transcultural Nursing 5, no. 2 (1994): 5–11.
Jilek, W. G. “Traditional Healing against Alcohol and Drug Dependence.” Curare
16, no. 3–4 (1993): 145–60.
Kiev, A., ed. Magic, Faith, and Healing. Foreword by J. Frank. New York: Free
Press of Glencoe, 1964.
Kleinman, A. Writing at the Margin: Discourse between Anthropology and Medicine.
Berkeley: University of California Press, 1997.
——— What Really Matters: Living a Moral Life Amidst Uncertainty and Danger.
Oxford: Oxford University Press, 2006.
Kleinman, A., and L. K. Sung. “‘Why Do Indigenous Practitioners Successfully
Heal?” Social Science and Medicine 13b, (1979): 7–26.
La Barre, W. The Peyote Cult, 5th edn. Norman: University of Oklahoma Press,
1989.
Lewton, E. “Living Harmony: The Transformation of Self in Three Navajo
Religious Healing Traditions.” Ph.D. diss., Case Western Reserve University,
1997.
Lyon, W. S. “Native American Church.” In Encyclopedia of Native American
Healing, 189–91. Santa Barbara, CA: ABC-CLIO, 1996.
Quintero, G. A. “Gender, Discord, and Illness: Navajo Philosophy and Healing in
the Native American Church.” Journal of Anthropological Research 51, no. 1
(1995): 69–89.
Schultes, R. E. “The Appeal of Peyote (Lophophora Wiliamsii) as a Medicine.”
American Anthropologist 40, (1938): 698–715; Discussion, 41, 340–42.
Slotkin, J. S. The Peyote Religion: A Study in Indian-White Relations. Glencoe, IL:
Free Press, 1956. (Reprint New York: Octagon Books, 1975.)
Stewart, O. C. P. Peyote Religion: A History. Norman: University of Oklahoma
Press, 1987.
White, P. M. Peyotism and the Native American Church: An Annotated Bibliography.
Westport, CT: Greenwood Press, 2000.
Wiedman, D. “Big and Little Moon Peyotism as Health Care Delivery Systems.”
Medical Anthropology 12, no. 4 (1990): 371–87.
 3

RELIGION, CRISIS PREGNANCIES, AND

THE BATTLE OVER ABORTION

REDEFINING CONFLICT AND CONSENSUS IN

THE AMERICAN PRO-LIFE MOVEMENT

Ziad Munson

I NTRODUCTION
The abortion wars have continued unabated in the United States in
recent years. The pro-life movement has introduced a raft of new legis-
lation in many states designed to further reduce the number and scope
of legal abortion services, including “fetal heartbeat,” “fetal pain,”1 and
“previability” bills and mandatory ultrasound requirements for women
seeking abortions (Kliff, 2011; Smyth, 2011; Crane et al., 2012). At
the same time, the national debate in 2011 over the almost four trillion
dollar federal budget hinged on just a few million dollars provided to
women’s clinics by Congress (Steinhauer, 2011). These are the kinds of
battles most people have come to expect of the abortion issue in America.
Forty-five percent of Americans consider themselves “pro-life” (Jones and
Saad, 2011), and the pro-life movement2 in the United States has enjoyed
grassroots support and broad mobilization for more than 35 years now.
The movement is well established not only through longstanding social
movement organizations but also through deep connections to the politi-
cal, legal, and religious institutions of the country.
At the same time, however, a burgeoning number of pro-life activists
are involved in a much different kind of activity. Far from courtrooms,
state legislatures, picket lines, or television cameras, tens of thousands
of activists are quietly working to stop abortion in unassuming buildings
scattered throughout the United States. This is the work of crisis preg-
nancy centers (CPCs), which seek to end abortion by convincing pregnant
38 Z i a d Mu n s o n

women to carry their pregnancies to term through a combination of edu-

cation, moral suasion, and provision of concrete resources to assist them
through their pregnancy and early motherhood. The number of CPCs
has grown enormously in recent years. Once just a small adjunct to the
main political thrust of pro-life activism, CPCs now have the potential to
reshape not only the pro-life movement but also the terms of the larger
abortion debate in the United States. In short, the front lines in America’s
conflict over abortion are changing.
The abortion issue is also an ideal focal point for understanding how
religion affects moral and political disputes in the contemporary world
more generally. Abortion has become central to the political culture of
the United States, helping to define the modern American ideological
spectrum. Moreover, the dispute over abortion is more public and more
divisive than ever: abortion is the only social issue on which Americans
have become more polarized over the last several decades (DiMaggio
et al., 1996). Millions of Americans have been mobilized around the issue
since abortion was legalized in the United States in 1973. All of this is
occurring in one of the most religious societies in the industrialized West
(Finke and Stark, 2005; Bane et al., 2005), in ways that deeply implicate
religion in the self-understandings, the political arguments, and the strat-
egies of those opposed to the procedure.
This chapter has two goals: first, to provide an introduction to these
little-known CPCs, including data on their goals, activities, structure, and
growth over time; second, to identify some of the ways in which the role
of religion in the pro-life movement is being spread, hidden, and con-
tested by the work of CPCs. To accomplish these two goals, I identify
and explore the three key processes at work in CPCs today: (1) the co-
optation of the moral choice frame in the abortion debate; (2) the medi-
calization of CPC groups; and (3) the deepening grassroots base of the
CPCs. The co-optation of the moral choice frame has been accompanied
by new opportunities for activists to evangelize Christian messages. At the
same time, however, the medicalization of CPC groups has allowed the
organizations to downplay religious disputes over the issue while harness-
ing the normative power that technology has as a presumably neutral and
impartial source of data. Finally, the deepening grassroots base of CPCs
is creating tensions over precisely what kind of religious narrative will be
most important in the movement.
Data for this analysis come from several sources. First is a new, nationally
representative data set on CPCs in the United States developed by Chris
Scheitle (Munson and Scheitle, 2009). The data were collected by com-
bining several online directories of CPCs and randomly selecting 10 per-
cent of the listings—a total of 287 cases. Directory entries for Catholic
Charities, foster and maternity homes, adoption agencies, organizations
outside the United States, and other listings that were not stand-alone
 Religion, Crisis Pregnancies 39

CPCs were excluded. Data on each case were then drawn from tax records
made publicly available by the US Internal Revenue Service for all organiza-
tions claiming tax exempt status. This data provide an excellent, if partial,
overview of the range of CPCs currently operating, as well as their budgets
and the focus of their programs.
Second, I draw on a larger study of mobilization within the pro-life
movement. I collected in-depth, life-history interviews with 82 activists in
Oklahoma City, Oklahoma; Charleston, South Carolina; the Twin Cities
of Minneapolis and St. Paul, Minnesota; and Boston, Massachusetts.
Activists were identified using snowball sampling techniques, with a focus
on including a wide range of ages, religious backgrounds, and levels and
types of commitment. Interviews typically lasted between two and four
hours. Third, I draw on three years of ethnographic data collected on
more than 30 national and local pro-life organizations operating in the
United States, including many CPCs. Complete information on the latter
two data sources is found in Munson (2009).

C RISIS P REGNANCY C ENTERS —H IDDEN IN P LAIN S IGHT

CPCs are pro-life social movement organizations that seek to attract preg-
nant or potentially pregnant women to convince them to carry their preg-
nancies to term. CPCs have existed since the beginning of the movement;
the first were established in the late 1960s, before abortion was effectively
legalized in the United States through the 1973 Roe v. Wade and Doe v.
Bolton decisions of the Supreme Court. The number of CPCs has grown
steadily since that time. Sometime in the mid-1990s, the number of CPCs
operating in the United States surpassed the number of abortion pro-
viders. Today, there are approximately 2,900 CPCs spread throughout
the country.3 CPCs are often hard to spot in a community. They typi-
cally have ambiguous, generic names (e.g., Women’s Counseling Center,
A Woman’s Concern, and Birthchoice), and are located in nondescript
offices and storefronts. In some cases, CPCs are located adjacent to abor-
tion clinics.
To achieve their goals, CPCs must overcome two challenges: first,
they must attract pregnant women to their centers; second, they must
convince these women to carry their pregnancies to term. Some preg-
nant women are referred to CPCs directly by clergy or social workers,
but there is a consensus among CPC directors that most women first
hear of the centers through advertising. CPCs make use of a variety
of advertising venues, including billboards, radio, college newspapers,
church bulletins, and even bathroom stalls. However, the single most
important form of advertising for CPCs consists of telephone direc-
tory (Yellow Pages) ads. CPCs are classified as “abortion alternative”
organizations, which is important because this designation puts them
40 Z i a d Mu n s o n

alphabetically in front of “abortion services” in most directories. These

ads, which can cost $2,000 or more per month in many markets, vary
in their design, but they all share one thing in common: an offer of
free pregnancy testing. Free pregnancy testing is the main inducement
CPCs offer to persuade potentially pregnant women to come through
their doors.
Once a pregnant woman visits a CPC, the center uses individual preg-
nancy counseling as the primary strategy to convince her to continue
her pregnancy. Counseling consists of one-on-one meetings between an
activist and the pregnant woman,4 during which the activist explains the
pro-life movement’s view of fetal development, the value of life, and the
potential trauma of undergoing an abortion procedure. In some cases,
women are also asked to watch short pro-life films.5 The details of the
one-on-one sessions vary considerably from CPC to CPC. Some CPCs
use activists who have had only a few hours of training; others use state-
licensed social workers. Some CPCs use a language and set of rhetorical
arguments that are entirely religious6; others are completely secular in
their approach.
Beyond these one-on-one sessions, CPCs also endeavor to provide
a range of practical services to pregnant women to make it easier for
them to carry their pregnancies to term. Some provide maternity and
baby clothes, as well as cribs, diapers, and other material necessities of
pregnancy and early parenthood. Some also provide services such as par-
enting and relationship classes, career counseling, housing assistance,
and transportation services to and from prenatal medical appointments.
In providing these goods and services, the goal is to head off many of
the rationales used by women to seek abortion services (e.g., “I don’t
have the money for a child”; “I’m no longer in a relationship with the
father”; “I’m still in school”), while at the same time symbolically estab-
lishing the CPC’s commitment to the well-being of the woman. Indeed,
CPCs sometimes offer purely symbolic support, such as baby showers
and birthday parties, to underscore their commitment to the individual
outreach they offer.
CPCs represent a vast movement infrastructure that has gone largely
unnoticed by the general public, but are they successful in achieving their
immediate goals? This is a difficult question to answer. The total number
of women dissuaded from abortion by CPC activities is probably modest.
Even by the figures of the CPCs themselves, fewer than half the women
who come into the centers are pregnant at all. Among those who are preg-
nant, the majority are not “abortion minded,” meaning they were not con-
sidering abortion even before they came to the center. However, the impact
of the CPCs goes far beyond just the total number of averted abortions.
The growth of CPCs in the United States is particularly important for what
 Religion, Crisis Pregnancies 41

CPCs can teach us about how the contours of the abortion debate are
changing.

F RAMING C HOICE : CPC S AND THE

C O - OPTATION OF F REEDOM
CPCs are significant in part because, through their existence and opera-
tion, they seek to wrest control over the frame of choice as it is applied
to the abortion debate.7 The pro-choice movement has long framed its
position in terms of reproductive choice for women. Many pro-choice
activists—and the vast majority of the pro-choice public—are not so much
in favor of abortion as they are in favor of leaving reproductive decision-
making to women themselves. Abortion rights as a matter of freedom of
choice resonate powerfully with larger narratives of American individual-
ism and individual freedom. The framing of the pro-choice position in
these terms offers the pro-choice movement its most resonate ideological
connection to the larger American public.8 CPCs represent a significant
threat to pro-choice ownership over this ideological frame. CPC activists
believe that they are in the business of increasing the range of choices avail-
able to pregnant women, a belief they trace to cognitive, emotional, and
practical foundations.
On a cognitive level, activists believe CPCs and their one-on-one coun-
seling provide the information and data pregnant women need to make
an informed decision about their pregnancy. They believe many abortions
occur because pregnant women simply do not have the facts about fetal
development, the mother–child bond, or the links many pro-life activists
allege between abortion and breast cancer, posttraumatic stress disorder,
and other medical problems.9 Consider how Theresa,10 a 67-year-old
Baptist, describes the counseling she does:

We give information about abortions: What are the physical risks? What are
the emotional risks? We have someone to just sit down and talk with you
when you are probably at a very hard time in your life. Someone just to sit
and listen to you, and maybe to be objective and help you see what your
options are.

Theresa’s claim of objectivity and the laying out of options in the last
sentence is key to understanding this perspective. For Theresa and other
activists, their work is simply educating women properly so that they can
make informed choices.
On an emotional level, activists believe many women are pressured
into abortions by family and friends. They view abortion as arising, at
least in part, from insufficient support on the part of partners, family
42 Z i a d Mu n s o n

members, and friends of women who wish to carry their pregnancies to

term. As a result, CPCs often seek to provide a supportive, loving envi-
ronment that might act as a counterbalance to such negative pressure.
Sandra, a 34-year-old Catholic activist, puts it this way:

[Pro-lifers] say, “Save the baby! Save the baby!” Well, then what? Go home
and just live on welfare? Or starve? No. [ . . . ] If a 16-year-old unmarried
pregnant girl [ . . . ] has her parents say, “Get an abortion or else!” maybe
she isn’t going to tell her friends or her parents or even tell the boy. So we
want to help her.

Lisa, a 38-year-old Catholic activist, felt the pressure personally. “All the
pressure I got to abort that baby really strengthened my pro-life stand,”
she explains, “I couldn’t believe all of the people who came out of the
woodwork to tell me I should end this pregnancy.” By providing emo-
tional support and guidance, CPC activists seek to provide relief from
the pressure to terminate a pregnancy that they believe many women are
under and thereby increase the ability of women to make an independent
choice about their pregnancy.
On a practical level, some activists also believe women resort to abor-
tion because they do not have the basic material necessities for carrying a
pregnancy to term. This is where the noncounseling services of the CPCs
come into play. “We get accused of only caring about the baby and not
the mother. So how do you help the mother?” asks Sharon, a 50-year-old
Catholic activist. “Well, you provide her with maternity clothes, you take
her to the doctors, you say you will help find a place for her to live if she’s
thrown out of her home or has no place to live.” Providing such services
is seen by such activists as an additional way in which they give women a
meaningful choice between alternatives.
These cognitive, emotional, and practical elements of the CPC ideol-
ogy come together to present a significant challenge to the pro-choice
movement’s ownership over the choice frame. They do so by denying the
conflict between pro-life and pro-choice positions that has heretofore been
accepted by partisans on both sides of the debate. If CPCs are “merely”
offering more choices to pregnant women, then why object to the work
they are doing? Indeed, why even consider them part of the work of the
pro-life movement at all? Co-opting the frame of choice allows CPC activ-
ists to elide their activism and present themselves as outside—and there-
fore above—the squabble of two sides of a contentious moral issue.

F RAMING C HOICE : C HOOSING R ELIGIOUS F AITH

The choice being presented by CPCs is, of course, a carefully crafted
one. For most CPCs, part of that crafting includes the downplaying or
 Religion, Crisis Pregnancies 43

outright elimination of religious messages or themes. However, opening

up the frame of choice also introduces the possibility of bringing religious
faith to the table as yet another option pregnant women might choose.
The co-optation of the choice frame thus dovetails with the Christian
evangelical tradition of offering witness and an invitation to God’s love.
This is certainly the tradition in which many of the activists themselves are
rooted. “It is a passion to them. It is a place where they believe God has
called them,” explains one pro-life activist in describing CPC volunteers.
“You pray before you go,” says another activist, “You have to have the
anointing of God if you are going to help anybody.”
The majority of CPC activists inform their work with a deep personal
sense of religious faith. For them, this is the very basis of the dispute in
the abortion debate. And once they have defined the relationships they
develop with the women who come into the centers as one of expanding
their range of viable choices, bringing religion into the tableau of options
feels natural to many of them. Cindy, a 44-year-old activist and member
of an independent church, puts it this way:

I try to be very careful about how I come across, because you’re not here
to save everybody. You can plant the seed that they need the Lord, but you
have to gauge how far you can go.

For Cindy, the one-on-one sessions with pregnant women are not only an
opportunity to stop an abortion, they are also an opportunity to plant a
religious “seed” in the hope that this too might be an option the women
will choose. When she says she cannot “save” everybody, she is not refer-
ring to “unborn babies,” but to the pregnant women themselves and
their relationship with God. Meeting the cognitive, emotional, and prac-
tical needs of these women, many activists hope, will make them available
for religious conversion (or at least a renewal of a dormant faith they may
once have had). Erin, a 47-year-old Lutheran, explains:

The girl is not going to talk about her baby or the Lord or anything until
her needs are met. And if you can meet her needs, then she’ll warm up to
you and then you can broach the subject of Jesus Christ.

Some CPCs are explicit about their Christian roots from the beginning,
but far more common are ostensibly secular centers whose Christian activ-
ists introduce religious faith only after building a relationship with those
women who come into the centers.
Faith is couched in terms of a choice, one that might help a pregnant
woman in addressing the difficult issues she faces. Religious faith as an indi-
vidual choice—analogous to the choice of what to do with a pregnancy—
dovetails well with larger American understandings of religion. American
44 Z i a d Mu n s o n

religious exceptionalism is defined in large part by the range of religious

options available to individuals.11 This fact is reflected in religious conver-
sion rates in the United States, which are the highest in the world (Barro
et al., 2010). To choose one’s faith, in the same way one might choose
whether or not to continue a pregnancy, makes a great deal of sense in
this cultural context. CPC activism thus co-opts their opponents’ frame
of choice in two senses: first, they put forth their activism as “merely”
offering choices about pregnancy and, unofficially, choices about religion;
second, in doing so, their work becomes a matter of simply presenting
several more options in the dizzying array of choices available to every
individual in the United States in all aspects of life (Schwartz, 2004).

T ECHNICAL P REGNANCY : M EDICALIZING THE

A BORTION I SSUE
The growth of CPCs has also been accompanied by a medicalization of
the work they do and the arguments they make.12 For many years now,
CPCs have endeavored to look and operate more like medical clinics and
less like social movement organizations. They accomplish this by adopt-
ing the aesthetic of many medical clinics, with sterile-looking office space,
a front desk and waiting rooms, and so forth. Some have an assortment
of color-coded manila folders clearly visible behind the receptionist or in
an administrative area, mirroring the way in which many medical clinics
store patient records. CPCs generally refer to the women who come into
the centers as “clients” or even “patients” to underscore the medical pre-
sentation of the organization.
Beyond just these aesthetics, CPCs have introduced an array of services
that blur the distinction between their centers and bona fide medical clin-
ics. Offering pregnancy tests is, of course, the first step in this approach.
However, some CPCs now offer prenatal and even early pediatric care,
performed by nurses and physicians. Some also employ state-licensed
social workers to conduct their one-on-one meetings with the pregnant
women who come into the center. But perhaps the most potent symbol of
the move by CPCs to medicalize their image and their work is the increas-
ing focus on ultrasound machines.
Performing ultrasounds on pregnant women accomplishes several goals
for the organizations. First, the grainy fetal images produced by the machines
help humanize the fetus and, thus, underscore the larger message of the pro-
life movement that abortions are really the killing of unborn children. It is
a “proof” of the pro-life worldview. Activists certainly see ultrasounds as
their most potent weapon. One clinic director believed that 85 percent of
“abortion-minded” women who are shown their own ultrasound choose
to carry their pregnancies to term.13 I asked Susan, a 45-year-old Catholic
activist, what she thought was the most effective way to end abortion. “The
 Religion, Crisis Pregnancies 45

ultrasound,” she immediately responded. “It’s the ultrasound machine.

They have saved a lot of babies—just that picture.” Her view echoes that of
many in the pro-life movement. Virtually every CPC I have visited either has
an ultrasound machine or is currently trying to obtain one.
The centrality of ultrasounds to CPCs is highlighted by the growing
push by the movement as a whole to require an ultrasound procedure
as a part of any legal abortion procedure. For example, some legislation
requires women seeking an abortion to undergo an ultrasound, view the
ultrasound image, and receive a verbal description of the fetus by a medi-
cal professional. Such mandates have been introduced in 17 different
states and become law in eight (Guttmacher Institute, 2012). The leg-
islative push for such requirements underscores the momentum this new
approach has within the movement.
Beyond their effectiveness in individual counseling, nothing symbolizes
the medical nature of CPCs activities better than a technologically sophis-
ticated piece of medical equipment such as an ultrasound machine. They
can cost $25,000 or more for a new one, and $6,000 or more used—a
fortune for social movement organizations, most of which are small and
run on shoestring budgets.14 However, medicalizing the arguments of
the movement—and backing up those arguments with recognized medi-
cal equipment and procedures—increases the legitimacy of CPCs with
the individual pregnant women they counsel as well as with the general
public. CPCs enhance the pro-life argument through an appeal to a frame
people in the United States already understand, trust, and have experi-
ence with: the medical frame. Centering a large portion of their fundrais-
ing around obtaining and running ultrasound equipment is a particularly
effective way to support this frame.
Religion is completely absented from this side of CPC work, and
indeed this is one of the goals of the organizations. By medicalizing their
look, their personnel, their equipment, and even their advice, CPCs are
moving the abortion issue out of the realm of religious or political dispute
and into the realm of the presumed impartiality and expert judgment of
sophisticated machines and medical professionals. Consider these com-
ments by pro-life activists:

I wouldn’t wear my cross outside, or show my rosary, because I didn’t want

that to turn them away. [ . . . ] If I was praying the rosary I would stick it in
my pocket when I did the counseling, and the only thing I would have out
is the little model of the baby. (Michelle, a 26-year-old Catholic)
We’re Christian, but we don’t bring the Christian message because the
whole thing is just purely scientific. (Jason, a 22-year-old Episcopalian)
I mean we do have the scientific information available to us that it is a fact.
It irks me to no end when you read all this stuff on how we “believe” and
it’s all religious and whatever. And how it’s only those Roman Catholic,
46 Z i a d Mu n s o n

right-wing extremist conservatives that believe it’s a baby. Well, it is a scien-

tific fact! (Mariah, a 24-year-old Baptist)

All three of these activists view themselves as religious people and identify
their religious faith as important to their pro-life activism. At the same
time, however, all three also believe that the abortion issue needs to be
approached from a scientific perspective, not a religious one.
Mariah’s comment is particularly instructive here, as it provides an impor-
tant clue about how CPCs’ attempts to make pregnancy a purely technical,
medical issue change the terms of the debate over abortion: they stake out
the pro-life position as one that is not a mere “belief” but an empirical real-
ity backed by the weight of technology and expertise. Abortion is no longer
a matter of moral disagreement, but of technical competence. Medicalizing
CPCs thus has the potential to make abortion an issue over which regular
citizens (or at least pregnant women who come into CPCs) are not autho-
rized to have an opinion due to their lack of technical knowledge. CPCs
thereby move the debate over abortion out of the realm of personal opin-
ion or moral values and into the realm of depoliticized technocracy.
This move is, of course, not accomplished on disinterested terms. Luker
(1984) notes that until the late 1950s, regular Americans saw abortion in
precisely these terms: as a medical issue over which they had little informa-
tion or appropriate competence. They had no more opinion about abor-
tion than people today might have about coronary bypass surgery: both
are medical, rather than political or moral, concerns. The medicalization
of the abortion issue by CPCs seeks to once again remove abortion from
the sphere of moral public debate to the specialized domain of “science,”
but to do so in ways that support and expand their commitment to end-
ing legalized abortion.
The focus on science also stands in some tension to the rhetoric of
choice the movement seeks to co-opt from the pro-choice movement.
On the one hand, CPC activists argue, they are simply offering choices to
women (choices not only about pregnancy but also—in many cases—about
religious faith). On the other hand, they also argue that there really is no
choice to be made, because the cold rationality of modern science can dem-
onstrate conclusively that abortion is the killing of an unborn child. The
movement seeks to have it both ways: not only to be advocates for true,
fully informed choice, but also to demonstrate that scientific and medical
expertise permit only one choice—continuing all pregnancies to term.

G RASSROOTS E NERGY : CPC S AND THE

I NVIGORATION OF THE M OVEMENT
The pro-life movement has become largely defined by several large, pro-
fessional organizations in the 40 years since it first emerged in the United
 Religion, Crisis Pregnancies 47

States. The National Right to Life Committee (NRLC) is the largest and
most well-funded in the country. The NRLC traces its origins to the
Catholic Church and later to grassroots mobilization against legalized
abortion in the wake of the 1973 Supreme Court decisions. Today, how-
ever, the NRLC is increasingly disconnected from grassroots activism.
Instead, the group has become part of the “checkbook activism” that
dominates much social movement organizing in the United States today
(Skocpol, 2004; Fisher, 2006): a large organization run by paid profes-
sionals that relies on its members more for regular monetary contribu-
tions than personal activism. Other national pro-life organizations follow
a similar pattern. The organizations are located primarily in Washington,
DC, and state capitals, and are focused mainly on political lobbying and
legal action.
To the extent that the pro-life movement today is known as a grass-
roots, popular movement, its image is one defined largely by the raucous
and sometimes violent “rescues” that took place at abortion clinics in the
1980s.15 Such grassroots activists are seen by much of the public—includ-
ing those who are opposed to legalized abortion—as wild-eyed fanatics,
out of touch with mainstream public opinion and too eager to violate
both the law and the morals of middle-class America. This reputation
is well-earned. Pro-life activists have assassinated eight people over the
lifetime of the movement, with dozens of attempted murders, bombings,
assaults, and acid attacks against abortion providers. Well over 30,000
people have been arrested for pro-life rescues and related activism over
the course of the last several decades—the vast majority of them in the
1980s.16
CPCs are poised to change these stereotypes. Unlike the national polit-
ical organizations that currently lead the movement, CPCs are decidedly
grassroots in their origins, operations, and support. Many were started
by local activists as church ministries or by a handful of close friends.
Even when such groups professionalize and medicalize in the sense I have
just discussed, they still require enormous amounts of volunteer hours
and effort to meet with pregnant women one-on-one, provide them with
ongoing services, and follow-up with them after they leave. I estimate
that the number of volunteer hours performed by activists within CPCs
is greater than all the hours given to the rest of the pro-life movement
combined. CPCs are thus integrally connected to the grassroots of the
movement. They now serve as the primary source of mass-based energy
around this issue.
At the same time, the image portrayed by CPCs and their grassroots
base is the polar opposite of that ingrained into the public consciousness
by the civil disobedience and violence that marked the political stream
of the movement in the 1980s and early 1990s. Demographically, CPC
volunteers tend to be older and more female than the activists who block
48 Z i a d Mu n s o n

clinic entrances, harass women entering clinics, picket physicians’ houses,

and so forth. Perhaps most importantly, CPC volunteers are decidedly
nonconfrontational in their approach, as Kevin, a 37-year-old Baptist,
explains:

So often people think of the [ . . . ] pro-life movement as picketing and pro-

tests and yelling and screaming and getting taken away. And there’s a whole
different level where I come in [ . . . ] I don’t see that as how Christ would
handle it.

Activists like Kevin are quite self-conscious about eschewing violence and
direct confrontation. In fact, most CPCs explicitly prohibit their volun-
teers from being involved in direct action activism at all.17 Margaret, a
73-year-old Catholic activist, puts heavy emphasis on avoiding confronta-
tion as she contrasts the value of CPCs with the often disruptive direct-
action tactics of others in the movement:

My attitude is if every one of them combined who did this peacefully and
lawfully, if every one of them combined to only save one baby, then it is
worth it. Because that’s how much value I place on even one human life.

“Some of the organizations which go out there and picket heavily,” says
another activist, “they do nothing for the babies. Don’t you see?” These
activist sentiments are reinforced by the message of CPC directors, all of
whom emphasize the difference between their organizations and the street
protests of other streams of the movement. For CPCs, gentle, peaceful
persuasion is the defining characteristic of their activism.
This difference in approach is important, because it has the potential to
remake the pro-life movement in the eyes of the public, whose main sen-
sibilities eschew direct confrontation as well as traditional street protests.
CPCs, then, represent a new form of public activism in the United States,
one that personalizes and privatizes activism. They present a “kinder,
gentler” movement that is more palatable to large numbers of people.
Jessica, an 18-year-old charismatic Catholic activist, sees the potential of
this change clearly:

If you have more crisis pregnancy centers than abortion centers, then CPCs
become more popular. Then the pro-life movement is going to be more
popular. And then the pro-life ideal is going to be more popular.

CPCs are run by volunteers who are wealthier and more suburban than
the general population, and the particular ways in which they practice
activism appeal to precisely this segment of the public much more than
rescues and violence.
 Religion, Crisis Pregnancies 49

The greater embeddedness of CPCs in grassroots activism, however,

also has further implications that are hinted at by some of the activist
comments cited above. With the large numbers of volunteers, many of
whom have not been involved in any kind of activism before, also comes
a starker, more direct religiosity than is put forth by the professionalized,
political organizations at the helm of the national movement. Despite the
desire of CPCs to counsel pregnant women on secular terms, the activ-
ists themselves who do the counseling are often quite frank about the
religious narratives that inspire them and to which they turn to under-
stand the abortion issue. “The crisis pregnancy centers are phenomenal,
Godly organizations. Totally desiring God’s will, not man’s will,” explains
46-year-old Jean, a Baptist. There is a directness in activists’ understand-
ing of the relationship between God and abortion that belies the com-
plexity of the battle over the issue for most Americans. Consider these
further examples:

And I know that in some ways the Lord allowed me to interact with their
lives in a positive way, to bring out positive outcomes for them and their
children. (Molly, 51-year-old Baptist)
God changes people’s hearts. I think it’s a heart issue. I don’t think it’s a
mind issue [ . . . ] I can’t change somebody’s heart. Only God can do that.
(Sharlene, 33-year-old member of independent church)
God knows who you are. He knows what you can handle. So why don’t
you give it up to him and let your life begin? [ . . . ] People are not happy
because they have not given their life over to God. (Stephanie, a 26-year-
old Catholic)

Religious faith explains the work of CPCs for many activists; they see
themselves as conduits for an active God who works to stop abortion
through their efforts. Such a view sets up basic tensions between grass-
roots activists and CPC leaders, between activists and the pregnant women
they counsel, and among grassroots activists themselves.
Activists sometimes clash over religious traditions. What prayers will
they say together? What songs will they sing? One CPC in South Carolina,
for example, will not allow Catholic volunteers. Religious conflicts—that
is, conflicts over differing theological interpretations—have erupted in
several of the CPCs I have visited, even when activists all agree on the
goal of the CPC and even the best strategy for counseling and overall
operation of the organization. In some cases, activists leave one CPC to
start their own over such disputes. Many of these conflicts arise not only
because of the strong religious views of the activists but also because these
activists have little experience with modulating their religious language
and beliefs in a community context like the CPC, where religious talk
50 Z i a d Mu n s o n

comes up explicitly. The religious tensions of American society are thus

made manifest in the work of CPCs.

C ONCLUSION
CPCs may well be the future of the pro-life movement, and perhaps even the
future of the abortion debate. Through the particular type of activism they
enact, they are challenging their opponents’ monopoly over the frame of
freedom of choice. Through the medicalization of their organizations, they
are denying the epistemology of the abortion debate that has historically
been recognized by both sides as a struggle between competing value sys-
tems or sets of beliefs. Through their heavy reliance on grassroots activism,
they are remaking the image of the pro-life movement in the minds of both
the pregnant women they encounter and the general American public.
These processes map directly on to the idea of a world that has become
simultaneously re-enchanted and juridified, as discussed in the introduc-
tion to this volume. On the one hand, activists are motivated by a personal
religious faith—and often seek to share this faith with pregnant women.
On the other hand, activists are moving to use medical expertise and lan-
guage—as well as medical equipment—to reshape the abortion debate as
one in which the impartial conclusions of modern science must underlie
both the individual choices women make about pregnancy, as well as the
(secular) laws governing reproductive rights in the United States. In the
dispute over abortion, then, goals that are often religious are being pur-
sued by means of “neutral,” secular technology. Religious arguments and
motivations are thus intertwined with scientific and public policy ones in
ways that highlight the myriad manifestations of religion in the dispute.
All of these processes can teach us something about the role of religion
in the movement and in the larger debate. Framing their message in terms
of freedom of choice has situated CPCs as locations of potential evange-
lism. At the same time, medicalizing the work of the CPCs has hidden the
religious commitments of activists and their message. Moreover, the mobi-
lization of many new volunteers by CPCs has created new opportunities for
longstanding religious cleavages in the United States to come to the surface
through pro-life activism. All these effects are not consistent, but there is
little question that they play an important role in the development of CPCs
and will help define the future of the abortion debate in the country.

N OTES
1. Fetal pain bills would prohibit abortion after approximately 20 weeks
gestation; fetal heartbeat bills might restrict abortions after even six weeks
gestation.
 Religion, Crisis Pregnancies 51

2. I will adopt the names preferred by those who are themselves being
labeled in the controversy and refer to the movement to end legalized
abortion as “pro-life” and the movement supporting legal access to abor-
tion as “pro-choice.” These terms are of course contested by partisans on
both sides of the debate.
3. This number is particularly remarkable when compared to the fewer than
450 free-standing clinics that provide abortion services.
4. Counseling sessions can occasionally also include a woman’s mother, girl-
friend, or male partner, but such situations are rare.
5. It was once fairly common to find CPCs that showed graphic depic-
tions of actual abortion procedures being performed, but most have now
stopped the practice.
6. There is some denominational variation in religious approach, although
mainly between evangelical Protestant CPCs and Catholic CPCs.
Evangelical CPCs emphasize personalized conversation with God and
His plans for unborn children, while Catholic CPCs emphasize moral
absolutes and the doctrinal basis for opposing abortion.
7. Social movement theory contains a vast literature on framing, which
traces its origin to Goffman’s classic Frame Analysis (1974). A summary
and analysis of this literature is outside the scope of this chapter, but see
Snow et al. (1986), Tarrow (1994), and Benford and Snow (2000) for
overviews of this work.
8. Condit (1990) provides the most detailed analysis of how the pro-choice
movement developed the choice frame, noting that the frame was largely
responsible for retaining legalized abortion in the United States (albeit
with significant caveats). Staggenborg (1991), Ferree et al. (2002), and
Burns (2005) have all added to this study of the choice frame.
9. Such claims are not based on scientific evidence, but they continue to
persist within the pro-life movement.
10. All names of interview participants are pseudonyms.
11. A significant portion of the literature in the sociology of religion has
devoted itself to modeling American religious behavior within a rational
choice framework that highlights religious affiliation as a choice rather
than an ascribed characteristic. For a well-developed example of this
approach, see Finke and Stark (2005).
12. For a theoretical review of the medicalization process using the abortion
debate as an example, see Halfmann (2011).
13. There is no scientific study to back up this claim, but many CPC direc-
tors report similar patterns and the cultural place given to babies—and
particularly images of babies—leaves little reason to be skeptical of such
claims.
14. Given these costs, some well-funded national groups have assisted in the
spread of ultrasounds in CPCs. The Family Research Council, one of the
most well-known Christian Right organizations in the United States, has
spent over $10 million in the last several years on a program to under-
write ultrasound equipment for CPCs (Sack, 2010).
52 Z i a d Mu n s o n

15. See Risen and Thomas (1998) and Maxwell (2002) for an historical
account of this aspect of the movement.
16. Detailed information on violence within the pro-life movement is avail-
able from the National Abortion Federation (2009).
17. I interviewed more than one activist who had left CPC work in order to
engage in picketing and similar activities.

R eferences
Bane, M. J., B. Coffin, and R. Higgins, eds. Taking Faith Seriously. Cambridge,
MA: Harvard University Press, 2005.
Barro, R. J., J. Hwang, and R. M. McCleary. “Religious Conversion in 40 Countries.”
Journal for the Scientific Study of Religion 49, no. 1 (2010): 15–36.
Benford, R. D., and D. A. Snow. “Framing Processes and Social Movements: An
Overview and Assessment.” Annual Review of Sociology 26, (2000): 611–639.
Burns, G. The Moral Veto: Framing Contraception, Abortion, and Cultural
Pluralism in the United States. New York: Cambridge University Press, 2005.
Condit, C. M. Decoding Abortion Rhetoric: Communicating Social Change.
Chicago: University of Illinois Press, 1990.
Crane, D., Lissy Moskowitz, Cristi Schwarcz, Leslie McGorman, Vanessa
Wellbery, Lauren Birchfield, Kate Vlach, Rachel Tabakman, Jennifer Wang,
Amber Banks, Mhairi Purdie, and Jillian Foster. Who Decides? The Status of
Women’s Reproductive Rights in the United States. Washington, DC: NARAL
Pro-Choice America Foundation, 2012. Retrieved http://www.prochoiceam-
erica.org/assets/download-files/2011-who-decides.pdf
DiMaggio, P., J. Evans, and B. Bryson. “‘Have Americans’ Social Attitudes Become
More Polarized?” American Journal of Sociology 102, no. 3 (1996): 690–755.
Ferree, M. M., W. A. Gamson, J. Gerhards, and D. Rucht. Shaping Abortion
Discourse: Democracy and the Public Sphere in Germany and the United States.
New York: Cambridge University Press, 2002.
Finke, R., and R. Stark. The Churching of America, 1776–2005: Winners and Losers
in Our Religious Economy. New Brunswick, NJ: Rutgers University Press, 2005.
Fisher, D. Activism, Inc.: How the Outsourcing of Grassroots Campaigns is
Strangling Progressive Politics in America. Palo Alto, CA: Stanford University
Press, 2006.
Goffman, E. Frame Analysis: An Essay on the Organization of Experience.
Cambridge, MA: Harvard University Press, 1974.
Guttmacher Institute. State Policies in Brief: Requirements for Ultrasound. New
York: Guttmacher Institute, 2012. http://www.guttmacher.org/statecenter
/spibs/spib_RFU.pdf (accessed October 4, 2012).
Halfmann, D. “Recognizing Medicalization and Demedicalization: Discourses,
Practices, and Identities.” Health 16, no. 2 (2011): 186–207.
Jones, J., and L. Saad. “Gallup poll social series: values and beliefs.” Gallup News
Service. http://www.gallup.com/poll/File/147740/Abortion_110523.pdf.
Kliff, S. “The big abortion fight that may not happen.” Politico, April 19, 2011.
http://www.politico.com/news/stories/0411/53432_Page2.html (accessed
April 21, 2011).
 Religion, Crisis Pregnancies 53

Luker, K. Abortion and the Politics of Motherhood. Los Angeles: University of

California Press, 1984.
Maxwell, C. J. C. Pro-Life Activists in America: Meaning, Motivation, and Direct
Action. New York: Cambridge University Press, 2002.
Munson, Z. The Making of Pro-life Activists: How Social Movement Mobilization
Works. Chicago: University of Chicago Press, 2009.
Munson, Z., and C. Scheitle. Crisis Pregnancy Centers and Coming Changes to the
Abortion Debate. Paper presented at the annual meeting of the Society for the
Scientific Study of Religion Denver, CO, 2009.
National Abortion Federation. NAF Violence and Disruption Statistics. Washington,
DC: National Abortion Federation, 2009. http://www.prochoice.org/pubs
_research/publications/downloads/about_abortion/stats_table2009.pdf
(accessed March 1, 2010).
Risen, J., and J. L. Thomas. Wrath of Angels: The American Abortion War. New
York: Basic Books, 1998.
Sack, K. “In ultrasound, abortion fight has new front.” The New York Times May 27,
2010http://www.nytimes.com/2010/05/28/health/policy/28ultrasound.
html (accessed June 16, 2010).
Schwartz, B. The Paradox of Choice: Why More Is Less. New York: Ecco, 2004.
Skocpol, T. Diminished Democracy: From Membership to Management in American
Civic Life. Normon: University of Oklahoma Press, 2004.
Smyth, J. C. “Anti-abortion groups adopt in-your-face tactics.” ABC News March
3, 2011. http://abcnews.go.com/US/wireStory?id=13041275 (accessed
March 4, 2011).
Snow, D. A, E. B. Rochford, S. K. Worden, and R. D. Benford. “Frame Alignment
Processes, Micromobilization, and Movement Participation.” American
Sociological Review 51, no. 4 (1986): 464–481.
Staggenborg, S. The Pro-Choice Movement: Organization and Activism in the
Abortion Conflict. New York: Oxford University Press, 1991.
Steinhauer, J. “Abortion dispute complicates budget negotiations.” The New
York Times April 7, 2011. http://www.nytimes.com/2011/04/08/us
/politics/08riders.html?_r=1&scp=3&sq=abortion%20budget&st=cse
(accessed April 27, 2011).
Tarrow, S. Power in Movement: Social Movements and Contentious Politics. New
York: Cambridge University Press, 1994.
 4

RELIGIOUS SUBTLETIES IN DISPUTING

SPATIOTEMPORAL INSCRIPTIONS OF FAITH

IN THE NOMOSPHERE IN RURAL MOROCCO

Bertram Turner

I NTRODUCTION
In this chapter, I draw attention to disputes in rural Morocco that
underscore the fact that, in certain localities, normatively defined fault
lines between the secular and the sacred can fluctuate along temporal
vectors. The mise-en-scène of these events is the weekly market, which
in itself constitutes an interface between economic, religious, and legal
activities. Ethnographic vignettes of disputes in the market show how the
assessment of human behavior in local disputes is informed by spatial and
temporal parameters, and how legal and faith-based aspects converge in
these parameters.
In the process, I address how these fluctuating spatiotemporal conver-
gences between faith-based considerations and profane ideas about the
maintenance of social and normative order (which testify to a rather fluid
approach to world-making that is very much attuned to the vagaries of
agricultural life in rural Morocco) have been challenged by representatives
of political Islam. In competition with local conceptions that understand
spatiotemporality as an interface where the realms of the legal, religious,
social, political, and economic intersect, Islamic activists seek to assert
the superiority and absolute authority of their dogmatic reading of the
religious in the management of disputes. Local disputing emerges as an
arena in which Islamic activists push for a universally fixed hierarchical
divide between “religion” and “nonreligion.” In so doing, they challenge
the local perception of the religious as inscribed in the nomosphere where
all spheres of human life that inform disputing processes intersect. This
dispute about religion in disputes, I argue, allows us to identify translation
56 Bertram Turner

efforts between and conceptual comodifications of the two opposing

positions.
The chapter begins with a brief outline of the basic analytical and
theoretical strands that shed light on the parameters of time, space, and
religion from the perspective of legal anthropology, and addresses conver-
gences of those parameters in anthropological theorizing. I then briefly
describe the plural legal configuration in southwestern Morocco, with
specific reference to the role of religion in disputes, and present Islamic
activists of Salafiyya orientation, who are locally called “those who wear a
beard” (as-shab al-lihi), as the main opponents to the predominant local
view of the role that religious ideas should have in disputing processes.
Following that, referring to the situation in the Souss plain in southwest-
ern Morocco, I present empirical data that illustrate the complex encoun-
ter between religious and traditional notions that affect how disputes are
locally addressed within the village.1
The final part of the chapter offers an analysis of the subtleties of the
spatiotemporal inscriptions of faith in local disputing. It starts with a
comment on local representations of time and space, and then looks at
how their convergences inform human interaction and the assessment
of human behavior. Here, spatiotemporality comes up as a multilayered
legal–religious concept and as a field of contestation. In order to highlight
the contested aspects, the following section outlines some basic principles
of Salafi understanding of time and space. Concluding remarks under-
score the readjustment of the religious in the nomosphere.

T IME , S PACE , L AW , AND R ELIGION : C ONVERGENCES IN

A NTHROPOLOGICAL T HEORIZING
In an earlier coauthored publication (Turner and Kirsch, 2009), we
addressed law and religion as contested sovereignties. In that context, we
emphasized the entanglements between processes of increasing juridifi-
cation of the religious sphere and the increasing impact of the religious
components in the nomosphere. We argued that such transfigurations
exhibit remarkable instances of interdependency in the ways they are
evolving. Picking up where that analysis left off, this chapter details the
encounter between law and religion with respect to the assessment of
time and space in disputes, with the focus now directed to the formative
power of the religious reading in a configuration of converging, categori-
cally distinctive parameters.
Theoretical approaches in the social sciences, in general, and anthro-
pology, in particular, such as acceleration theory (Rosa, 2005; Rosa and
Scheuerman, 2009), the concept(s) of (post)globalization (Edelman and
Haugerud, 2006; Friedman and Friedman, 2008; Inda and Rosaldo,
2008) and the analysis of scalar arrangements (Tsing, 2000; Herod and
 R e l i g i ou s Su bt l e t i e s i n D i s p u t i n g 57

Wright, 2002) provide a substantial basis for the analysis of time and space
independent of one another.2 The preoccupation with spatiotemporal
aspects, especially in the anthropology of law, has provided further impe-
tus for extending this angle to the field of religion in disputes, including
contestations over the various manifestations of religion. Moreover, spa-
tiotemporal concepts appear to be intimately connected to the field where
law and religion intersect.
First, however, it behooves us to differentiate between considerations
of temporal and spatial aspects in both religious and legal studies. If one
looks at how temporal and spatial qualities are addressed in both realms,
corresponding claims come to the fore. With regard to time, religion
claims to give spiritual or eschatological meaning to the comprehension
of temporality and its connections to the social, kin and property relations,
life-span structuring, and much more. Law likewise claims sovereignty
over time and connects, as religion does, the present with the past, where
law has been formed, and with the future, which seems predetermined by
legal regulations (Greenhouse, 1989, 1996). However, the relationship
between the past as stored in collective memory and the social working
of the law in the present appears highly complex: moments of lawmak-
ing or decision-making in the present may be informed by the collective
remembrance of the respective reference groups at any scale, while collec-
tive memory itself may rely on its inscriptions in the present (Savelsberg
and King, 2007). In the realms of both religion and law, prior decisions,
instructions, and cognitive formattings of agency may predetermine pres-
ent ones (Emirbayer and Mische, 1998), while currently operating mod-
els may also be reversed and remitted to the past from the present.
The spatial dimension of the law and religion encounter has been
addressed in legal anthropology even more intensively than the temporal
aspects. An increasing interest in the geography of law has led to a series
of publications that connect space with the globalization project, which in
itself already implies a temporal dimension (Benda-Beckmann and Griffiths,
2009). This literature examines the ways in which law and legal reasoning
are constitutive of spatial categories in a variety of domains (e.g., in the
social, economic, and religious) and vice versa (Blomley, 1994; Blomley
et al., 2001; Sarat, 2003; Holder and Harrison, 2003; Taylor, 2006). The
underlying theoretical ambition to qualify how such spatiolegal represen-
tations correspond to the spatiolegal material and physical universe has
found expression in the concept of the nomosphere (Delaney, 2010). I
argue that this concept is useful in that it postulates connectivity between
space and law in a way that allows us to take its temporal implications into
account. Thus, positioning religion in the nomosphere could be phrased
in Delaney’s terms as exploring religion as the signifier that conveys mean-
ing to spatiotemporal aspects in the assessment of human behavior and its
underlying motivations in situations of dispute regulation.
58 Bertram Turner

The interfaces and intersections of the analytical concepts and

approaches discussed above, however, have been seldom addressed in
anthropological theorizing. Most literature examines one of the parame-
ters in its relation to another, so that a web of slanted perspectives between
two parameters has emerged: law and religion, space and time, law and
space, religion and space, law and time, and religion and time.

T HE M OROCCAN N OMOSPHERE
The analysis of local processes of disputing in rural Morocco has to take
account of a configuration of local orders that includes and combines
components from various religious and normative regimes that, in turn,
already reflect mutual interdependencies. Such a configuration may vary
considerably in space and time. The state legal system is widely considered
to provide the normative umbrella for all subsidiary legal constructions
in specific social fields and local contexts. This interplay of state legisla-
tion with the various manifestations of customary law (‘urf) and with
the whole range of religiously imbued normative repertoires is increas-
ingly affected by the transnational normative and religious environment,
as both religious revitalization or conversion and secular integration in
a transnational environment involve normative entanglements (Turner,
2006). Although at the local level room for legal maneuvering is negoti-
ated in the shadow of the official judiciary, the ambivalent attitude of
local actors toward the state finds expression in strategic decisions on
how, when, and to what extent state institutions are to be involved in
local affairs.

R ELIGION IN D ISPUTE
My point of departure for the examination of the role of religion in dis-
putes in rural Morocco is the generally accepted understanding that refer-
ence to Islamic categories in one way or another is integral to any local
dispute settlement. This, I argue, reflects the entanglement of religious
and secular normative components, which may be invoked by reference
to all realms of the religious that are constitutive of the local nomosphere,
and which range from sophisticated legal devices in orthodox Islamic law
(Malikiyya madhhab) and conceptions pertaining to legal reasoning in
local Sufi congregations, to expressions of good legal judgment rooted in
popular or local Islamic piety. In addition, Moroccan disputants may also
regard Moroccan state legislation, local customary law, and even transna-
tional legal registers as repertoires providing faith-based reflections that
can be used in local disputing. Local actors describe such references as a
necessary means to reconcile the religious and the normative dimensions
that are at stake in processes of disputing. More concretely, Moroccan
 R e l i g i ou s Su bt l e t i e s i n D i s p u t i n g 59

Islam is considered a source of legitimization of the state as expressed

in what Eickelman and Piscatory (1996) have called “Muslim politics”
and in the Moroccan constitution before and after the reform in 2011.
Thus, what is locally perceived as Moroccan Islam may be seen as being
in accordance with some features of Islamic law that are inherent in state
legislation. Moreover, religious moral standards have affected local reg-
isters of customary law to an extent that has rendered the contours of
the religious impact on a local legal environment, perceived as secular,
sometimes barely discernable.3 To what extent transnational legal regis-
ters may become associated with local disputing is exemplified below by
the instances of Salafiyya interventionism. What makes this constellation
of religious strands in disputing particularly revealing is the fact that core
tenets of faith are disputed in the process of resolving the issue at hand.

T RANSNATIONAL R ELIGIOUS A CTIVISM

In the course of its continuous expansion, Islamic activism inspired by
the transnational Salafiyya movement has been gaining currency in the
Souss region since 1999.4 Salafi missionaries have succeeded in attract-
ing more and more local residents. Their religious message propagates
a general reorientation toward an “authentic,” “original,” and consis-
tent Islam throughout the Muslim world (Turner, 2008). As their local
leader (‘amir) explained to me, they are profoundly convinced of their
duty to give religious advice to the local population on all sorts of mat-
ters, and claim for themselves the ultimate authority in judicial matters.
The religious doctrine legitimates, even prescribes, intervention in other
people’s conduct of life (hisba). Law and order is a paramount topic of
their conversation. Between 1999 and 2003, their interventions in all
sorts of local affairs, whether religious or secular, provoked a plethora
of conflicts, including serious violent confrontations, in the villages of
the Souss region. Competition among adherents of different orientations
within Islam clearly had an impact on village life.
When I identify individuals as Salafis (adherents of the Salafiyya), I am
referring to people who claim to be Salafi and emphasize their integra-
tion in the global network of Salafism. However, those local villagers that
the movement has successfully mobilized often express opinions and act in
ways that do not necessarily comply with the logics of the basic Salafi texts
nor do they necessarily fully reflect the official religious positions of Salafism
as they are laid out in the scientific literature quoted below. The body of
knowledge on the basic tenets of Salafism and the array of meanings they
draw on may reveal some nuances and discrepancies when compared to the
basic Salafi texts. In the course of the reconfiguration of the religious sphere
in the wake of Salafiyya intervention, a focus on the normative power of
religion has emerged, and greater emphasis has been placed on the religious
60 Bertram Turner

components within the already plural legal configuration. The realm of law
has always been a field of contestation, and disputing has emerged as a field
of operation where core issues regarding the religiously correct orientation
of social life must be defended. In short, with the intervention of Islamic
activists, popular Islam is increasingly contested as a provider of orienting
principles in local disputing. I will return to the strict Salafi reading of spa-
tiotemporal categories later in the chapter.

D RUNK IN THE M ARKETPLACE : E THNOGRAPHIES

OF C ONTESTED S PATIOTEMPORAL P ARAMETERS IN
D ISPUTING
In the following, I discuss two cases of violent action. These two cases
highlight different dynamics of the spatial and temporal conjunctions of
the spheres of religion and law. In both cases, however, the same institu-
tion, the weekly market (suq) in rural Morocco, occupies center stage as a
marker in time and space that is laden with religious and legal significance.
The market is a hotspot of legal activity and, therefore, a spatiotemporal
nexus intimately connected to local standards of assessing what to do,
when, and where. Its position as an interface between economy, law, and
religion is manifest first in the spiritual protection that a market is usu-
ally granted by local saints or a nearby zawiyya (religious convent), and
second in the fact that it is a site of public judgment that may involve the
intervention of both informal and official local authorities.

R IGHT T IME , R IGHT P LACE

The first case took place in summer 2001. A group of young men who
wanted to trade livestock the next day in a local village market in the
mid-Souss region spent the night together nearby the marketplace. This
is quite common, as livestock trading in the market begins at about five
o’clock in the morning. Some other groups of visitors spent the night in
the marketplace itself, as it is a legally and spiritually protected zone where
people and their goods are safe. The young men, however, intended to
drink and have some fun together. As alcohol consumption is legally and
morally restricted, they decided not to stay in the marketplace, where
drinking is strictly forbidden. So although they did not try to conceal
their drinking from others and even invited people to join the party, they
respected the market zone.
After a while, when all of them were already drunk, an argument
erupted and two young men, actually friends and neighbors, started fight-
ing. During the fight, one young man seriously wounded his adversary.
Others intervened immediately. The next morning, the informal village
council debated the case publicly in the market. Convening the council in
 R e l i g i ou s Su bt l e t i e s i n D i s p u t i n g 61

the marketplace in its capacity to intervene in legal affairs and local disputes
used to be a common traditional practice, but it is quite unusual nowa-
days. Doing so, the participants explained, was a sign of the seriousness of
the case. Nevertheless, the market day, as the local weekly holiday, is still
the day of informal legal discussions and conflict management by village
elders, local representatives of the state administration, and the council.
Nowadays, such village councils enjoy a certain connection to the official
sphere and a degree of state recognition as organizational units within
Morocco’s civil society architecture, called Association de Développement
Local (ADL). At the time of this event, almost half of the members of the
council claimed to be adherents of the Salafiyya movement.
Some of the arguments exchanged in the debate are of particular inter-
est for the issues raised in this chapter. The non-Salafi faction in the coun-
cil argued that there were reasons enough to downplay the affair and
exclude state officials, particularly the police, from the process of settle-
ment. Involvement of state agents usually results either in a trial followed
by a jail sentence or in the expectation that a considerable sum will be
slipped under the table to state officials in order to make the event disap-
pear. For this reason, local people generally try to keep the police out of
local affairs. The Salafis, in contrast, on various occasions prior to this had
insisted on state intervention, which they regarded as an opportunity to
express their critique of the “un-Islamic” state judiciary.
In this particular case, people had a number of reasons for not want-
ing to involve state officials. First, the wrongdoer regretted very much
the physical injury he had inflicted. Moreover, the violent act took place
in the summer, a couple of months after the spring harvest,5 when the
youth are allowed to have fun and are not really rebuked for having a
drink. Usually an attack at night is considered more serious, but there is
an exception for the summertime, when collective recreational activities
turn night into day. Moreover, the disturbance had not disrupted the
market proper because it had taken place before the official opening of
the market. Additional mitigating circumstances were briefly dealt with.
In rural areas, the market day is still the established weekly holiday, and
wage laborers get paid the evening before. Usually, before the money is
invested in the weekly shopping, a portion of it is already spent on drink
or other entertainment, so the party that the friends organized was not
something unfamiliar by local standards.
With regard to space, the rule of respecting the market as a protected
zone was also not violated. In addition, it was argued, the action had
taken place in public and not in secrecy. Despite the serious injury, the
members of the council regarded the level of violence as acceptable
because no weapons had been used. In short, the circumstances may be
summarized as a normal exchange of violence for understandable reasons
at an appropriate time in an appropriate place. No normative or religious
62 Bertram Turner

spatiotemporal arrangements were violated. The case was interpreted as

a typical seasonal incident, and the two parties (for example, the families
of the young men involved) agreed on compensation. The police never
got involved.
The Salafi adherents in the council were upset about this assessment.
They steadfastly refused to consider any kind of extenuating circumstances
that resulted from an interpretation of spatiotemporal aspects that they
themselves considered pagan and reprehensible. Instead, in their view,
the fact that alcohol was involved compounded the guilt of the perpe-
trator. They asked how the true Muslims of the first three generations
would have treated the case and the arguments brought forward in the
council. Moreover, they argued that the marketplace, as the location of
secular economic activity, could not be associated with divine protection
nor with any aspects of sacredness in time and space, and therefore, the
locals who believed in this divine protection could no longer be consid-
ered true Muslims. A long, heated debate ensued, which ended with each
side accusing the other of being religious dissidents. According to local
observers, the case was just what the Salafi had been waiting for so they
could accuse the villagers of apostasy. The majority of councilors, in turn,
accused the Salafis of conflating spiritual and profane spheres of life by
trying to force the police to prosecute what they viewed as a “pagan” local
interpretation of the case. The non-Salafi councilors also declared that
the protective power of the market in time and space was a fundamental
traditional right that even the French and the Portuguese had respected.
They argued that the elevated haqq fines for infringement of the market
order (usually double the fine for the same infringement in other venues)
reflected the value of ancestral (meaning secular) practice (Hart, 1996).
Moreover, referring to such ancestral practices as “pagan” would eventu-
ally lead to the expulsion of the Salafis from the community.6

W RONG T IME , W RONG P LACE

The scene of the second case was the market of a rural district, which
means that a number of villages are responsible for the running of the
market. It occurred under circumstances similar to the first one: alcohol
consumption and violence were involved, and it took place in a market-
place in the daytime.7 Although comparable, this example exhibits a num-
ber of quite different characteristics.
Two men who were competing for access to a tract of arable land
met at this market. An argument ensued. One of them suddenly pulled
out a knife and, in an attempt to stab the other in the throat, missed
and wounded him slightly on the shoulder. Other market visitors imme-
diately intervened. They attacked the perpetrator, who took flight. He
escaped from immediate judgment at the market, which was fortunate for
 R e l i g i ou s Su bt l e t i e s i n D i s p u t i n g 63

him. The usual state officials—the qa’id (district officer), the shikh (senior
mayor), and the muqaddim (mayors) of the surrounding villages—were
present at the market that day, but they did not dare to intervene because
they feared the emotions of the market visitors. However, the inhabit-
ants of the perpetrator’s village, where he had taken refuge, arrested him
after a short debate and called the gendarmes. The man was brought to
trial and accused of an act punishable by criminal law. During the trial,
nobody was willing to intervene in his favor. The judge expressed his
disapproval and sentenced the perpetrator to three years in jail for violent
aggression.
When I asked the villagers afterward, why the police had been sum-
moned—a situation that, as noted above, is usually avoided—they said
that the sentenced person was a notorious troublemaker. However, what
turned his transgression into a sort of local catastrophe was the spatial and
temporal framing. The site of the event not only was a marketplace with
the usual spiritual and legal protection, but also was a particular market
famous for its close connection to a nearby zawiyya (convent). The perpe-
trator was drunk when he entered the market and, what is worse, he was
armed. These two things are strictly prohibited in the market. The mere
act of engaging in a quarrel in the market is also frowned upon, although
it takes place quite frequently and is not seen as a real problem as long as
the conflict remains under control.
In this case, however, it was not clear whether the men had met by
accident or if the perpetrator had sought out his victim because he was
drunk and quarrelsome. Furthermore, the fact that the person responsible
had not only disrespected the marketplace, but had also violated a num-
ber of temporal restrictions provoked a wave of indignation. The timing
of event was indeed most unfortunate. It was in November 2002, during
the plowing season, when all conflicts over land and access should either
have been settled or postponed. Furthermore, it was during Ramadan,
when the consumption of alcohol is strictly prohibited for Muslims in
Morocco and when disputes should be actively avoided.8 Moreover, it was
on the last market day before ‘id al-fitr, the celebration marking the end
of Ramadan and the breaking of the fast. These circumstances were con-
sidered so egregious that the family of the wounded person even refused
to accept compensation, which would normally be arranged at the local
level even if the culprit has been sentenced in a state trial. The members
of the religious congregation ‘Isawa, who live in the zawiyya under whose
protection the market stands, also stepped in and denounced the wrong-
doer for the disrespect he had shown. They put him under the threat of a
conditional curse (a mortgage on the future) that could take effect after
his release from prison. Thus, the case remained unsettled, and reconcil-
ing the conflicting parties was once again put on the agenda of the council
of the village concerned after the release of the culprit.
64 Bertram Turner

This case also differs from the first, in that the Salafi adherents in the
village of the wrongdoer approved the official verdict. However, they
accused the state of not respecting the Islamic prohibition against the
consumption of alcohol and, therefore, accused the state institutions of
contributory fault. Again, as in the first case, they fulminated against the
designation of the marketplace as “sacred,” and especially against the
role of the zawiyya as its protector. They also considered the perpetra-
tor’s breach of Ramadan rules to be aggravating factors that should have
weighed more heavily in the trial and sentencing.

R ELIGIOUS S UBTLETIES IN L OCAL D ISPUTING : D ISPUTED

S PATIOTEMPORAL I NSCRIPTIONS OF F AITH
The data presented in the two case studies allow us to identify several
strands of spatial and temporal assessment of conflictive behavior that
show how the religious sphere affects the arts of disputing and dispute
settlement. Those strands are integrated into a wider local conceptualiza-
tion of space and time. Starting from this local conceptualization, I will
then go into the analysis of their spatiotemporal convergences, and con-
trast them with the doctrinal approach in salaficized religious reasoning.

L OCAL S PATIOTEMPORAL P ARAMETERS

Time
As the case studies have shown, the cognition of temporality in Morocco
entails a number of different concepts of time (Eickelman, 1977). The
scale of operative local conceptions may range from time as a continuous
linear process to models of temporal cycles (seasons, climatic changes, and
calendars) and, finally, may also include ideas of collective legal memory
as a cumulative perception of time. The case studies indicate that people
sometimes regard these concepts as discrete frames of reference that refer
to various aspects of human existence, and sometimes they combine or
blend them as circumstances demand. Most of my informants, whether
religious experts, small peasants, or civil servants in southwest Morocco,
emphasize that they have no problem switching between the different
models of time reckoning or combining them under particular circum-
stances. Furthermore, they express an awareness that their time manage-
ment sometimes requires them to make the different computations of time
“compatible” in one way or another. As different time measurements reso-
nate with different registers of legal and religious order, the consequences
of such fusion may reach far beyond the valuation of temporal aspects.
Villagers in the Souss ascribe a predominant position in their time man-
agement to the Islamic calendar, which explains why it was so important
 R e l i g i ou s Su bt l e t i e s i n D i s p u t i n g 65

that the second case took place during Ramadan. The Islamic calendar
is based on the lunar cycle and, thus, advances annually 11 days when
measured against the solar Gregorian calendar, which is the internation-
ally recognized calendar and is also the official calendar in Morocco.
While both calendars divide time into months, weeks, and days, the offi-
cial Moroccan time system acknowledges Sunday as the official weekly
holiday, reflecting its Christian-inspired establishment during the time of
the French Protectorate (1912−1956). Friday, which is the day of prayer
according to the Islamic week, is also unofficially respected.
Public life is widely determined by the rhythm of Islamic religious fes-
tivals, which are bound to the Islamic calendar. Parallel to this religious
calendar exists another calendar of religious activities and festivals that is
bound to the change of seasons and, therefore, closely follows the annual
agrarian cycle. Here, religious precepts fuse with the demands of sea-
sonal agricultural work. The interaction between this Islamic calendar and
the agrarian cycle, thus, produces a temporal framework that affects the
most diverse time-bound activities related to the normative order, as the
first case demonstrates. The time frame provides for a variety of preferred
behavioral patterns. The periods of intensified activity—plowing, sowing,
planting, growing, and harvesting—also correspond to periods of protec-
tion and of suppression of behavior considered disruptive of public safety
and order. The calendar of maousim (sing. moussem)—festivals in honor
of local saints that combine pilgrimage with religious celebrations, com-
mercial activities, and recreation at local fairs—is also embedded in the
agrarian seasonal rhythm. The sacred nature of the temporal frame seems
to be one reason for the harsh reaction of the ‘Isawa congregation in the
second case. Such sacred periods are generally favorable to the settlement
of almost all kinds of disputes among Moroccan villagers in the Souss,
whereas during other periods, conflicting parties show much less readi-
ness to reconcile. For this reason, expert intervention in legal affairs such
as dispute management is among the typical activities at these fairs.
In sum, because the agrarian way of life is widely neglected both in the
Islamic calendar and in Islamic law, the local order of time and law must
fill this normative and temporal void. This leads to an amalgamation of the
Islamic religious calendar, the solar calendar (both the official Gregorian
and the antecedent Julian), and the seasonal agrarian calendar.

Space
The empirical data reveal that, in the local perspective, time frames are
thought to be dependent on space and scale, as indeed are normative reg-
isters. Interwoven into the web of legal spaces is the separation of sacred
from profane spheres; in other words, the different types of space bear
66 Bertram Turner

different normative loads. While both spheres display a number of legal

characteristics, it is the sacred that the protagonists in the ethnographic
vignettes regarded as providing a framework favorable to the settlement
of disputes. It is likewise the sacred sphere that predominantly gives con-
tours to the normative in space.
In the vignettes, the marketplace exemplifies this mapping. Other reli-
gious sites, such as mosques (masjid), convents (zawiyya), graves of ven-
erated religious personages (marabut), and cemeteries (maqbarat), are
also integral components of the legal landscape. Venerated sites combine
their conspicuousness in the landscape with a normative-spiritual biogra-
phy that includes prominent trees, hilltops, mountains, springs, and man-
made landmarks such as cairns (kerkur) in order to complete this spatial
structure.
The local legal landscape, thus, coincides with the sacred landscape.
The latter is mirrored in cosmological myths legitimizing the particular
legal and normative power of places and spaces. Religious experts figure
as founders of the sacred tracks and places, and endow them with spiritual
power. Such powers may be used for various purposes: they are believed
to be able to prevent negative influences, encourage rightful behavior, and
so forth. Knowledge about such places and their hidden qualities connects
people related to that landscape with their past and with their ancestors.
Individuals may navigate through juridical space by analyzing the symbols
and the markers spread over the landscape. They are, thus, enabled to
act within a coordinate system of rules and obligations, of inclusion and
exclusion, of participation and interaction, and of protection and social
control. The national legal organization of space is also inscribed in both
the spiritual and the profane legal landscapes. Different layers of the juridi-
cal landscape differentiate between the rural and the urban, for whose legal
orders different state agents are responsible, be they ministries, police, or
administrative units. Some sites stand out, such as court buildings, public
places, and squares, as they serve as the mise-en-scène of the state. In the
data presented here, it is the marketplace that references, in addition to all
other aspects, the presence of the state in this rural area.

Spatiotemporal Convergences
What follows from the previous paragraphs is that interaction with their
environment in time and space provides local actors with religious and
legal behavioral instructions; in other words, temporal and spatial aspects
converge and in doing so mutually intensify their diagnostic significance
for the assessment of human behavior in disputing. As has been shown,
such dynamics may also produce accumulations of spatial and temporal
parameters that materialize under certain conditions and can be used in
processes of disputing.
 R e l i g i ou s Su bt l e t i e s i n D i s p u t i n g 67

In the local nomosphere, cyclical concepts of time that reflect various

strands of religious time management combine with a religious structure
of the landscape. Spaces, places, and sites, as well as time slots, seasons,
“occasions” such as pilgrimages (ziara), and other temporal framings dis-
play a number of legal and religious particularities that makes them valid
and relevant for processes of dispute settlement. The coincidence of the
period of Ramadan with the festival of a local saint may motivate even
more people to assemble at a particular sacred site and, thus, create an
atmosphere that makes it possible to evaluate human behavior in relation
to the biographies of actors in a way that facilitates the settlement of a
dispute. However, whether such a convergence of temporal and spatial
qualities, in fact, provides a higher degree of spiritual security is a bone
of contention. Under such conditions, disrespect and unlawful action
may evoke far more severe reactions than the same behavior would in
other circumstances. These conditionalities, local experts explain, favor
the search for an agreement among conflicting parties and for the settle-
ment of disputes to the same extent that they may favor healing processes
or other attempts to cope with unbalanced situations. Power, knowledge,
spirituality, and law are, thus, profoundly localized and time-bound.
The inscription of the basic spatiotemporal concepts in the nomo-
sphere appears, however, to connote much more than a religiously condi-
tioned preference for reconciliation. It affects the local order in its totality
and induces the separation of spheres. Indeed, there are, on the one hand,
places and times where and when reference to violence is not even imag-
inable, and people are expected to reconcile and compromise. There are,
on the other hand, places and times where and when disputing is accepted
or regarded as inevitable. Then, the demonstration of an individual’s abil-
ity to claim rights by resorting to violence appears acceptable and even
favored. Thus, what might be regarded as inappropriate, even deviant,
in one context may be expected and even proper behavior in another. A
line separating the sacred from the profane corresponds to some extent to
these spatiotemporal framings, although these distinctions are perceived
as categorically different.
It remains to be pointed out that spatiotemporal inscriptions of reli-
gion in the nomosphere figure as one frame of reference among others for
the valuation of behavior in the arena of disputing. Secular interpretations
may be added to the religious perspective, which may result in a variety of
more or less coherent combinations of evaluative criteria.

Plural Spatiotemporalities
Focusing on local conceptions raises the question of the extent to which
they are integrated into the national legal framework and interact with
state legislation. When I raised this question in a village cafe during a
68 Bertram Turner

public discussion of one of the cases presented above, the answers varied
from ambivalent to discordant. In general, people said that professionals
in the Moroccan state judiciary do refer to local spatiotemporal consid-
erations in their assessment of a case. They do so, however, only to the
extent that such considerations may be used for a more concrete applica-
tion of state law to local circumstances. In many fields of the state legal
realm, however, such considerations are ignored.

S PACE AND T IME IN P OLITICAL I SLAM :

A CCOMMODATING THE F UTURE TO THE P AST
One peculiar field of contention between activists of Salafi orientation
and representatives of local Islam turned out to be the religious connota-
tion of the spatiotemporal references in processes of dispute settlement.
The line of argumentation of the Salafis involved in the village affairs
depicted above reveals some of the major strands of Salafi spatiotemporal
framings of law and dispute settlement. Regardless of all the diversity that
has emerged within the movement in the course of its worldwide expan-
sion, among the commonly shared basic spiritual convictions are those
that position religion in space (makan) and time (zaman; weqt). With
reference to the central statements on those issues in recent publications
(Al-Azmeh, 1993; Mansoor, 2000; Noor, 2003; Duderija, 2007; Abu
al-Louz, 2009), some of these basic principles of Salafism that I found
widely accepted among Salafis in the Souss are summarized below.
According to the dogmatic view, the perfect legal order is to be found
in the past, in the period of early Islam when judicature, justice, and reli-
gion were in perfect harmony. Thus, Salafis advocate returning to the
ideal past and reinstituting the past in the present. This reconstructionist
perspective entails introducing shari’a in the most literal and narrowest
sense possible (Abu al-Louz, 2009). From this, it follows that there can
be no flexibility in the interpretation (ijtihad) of the religious doctrine to
accommodate prevailing circumstances.
In addition, from this derives the basic Salafi understanding of how the
past, present, and the future are positioned with respect to one another.
Tradition provides a direction from which one should not deviate. This is
closely connected to the conviction that the textuality or the “writtenness”
of the religious message enshrines the truth, which cannot be interpreted
through the lens of the present. In fact, the present only reveals its real con-
ditionalities when interpreted through the text. In other words, it is only
through reference to the past that present-day manifestations of religious
tenets can be legitimated. In this view, the Islamic community constitutes
an island of past-oriented orthodoxy within an ocean of present-day pagan
modernity. The Salafis’ strict adherence to the Islamic calendar underlines
this concept of the cyclical reappearance of the past in the present.
 R e l i g i ou s Su bt l e t i e s i n D i s p u t i n g 69

The spatial reading of the world in Salafi texts accordingly refers to the
basic sources of Islam, which operate with a binary division between the
Islamic universe and the world beyond Islam. There is the space where
Islam reigns, dar al-Islam (“the house of Islam”), and the space and sphere
where Islam is not represented or is in the minority, the dar-ul-kufr/harb
(“the house of disbelief/war”). The Islamic universe is organized in the
form of the ‘umma, the community of all Muslims as the unification of
the spiritual and the spatial realm of Islam. In legal terms, an action that
is allowed to take place in a non-Islamic environment may be forbidden
among Muslims. Such binary distinctions apply to all human actions and
behavior, and therefore also imbue all legal reasoning. Consequently, the
local perception of the legal landscape as divided into zones of sacredness
and zones of the profane world was classified as pagan. Salafi activists
started a crusade against the veneration of places and sites and against
those representatives of popular Islam who are considered sacred persons
because of their connection to those places. Following this logic, dog-
matic Salafism strictly refuses to refer to spatiotemporal criteria in local
disputing, and rejects the attribution of any religious significance to these
places whatsoever—with the exception of the Islamic calendar and the
territory of Islam of which Morocco is a part.

C ONCLUSION
Correlating the conditionalities that Franz and Keebet von Benda-
Beckmann and Anne Griffiths (2009) consider fundamental to the analy-
sis of spatialized law with the categorical conjunctions featured in this
chapter, one may postulate that the spatiotemporal framing of disput-
ing processes is socially constructed and is organized and legitimized by
means of law and religion, with those two latter categories understood as
internally heterogeneous.
The case studies demonstrate that spatiotemporal alignments of the
nomosphere are integral components of the local knowledge of individ-
ual actors in the Moroccan rural southwest. Such alignments reflect how
notions of time and space reference religious meaning. The case stud-
ies reveal that arenas of disputing are constructed not only with refer-
ence to many different legal repertoires and sources of legitimacy, but are
also perceived as being embedded in a symbolic landscape and matrix of
temporality. Local conceptions of time and space have exerted a variety
of impacts on processes of disputing. These impacts interactʊsometimes
fusing, sometimes competing, and sometimes even contradicting one
another. At the same time, they are arranged in a specific relationship to
the respective legal frames of reference of a particular local arena.
The local understanding of the legal relevance of spatiotemporal con-
ditions creates room for more than one assessment of the causes and
70 Bertram Turner

circumstances of a dispute, as well as for potentially different evaluations

of the disputants’ actions. While Salafis define a dispute as an objectifiable
course of events, the adherents of popular Islam attach most importance
to the assessment of the consequences of concomitant circumstances.
What are the potential consequences of the competition between the
two models of assessing time and space in disputes? It has been shown
that a propensity to play with the legal and the religious is characteristic
of the spatiotemporal subtleties of disputing. It concedes room for the
interpretation of the disputed issue and for the framing of the dispute,
as is illustrated by the case studies, in which the privileging of communal
interests over individual claims in local disputing was expressed in param-
eters of shared time and space.

N OTES
1. The people and places to which this chapter refers have been kept anony-
mous. Fieldwork on issues of local disputing was carried out for several
weeks each year between 1996 and 2005. Data from different settings and
concrete constellations on the Souss plain are included in the analysis. Since
2001 the fieldwork has been part of the project “Sustainable Development
and Exploitation of Natural Resources, Legal Pluralism, and Transnational
Law in the Arganeraie Biosphere Reserve,” within the Project Group Legal
Pluralism at the Max Planck Institute for Social Anthropology in Halle/
Saale, Germany.
2. For the more general framework, the chapter has benefited and drawn
inspiration from anthropological theorizing of space and place, especially
Gupta and Ferguson, 1992; Hirsch and O’Hanlon, 1996; Escobar, 2001;
Low and Lawrence-Zúñiga, 2003; Coleman and Collins, 2006; and from
anthropological theorizing of time, especially Munn, 1992; James and
Mills, 2005; Adam, 2006.
3. In concrete circumstances religious considerations are used to fill a void in
the plural legal configuration, as is the case with sharecropping arrange-
ments (Turner, 2003).
4. For the wider framework of Islamic activism in Morocco, see Chaarani,
2004; Zeghal, 2005.
5. In southwestern Moroccan rain-fed cultivation, sowing occurs in November
after the rainy season has started, and the spring harvest goes from March
through May.
6. Such a scenario of intimidation in reaction to the Salafi reproaches was
most likely bound to the particular situation in 2001. At that time Salafi
activism had reached its peak and was incessantly provoking clashes. After
the bombing attack in Casablanca in 2003, the situation completely
changed (Turner, 2006, 2008). In the wake of the Arab Spring in 2011,
public awareness of religious directives has again increased and material-
ized in an implicit acceptance of the realities of Islamic pluralism. In private
 R e l i g i ou s Su bt l e t i e s i n D i s p u t i n g 71

conversation, however, local representatives of the Salafiyya movement in

Morocco, profiting from such change, did not signal readiness to reconcile
with other orientations within the ‘umma.
7. I did not witness the event or attend the meeting of the villagers where the
issue was addressed, but had vivid conversations with the leading charac-
ters some time after the fact.
8. This is, however, an ideal that is seldom realized in practice (Belhaj,
2010).

R eferences
Abu al-Louz, A. “New Salafist Dogmas. Strict Beliefs and Cultural Limits.” ArabInsight
2, no. 6 (2009): 51–65. http://www.arabinsight.org/pdf/Arabinsight28.pdf.
Adam, B. “Time.” Theory, Culture & Society 23, no. 2–3 (2006): 119–26.
Al-Azmeh, A. Islams and Modernities. London: Verso, 1993.
Belhaj, A. “Comportement et Transgression au Ramadan: Une Dissonance
Cognitive. ” Le Matin September 5, 2010.
Benda-Beckmann, F. von, K. von Benda-Beckmann, and A. Griffiths, eds.
Spatializing Law. An Anthropological Geography of Law and Society. Farnham:
Ashgate, 2009.
Blomley, N. K. Law, Space, and the Geographies of Power. New York: Guilford, 1994.
Blomley, N. K., D. Delaney, and R. T. Ford, eds. The Legal Geography Reader.
Law, Power, and Space. Oxford: Blackwell, 2001.
Chaarani, A. La Mouvance Islamiste au Maroc. Du 11 Septembre 2001 aux Attentats
de Casablanca du 16 Mai 2003. Paris: Karthala, 2004.
Coleman, S., and P. Collins, eds. Locating the Field: Space, Place and Context in
Anthropology. Oxford: Berg, 2006.
Delaney, D. The Spatial, the Legal and the Pragmatics of World-Making: Nomospheric
Investigations. Abingdon: Routledge, 2010.
Duderija, A. “Islamic Groups and their World-view and Identities: Neo-traditional
Salafis and Progressive Muslims.” Arab Law Quarterly 21, no. 4 (2007):
341–63.
Edelman, M., and A. Haugerud, eds. The Anthropology of Development and
Globalization. Malden, MA: Blackwell, 2006.
Eickelman, D. F. “Time in a Complex Society: A Moroccan Example.” Ethnology
16, no. 1 (1977): 39–55.
Eickelman, D. F., and J. Piscatory. Muslim Politics. Princeton: Princeton University
Press, 1996.
Emirbayer, M., and A. Mische. “What Is Agency?” The American Journal of
Sociology 103, no. 4 (1998): 962–1023.
Escobar, A. “Culture Sits in Place: Reflections on Globalism and Subaltern
Strategies of Localization.” Political Geography 20, no. 2 (2001): 139–74.
Friedman, K. E., and J. Friedman. Global Anthropology. Lanham: AltaMira, 2008.
Greenhouse, C. J. “Just in Time: Temporality and the Cultural Legitimation of
Law.” The Yale Law Journal 98, no. 8 (1989): 1631–51.
——— A Moment’s Notice: Time and Politics across Cultures. Ithaca: Cornell
University Press, 1996.
72 Bertram Turner

Gupta, A., and J. Ferguson. “Beyond ‘Culture’: Space, Identity, and Politics of the
Difference.” Cultural Anthropology 7, no. 1 (1992): 6–23.
Hart, D. G. “Murder in the Market. Penal Aspects of Berber Customary Law
in the Precolonial Moroccan Rif.” Islamic Law and Society 3, no. 3 (1996):
343–71.
Herod, A., and M. Wright, eds. Geographies of Power. Placing Scale. Malden, MA:
Blackwell Publishers, 2002.
Hirsch, E., and M. O ’Hanlon, eds. The Anthropology of Landscape: Perspectives on
Place and Space. Oxford: Oxford University Press, 1996.
Holder, J., and C. Harrison, eds. Law and Geography. Oxford: Oxford University
Press, 2003.
Inda, J. X., and R. Rosaldo, eds. The Anthropology of Globalization: A Reader.
Malden, MA: Blackwell, 2008.
James, W., and D. Mills, eds. The Qualities of Time: Anthropological Approaches.
Oxford: Berg, 2005.
Low, S. M., and D. Lawrence-Zúñiga. The Anthropology of Space and Place:
Locating Culture. Malden, MA: Blackwell, 2003.
Mansoor, I. “The Unpredictability of the Past: Turath and Hermeneutics” (PhD
thesis, University of California, Los Angeles, 2000).
Munn, N. D. “The Cultural Anthropology of Time. A Critical Essay.” Annual
Review of Anthropology 21, (1992): 93–123.
Noor, F. A. “What is the Victory of Islam? Towards a Different Understanding of
the Ummah and Political Success in the Contemporary World.” In Progressive
Muslims: On Justice, Gender and Pluralism, edited by O. Safi, 320–32. Oxford:
Oneworld, 2003
Rosa, H. Beschleunigung. Die Veränderung der Zeitstruktur in der Moderne.
Frankfurt am Main: Suhrkamp, 2005.
Rosa, H., and W. E. Scheuerman, eds. High-Speed Society. Social Acceleration,
Power, and Modernity. University Park: Pennsylvania State University Press,
2009.
Sarat, A., ed. The Place of Law. Ann Arbor: University of Michigan Press, 2003.
Savelsberg, J. J., and R. D. King “Law and Collective Memory.” Annual Review
of Law and Social Science 3, (2007): 189–211.
Taylor, W., ed. The Geography of Law: Landscape, Identity and Regulation. Oxford:
Hart, 2006.
Tsing, A. L. “The Global Situation.” Cultural Anthropology 15, no. 3 (2000):
327–60.
Turner, B. “Chr’ka in Southwest Morocco: Forms of Agrarian Cooperation between
Khammessat System and Legal Pluralism.” In Legal Pluralism and Unofficial Law
in Social, Economic and Political Development. Papers of the XIIIth International
Congress, April 7–10, 2002, Chiang Mai, Thailand, Vol. III, edited by R. Pradhan,
227–55. Kathmandu: ICNEC, 2003.
——— “Competing Global Players in Rural Morocco: Upgrading Legal Arenas.”
Journal of Legal Pluralism (Special Issue: Dynamics of Plural Legal Orders;
F. von Benda-Beckmann and K. von Benda-Beckmann, eds) 53/54, (2006):
101–39.
 R e l i g i ou s Su bt l e t i e s i n D i s p u t i n g 73

——— “Islamic Activism and Anti-terrorism Legislation in Morocco.” In The

Social Life of Anti-terrorism Laws. The War on Terror and the Classifications
of the ‘Dangerous Other, edited by J. Eckert, 163–91. Bielefeld: Transcript,
2008.
Turner, B., and T. G. Kirsch. “Law and Religion in Permutation of Order: An
Introduction.” In Permutations of Order. Religion and Law as Contested
Sovereignties, edited by T. G. Kirsch and B. Turner, 1–24. Farnham: Ashgate,
2009.
Zeghal, M. Les Islamistes Marocains. Le Défi à la Monarchie. Casablanca: Le
Fennec, 2005.
 5

“G O D M O V E S B I G T I M E IN
SOPHIATOWN”*
COMMUNITY POLICING AND “THE FIGHT
AGAINST EVIL” IN A POOR JOHANNESBURG
NEIGHBORHOOD

Julia Hornberger

“
I had a visitation. An angel appeared to me, and he showed me the
image of a tree. I went to paint the image of the tree on the wall of
the police barrack’s coffee shop where I was helping out at the time. It
became the tree of life. Nobody knows it, but this became the new emblem
of the police.” This is how Amanda, a 50-something unemployed white
Afrikaans-speaking woman, began her account of how she got involved in
community policing in the neighborhood of Sophiatown, Johannesburg.
As she was talking, it soon became clear that Amanda was not only an
active member of the local community police forum, but she was also a
fervent disciple of the 7 Trumpet Ministry, a Pentecostal church. She saw
herself, in her own words, as “the living testimony of God’s concern for
the police.” For her, community policing was a medium to bring a mes-
sage of salvation.
This chapter is an account of how community policing facilitates privi-
leged access to the police for a Pentecostal group, through which the
group establishes a form of religious rule in the Johannesburg suburb
of Sophiatown by collapsing the categories of law and religion. While
this takes place in competition with other community organizations and,
one could argue, by undermining state rule, it does not provoke much
outright conflict or public disapproval. Through crafty tampering with
the process of representation in which the disciples become the police to
the community and the community to the police, they are able to steer
76 Ju l i a Ho rn b e r g e r

clear of such conflicts. In fact, on the face of it, they appear to be the
localized embodiment of the very democratization efforts of a state that
hopes to legitimize its rule by appearing to enforce the will of the people.
Such subtle displacement of the state is further aided by the fact that in
the neighborhood space in which the disciples operate, a secular, rights-
oriented state is otherwise experienced as withdrawing or unintelligible.
In its current institutional and flagship-for-democracy form, commu-
nity policing was introduced in 1994. It entailed the setting up of “com-
munity policing forums” (CPFs), in which the residents of a particular
policing precinct come together to discuss the security problems of the
area and liaise with the police about these issues. Its introduction formed
one of the main interventions leading to the transformation of the apart-
heid police force into a more democratic, law-abiding police service. It was
the new dawn of democracy in South Africa, and there was to be a change
of heart among the police. To Pentecostalists like Amanda, this “change
of heart” spoke directly to the Pentecostal paradigm of a saved person’s
rupture with a sinful past, while “crime-ridden communities” were seen
as sites in which to fight the battle between good and evil.
As we shall see, a surprisingly convergent grammar was found between
a secular national policy of democratic law enforcement and a practice of
faith. Through this convergence, police and Pentecostal disciples forged
an intimate partnership, in which the disciples pray for the police and help
with administrative chores, and the police follow the disciples’ directives
regarding where to intervene. This partnership serves to channel police
powers not simply toward the prevention of crime as defined by the law
but also toward a particular moral order and construction of a commu-
nity of the faithful. Enforceable social rights that were meant to replace
patronizing forms of state tutelage are being translated back into forms
of pastoral care; instead of reducing state violence and statutory crime, as
the credo of community policing has it, the police are encouraged to use
their awe-inspiring violence as a law-making power to found a religious
sovereignty with its own lines of inclusion and exclusion, territoriality,
moral laws, and a clearly circumscribed body politic.
This redirection of policing powers toward a religious sovereignty has
taken place through crafty tampering with the idea and practices of (polit-
ical) representation by the Pentecostal disciples. Representation has been
an important element of community policing, a central claim of which is
that through its process the police do not act in the name of an oppressive
regime, but come to carry out the (democratic) will of the people within
a specific locale. Such claims to popular sovereignty are also why commu-
nity policing remains so resilient in its ability to conjure up the possibility
of more justice for the people and, through this, the apparent promise
of more legitimacy for the state. Yet the “will of the people” has to be
 “G od Moves Big Time in S ophiat own” 77

defined and communicated to the police. This is the role of the CPFs,
which are given the mandate to represent the community to the police.
Representation, however, is a complicated matter. It tends to oscil-
late between two extremes, both of which threaten to betray it. One is
generality—meaning complete inclusion of all possible diversity, which
would not allow for any concerted voice or effort; the other is particular-
ity—meaning a definition of who and what “the people,” or in its local-
ized form, “the community” is, which gives some people prominence
over others and establishes exclusivity. To hold the threat of betrayal at
bay, exclusivity is authorized through the reification of the institutional
structures of representation and the mobilization of transcendental claims
to a version of a common (read “all-inclusive”) good. Yet some tension
always remains. This is what Latour ([1991] 2008) calls the simultane-
ity of immanence and transcendence of representation, and what Laclau
(1994) has called the “productive impossibility” of the representation.
It is exactly this irresolvable tension between the immanence and
transcendence of representation that the Pentecostal disciples explore
and exploit. They manage to (re)present themselves to the police as “the
community,” while to the community they take the role of the police.
By being both, they are able to direct and shape both. The police accept
their directives, as these appear to come from “the community.” At the
same time, the disciples are able to put the “power of the sword” (police
power) to their covenant and define who and what the community is.
They are able to do so by constantly erasing the traces of their agency and
origin, which is a Pentecostal trait anyway, and thus, as Peter Sloterdijk
highlights in his exploration of the concept of fluidity in relation to mod-
ern conquest, “navigate among the totality of all destinations and objects
without being recognized by others to be doing so” (2005, p. 145; my
translation).
Through this fluid movement, disciples collapse the categories of the
law and religion while appearing to confirm them in their distinctiveness;
they are able to work with powerful means such as police powers toward
the establishment of their religious sovereignty, while, at the same time,
they seemingly validate the democratic state and help to expand its rule.

M ORAL I NTERVENTION
The merging of crime issues with religious messages is not uncommon
in South Africa, nor indeed globally. In 2006, in the wake of increasing
concern over crime, the South African government initiated the Moral
Regeneration Movement, with which a range of religious leaders are affil-
iated (Rauch, 2005, p. 9). Protest marches against crime, government
inertia, and police failure have been organized by church communities.
78 Ju l i a Ho rn b e r g e r

For instance, one such demonstration was led by the Dutch Reformed
Church in 2007. However, it is the Pentecostal churches, in particu-
lar, that have sought cooperation with the police. The powerful Rhema
church, one of the largest Pentecostal churches, has established itself very
successfully among both black and white people in South Africa. It is
increasingly moving into community policing and has made the motiva-
tion of police officers its concern.1 Amanda, whom I quoted above and
whose work I am mainly following in this account, is part of a platform
of Pentecostal initiatives called “Action against Crime.” This platform
also has a digital presence, promoting the setting up of prayer groups that
dedicate their prayers to the police officers of specific police stations and
publicizing success stories and testimonies of how God has intervened in
and supported the fighting of crime. Amanda’s group’s activities feature
prominently on the Web page www.actionagainstcrime.org.za/aac.htm,
accompanied by an article titled “God Moves Big Time in Sophiatown.”
After our first meeting, Amanda and her friend Ria—also a white,
Afrikaans-speaking woman and a Pentecostal disciple—invited me to go
with them on a tour through Claremont—a subdistrict of the Sophiatown
policing district—so I could see how “God moves big time” through an
active CPF. Their story is the mythical tale of “before and after.” Before,
according to them, the dusty lanes, barren trees, and worn-out grass
patches between the council-owned blocks had been covered in litter,
rusted-out hulks of cars, and disintegrating abandoned mattresses, with
hollows in the uneven ground being used as dumping grounds for bro-
ken glass and garbage. All this, they claimed passionately, has been tidied
up since they started to focus their attention on uplifting Claremont’s
poor. Corten and Marshall-Frantani (2001, pp. 7–8) explain the worldly
manifestation of Pentecostal belief: “[T]he realization of the project of
transformation that rupture announces [ . . . ] must bring rupture into
the world, elevating the private experience of transformation to the level
of the public, by the elaboration of a project of transforming the world
itself.” In this sense, the clean-up of the area corroborates their claims
that their intervention was changing people’s lives. At the same time, it
also assertively marks the space as one where they had established their
presence. Such territoriality is further underwritten through the prayer
sessions they organize. They explained to me that they camp in the area
and preach through a public-address system that makes it impossible for
anyone to ignore them. Here, the Holy Spirit, enlivened through prayer,
serves as the aggressive imperial figure through which the territory is
being conquered and occupied.
As we drove on, a colored2 woman walking with her son on the side of
the road flagged us down. She clearly knew Amanda and Ria, and imme-
diately related to them in Afrikaans the trouble she was having with her
son, a boy of about 12. Amanda got out of the car and took to the task.
 “G od Moves Big Time in S ophiat own” 79

She laid both her hands on the boy’s head and asked him to look her in
the eyes. The boy, clearly intimidated, flinched at first, but then obeyed.
She then announced that she could clearly see the devil in his eyes, and
commanded the devil to leave this sacred space that had been cleaned up
and in which the Holy Spirit reigned. The mother thanked her and soon
was pulling the boy along with her, continuing on her way.
Such interventions, I was soon to discover, were far from unusual. They
showed me that Amanda and Ria occupied a position of moral authority
among many people, black and white, in this area. They also showed me
that their concern went beyond ideas of crime, right and wrong, legal and
illegal, into the realm of appropriate and inappropriate conduct of the
self, respectability, and moral behavior. As I was also to discover, these
interventions would sometimes happen with less compliance on the part
of the people concerned.
We passed another block of flats. Amanda and Ria decided to pay a visit
to a family who had been the victim of a recent burglary. The woman of
the family hesitatingly opened the door upon their knocking. Amanda and
Ria introduced themselves as members of the CPF and said they wanted
to check on how she was doing after the burglary. The woman allowed
them to come in and recounted how the burglary had taken place and
whom she suspected. Amanda and Ria showed great empathy and inter-
est, but then steered the conversation toward more personal questions
about the activities of the woman and her husband. They were interested
in the many books, mainly encyclopedias, that were lined up on a book-
shelf, and about the origin and function of a life-size plastic skeleton that
was suspended from a stand close to the window (and had been visible
from outside).
The woman explained that the skeleton came from the school where
her husband had once worked as a clerk, and said they used it now to
instruct their children. However, Amanda and Ria remained skeptical.
When the woman went into the kitchen to prepare tea, they whispered
to each other that they did not believe her and that they suspected some
devilish kind of business. When they left, they advised her, among other
things, on how to take care of her children and to get rid of the skeleton
because it was contaminating her house and making her and her family
vulnerable to something bad happening again. The woman took in the
advice with what seemed to be quiet acquiescence.
This incident showed how Amanda’s and Ria’s role as members of the
CPF was deeply suffused with their moral agenda and their Pentecostal
faith-based aspirations. They were clearly using their CPF membership to
gain access to people and their homes. They then used this access to inter-
vene, more or less aggressively, in issues only partly to do with crime and
security as delineated by the criminal law. In fact, even crimes that were
impersonal in nature, such as the burglary described above, were given
80 Ju l i a Ho rn b e r g e r

a meaning within a divine and moralizing universe, in which the woman

had brought the misfortune of being the victim of crime upon herself
through her wrong conduct. For Amanda and Ria, policing and interven-
tion against the devil became one and the same thing. They were moraliz-
ing crime, and what they deemed immoral conduct and a deviation from
a Pentecostal moral order became in their eyes criminal behavior. In this
way, they were carrying out a form of moral policing and were actively
establishing their moral order in the area and with its people.
This form of calculated empathy, tutelage, and pastoral care represents
one important facet of interventions in the name of community policing
in the area. To understand people’s receptiveness and/or acquiescence to
such intervention, we must, however, make a short detour into the his-
tory of the area and its relationship to the state in the past.

C LAREMONT ʊ P OVERTY AND U PLIFTING

In Claremont, Johannesburg, where Amanda has become the community
policing sector head, community policing takes on a particular meaning.
The residents in this subdistrict of the Sophiatown police station catchment
have a history of reliance on paternalistic state resources, and a history of
the state intervening in the more intimate social and private sphere.
During the period of apartheid, Claremont, once a racially mixed work-
ing-class area, remained poor and working class, but became a whites-only
area. Like other poor white areas in the southwest of Johannesburg, the
apartheid state directed some of its most intense welfare efforts toward
this area. There was a system of grants and council housing, and wide-
ranging paternalistic care in the form of social services and child welfare
that intervened in the private matters of households and families.
While these efforts only partly succeeded in erasing the phenomenon
of extremely low-income whites (“poor whites”), they entrenched a habit
of dependency on state resources and outside intervention, often through
white social workers. A similar regime was applied to the neighboring
colored areas. Although less generous, it was just as all-encompassing,
and even more than with the poor white population, pathologized and
reinforced social ills such as the breakdown of families, alcoholism, and
teenage pregnancy. It imposed onto colored women the ambiguous role
of a burdensome matriarchy, while colored men were often criminalized
and removed from households, with their support role replaced by the
state (Jensen, 2009).
In the 1980s, the apartheid state’s impetus to police racial boundaries
weakened, and when apartheid officially came to an end and racially differ-
entiated council housing lists were finally merged, the clear lines that had
divided Claremont from its neighboring areas were blurred. Many colored
people started moving into the slightly bigger and better council houses
 “G od Moves Big Time in S ophiat own” 81

that had previously been reserved for whites. At the same time, the African
population of Claremont was growing. Some of the newcomers also moved
into the council houses, while others took up residence in a squatter camp
called Kathrada Park at the southern edge of Claremont, which was mainly
occupied by people who were seeking proximity to the city.
Forty years of apartheid spatial organization was very quickly erod-
ing, and history was catching up where it left off in the early 1950s.
Claremont became a rare but archetypal new South African area, with an
exceptionally racially mixed residential composition, so much so that it
was virtually impossible to tell that it once had been declared a white area.
However, low income, poverty, and state dependency formed the com-
mon denominator. Claremont soon became known as one of the most
deprived areas of Johannesburg, with one of the highest rates of child
neglect and abuse—a fact symbolically recognized in 2005 when the pre-
mier of Gauteng launched the national Bana Pele program, described as
a package of free services aimed at “providing relief for the poorest and
most vulnerable children.”3
While poverty served as the common denominator, there were dif-
ferent degrees of entitlement vis-à-vis the local and national African
National Congress government, and the new, pro-poor government poli-
cies provided ample grounds for racial tension. For example, new housing
schemes were perceived by other residents as unjustifiably privileging the
informal settlers of the Kathrada Park squatter camp (Property24, 2006).
In addition, the new policies provided less welfare and state protection in
the labor market for both white and colored people, contributing to their
sense of being abandoned by the new government.
At the same time, as part of the postapartheid promise to deliver jus-
tice, some of the previous welfare concerns related to the family, such as
domestic violence, were reformulated as issues of rights and now came
under the ambit of law enforcement. Those classic postapartheid efforts
that were intended to empower people and liberate them from pater-
nalistic state tutelage came with an expectation of legally savvy and self-
empowered people who would be ready to make radical changes in their
lives (e.g., to leave their partner behind or move out of the area; see
Hornberger, 2009). Such a subject position, which mirrored a strong
sense of being middle-class, was hard to come by for people in the area,
and thus often remained abstract and out of reach, and with it the pos-
sibility of making those rights work for them.
It was into this realm of poverty and reinforced social ills, where peo-
ple were habituated to relying on or were newly dependent upon state
resources and outside intervention, that Amanda and Ria moved with
their message of “redemptive uplift,” merged with and legitimized by the
state-initiated message of community policing. Here, their aggressive and
moralizing pastoral care was not merely an unasked-for intervention, but
82 Ju l i a Ho rn b e r g e r

rather filled an already existing need and/or translated state interventions

back into familiar accessible forms of tutelage and patronizing moral con-
cern. With this approach, however, they could overlay a state message of
democratization onto their message drawn from Pentecostal doctrine.

B ETWEEN L AW -M AKING AND L AW -M AINTAINING

The activities of moral policing did not stop with the soft powers of pas-
toral care displayed in the above examples. In some more comprehensive
interventions, again in the name of community policing, the efforts of the
Pentecostal disciples to go beyond the realm of interpersonal bickering
and private conflict do not remain tacitly interwoven, but become overtly
palpable––and break new ground. The mapping of a particular moral
order comes to resemble a process of violent law-making and a strenuous
reinterpretation of the meaning of crime and the boundary between who
belongs to the community and who does not. For this, they mobilize
a form of police authority for themselves that is not so much mediated
through the law, but which in the grey zone of police discretion draws
from an extra-legal, awe-inspiring employment of police violence.

C REATING THE L AW
During an interview, Amanda and Ria let me in on some more of their
activities as members of the CPF. Together with a group of what they
called volunteers, one of these interventions was to get control over and
regulate the shebeens—informal, unlicensed backyard bars:

We have about 40 shebeens in the area and I know of about 11 syndicates

who are running their affairs through the shebeens—mainly selling stolen
goods and smuggled cigarettes. What we have done is forced the shebeens
to come up with a code of conduct; we have made a code of conduct to
which they have to adhere and which says that they are not covering these
illegal businesses. That makes it harder for the syndicates to operate. We call
it “shebeens against crime.”

If one of the shebeens violates the code, Amanda calls on the police to
intervene:

[Once] a shebeen owner called me. He said that he can’t help it and that
they are forcing him to sell the cigarettes. But I told him, if he stops selling
them, I take him off the list of shebeens. This list of shebeens is a list we
pass on to the police when they do raids. It tells them where the shebeens
are and when they operate. So I told the man, “If you stick to the code of
conduct, we take you off the list.”
 “G od Moves Big Time in S ophiat own” 83

Similar strategies were carried out with tuck-shops (small convenience

stores run out of people’s homes) regarding what they can sell and what
they cannot, to whom, and at what hours.
Denouncing illegal activity would seem at first sight to be precisely
what one would expect from community policing as officially propagated
and originally imagined by national policymakers. However, what seems
to be happening here is a much more ambiguous and sinuous process—a
process of making and enforcing a different law. This process is carried
out at a distance from the state, but by imitating and drawing from the
imaginary of state practice, establishing the Holy Spirit and God as the
(un)official authority behind the law.
This is made possible by the informality of the realm in which Amanda
and Ria were intervening. We have to consider that none of the shebeens
had a liquor licence, so they were mainly operating illicitly. Similarly, most
of the tuck-shops were run informally—out of houses or from front yards-
with minimal economic margins and complete dependency on neighbor-
hood clientele and good local standing. Amanda and Ria were therefore
intervening in grey zones of illegality and precarious economic survival
where formal rules already lacked clear contours and the scripture of the
state was barely legible (Das, 2004).
This lack of legibility of the state through its laws provides an oppor-
tunity for those who wish to map upon it an alternative moral ordering. It
allows any recourse and access to formality and officialdom to be turned to
strategic advantage. More seriously, it allows for particular ways of apply-
ing discretion. Applying discretion, in this context, means attacking in a
selective manner certain aspects of illegality and informality while letting
others prevail (e.g., by letting shebeens continue to operate illegally pro-
vided they ban the sale of certain products). This is not a concretization
of the law in detailed practice, but rather an erasure and devaluation of the
formal law, and a redrawing of the line separating right from wrong. By
partly affirming and partly disregarding the law, the already shaky sense of
certainty and consistency of the formal law, which is foundational to the
legitimacy of the law, is even further contravened; it is, in fact, superseded
in clarity and certainty by new rules. To apply discretion in a realm where
the formal signature of the state is illegible results in the making of a new
and different law that still has a signature that looks much like that of the
state. Thus, the mimicry—with its content different from state law and
foundational of a different authority than the state—becomes more real
than the original.
As we can see from the comments, the new law is also being formal-
ized. The making of a new law and the establishment of a new authority
does not consist of a few random and changing directives or momentarily
negotiated interventions, but gets enshrined as a “code of conduct.”
84 Ju l i a Ho rn b e r g e r

Ironically, while “codes of conduct” are often introduced in the absence

of a coercive power and fill this void by claiming a certain consensus, the
“consensus” in the case of Sophiatown is being established through a
particular form of rather coercive state power.
T-shirts identifying Amanda and Ria as CPF members not only make
them recognizable but also bestow on them, in the style of a uniform, a
sense of institutional officialdom, and the authority and legitimacy that
goes with it. More importantly, they are able to fall back on “real” (e.g.,
backed up by violence) coercive state power, in the form of police force.
As their reference to police raids makes clear, they use police force, or
threaten to use it, to back up their law-making endeavor.
These police raids were carried out in a particular way. Officially, they
were presented as concerted efforts to arrest as many suspects as possible.
They were mainly carried out in the late hours of the night when, so the
rationale went, suspects would be off-guard and illicit practices would
most likely be taking place. Normally during the daytime, detectives
and other police officers dress in well-ironed shirts and ties, and work
alone or in small teams of one or two, visiting households to take state-
ments or passing time writing up reports in their offices. Now, at night,
they would come together, casually dressed in safari gear or jeans and
t-shirts. In groups of 10–15, they would push into the neighborhood,
cars in formation, banging on or even knocking down doors, jumping
over walls, insulting and humiliating people. The raids were designed to
show off their prowess; they were an investment in an awe-inspiring kind
of authority. Forms of predatory violence were applied in the name of the
law, but the real purpose was to establish the rule of their authority. Night
raids are one of the roughest manifestations of policing in South Africa,
far removed from the communicative and cooperative credo of reformed
police intervention.
Walter Benjamin’s ([1955] 1986) description of the police in his
“Critique of Violence” is most apt here. He describes the police as occu-
pying a spectral presence, dissolving the differentiation between what
he calls law-preserving and law-making violence. Law-making violence-
predatory, visible, immediate violence that is epitomized by the violence
of war—establishes new law and refers back to the moment of the origin
of the law. Law-preserving violence, by contrast, reaffirms the law as an
end in itself (as opposed to justice), by applying violence in the name of
the law, expelling and subjecting what might challenge the law, especially
any violence that might set up an alternative order to the one that the law
has established and is protecting.
According to Benjamin, police power thrives on blurring the distinc-
tion between the two kinds of violence. This blurring is enabled through
the law of decree4 (Verfügungsrecht) that the police can apply. In simple
terms, it is the practice of discretion that characterizes police actions.
 “G od Moves Big Time in S ophiat own” 85

Various scholars of policing, such as Skolnick (1975) and Reiner (2010),

have long pointed out the issue of discretion, although without link-
ing their observations to a fundamental critique of the law and the state
in the way that Benjamin does. Discretion, in this context, means the
selective application of seemingly legal force. It allows the police to use
law-maintaining violence as law-making violence and vice versa, and pro-
duces a police-specific authority and police-specific order (“the law of
the police,” as Benjamin [1955] 1986 calls it) without, however, ever
having to declare this order or its ends openly. In this way, the idea of law-
maintaining violence is hollowed out, and one has to concede that the
ends of the violence have become nothing but police law. Interestingly,
Benjamin assumes that this spectral force still remains in the service of
state sovereignty.
This brings us back to the nightly raids of the Sophiatown police offi-
cers, which are very much an exemplification of “police law.” It is this
murky and dubious violence, in the service of nondeclared ends but legally
covered, that Amanda and Ria draw on when they pass on information
for the raids—information selected at their own discretion. As with the
official police, their intervention and the power they draw on comes from
the possibility to apply discretion. Instead of being pure mediators, they
make sure that the possibility to decide resides with them. It is the awe-in-
spiring, authoritarian, nonpacified kind of police violence that they draw
on—the kind that has the potential to create localized, personalized, and
immediate authority, as opposed to violence that is discreet and nonper-
sonal but imparted by state authority. They are, thus, applying police vio-
lence and authority as their own law-making violence. As the police do,
they claim that this violence is merely the law-maintaining kind, inspired
by and congruent with the legal order and the mandate given to them by
the community policing initiative. Again, here in the name of the law, a
religious covenant is being founded and enforced, allowing some forms of
business to run while others, if they resist the rules, are smothered.

C ARING FOR THE P OLICE

However, how did Amanda and Ria gain such privileged access to the
police, even to the extent that they could appropriate their discretion?
This is quite unusual, as (South African) police are known to be rather
suspicious of external interference. This exceptional relationship can be
explained by the particular way the disciples represent themselves as “the
community” to the police. Amanda and Ria and their volunteers do not
give much substance to the role of representing “the community” vis-à-
vis the police in the classical sense of accountability: keeping the police
in check or telling them how to run a police station. In fact, their activi-
ties seem to be diametrically opposed to the idea of holding the police
86 Ju l i a Ho rn b e r g e r

accountable, which is the role that has been so widely publicized and
has elevated community policing to such a pivotal position in democratic
reform movements (Stone and Ward, 2000). Rather, they pursue a rela-
tionship of trust with the police, in which it is not so much the police who
have to gain the trust of the community, but rather the community that
has to gain the trust of the police by caring for them.
Amanda and Ria are not completely unaware of the classic watchdog
role of community policing:

It is also our role to report police irregularities. Sometimes we have to

report irregularities, but hardly ever brutalities. I wouldn’t call them bru-
talities. For instance, once there was this situation where a police officer
pushed a man, but the police and the man actually resolved it. We were also
involved. But of course the community is blowing it out of proportion.

This statement, however, demonstrates their dismissive stance on the

community’s attitude toward the police, and the faith they display in the
ability of the police to show restraint. It also clearly shows where their
loyalty lies and indicates their investment in a crude and awesome police
power rather than in a pacified police power.
This kind of allegiance is mainly expressed and conducted through a
practice of “caring for the police.” One version of caring for the police
can be found on the Web page of the Pentecostal “Action against Crime”
campaign, which offers, in yet another creative and productive applica-
tion of community policing, a sweeping reinterpretation of the national
“Adopt a Cop” program. The original “Adopt a Cop” program was
designed in such a way that each school would be visited regularly by a
designated police officer, and thus schools would know to whom they
could relate their specific problems.5 However, in the Pentecostal version,
it has come to mean something rather different:

[T]o cover the adopted police station in prayer and constantly hold the sta-
tion members and their families up into God’s love and protection, asking
God to give them His guidance, wisdom and courage, and his peace and
compassion as they go about their extremely stressful and often dangerous
work.6

In this vein, together with some other volunteers, Amanda and Ria have
set up a 24-hour prayer for the members of the Sophiatown police station.
“We take turns, but we pray for 24 hours at a time.”
For many police officers, most of whom are members of one or another
Christian church, there is something rather appealing and attractive in the
direct application of spiritual practice to policing. It is a form of apprecia-
tion that police officers rarely encounter in their work. In Sophiatown,
 “G od Moves Big Time in S ophiat own” 87

this has allowed Amanda and Ria to build up a friendship with the station
commissioner, who is herself a Pentecostalist, and to hold regular consul-
tations with her.
However, Amanda and Ria do more than simply care for the police
at a spiritual level. They have also set up a tuck-shop at the police sta-
tion that provides officers with sandwiches and drinks at prices just above
cost. All profits from the tuck-shop go toward the maintenance of the
station and its vehicles. Furthermore, some of the volunteers who have
been recruited by Amanda and Ria help out at the service desks of the
police station, where they lend a hand taking statements and doing other
administrative tasks, which can be difficult duties for police officers whose
educations and clerical skills are often quite limited.
Most importantly, however, they take care of cases that police officers
scorn and neglect, such as many of the domestic violence cases. Amanda
explains, “As CPF we get a lot of cases, and we help people, especially
with cases that have not been attended to. We have total access to the
[case] files.” Police officers at the Sophiatown police station, particularly
the detectives, have a huge workload represented by piles and piles of
brown paper files (dockets), each containing a case. A “docket culture”
of taking administrative and investigative shortcuts prevails, which leads
to a lot of cases being closed without anyone properly attending to them
(Hornberger, 2011). For the most part, these are cases where there is
very little prospect of finding immediate useful evidence, or cases about
ongoing domestic disputes and conflicts between neighbors and people
who know each other.
Police officers scorn the statutory push through the Domestic Violence
Act, which is one of the major postapartheid achievements. It has increased
their involvement in the private lives of people, which is often experienced
by police officers as extremely messy, not only because it is intricate and
confusing but also because it challenges some of the police officers’ ideas
regarding the role of violence in marital and sexual relationships. This
is why Amanda and Ria and their volunteers are able to take these cases
without arousing resentment among the police officers or the sense that
they are meddling in police affairs. On the contrary, police officers have
been openly appreciative when the CPF members take on these loathed
cases, as it lightens their workload without provoking feelings or accusa-
tions of neglect of duty—after all, they are supposed to support commu-
nity policing anyway.
In these cases, the police also do not mind outsourcing some of their
authority and the threat of forceful intervention. As long as they do not
have to get directly involved, some police officers are even willing to
make what could be described as a shadowy or spectral appearance to
strengthen the authority of CPF members. As Ria told me, “Sometimes
we go there [to the scene of a domestic conflict] with the police. Some
88 Ju l i a Ho rn b e r g e r

police officers are very level-headed. They just come to escort us, but we
do the talking.” By “doing the talking,” the CPF members are the ones
who determine the moral contours of the intervention, and the back-
ground presence of a rough state power embodied in the local authority
of the police helps them coerce those contours into being.
These domestic cases are especially treasured by Amanda and Ria. They
provide them with access to people’s private lives, taking them right into
the “inner” realm, where, according to them, the transformation of the
self and the rupture with a sinful past take root. The cases offer them
endless insights into people lives, which then can be turned again into the
moral intervention of pastoral care. The CPF members told me that they
could walk unhindered in and out of the police station. They have access
to the station computers to check details of cases. They have access to
dockets, which contain statements of victims, witnesses, and even suspects,
and which provide them with privileged and confidential knowledge of the
different parties involved in a conflict. “We have a very good relationship
with our community,” the station commissioner proudly proclaimed.
Thus, while the CPF members position themselves as mere interme-
diaries and representatives of the community, their rendition of this role
puts them into a position of privileged access and allows them to absorb a
lot of police power, from rough state violence—the sword that turns the
covenant into more than just words—to the rather more subtle powers
derived from intimate detail and private knowledge that can be turned
into moralizing pastoral care. These powers produce forms of authority
and dominance that are very much the elements of state language and
sovereignty. Yet, it is the idea of a consultative, cooperative, and intimate
relationship of trust with the state, as encouraged by the intensified dis-
course on community policing, that enables such appropriation and redi-
rection of the means of the state.

F LUIDITY , THE E RASURE OF A GENCY , AND THE

E XPANSIVE Q UEST FOR P OPULAR S OVEREIGNTY
These highly assertive forms of moral policing, which seek their own auton-
omous territory and forms of local sovereignty, at times evoke resistance
and opposition, but less from the people of the community than from other
community organizations that claim to equally represent the community.
For example, some other community organizations accused Amanda and
Ria of not being from the community, but from “next door”—a charge
that could potentially nullify their prerogative to be part of community
policing in Sophiatown. Indeed, Amanda and Ria live in Brixton, which is
part of the neighboring policing district, with its own CPF.
In the beginning, I could not understand why Amanda and Ria
chose not to get involved in the Brixton CPF and secure themselves a
 “G od Moves Big Time in S ophiat own” 89

uncontested place within that CPF based on their residency in the Brixton
area. I soon realized, however, that it was imperative for Amanda and Ria
to be outsiders. As outsiders they were unknown, and exactly because of
that, they could take on any form of “being the community” they chose.
This, I suggest, is exactly what allows them to draw on more than one
source of legitimacy and to amass the power to bring a new moral com-
munity into being. It makes them far more influential than if they were
recognizable as ordinary residents of the area, pinned down by a known
social profile and particularity that would bind them to a specific identity.
Amanda and Ria are not representing the concerns of those who, like
themselves, have white lower-middle-class status, but are in a decisive way
intervening to transform and establish a rule over others. As such, they
must be able to transcend their own particularity, so they can be many
things to many people. This has allowed them to take on an extremely
constructivist stanceʊa stance that is part of representation when it comes
to drawing the line between generality and particularity.
This contrasts with the far less successful attempts of competing
groups to make community policing work. These groups operate through
a mode of representation that mobilizes a more torpid idea of belong-
ing and a more sedimented idea of identity. While the Pentecostal dis-
ciples gain privileged access to the police by caring for the police, other
groups subscribe steadfastly to the idea of an antagonistic and thus clearly
separated relationship between the categories of community and police,
society and state, and, by extension, religion and law. In their attempt to
amass modern power, they confirm two central tokens of modern state-
hood: transparency and accountability. Their efforts, however, are made
to look rather passé by the success of the fluid practice of the Pentecostal
disciples.
Amanda and Ria demonstrate an uncanny fluidity and flexibility in tak-
ing on one role and then slipping effortlessly into another, constantly
bringing together law and religion while at the same time revalidating
all those separate roles and categories. As we have seen, their roles range
from wearing the CPF T-shirt and speaking authoritatively in the name
of the law to being the caring benefactors of police officers, penetrating
and directing the knowledge and command of the police; from showing
moral guidance and pastoral care for those longing for a caring state to
preaching and exorcising the devil from the area; and, finally, to being
civil-society community workers whose intentions have been blessed by
the state through official recognition. Through this, they have been able
to exploit to the fullest the constructive tension between generality and
particularity, between the “immanence and transcendence” that charac-
terizes any claim to representation. This tension has to be continuously
managed to prevent the threat of too much particularity from gaining
ground, but it yields great power for expansion and conquest.
90 Ju l i a Ho rn b e r g e r

This raises the following question: To what extent is democratic rule

actually undermined through such sectarian policing? I am contending
that the Pentecostalists’ fluid modus operandi of simultaneously keep-
ing apart and collapsing categories, such as state and society as well as
law and religion, merely reflects a very modern logic. Latour (2008) has
convincingly argued that the power and expansive ability of modernity
is underwritten by a simultaneous move between, on the one hand, the
separation and purification of categories such as nature, society, and God,
and, on the other hand, an unrecognized but constant translation and
mediation between these realms. As such, the disciples’ modus operandi
only confirms a familiar logic and rather reveals the expansive quest for
popular sovereignty as it is embodied in community policing. Instead of
being limited by representation, they are able to explore the full construc-
tive and productive potential of community policing.
I am, therefore, arguing that the Pentecostal disciples’ activities are not
so much a misappropriation of community policing, bringing together
law and religion in underhanded ways. Rather, I argue that it represents a
“perfect match.” The Pentecostal quest for sovereignty as it is doctrinally
inscribed in the this-worldly “spiritual war against Satan” merely brings into
sharp relief what underpins community policing in the first place namely, an
expansive and conquering quest to bring into being a community that sub-
mits to a certain rule. The claim to popular sovereignty as it is embedded in
the idea of community, in combination with policing, will in one way or the
other always take this path. Amanda and Ria merely bring out the fact that
what haunts the idea of community policing is also what makes the idea
of community policing so alluring to so many people who act in its name:
the possibility that, in principle, anyone can inhabit it and reap its profit by
employing the constructivist nature of the idea of community and its repre-
sentation, and with that, make use of state-sanctioned power for ends that
are not necessarily state-sanctioned. Such an imperial and expansive quest
can be normalized through a technocratic mode of thinking that takes for
granted the sovereignty of the state and its transcendental anchorage in the
godly reification of society. Yet, if such normalization is disrupted, suddenly
an uncanny combination of law and religion becomes visible.

N OTES
* Headline from the Action against Crime Web page (www.actionagainst-
crime.org.za/aac.htm)—the digital forum for Pentecostal initiatives con-
cerned with the spiritual care of police officers and the fight against crime.
1. See “Rhema church launches plan to ‘empower’ police,” Mail & Guardian,
March 14, 2006.
 “G od Moves Big Time in S ophiat own” 91

2. Categories such as “colored,” “African,” and “white” are in great part the
product of the apartheid system of racial classification and are highly con-
tested and problematic. Nevertheless, these terms are in everyday use in
South Africa, and social reality cannot be adequately understood without
making reference to them. For the sake of orientation, “colored” referred
to people of mixed race, or those who derived from slaves brought from
the Dutch colonies or West Africa to South Africa. They were often treated
as the so-called second-class citizens, meaning they were excluded from
political rights but were still allowed to stay in the cities and were given
certain levels of welfare by the state. Black people indigenous to South
Africa were classified as “Black” or “African.” The apartheid state tried to
set them up in independent homelands governed through indirect rule.
The category “White” encompassed the English- and Afrikaans-language
groups.
3. www.info.gov.za/speeches/2005/05060115151002.htm, accessed December
19, 2012.
4. The law of decree here means the right to apply what has been mandated
to them, namely, force, and to claim whatever is yielded in the application
of such force.
5. See www.saps.gov.za/children/child_abuse.htm, accessed December 7,
2012.
6. See www.actionagainstcrime.org.za/aac.htm, accessed December 7,
2012.

R eferences
Benjamin, W. “Critique of Violence.” In Reflections, edited by P. Demetz. New
York: Schockens Books, [1955] 1986.
Corten, A., and R. Marshall-Fratani. Between Babel and Pentecost: Transnational
Pentecostalism in Africa and Latin America. Bloomington, Indianapolis:
Indiana University Press, 2001.
Das, V. “The Signature of the State: The Paradox of Illegibility.” In Anthropology
in the Margins of the State, edited by V. Das and D. Poole. Santa Fe and Oxford:
School of American Research Press and James Currey Ltd, 2004.
Dutch Reformed Church, “Geweld en Misdaad ook nou Kerkse se
Verantwoordelikheid,” Press Release, March 15, 2007. http://www.ngkerk.
org.za/persverklaring.asp?pid=43&sinid=22
Hornberger, J. “Ma-Slaan-Pa Docketse. Negotiations at the Boundary between
the Private and the Public.” In Governance of Daily Life in Africa, edited by G.
Blundo and P. Le Meur. Leiden: Brill Press, 2009.
——— Human Rights and Policing. The Meaning of Violence and Justice in the
Everyday Policing of Johannesburg. London: Routledge, 2011.
Jensen, S. Gangs, Politics and Dignity in Cape Town. Oxford, Johannesburg, and
Chicago: James Currey, University of the Witwatersrand Press, and University
of Chicago Press, 2009.
92 Ju l i a Ho rn b e r g e r

Laclau, E. The Making of Political Identities. London: Verso, 1994.

Latour, B. Wir sind nie modern gewesen. Versuch einer symmetrischen
Anthropologie. Frankfurt am Main: Suhrkamp, [1991] 2008.
Mail & Guardian, “Rhema Church Launches Plan to ‘Empower’ Police,” March
14, 2006.
Property24, “New Claremont Occupiers Evicted,” 2006. http://www.prop-
erty24.com/articles/new-claremont-occupiers-evicted/3052.
Rauch, J. “Linking Crime and Morality. Reviewing the Moral Regeneration
Movement,” Crime Quarterly 11, (2005): 9–13.
Reiner, R. The Politics of the Police, 4th edn. Oxford: Oxford University Press,
2010.
Sloterdijk, P. Im Weltinnenraum des Kapitalismus. Frankfurt am Main: Suhrkamp,
2005.
Skolnick, J. Justice without Trial: Law Enforcement in Democratic Societies. New
York: John Wiley & Sons, 1975.
Stone, C., and H. H. Ward “Democratic Policing: A Framework for Action.”
Policing and Society: An International Journal of Research and Policy 10,
(2000): 11–45. www.actionagainstcrime.org.za/aac.htm.
 6

TOWARD RECONCILIATION

RELIGIOUSLY ORIENTED DISPUTING

PROCESSES IN MOZAMBIQUE*

Carolien Jacobs

W hen elders in Gorongosa, a rural district in central Mozambique, talk

about societal changes, they often invoke the strength of “tradition” in
the time they grew up. When they talk about tradition, they are usually
referring to the traditional belief system and the rules derived from it
rather than the traditional authority structure, a politically loaded concept
in Mozambique. They refer especially to the strength of the belief in spiri-
tual forces that play a regulatory role in society. In this chapter, I follow
their conceptual usage. Although the term “tradition” could evoke asso-
ciations with a historical past, I want to emphasize here that I consider tra-
dition to be a dynamic force that is rooted in the past but is continuously
subject to change. Traditional prescriptions about how to organize one’s
life cannot be static. For traditional religion to retain its legitimacy as a
cognitive and normative order, people constantly “remould and develop
it until it attains, once more, its pristine level of explanatory coverage”
(Horton, 1971, p. 102). In this chapter, I use the terms “tradition” and
“traditional” as a form of shorthand for traditional religion—a dynamic
and still to this day influential regulatory force for a large part of the
population of Gorongosa.
One of the remarkable features of tradition in the past, as people recall it,
is the belief in spiritual animals as demonstrated in the above quote, which
comes from 78-year-old Albino Roque. Albino has lived for most of his life
in the town of Gorongosa. Like many older people, he deplores the changes
in society that, according to him, have been caused by the loss of tradition:

The things the youth are doing now, one could not do that in the past
because you would be killed immediately. There were people living out
94 C a r o l i e n Jac o b s

there in the forest that would turn into lions at night and come to town to
govern. (Roque, 2008)

With this loss, spirits become enraged and, therefore, according to

people like Albino, cause the disruption of social order and a feeling
of insecurity.1 He feels that people no longer behave properly, as they
ignore the moral and normative orientations provided by the traditional
belief system. Others, however, welcome the changes brought by the
churches, which they believe have freed them from the shackles of tradi-
tion. Many of the fears of people living “in tradition” do not have an
impact on the lives of those who have found Christianity and lost “tra-
dition.” The latter claim to have lost their fear of witchcraft, ancestral
spirits, and bad spirits that are purported to cause illness, misfortune,
and distorted social relationships. The word of God, they argue, teaches
them how to behave in daily life. From behavioral acts, some Christians
claim to be able to assess whether somebody is a Christian or still living
in tradition.
If we assume that religion provides cognitive and normative orienta-
tions to people, a religiously plural society must be guided by a plurality of
such orientations. This is underlined by the distinction frequently heard
in Gorongosa between “people of the church” and “people in tradition.”
However, to what extent do different religions really have an impact when
it comes to, for instance, disputing processes? The objective of this chapter
is to lay out the consequences of religious plurality for the ways in which
disputes are dealt with. It is in disputes that norms often become most
explicit and openly expressed (Comaroff and Roberts, 1981). Disputes
are, therefore, an ideal point of departure for the study of the influence
of religious norms. A clear religious element can be traced particularly
in disputing processes in which religious leaders are involved as media-
tors. The focus of this chapter, therefore, is especially on religious leaders
as protagonists and prime providers of cognitive and normative orienta-
tions. I compare the ways in which spirit mediums and pastors engage in
the mediation of disputes. Spirit mediums are taken here as representa-
tives of traditional religion. They are consulted everywhere in Africa by
people in need of conflict intervention, mediation, or healing of distorted
relationships (Devisch, 1985; Binsbergen, 1991; 1999; Janzen, 1992;
Ashforth, 2000; Dijk et al., 2004). On the other hand, there is the grow-
ing group of (predominantly male) pastors playing an increasingly vital
role in the organization of social order in Gorongosa as representatives of
Christianity. I analyze the different steps spirit mediums and pastors take
in guiding their adherents through a disputing process. I show that both
kinds of leaders guide people toward reconciliation as the desired way
of ending a dispute, but that they follow different paths to achieve this.
Having set out these different processes toward reconciliation, I discuss
 Towa rd R e c o nc i l i at i o n 95

the implications that the dynamics of local disputing processes have for
the chances of successful reconciliation, which is a key element in transi-
tional justice processes.

T HE M OZAMBICAN C ONTEXT
Much scholarly attention has been directed at traditional authorities and
community courts as providers of alternative modes of dispute resolu-
tion in Mozambique (Gundersen, 1992; Bertelsen, 2003; Buur and
Kyed, 2005). Religious leaders have been less at the center of academic
attention as autonomous forces providing alternative modes of dispute
resolution, both in Mozambique and in general. Yet in Gorongosa they
play an important mediatory role, independent of other authorities. The
adjective “mediatory” here has a double meaning: it refers both to media-
tion between people and the spiritual world, and to mediation among
people themselves. Hence, spiritual or otherworldly actors are present
in the disputing process. The district of Gorongosa is an appropriate site
for a comparison between tradition-oriented and Christian-oriented dis-
puting processes because both are prominent. Many people living today
in Gorongosa personally experienced the introduction of Christianity
in society and in their personal lives, as it occurred relatively recently.
The weakening of tradition accelerated from 1947 onward when the first
church was founded in the district. With the advent of Christianity, it
was no longer obvious that everyone should act according to traditional
spiritual guidelines. However, the process of Christianization unfolded
only slowly. Until 1975, the Portuguese colonial government favored
Catholicism and oppressed other churches. Then, following indepen-
dence in 1975, the ruling FRELIMO party harshly suppressed all reli-
gious practice. This changed only gradually and it was not until the early
1990s that Christianity really started to boom. The list of officially reg-
istered churches that is kept by the Department of Religious Affairs in
Gorongosa is indicative. It shows that at the start of the civil war that
followed Mozambique’s independence in 1975, only three churches were
registered: the Catholic Church (est. 1947), the Church of John Maranke
(est. 1950), and the Igreja Evangélica Assembleia de Deus (est. 1953). By
the end of the civil war in 1992, about 15 churches were registered. In
2008, the list contained over 60 different churches.2 In addition to these,
there are numerous unregistered churches. It is difficult to estimate how
many such churches are there, but their numbers appear to be steadily
increasing.3 Many Christians in Gorongosa are rather recent converts who
emphasize that their conversion represents a clear break with the past, an
attitude that is in line with conversion processes elsewhere (see Robbins,
2007). The rules of tradition, they claim, are no longer their rules; rather,
they follow God’s word. It is commonly argued that the rules of tradition
96 C a r o l i e n Jac o b s

differ significantly from the rules of the church. In practice, however,

many Christians still retain aspects of tradition and frequently shift their
normative orientations. Despite people’s emphasis on conversion as a
radical change, boundaries between “tradition” and “Christianity” or
between “people of the world”4 and “people of the church” often appear
to be extremely fluid—the two are intricately interwoven (Hastings,
2000; Kirsch, 2004; Jacobs, 2010). People in Gorongosa often appear
to be guided by both tradition and Christianity when confronting the
demands of a religiously plural world.

T R ADITION -O RIENTED D ISPUTE M ANAGEMENT :

T HE R OLE OF S PIRIT M EDIUMS
In Mozambique, spirit mediums are mainly considered healers who
intervene in cases of physical, spiritual, or social illness, often caused
by disturbed social relationships (Honwana, 1997; Luedke and West,
2006). The practices of spirit mediums in Gorongosa vary significantly.
Their methods depend mostly on the spirits that they “own,” and not
all spirits have the same powers. Treatment is partly based on the medi-
ums’ knowledge of natural medicine. Another part of their knowledge
is spiritually based: the spirits usually come to a medium in a dream and
reveal what medicines to use and where to procure them. Although this
may give the impression that healing is related exclusively to physical ill-
nesses, a spirit medium’s competence reaches far beyond this. Mediums
often situate personal cases of ill health within the matrix of the entire
society’s well-being. This means, by implication, that when individuals
are sick, the entire social make-up needs treatment (Chavunduka, 2001).
Consultation with a spirit medium can help to reveal conflicts simmer-
ing below the surface, but not yet openly discussed. Consultation, thus,
serves as a “mechanism of social redress” (Turner, 1972, p. 46). In other
cases, conflicts or problems are easily discernible, and the intervention
of a spirit medium can help to bring parties together and prevent people
from suffering more harm. Some of the cases are from the beginning
expressed in spiritual terms and understood accordingly. Other cases ini-
tially appear to be regular conflict cases or illnesses, and only later turn
out to have a spiritual origin. The spiritual dimension adds more com-
plexity to a disputing process: attention must be paid not only to the
interrelatedness of the disputing parties and a possible third-party media-
tor but also to the spirits as a fourth party in the dispute. This chapter
focuses more on social illnesses and conflicts than on physical illnesses.
Conflicts within the sphere of the family lend themselves particularly well
to comparison, as they constitute the bulk of the conflicts dealt with by
both pastors and spirit mediums.
 Towa rd R e c o nc i l i at i o n 97

F INDING THE T RUTH

In order to handle and solve disputes, spirit mediums employ a wide range
of strategies. The first step a spirit medium usually takes is to get to know
the origin of the problem and to scrutinize the validity of the disputants’
truth claims. For instance, a woman may claim that her husband has com-
mitted adultery, while the husband denies it; a sickness might be said to
be caused by an as-of-yet-unidentified jealous family member; infertility
needs to be explained, and so forth. To determine the validity of compet-
ing truth claims, a connection to the supernatural world has to be estab-
lished. Spirits are supposed to have much better knowledge than humans
of events taking place in the material world. It is the spirits who will reveal
the truth of what really happened. The medium literally only serves as
a medium to inform clients or patients of what the spirits have to say.
The poison ordeal and the use of divining seeds are probably the most
well-known and widespread practices of truth-finding in Africa (Richards,
1935; Douglas, 1967; Evans-Pritchard, 1968 [1937]). Other methods
are used in Gorongosa as well, the “video” being the most prominent
method. This is an innovative instrument that was established during the
time of my fieldwork.5 It was introduced by Silverio, one of the more pro-
gressive spirit mediums in Gorongosa. The video is a wooden screen on
which truth of what really happened is displayed to the client. To “start”
the video, the client first has to ingest a magical substance to invoke his
ancestral spirits. After drinking the potion, the person has to wait for about
half an hour for the spirits to respond to the “call” and turn up, in other
words, for the medicine to take effect. Meanwhile, Silverio notes down the
names of the patient’s deceased ancestors so that he will be able to invoke
these spirits, as they are the ones who will reveal what happened. Next,
Silverio asks for detailed information about the client and the problem:
“What is it that has been stolen? What did the stolen goods look like? To
whom did the goods belong? Where were they kept?” To start “playing”
the video, the client enters a small hut (about 2 m × 2 m), where the video
screen is hanging on the wall. Because the hut lacks windows, it is rather
dark. The client sits down on a rattan mat in front of the screen. Silverio
stands in the doorway, half in and half out, and starts a rhythmical clap-
ping of his hands. Meanwhile, he calls the client’s ancestral spirits. When
the ceremony is successful, the client starts to see “the movie” of what
happened. He is supposed to tell everything he sees on the movie screen
to Silverio. This allows Silverio to ask for additional information from the
spirits and to inform the crowd waiting outside in his yard, thereby inciting
awe and admiration in them. When several people attend the video for the
same case, it sometimes happens that they see different “images” on the
screen. It also happens that a repetition of the same video shows a differ-
ent story of what happened. People are usually willing to accept different
98 C a r o l i e n Jac o b s

explanations at different moments in time, as they trust the spirits to show

them the truth they are looking for. In people’s perceptions, it is the spirit
showing the truth rather than the spirit medium. Spirits, it is said, have an
infallible knowledge of events taking place in the material world; therefore,
the truth they establish should be accepted.

R ETALIATION AND R ECONCILIATION

Once the truth is revealed, spirit mediums can guide their clients to the
next step in the disputing process. This means coming to terms again
with the other party in a conflict, but often coming to terms with the
spirits as well, as many conflicts have roots in both the human and the
spiritual world. An example of such a conflict is the case of Yacintha, a
woman in her 40s who had suffered numerous illnesses during her life
and had repeatedly miscarried. Before consulting Silverio’s video, she had
frequented a number of spirit mediums, as well as a church prophet. They
all told her that a spirit sent by her “aunt”6 was causing her illness, but
during the treatments, the spirit kept refusing to leave her and return to
the aunt. Yacintha explained to me what she saw in the movie:

My aunt had a spirit that had been “eaten” by her mother, but my aunt
wanted to get rid of the spirit.7 She had ten children and the first six died.
My aunt was getting tired of this. She knew the deaths were related to the
spirit, so she needed to find a new place for the spirit. My aunt went to my
dad to discuss it with him and he suggested giving the spirit to me. In the
movie, I saw my aunt walking toward me with the spirit in her arms. That
was how I got the spirit. The spirit decided that I would never have a baby
anymore because the spirit did not want to have chichi [children that are not
potty trained] anymore.

Some days later, Yacintha told me she had informed her aunt and other
relatives about the results of the video. Her family accepted the truth
established in the video and agreed to get money together to pay for the
ceremony to return the spirit to the aunt. Her aunt, in fact, had come to
realize that some of her son’s health problems were probably caused by
the same spirit and she acknowledged the importance of treating it, both
to appease the spirit and to improve her son’s health. Although at this
point no follow-up treatment had yet taken place, Yacintha told me that
she was feeling better already, confident that a treatment was going to
take place that could satisfy the spirit. A month later, the next ceremony
took place and the spirit agreed to return to the aunt. Yacintha was very
satisfied with the truth revealed by the video and Silverio’s subsequent
treatment. Once the aunt had accepted the truth, it was possible to have
reconciliation between the two women. They were now on speaking
 Towa rd R e c o nc i l i at i o n 99

terms and would visit each other, something which had never happened
before. Yacintha was satisfied about this reconciliation with both her aunt
and the spirit, and said she felt “peace in her heart.”
However, the conflict had not yet come to a full conclusion, at least
not for Yacintha’s aunt. Out of revenge, the returned spirit soon started
bringing bad luck to the family of the aunt. Yacintha was told by the spirit
medium that yet another ceremony would have to be carried out by the
aunt to bring the spirit back to its own home. Since the spirit had been
“eaten” by the aunt’s mother, the home of the aunt was not his right-
ful home and, therefore, the spirit would continue to create problems
unless yet another ritual was carried out. The dispute continued, this time
mainly between the aunt (and her family) and the spirit, causing misfor-
tune and illness. For the spirit, the medium explained, retaliation was not
yet complete. The spirit still could not take rest. Spirits who are unsatis-
fied with the solution offered to them, with the ceremonies, or with the
respect given to them might decide to continue bringing misfortune to
their targets. To be able to really solve the problem, the spirits have to
be satisfied. As one of the spirit mediums explained to me, “The spirits
come to take revenge.8 It is not just about finding a home. It is punish-
ment, retaliation, and after that, the spirit can go home.” In the case of
Yacintha, the aunt who had caused the conflict in the first place was still
alive. Once Silverio’s video had shown compelling evidence of her guilt,
she confessed and agreed to carry out the necessary treatment, as she
understood the importance of appeasing the spirit, not only for Yacintha’s
sake but also for herself and her close family members.
Things are more complicated when the person causing the problems
has already passed away. The truth established by the spirits in such cases
then might reveal that there is an intergenerational debt owed to the spir-
its. Spirits that have been asked to work but have not received proper pay-
ment, or spirits of people who were unjustly killed or were “eaten” (for
instance, during Mozambique’s civil war) might wander around restlessly
or come to demand payment themselves by causing illness and misfortune
in the family of the patient. In any case, spirits are known to feel strongly
that when injustice is done, justice must be restored. People expect a spirit
always to come back if wrong has been done to him. The following account
from a spirit medium explains how revenge can be intergenerational:

Often it happens that the person knows that what he did was wrong and
has to do something to calm the spirit in order not to be punished. For
instance, he could buy a goat so that the spirit can transfer to the animal.
But then, if that person dies, epa! There is nobody who knows what has to
be done and the spirit no longer receives any sacrifices. Then the spirit will
start demanding the sacrifices himself [for example, from innocent family
members].
100 C a r o l i e n Jac o b s

A dying offender can instruct his or her offspring to continue to perform

a certain ceremony, but often may want to keep the reason for doing
so secret. The children, therefore, do not fully understand the impor-
tance of the appeasing ceremony and might neglect to do it. It is argued
that, in the past, children were more willing to follow their ancestors and
obey their instructions even if they did not understand the reason for
carrying out a certain ceremony (Appiah, 1992). In today’s Gorongosa,
however, traditions are weakening or disappearing and have to compete
with Christianity. Ceremonies are less significant than they were in the
past. Common knowledge about how to carry out these ceremonies and
appease the spirits is being lost. As a result, tradition-sensitive Gorongosans
explain, unappeased spirits are getting annoyed. This, they believe, is the
reason for a plethora of bad spirits, which finds its expression in both
wounded individuals and in a wounded society. It also underlines the
importance of acknowledging spirits as significant parties in a dispute.
Recapitulating the crucial steps that are taken in disputing processes in
which people are guided by spirit mediums and spirits as representatives
of tradition, the following schematic overview can be presented:

truth seeking → retaliation and punishment → reconciliation

Retaliation, then, does not necessarily cause a dispute, aggravate already

existing conflicts, or turn out to be the final stage of a dispute. Following
the logic of “tradition” in Gorongosa, retaliation can be seen as an inher-
ent part of the process of resolving a dispute and achieving reconciliation.
Enraged spirits first have to take revenge and demand their share of jus-
tice. Only then can mediation lead to a fruitful resolution of the conflict
and reconciliation, not only between conflicting people but also between
people and the spirits. Retaliation, thus, does not explicitly exclude the
possibility of reconciliation or function as an alternative to reconciliation,
as is often assumed, but in fact enables reconciliation.

C HRISTIAN -O RIENTED D ISPUTE M ANAGEMENT :

T HE R OLE OF THE P ASTORS
Pastors are the principal agents in the Christian-oriented modes of dis-
pute management in Gorongosa district. They solve small-scale conflicts,
mainly in the relational sphere, on an almost daily basis among the ever-
growing Christian community. There are no major differences in the
strategies applied by the different pastors in the disputing process. The
characteristics of the churches and their pastors as described below are
representative of “an average church” in Gorongosa. Intervening in dis-
putes is generally considered by the pastors to be a divine imperative as
given in Deuteronomy 16:18: “Appoint judges and officials for each of
 Towa rd R e c o nc i l i at i o n 101

your tribes in every town the Lord your God is giving you, and they shall
judge the people fairly.” In fact, pastors see themselves mainly as stand-
ins and mediators on behalf of Jesus: “It is not the pastor that transforms
conflicts, but it is Jesus via the pastor,” one of them told me.
The majority of conflicts in which pastors intervene are relational: con-
flicts between spouses, fiancés and fiancées, or ex-partners. These con-
flicts are often described by locals as “bad understanding in the house.”9
For many Christians, there is an element of shame involved in exposing
such deeply private matters to the public “structures”—the police, the
district court, and the community court. Christians, therefore, prefer to
keep problems “within the house” if possible and discuss their conflicts
with the church leader. It is said that “the pastor knows your heart already
and he knows your household.” Hence, solving a conflict with the assis-
tance of a pastor is like solving a conflict “within the house.” The con-
flicts that pastors deal with, thus, cannot always be viewed as “disputes” if
we follow the definitions put forth by Abel (1974) and Gulliver (1979).
According to these authors, conflicts turn into disputes only when they
reach the public stage. Pastors are said to intervene “within the house,”
and conflicts therefore do not go public, which underlines the relativity
of the public–private divide (von Benda-Beckmann, 2000). The frequent
involvement of the pastor’s wife in the mediation process strengthens the
idea among the people that they are being attended by “their parents.”
Thus, one of the important functions of pastors is to prevent conflicts
from turning into public disputes.

P RAYING AND R EADING THE B IBLE

The typical first step pastors take when asked by one of the disputants to
intervene is to bring the parties in conflict together, sit down, and pray. In
cases of illness, praying is seen as essential. Contrary to traditional belief, not
all Christians believe that illnesses are caused by spirits sent by living human
beings, but they are often seen as caused by Satanic forces. For Christians,
being sick is thus less an indication of disrupted social relations than it is
for the people “in tradition.” In cases of illness, praying is supposed to lead
to healing. This praying can be done at any time, not only by pastors or
other church leaders but also by the laity, in church as well as at home. The
most suitable moment for healing prayers, however, is toward the end of a
church service. Everybody who is sick or suffering from other problems is
invited to come to the fore and kneel down in front of the church leaders,
who lay their hands on the head or parts of the body of the patient to make
the positive forces of the Holy Spirit flow into the patient-congregant.
With problems other than strictly physical illnesses, however, praying is just
one step in a comprehensive mediation process aimed at bringing people
together. Praying is said to make people aware of the presence of God, who
102 C a r o l i e n Jac o b s

is seen as an additional party playing a role in disputes. In the disputing

process, awareness of this presence will give people the patience to listen to
each other and to find a solution through unity. In some cases, praying not
only functions as consolation or as the starting point of a mediation process
but also is requested by people as a support mechanism for other modes of
conflict resolution carried out by secular authorities.
The Bible serves as an important guide in the management of conflicts.
After praying, a pastor usually picks up the Bible for moral guidance. The
Bible tells pastors that part of their leadership consists of mediating in con-
flicts, but it also instructs Christians to respect this leadership. Moreover,
the Bible urges the Christian community to live in peace with one another.
Some of the pastors in this context referred to 1 Corinthians 1:10: “I
appeal to you brothers, in the name of our Lord Jesus Christ, that all of
you agree with one another so that there may be no divisions among you
and that you may be perfectly united in mind and thought.” As this is a
very general guideline, pastors apply it frequently. Because it comes from
the Bible, it is accepted as divine instruction. Biblical texts, according to the
pastors, can be applied to almost any situation. The Bible also prescribes
how to solve specific conflicts, hence, its efficacy. “The Bible is of great
assistance because all social problems are described in it,” one of the pas-
tors told me. Reference to the Bible justifies and legitimates the authority
of the pastor. Moreover, it enables the pastor to explain why certain rules
of tradition (e.g., the rule allowing polygamy) are no longer acceptable for
a person who is “of the church.” Adherents to Christianity in Gorongosa
generally respect pastors not only for their personal ability to solve con-
flicts, but also because their instructions are derived from the Bible, just as
the spirit mediums base their judgments on the voice of the spirits. Pastors
are merely the messengers and translators of the word of God, just as spirit
mediums are the messengers and translators of the spirits.

M EDIATING : T OWARD F ORGIVENESS

AND R ECONCILIATION
Once the pastor has read parts of the Bible with the conflicting parties,
the actual mediation process can start. This usually consists of a lot of
talking and arguing between the parties. Truth telling is not considered
an essential part of the disputing process. Instead, pastors usually stress
the importance of looking toward the future rather than backward to a
troubled past and present. One of the pastors explicitly said, “Our world
is a world full of conflicts, and where there are conflicts, there are sin-
ners. Nobody is without sin, so there is no need to judge who is guilty.”
The role the pastor takes in this phase consists of listening and advis-
ing. Most of the pastors refrain from making explicit judgments on the
behavior of the parties involved. Pastors feel they are not in a position
 Towa rd R e c o nc i l i at i o n 103

to impose verdicts, and therefore, it is important for them to educate

people and show them how they should behave according to the Bible.
A lot of emphasis is put on the importance of forgiving rather than on
blaming and condemning, which is based on, among others, Matthew
18:21−22: “Then Peter came to Jesus and asked, ‘Lord, how many times
shall I forgive my brother when he sins against me? Up to seven times?’
Jesus answered, ‘I tell you, not seven times, but seventy-seven times.’”
“Sin” also comes into play here: “Because we are all sinners, we all have
to forgive each other,” one of the pastors argued. Different approaches
to forgiveness are considered an obstacle to successful mediation between
church members and non-church members. As another pastor argued,
“For us, cases are easy to solve, but ‘people of the world’ don’t know how
to forgive and do whatever they want.”
Once forgiven, the next and final step in a successful mediation is rec-
onciliation of the disputing parties with each other and of the parties with
God. Apart from Biblical demands to reconcile, pastors in Mozambique
are encouraged in their ideas to work toward reconciliation by the histori-
cal role of the churches during Mozambique’s civil war. It is commonly
accepted that mediation efforts of Christian leaders contributed to the
reconciliation of the contesting parties. This reconciliatory role is still
echoed in today’s mediation, and many pastors explained to me that the
example the churches set during the civil war inspires them to continue
to feel responsible for bringing people together and reconciling them.
In this way, pastors help redress Gorongosa’s social imbalance, which is
believed to be caused by conflicts.
Forgiveness and reconciliation are aspects of the mediation process
that are emphasized by Christians as characteristic of their conflict reso-
lution. In church, it is said, there is no punishment or retaliation. The
Bible does not call for that: “Therefore, there is now no condemnation
for those who are in Christ Jesus” (Romans 8:1). This is highlighted as a
key distinguishing factor between the church and other authorities. Other
authorities, it is said, want to sentence and point out the guilty party. The
lack of punishment, therefore, makes pastors’ mediation not very appeal-
ing to some people, especially those oriented toward tradition. Reasoning
on the basis of traditional disputing mechanisms, such people feel there is
a need for punishment before reconciliation can take place. Nevertheless,
in low-level conflict cases pastors are very important, especially when
it comes to mediation between Christians. Because they keep conflicts
‘within the house’, pastors are able to arrive at satisfactory resolutions,
particularly in the frequently occurring marital conflicts.
To summarize, the crucial steps in a disputing process that follows the
normative orientations of Christianity are:

praying, Bible reading → forgiveness → reconciliation

104 C a r o l i e n Jac o b s

It should be noted, however, that the nature of the conflicts dealt with by
pastors also contributes to the lack of punishment. Most of these conflicts
are relatively minor conflicts within the familial sphere, in which people
are eager to maintain ties and restore relations. When more drastic inter-
vention or even punishment is needed, people will usually go to other
authorities. Thus in cases of theft, witchcraft, or material damage, people
are most likely to go either to spirit mediums or to police officers who are
able to address the culpable and to mete out punishment. In such cases,
a pastor may nevertheless be consulted and asked to lead prayers as a sup-
port mechanism. People believe this might positively affect the outcome
of the disputing process taking place elsewhere.

P ATHS TOWARD R ECONCILIATION : T RADITION AND

C HRISTIANITY C OMPARED
Having set out the disputing processes taking place within the traditional
and the Christian realms, the question arises: Are the normative orienta-
tions provided by the leaders of traditional religion and Christianity really
all that different when it comes to resolving disputes and restoring social
order? First of all, it should be noted that spirit mediums tend to engage in
a wider variety of disputes than pastors, and therefore a different approach
might be required: theft and witchcraft, for example, almost self-evidently
demand more drastic intervention than marital conflicts. It is unlikely that
people who feel there is a need for punishment will go to a pastor. Hence,
the nature of a conflict affects people’s choices when “shopping” among
different conflict-resolution “forums” (von Benda-Beckmann, 1981).
People “shop” according to their needs. Subsequently, this shopping entails
important consequences for the way in which the disputing process will
unfold. Placing the approaches of the spirit mediums and the pastors side-
by-side gives the following ideal-typical overview, which, although simplis-
tic, is helpful in laying out general tendencies. It clearly shows that deciding
which authority to consult has important consequences for the way the
disputing process will unfold, but that the desired outcome is comparable.
Spirit mediums:

truth seeking → retaliation and punishment → reconciliation

Pastors:

prayer, Bible reading → forgiveness → reconciliation

A search for truth in conflict cases is an inherent part of the process car-
ried out by spirit mediums in Gorongosa. This truth is not necessarily
 Towa rd R e c o nc i l i at i o n 105

presented by the wrongdoer as an act of confession; it might also be

revealed by the spirits, either via the medium or via the accused in a state
of trance. As noted already, pastors attribute less importance to truth find-
ing, arguing that all people are sinners and that, therefore, there is no
need to find the truth and lay blame. This is also implied in the mutual
recognition that both parties have to forgive each other.
As spirits are often supposed to be active agents in the traditional dis-
puting process, it is also essential to address their needs and consider them
an additional party in the process. Reliance on invisible spiritual forces
implies a reliance on the retaliatory acts of the spirits, as expressed via ill-
nesses, misfortunes, or deaths. These retaliatory acts will only end when
the avenged spirit feels satisfied. Retaliation or punishment is an inherent
and indispensable part of the tradition-oriented process of disputing. It is a
precondition to achieving reconciliation, both among humans and between
humans and spiritual beings. Retaliation does not necessarily make a con-
flict worse; in fact, it can clear the path toward reconciliation. Pastors put
much less emphasis on direct retaliation as a precondition for reconciliation
than spirit mediums do. This does not, however, mean that retaliation and
punishment are completely absent from their paths toward reconciliation.
For Christians, it is clear that God will punish people for their wrongdo-
ings in the hereafter on Judgment Day. During their sermons, pastors often
highlight this to encourage their believers to behave in a proper way. For
this reason, God can also be considered a party in the disputing process.
Is forgiveness uniquely Christian and completely lacking in the tradi-
tion-oriented process of disputing? Although it is not strongly emphasized
in the discourse of the spirit mediums, it is in fact not fully absent. This
becomes clear if we look at the local term for “to reconcile”—kulekerana—
which is the reciprocal form (+na) of the verb kulekera, meaning “to for-
give.” The suffix –na makes a verb reciprocal, emphasizing the mutuality
of an action. The verb kulekerana, then, is usually translated as “to forgive
mutually” or “to reconcile (with each other).” Hence, mutual forgiveness
is ingrained in the process of reconciling and does not require an extra step
in the process. Yet to be able to mutually forgive, there has to be a need for
mutual forgiveness. Within the Christian discourse, pastors explain this by
arguing that “everybody is a sinner.” Within the traditional discourse, the
offended spirit first has to take revenge and retaliate in order to bring the
parties onto a more equal footing, allowing for mutual forgiveness and a
more sustainable reconciliation.
Both pastors and spirit mediums usually aim at reconciliation, and
this is how their mediation is perceived by adherents. Apart from recon-
ciling the conflicting parties, the spirit mediums reconcile people with
the spirits, whereas pastors reconcile people with God. Central to the
spirit mediums’ intervention is the active invocation of the spirits and
106 C a r o l i e n Jac o b s

the spirits’ crucial role in the disputing process. Pastors pray and read
the Bible together with the conflicting parties, invoking God’s presence.
Forgiveness is sought from the other party and also from God. Both
processes of reconciliation have a clear spiritual dimension (Binsbergen,
1999); nonhuman actors play an important role in the process, in addi-
tion to the disputing human parties and the mediator. Reference to the
spirits or to God is important not only because it provides orientations
to people and strengthens reconciliation but also because it strengthens
the mediation position of the pastors and spirit mediums. Judgment is
not simply based on their own opinion, but in fact echoes the position of
the more powerful spirits or of God. Having a better overview and better
knowledge of the human world, both spirits and God are supposed to be
better equipped than humans to make judgments and lead people to a
desirable outcome of the process. The involvement of the spirits becomes
clear during the consultation, whereas the echo of the word of God is
mainly found in Biblical scripture. The infallibility that is attributed to the
judgment of God or the spirits reflects back on the leaders and provides
them to some extent with a similar aura. The spirit medium relays what
he has been told by the spirits; the pastor explains the word of God as it
is given in the Bible. As messengers of the infallible invisible forces, the
spiritual leaders are mostly seen as right and their authority is respected.
Although conflicts are not always fully resolved by the intervention of
pastors and spirit mediums, they are often made at least more manageable
and controllable. Instead of immediately trying to convince people to come
to a solution, pastors and spirit mediums guide their clients through a pro-
cess that prepares them for reconciliation, changing a troubled present into
a more peaceful future. Reconciliation processes in Gorongosa are being
reshaped by the increasing influence of Christianity and are becoming more
and more differentiated. Nevertheless, the aim of reconciliation remains a
central value in disputing in the changing society. People in Gorongosa
might claim that there are considerable differences in the orientations
provided by tradition and Christianity. In the field of disputing, there are
indeed clear differences, but there is also significant overlap between the
orientations provided by spirit mediums and pastors to people in disputes.

A W IDER P ERSPECTIVE ON R ECONCILIATION

As is clear from the comparison presented above, reconciliation consti-
tutes an important stage in tradition- and Christian-oriented disputing
processes at a local level in Mozambique: spirit mediums and pastors aim
at achieving reconciliation in their mediation efforts, and clients aspire to
find reconciliation with other people and with God or the spirits when they
decide to consult a religious rather than a secular authority. Reconciliation
as the outcome of highly differentiated processes of disputing in Africa is
 Towa rd R e c o nc i l i at i o n 107

not a recent phenomenon, however. It was discussed decades ago in some

of the classics on local disputing processes (Gluckman, 1969; Velsen,
1969; Holleman, 1974). In more recent times, however, academic and
political attention with regard to reconciliation has shifted toward the
macro level, where “[r]econciliation has become a buzzword in the litera-
ture on retroactive or transitional justice” (Meierhenrich, 2008, p. 224).10
The origin of the concept of reconciliation given in these accounts varies
greatly. On the one hand, it has been argued that, “Like ‘truth-telling,’
‘accountability,’ ‘transparency,’ and of course ‘human rights,’ the con-
cept of reconciliation is peculiarly Western” (Sampson, 2003, p. 181) and
is strongly fed by Christian values (Wilson, 2000; Sampson, 2003). On
the basis of his findings in the townships of the Vaal in South Africa,
Wilson (2000) argues that ideas about reconciliation contradict locally
held notions of justice. In these townships, the prevalent discourse is on
revenge. On the other hand, reconciliation has been described as an intri-
cate feature of African dispute resolution (PRI, 2001, p. 22). What seems
to be overlooked in this debate is that reconciliation is not exclusively
either Christian or traditional, nor exclusively either Western or African.
Drawing on disputing processes at a local level, this chapter demonstrates
that the roots of reconciliation and the paths to achieving it might dif-
fer and might be loaded with different logics, ethics, and moralities, but
the outcome does not differ greatly. Truth may be more central in the
tradition-oriented process, whereas forgiveness may be at the core of the
Christian-oriented process. Disputants choose the path of their prefer-
ence to achieve reconciliation. The lesson that can be drawn from this
is that reconciliation should not be too easily dismissed as being part of
one certain “culture,” “tradition,” or “religion” only. To be able to assess
the applicability of reconciliation as an objective of transitional justice, it
is not the concept of reconciliation itself that has to be scrutinized, but
rather the stages preceding reconciliation. If the design of these stages in
transitional justice processes is tailored more to the expectations of the
disputing parties, it is more likely that reconciliation will be achieved.

N OTES
* This chapter is largely based on my doctoral dissertation (Jacobs, 2010). The
research was funded by the Max Planck Institute for Social Anthropology.
Bible citations in this chapter are all derived from the New International
Version.
1. See also French (2009) on the social and ecological instability that resulted
from the civil-war-related violence in the district of Gorongosa.
2. The list, dated March 28, 2008, was provided by the district’s Department
of Religious Affairs. Gorongosa’s small Islamic community is listed as the
“Muslim Church” (Igreja Muçulmana).
108 C a r o l i e n Jac o b s

3. Registration is a rather slow and costly process that does not bring much
in the way of direct benefits. For this reason, not all churches register
(and consequently risk prosecution for being “illegal”).
4. The epithet “people of the world” (wanu wa dziko) is often used to refer
to people who hold to traditional beliefs. It is used in opposition to “peo-
ple of the church.”
5. For a more elaborate description and analysis of the instrument, see
Jacobs, 2010, ch. 5.
6. The “aunt” was the second wife of her deceased father.
7. In some cases, “eaten” spirits are believed to be spirits of people whose
corpses have been dug up after burial and who have literally been eaten.
It can also refer to people making use of the supernatural forces of the
spirits of the dead. Such forces can be acquired by carrying out certain
ceremonies. Yacintha was not explicit about this here.
8. She mentioned a specific category of war spirits that have the reputation
of being extremely violent.
9. Mal entendimento em casa.
10. See also Borneman, 1997; Minow, 1998; Teitel, 2000; Wilson, 2000;
Huyse and Salter, 2008.

R EFERENCES
Abel, R. L. “A Comparative Theory of Dispute Institutions in Society.” Law &
Society Review 8, no. 2 (1974): 217–347.
Appiah, K. A. In My Father’s House: Africa in the Philosophy of Culture. Oxford:
Oxford University Press, 1992.
Ashforth, A. Madumo : A Man Bewitched. Chicago: University of Chicago Press,
2000s.
Benda-Beckmann, F. von. “Relative Publics and Property Rights: A Cross-cultural
Perspective.” In Property and Values: Alternatives to Public and Private
Ownership, edited by C. Geisler and G. Daneker, 151–73. Washington, DC
and Covelo, CA: Island Press, 2000.
——— “Forum Shopping and Shopping Forums: Dispute Processing in a
Minangkabau Village.” Journal of Legal Pluralism 19, (1981): 117–59.
Bertelsen, B. E. ‘“The Traditional Lion is Dead.’ The Ambivalent Presence of
Tradition and the Relation between Politics and Violence in Mozambique.” In
Lusotopie 2003: Violence et Contrôle de la Violence au Brésil, en Afrique et à Goa,
edited by C. Goirand, 263–81. Paris: Editions Karthala, 2003.
BibleGateway.com. www.biblegateway.com (New International Version).
Binsbergen, W. van. “Becoming a Sangoma: Religious Anthropological Field-work
in Francistown, Botswana.” Journal of Religion in Africa 21, no. 4 (1991):
309–44.
——— “Reconciliation: A Major African Social Technology of Shared and
Recognised Humanity,” unpublished manuscript, 1999. http://www.shi-
kanda.net/ african_religion/reconcil.htm
 Towa rd R e c o nc i l i at i o n 109

Borneman, J. Settling Accounts: Violence, Justice and Accountability in Postsocialist

Europe. Princeton, NJ: Princeton University Press, 1997.
Buur, L., and H. M. Kyed. “State Recognition of Traditional Authority in
Mozambique.” Nordiska Afrikainstitutet Discussion Paper 28, Uppsala,
Nordiska Afrikainstitutet, 2005.
Chavunduka, G. “Dialogue among Civilisation: The African Religion in Zimbabwe
To-day” (occasional paper no.1, Crossover Communication, Harare/Münster,
2001).
Comaroff, J. L., and S. Roberts. Rules and Processes: The Cultural Logic of Dispute
in an African Context. Chicago, IL, and London: The University of Chicago
Press, 1981.
Devisch, R. “Perspectives on Divination in Contemporary Sub-Saharan Africa.” In
Theoretical Explorations in African Religion, edited by W. van Binsbergen and
M. Schoffeleers, 50–83. London: KPI Limited, 1985.
Dijk, R. van, R. Reis, and M. Spierenburg, eds. The Quest for Fruition through
Ngoma: The Political Aspects of Healing in Southern Africa. Oxford: James
Currey, 2004.
Douglas, M. “Witch Beliefs in Central Africa.” Africa: Journal of the International
African Institute 37, no. 1 (1967): 72–80.
Evans-Pritchard, E. E. Witchcraft, Oracles and Magic among the Azande. Oxford:
Clarendon Press, 1968 [1937].
French, T. J. “Like Leaves Fallen by Wind: Resilience, Remembrance, and the
Restoration of Landscapes in Central Mozambique” (Thesis, Boston University,
2009).
Gluckman, M. Ideas and Procedures in African Customary Law. London: Oxford
University Press, 1969.
Gulliver, P. H. Disputes and Negotiations: A Cross-cultural Perspective. Studies on
Law and Social Control. New York: Academic Press, 1979.
Gundersen, A. “Popular Justice in Mozambique: Between State Law and Folk
Law.” Social & Legal Studies 1, (1992): 257–82.
Hastings, A. “African Christian Studies, 1967–1999: Reflections of an Editor.”
Journal of Religion in Africa 30, fasc. 1 (2000): 30–44.
Holleman, J. F. Issues in African Law. The Hague: Mouton, 1974.
Honwana, A. M. “Healing for Peace: Traditional Healers and Post-war
Reconstruction in Southern Mozambique.” Peace and Conflict: Journal of
Peace Psychology 3, no. 3 (1997): 293–305.
Horton, R. “African Conversion.” Africa 41, no. 2 (1971): 85–108.
Huyse, L., and M. Salter, eds. Traditional Justice and Reconciliation after Violent
Conflict: Learning from African Experiences. Stockholm: International IDEA,
2008.
Jacobs, C. Plurality of Religion, Plurality of Justice: Exploring the Role of Disputing
Processes in Gorongosa, Central Mozambique, vol. 28, African Studies Collection
(Leiden: African Studies Centre, 2010).
Janzen, J. M. Ngoma: Discourses of Healing in Central and Southern Africa.
Berkeley: University of California Press, 1992.
Kirsch, T. “Restaging the Will to Believe: Religious Pluralism, Anti-syncretism, and
the Problem of Belief.” American Anthropologist 106, no. 4 (2004): 699–709.
110 C a r o l i e n Jac o b s

Luedke, T., and H. West, eds. Borders and Healers: Brokering Therapeutic Resources
in Southeast Africa. Bloomington and Indianapolis: Indiana University Press,
2006.
Meierhenrich, J. ‘Varieties of Reconciliation.’ Law & Social Inquiry 33, no. 1
(2008): 195–231.
Minow, M. Between Vengeance and Forgiveness: Facing History after Genocide and
Mass Violence. Boston: Beacon Press, 1998.
PRI. Access to Justice in Sub-Saharan Africa: The Role of Traditional and Informal
Justice Systems. London: Penal Reform International, 2001 [2000].
Richards, A. I. “A Modern Movement of Witch-finders.” Africa: Journal of the
International African Institute 8, no. 4 (1935): 448–61.
Robbins, J. “Continuity Thinking and the Problem of Christian Culture: Belief,
Time and the Anthropology of Christianity.” Current Anthropology 48, no. 1
(2007): 5–38.
Sampson, S. “From Reconciliation to Coexistence.” Public Culture 15, no. 1
(2003): 181–86.
Teitel, R. Transitional Justice. Oxford: Oxford University Press, 2000.
Turner, V. W. The Drums of Affliction: A Study of Religious Process among the
Ndembu of Zambia. Oxford: Clarendon Press, 1972.
Velsen, J. van. “Procedural Informality, Reconciliation, and False Comparisons.”
In Ideas and Procedures in African Customary Law, edited by M. Gluckman.
London: Oxford University Press, 1969.
Wilson, R. A. “Reconciliation and Revenge in Post-apartheid South Africa:
Rethinking Legal Pluralism and Human Rights.” Current Anthropology 41,
no. 1 (2000): 75–98.
 7

RELIGION AND DISPUTES IN BALI’S NEW

VILLAGE JURISDICTIONS

Martin Ramstedt

I NTRODUCTION
Since the recent decentralization process in Indonesia, instigated by
interim president B. J. Habibie in 1999 and implemented between 2001
and 2004 under the presidencies of Abdurrahman Wahid and Megawati
Sukarnoputri, spells of new intra-communal disputes have troubled the
Hindu–Balinese constituency on the predominantly Hindu island of Bali,
adjacent to islands with predominantly Muslim populations. These dis-
putes have unintentionally been prompted, I argue, by a nativist nomo-
spheric project1 pursued by an island-wide alliance of Balinese political
leaders, lawyers, businessmen, and Hindu intellectuals. This alliance took
advantage of the legislative latitude provided by Indonesia’s new national
laws on regional autonomy that had not only set the decentralization pro-
cess in motion but had also accelerated the accommodation of Islam in
Indonesian state law (Ramstedt, 2012). The Islamization of the Indonesian
state had, in fact, motivated the alliance to seek to inscribe a reimagined
Hindu–Balinese cosmology onto the legal space of Bali Province in order
to keep the island Hindu. It eventually succeeded in doing so by bring-
ing about the enactment of new provincial regulations that facilitated the
resacralization of Bali, to the extent that a whole set of ritual, social, and
aesthetic norms, believed to bring about local well-being, has meanwhile
been installed as formal law in newly instated autonomous village juris-
dictions. These village jurisdictions are grounded in modified customary
institutions articulating new fault lines of citizenship that have, in turn,
engendered new spells of intra-communal disputes, while aggravating a
number of protracted conflicts with roots that in some cases reach back
several decades.
112 Martin Ramstedt

With the juridification of an allegedly age-old Hindu–Balinese cosmology,

the Balinese have surreptitiously reversed the forced universalization of their
heterogeneous local religious traditions that had been necessitated by their
integration into the unitary Indonesian nation state in 1950. In the course
of this universalization process, the Balinese had to officially cast themselves
as monotheistic “reform Hindus” in the modern Indian sense of the label
(Ramstedt, 2002; 2004; 2008, pp. 1233−41), and to formally shift allegiance
from their deified ancestors and Indianized local guardian deities, whom they
had traditionally worshipped as the invisible rulers of the land and its crops
(see also MacRae, 2003, p. 146), to an abstract God possessing command
only over individual hearts and minds. Today, ancestors have again become
important players in the local polis, as the ritualism intrinsically linked to their
worship has become an integral part of local law.
Although the exclusionary effects of the new fault lines of citizenship
caused by the instatement of autonomous village jurisdictions in 2001
have drawn much attention from international scholars and observers,
particularly where they have involved violence against Muslim migrants
from neighboring islands and inter-village disputes (ICG, 2003, i, ii,
pp. 2−10; Schulte Nordholt, 2007, pp. 387, 402−4; Ramstedt, 2009,
pp. 330, 361), the inclusionary dimensions have not yet been sufficiently
dealt with in the existing literature. This chapter seeks to fill this lacuna
by bringing into focus the issue of “equal duties,” which has on occasion
been highly problematic for local citizens in Bali’s autonomous villages.
While all local citizens have equal rights, they also have equal duties that
basically consist of far-reaching ritual obligations compelling them to par-
ticipate in lavish village rituals, even when under certain conditions some
groupings have traditionally held some village rituals to be ritually pol-
luting. Members of certain supra-local titled lineage groups, for instance,
have traditionally been exempted from performances at lower-caste village
shrines. Members from other minority lineages, on the other hand, have
traditionally challenged the supremacy of Brahmin priests, who are still
regarded as the highest religious and ritual authorities by the majority of
Balinese. Consequently, new disputes over nonperformance of ritual duties
have recently emerged, particularly between members of different status
groups, in which the “perpetrators,” who usually constitute a minority
group in the village, often no longer want to be included in the local citi-
zenry. As I shall demonstrate below, they then commonly seek indepen-
dence from the majority group by attempting to obtain permission from
higher-level authorities to establish their own village jurisdictions.
First, however, we need to retrace the sociopolitical developments
resulting in the revitalization of customary law institutions in Bali. In other
words, we need to recall those factors that account for the relative resilience
of Balinese customary institutions vis-à-vis earlier state intervention, which
has allowed them to be “revitalized” as viable institutions in the first place,
a fact that constitutes a major parameter for the aforementioned disputes.
 Ba l i ’s New Vi l l ag e Ju ri s di c t ion s 113

S TATE I NTERVENTION AND THE R ESILIENCE OF

B ALINESE C USTOMARY I NSTITUTIONS
The relative resilience of Balinese customary institutions can be attrib-
uted to two cycles of retraditionalization that took place in the twenti-
eth century. The first one was set in motion by an intervention of the
Dutch colonial government, specifically, when it began to curb its initial
modernization efforts in Bali and to implement the so-called Balinization
(Balisering) policies in order to forestall the spread of communism on
the island. With the establishment of Dutch colonial rule in Bali at the
end of the nineteenth and the beginning of the twentieth centuries,2 the
colonial government claimed to be “liberating” the Balinese people from
the shackles of “oriental despotism.” Of course, this can also be seen as
a way of discursively justifying the Dutch conquest and the subsequent
deposition of those Balinese “kings” (raja) and aristocrats who had
declined to acknowledge Dutch supreme authority. In the end, all eight
of the Balinese royal houses were divested of vital privileges and had to
defer to the authority of Dutch supervisors (controleurs) installed to exert
indirect control over home affairs within the different fiefdoms (MacRae,
2003, pp. 150−1). The colonial government then provided some bless-
ings of modernity, such as schooling and health care, to commoners, who
had hitherto mostly looked to the royal courts for cultural and religious
orientation. The colonial government began to doubt the socially lib-
eralizing aspects of their modernization efforts when various concepts
of democracy started to penetrate the island, such as socialist ideas and
concepts of nationalism, as well as some fundamentals of contemporary
Indian reform-Hinduism. These eventually congealed into a series of local
reform movements that called for a dangerously high degree of religious,
intellectual, and political emancipation of the Balinese commoners, and
started to cause some social unrest on the island.
The definitive turning point came in 1927, shortly after the first com-
munist upheaval in the archipelago (Korn, 1957, p. 24; Cribb, 2010),
when the continuation of the most radical reform movements was strongly
discouraged by the joint efforts of members of the Balinese nobility and
Dutch colonial officers (Picard, 2011, p. 122; Ramstedt, 2011b, p. 533).
At the same time, the colonial authorities embarked on their project to
foster Balinese “tradition” in general and to fortify the status of the nobil-
ity and the royal courts in particular in order to set them up as guardians
of “Balinese culture” against undesirable “alien” ideas such as Indonesian
nationalism, independence, and communism (Korn, 1957, p. 19; Schulte
Nordholt, 1996, pp. 264−6; Robinson, 1998, pp. 25, 27−32; Ramstedt,
2011b, p. 543).
Right from the beginning, Dutch colonialism was accompanied by
several Orientalist projects investigating whether useful elements of
the Balinese tradition could be deployed to the benefit of colonial rule
114 Martin Ramstedt

(Ramstedt, 1998, pp. 42−53, 63−6). Some of these efforts were dedicated
to the compilation, revision, and study of the Old-Javanese and indigenous
law codes (Djelantik and Schwartz, 1918; Korn, 1932, pp. 420−8), the
standardization of Balinese villages according to the Orientalist concept of
the “autochthonous village republics” (Ramstedt, 1998, pp. 43−4), and
the conceptual fixation of Bali’s fluid social hierarchy into an inflexible
caste system. In 1929, the enhanced colonial appreciation of the political
value of Balinese culture also led to the appointment of representatives of
the traditional royal houses as official administrators of the realms of the
traditional kingdoms, followed by the full restoration of their family heads
as Balinese kings in 1937 (Schulte Nordholt, 1996, pp. 217, 232−42,
246−50, 265−6; 2007, pp. 244−62).
Endorsing the traditional judicial institutions at the level of the royal
courts, the irrigation associations (subak), and—to a much lesser extent-
the local village communities, the Dutch did not generally interfere in the
adjudication of what they regarded as internal Balinese affairs, provided that
colonial regulations were not infringed (EvNI, 1917, pp. 127−8; Robinson,
1998, pp. 32−3). This abstinence greatly aided the retraditionalization poli-
cies, which were further strengthened by the fact that colonial law inter-
dicted both Christian and Muslim proselytization among the Balinese, as
well as alienation of land held by natives (Lev, 1985, pp. 58−60; Fitzpatrick,
1997, p. 171). Hence, precolonial Balinese judicial practice persisted in an
only slightly modified manner until 1950, when Bali was finally subjected
to the imperatives of the unitary Indonesian nation state. Until then, adju-
dication had been regarded as a mode of obedience to the gods and deified
ancestors governing the sacred Balinese cosmos. In the performance of a
plethora of recurrent rituals, as well as the enactment and observance of
detailed behavioral regulations, the sacred cosmological principles of the tra-
ditional Balinese worldview had been constantly revalidated. Validation had
eschatological dimensions in that it was believed to ensure that all the differ-
ent elements of the cosmic order—gods, spirits, plants, animals, and men-
would work “in harmony” with one another. If all were in harmony, the
land and its inhabitants would be fertile, blooming, rich, and perfect (Bal.
kerta). Ignorance of, or outright rebellion against, the cosmic principles,
however, was believed to cause disruption of the harmonious interlinkages
between the different cosmic elements, thus bringing about obstacles, dis-
ease, infertility, disaster, death, and ruin (Bal. sengkala). Breaking local law
was, therefore, believed to bring on individual and collective, human and
natural mishap. Consequently, restorative justice had always necessitated the
performance of purification rituals to pacify the wrath of the deities and to
realign local society with the sacred cosmic order (Warren, 1993, pp. 38−9,
143−50; Ramstedt, 1998, pp. 380−1, 405−82; 2002, p. 143).
Punishment regulations and indeed what was regarded as an offense
in the first place varied according to location and social status of those
 Ba l i ’s New Vi l l ag e Ju ri s di c t ion s 115

involved, as location and social status were believed to differ in terms

of spiritual potency and deficiency, respectively. Generally, nobles were
considered to be spiritually more powerful than commoners. Offenses
against noblemen and noblewomen, hence, were deemed more serious
than those committed against commoners. Similarly, even mere misde-
meanors in sacred locations were considered to be graver than offenses
in more ordinary environments. Disputes between commoners were usu-
ally dealt with on the basis of local customary law laid down in a genre
of High-Balinese texts called awig-awig. In some locations, these had
been orally transmitted, while in others they had been passed down in
written form. Disagreements between, as well as offenses against, nobles
were generally redressed on the basis of provisions laid down in sacred
Old-Javanese law codes (Creese, 2009, pp. 517−32; see also EvNI, 1917,
pp. 126−7; Lekkerkerker, 1918, pp. 32−133; Korn, 1932, pp. 49, 56−7,
348−418; Hoadley and Hooker, 1981, pp. 51−79; Warren, 1993).
Bali’s integration into the Indonesian jurisdiction engendered a
transformation of the local administration of justice. Initially, the cen-
tral government adopted the colonial pluralist legal legacy, pending the
development of a new unified law code deemed, by many, to be more
appropriate for a modern nation (Bowen, 2003, p. 53). In Bali, how-
ever, the regents and lesser noble functionaries were immediately deposed
and their judicial functions taken over by the state. By 1953, the judicial
institutions at the royal courts had been dismantled on the grounds of
Emergency Law No. 1/1951 on Preliminary Steps toward the Unification
of the Organization, Authority, and Portfolio of the Civil Courts (Lev,
2000, pp. 56−9; Ramstedt, 2012, p. 7). Not only was feudalism not in
line with the republican spirit, what is more, after Japanese capitulation
most Balinese princes had welcomed the returning Dutch, even joining
in the liquidation of those members of the Balinese resistance who had
fought for Indonesian nationalism. This did not endear Balinese “feudal
culture” to the Indonesian nationalists who were now governing the uni-
tary nation state (Robinson, 1998, p. 15; Ramstedt, 2004, p. 10).
As to the judicial institutions at the level of the traditional village com-
munities and the irrigation associations, state intervention proceeded at
a considerably slower pace, though. Village customary law institutions,
in principle, persisted until 1960 in the same fashion as they had under
the Dutch, but the cosmology in which they were rooted started being
transformed from 1953 onward due to the intervention of the Muslim-
dominated Ministry of Religious Affairs. The ministry did not recognize
Balinese cosmological beliefs and their accompanying local orthopraxies as
“religion” because it believed them to consist essentially of “animism” and
“ancestor worship.” Consequently, the ministry conferred upon Christian
and Muslim organizations the right to proselytize among the Balinese on
the grounds of the first foundational pillar of the Indonesian state: Belief
116 Martin Ramstedt

in the One Almighty God. Thereupon, the local Balinese government

and religious leadership turned to India to revise Balinese spiritual tradi-
tions along the lines of devotional, monotheistic, reform-Hinduism. By
1958, this strategy had secured official recognition of Hinduism as one
of the religions adhered to by the Indonesian people (Ramstedt, 2002,
pp. 152−6; 2004, pp. 10−15; 2008, p. 1241).
In 1960, a national judicial unification project intended to supplant the
pluralist legal legacy of the segmented colonial state finally reached Bali’s
local village jurisdictions in the form of the Basic Agrarian Law (BAL).
This law stipulated the large-scale reallocation of land and, in Bali, ben-
efitted a significant number of commoners who had formerly worked the
large landholdings of the aristocracy. BAL thereby exacerbated the conflicts
between the commoners and the nobility that had already emerged prior
to 1927, in part because the more flexible system of Balinese title groups
had been frozen into a colonialist version of the Indian “caste” system
(Robinson, 1995, pp. 3−17). Although BAL officially was not supposed to
disrespect Indonesia’s village traditions and the notions of justice under-
pinning them, it incorporated the traditional regulations of Bali’s village
commons in such a way that they would actually facilitate the conversion of
the village commons into registerable land, which was tantamount to dis-
owning its invisible lords, the local deities, and ancestor spirits (Lev, 1973,
pp. 12, 22; Fitzpatrick, 1997, pp. 172−88; Ramstedt, 2009, p. 338). Full
implementation of the state titling programs was interminably delayed,
though, largely due to intricacies of local Balinese culture, such as the lack
of family names, technicalities of land registration that frequently required
more detailed information than the often ambiguous land-tax documents
and maps of territorial boundaries (some of which dated back to the colo-
nial period) could provide, as well as passive and active resistance on the
part of Balinese communities (Bundschu, 1985, pp. 3−5, 41; MacRae,
2003, pp. 153−5; see also Lev, 1973, p. 23; Fitzpatrick, 1997, pp. 173,
196, 212; Rais, 1997, p. 275; Vandergeest and Peluso, 2001, pp. 185−6;
Benda-Beckmann and Benda-Beckmann, 2009, p. 116).
As to the judicial regulation of the irrigation associations, their autonomy
was encroached upon when the state initiated the green revolution in the
early 1970s, which entailed the adoption of newly developed, higher yield-
ing rice varieties and the concomitant technical and administrative mod-
ernization of Bali’s water management system (Spiertz, 1991, pp. 190−2;
Ramstedt, 2011a, pp. 44−5). Bali Province Regulation (BPR) No. 2/PD/
DPRD/1972, however, continued to define the subak as a customary law
community with a religious character. This traditionalist definition was
repeated in BPR No. 23/1982 (Sirtha, 1996, p. 18). Moreover, in 1981,
the government of Bali Province had already introduced annual subak com-
petitions, which had heralded the beginning of the second retraditionaliza-
tion cycle. This second retraditionalization cycle, which was comparatively
 Ba l i ’s New Vi l l ag e Ju ri s di c t ion s 117

more inchoate than the first one brought about by the Dutch colonial
government, was instigated by the Suharto regime as a means to root out
communism and to preserve local culture as a resource for the development
of cultural tourism. The subak competitions required that every irrigation
association compile the rights and obligations of its members in a kind of
written constitution and routinely document its agriculturally relevant deci-
sions. Even when disputes arose that necessitated the involvement of gov-
ernment authorities, these local constitutions and decisions were referred to
as yardsticks for the ensuing conflict resolution processes. Moreover, each
subak had to maintain or, if necessary, construct a new irrigation temple,
and continuously perform all traditional agricultural rituals, even though
the new rice varieties had become independent of the agricultural rhythms
measured by the traditional Balinese calendar (Spiertz, 1991, pp. 192−4;
Sirtha, 1996, pp. 5, 81−94, 111−66).
Suharto’s Law No. 5/1979 on Village Government had grouped all
traditional Balinese villages into new administrative units that were to be
run as deconcentrated arms of the central government, a measure that was
intended to deprive the traditional village leadership of its customary con-
trol over village resources and political directions. The progress of admin-
istrative reorganization, however, turned out to be slow and uneven for
budgetary reasons and for fear of local outbursts against the implementa-
tion of the law. Moreover, the central government learned to appreci-
ate Balinese customary institutions as efficient arbiters of state-instigated
policies and programs such as family planning and local development
projects (Warren, 1993, pp. 238−66; Ramstedt, 2009, pp. 352−5). BPR
No. 6/1986 on the Status, Function, and Role of the Traditional Balinese
Village Communities confirmed the central government’s recognition of
Bali’s customary institutions as important agents of local development.
This was followed by BPR No. 2/1988, which facilitated the establish-
ment of village credit institutions, to be managed by the customary vil-
lage institutions, as a crucial step in encouraging farmers’ participation in
the development of the local tourist industry (Warren, 1993, pp. 290−2;
Fitzpatrick, 1997, pp. 198−9; Picard, 1997, p. 203; Ramstedt, 2009,
pp. 354−5; 2011a, p. 58).

D ECENTRALIZATION AND THE R EVITALIZATION OF

B ALINESE C USTOMARY V ILLAGE I NSTITUTIONS
The enactment of the 1999 legislation on regional autonomy entailed a
nationwide rescaling from above to the extent that considerable legisla-
tive, administrative, and fiscal powers were devolved from the center to
the regencies and municipalities, leaving the higher administrative level
of the provinces with less authority than before (Holtzappel, 2009). In
order to avert the fragmentation of their religio-ethnic identity, which
118 Martin Ramstedt

has intrinsically been linked to Bali Province as a whole (MacRae,

2003, p. 143; Ramstedt, 2009, p. 341; 2011a, pp. 55−6),3 the Balinese
attempted to push autonomy both upward and downward from the scale
at which autonomy was officially granted.
The push upward consisted of a concerted effort within the Balinese
provincial parliament to zone off the whole province of Bali from the
secular jurisdiction of the Indonesian nation state, analogous to the spe-
cial autonomy that had been granted to the provinces of Aceh and Papua
in 2001. A draft law on special autonomy for Bali was eventually submit-
ted to the legislative body of the national Parliament in November 2004
(Ramstedt, 2009, pp. 332, 361−2). However, the whole affair was kept
pending due to strong opposition from other provinces with similar aspira-
tions, and by the time of the 2009 elections for the governor of Bali prov-
ince, it had lost all political momentum. Instead, BPR No. 16/2009 on
the Planning of the Spatial Arrangement of the Territory of Bali Province
for the period 2009−2029 was issued. It includes some provisions for the
resacralization of the island, such as articles 1/40, 1/44, 1/65, and 2/b,
which declare as sacred all those natural habitats that have traditionally
been revered as sites of important guardian spirits, including mountains
and hills, lakes and springs, gorges, coastlines, and the sea. Articles 1/66
and 1/67 stipulate the validity of the traditional geomantic blueprint for
houses, settlements, and temples, designed to realign the relative micro-
cosms of Bali with the sacred macrocosmic order.4
The push downward consisted of the issuance of BPR No. 3/2001,
ratified by the Balinese provincial parliament with only slight modification
in 2003, stipulating the establishment of autonomous village jurisdictions
(desa pakraman) on the basis of standardized and modernized versions of
the old customary village institutions endowed with a significant degree
of local legislative, punitive, adjudicative, administrative, and economic
decision-making powers.5 The provincial regulation thereby juridified a
traditionalist notion of citizenship that views “processes of belonging,
entitlement and exclusion as accomplished locally rather than through
national-level frameworks” (Smart and Lin, 2007, p.281). Desa pakra-
man citizenship is predicated upon membership in at least the village
origin temple community, which is one of the three temple communi-
ties constitutive of the new village jurisdictions, alongside those of the
village assembly temple and the village purification temple. The village
origin temple community cares for the shrines of the village founders
and the performance of the ritual labor that is the ancestors’ due. Local
citizenship is indeed inherited through patrilineal descent from the vil-
lage founders revered in the village origin temple. However, belonging
remains precarious when it is not constantly enacted through participa-
tion in the decision-making processes that regularly take place in the vil-
lage assembly temple and in an array of recurrent rituals performed at all
 Ba l i ’s New Vi l l ag e Ju ri s di c t ion s 119

the three village temples, unless one has taken up residence elsewhere and
is thus exempted from the duty to participate in the regular village assem-
blies as well as from ritual labor in the village assembly temple and the
village purification temple. Unfailing performance of ritual labor assigned
to take place at these temples makes the desa pakraman what it is: liter-
ally a “realm of right conduct” (Ramstedt, 2009, pp. 350−1), in which
“harmony” must rule between the visible and invisible forces populating
the realm of the village in order to ensure the well-being of the realm
(Parwata, 2007, p. 55; Rai, 2007, p. 145; Windia, 2007, p. 121).
Not all residents of desa pakraman have local citizenship. Migrants
from across the geographical boundaries of Bali, Sino-Indonesians,
Christian and Buddhist Balinese, and even Hindu Balinese with ancestors
in a different desa pakraman are not granted this privileged status. They
are nevertheless usually, albeit not always, allowed residency, provided
they succumb to the decision making of the local citizens and their elected
representatives that constitute the respective village executive. As resident
noncitizens, they are furthermore expected at least to contribute money
to the staging of communal rituals, regardless of their own denomina-
tional background. Their local disenfranchisement not only entails politi-
cal and religious disadvantages, but it also has an economic dimension to
it, as BPR No. 3/2001+2003 also bestows substantial financial autonomy
upon the desa pakraman. Village funds are used for village development
projects and as loans for small-scale individual business ventures of resi-
dents. They are to be administered by the aforementioned village credit
institutions, which are to be managed only by the local citizenry. This
means that residents without local citizenship, who in principle are enti-
tled to apply for micro-loans at their local village credit institution, are
under immense pressure to garner support from the privileged members
of their local communities (see also Ramstedt, 2009, pp. 347−8; 2011a,
pp. 62, 64). The recent instatement of autonomous village jurisdictions
in the legal space of Bali, thus, clearly fulfills a gate-keeping function
designed to enhance opportunities for the local Hindu–Balinese citizenry
(see also Shachar and Hirschl, 2007, pp. 255−65), to the disadvantage of
even longtime residents with divergent religious affiliations and national
migrants from beyond the bounds of a given desa pakraman.

D ISPUTES IN B ALI ’ S N EW V ILLAGE J URISDICTIONS

The current Hindu–Balinese concept of local citizenship does not jell at
all with the concept of liberal citizenship enshrined in the constitution
of post-Suharto Indonesia, with its newly enacted Bill of Human Rights
prioritizing “the rights of individuals to form, revise, and pursue their
own definition of the good life.”6 Yet the very same democratization pro-
cess that encouraged acceptance of the idea of liberal citizenship equally
120 Martin Ramstedt

boosted extant notions of local citizenship predicated upon local culture

and religion. “The simultaneous operation of [these] quite different,
even contradictory, rationalities of legal governance,” as Valverde (2009,
p. 142) has called it, has in turn caused novel problems of interlegality
that, in Bali, have thus far been solved largely to the detriment of those
non-Hindu Indonesian residents of Bali holding only national citizenship
rights.
Prior to the establishment of the autonomous village jurisdictions,
decisions made by village elders could be reversed by appeals to state insti-
tutions, such as secular law courts, regional branch offices of Indonesian
ministries, and local battalions, as well as by divine judgment revealed
through the trances of individual residents becoming receptacles of divine
agencies during communal temple rituals. No such secular or sacred
recourse is available anymore. While decentralization, in general, and the
nativist discourse, in particular, have thoroughly delegitimized central
authorities, trance as part of communal ritual practice has in the past cou-
ple of decades become a source of embarrassment rather than a legitimate
expression of restorative justice. This is due to some discouraging effects
of modernization and the reinterpretation of religious concepts and prac-
tices by official Indonesian Hindu institutions (see also Hornbacher,
2011). Individual residents, particularly disenfranchised noncitizens and
also “indigenous” dissenters, are therefore forced to succumb completely
to the “coercive harmony” (Nader, 1997, p. 712) of the desa pakraman
majority regimes and their legitimate security forces, which have acquired
some notoriety for having intimidated local residents, particularly those
with migrant backgrounds (see also Darling, 2003, pp. 198−200).
The implementation of BPR No. 3/2001+2003, which brought on
this intensive “rescaling from below” (Smart and Lin, 2007, pp. 281−2),
started in 2004. To date, however, implementation is still unfinished,
not least because the process has been marked by unforeseen disputes
among the local citizenry itself. Many of these disputes have not yet been
resolved because of the divergent interests of local factions caused by
party politics, incendiary talk by local “big men,” rival economic ven-
tures, and educational, religious, and caste differences. The most com-
mon disputes have been over territorial boundaries between neighboring
desa pakraman communities. While, in most of these cases, inter-village
boundaries were never clearly defined in the first place, new economic
opportunities such as real-estate development suddenly prompted the
communities involved to care strongly about hitherto uncontested land
and boundaries. Then there have been the intra-village disputes that have
arisen in some very large desa pakraman communities, in which a subsec-
tion of the local citizenry has complained about the great distances from
the residences of their members to the various village temples, rendering
their participation in the respective rituals particularly burdensome. Some
 Ba l i ’s New Vi l l ag e Ju ri s di c t ion s 121

of these disputes have been resolved by granting the particular subsection

the right to constitute its own desa pakraman. However, this decision has
invariably come with the obligation to construct a set of three new village
temples, a costly affair that can only be realized by a well-to-do group of
people. This is probably why only 77 new desa pakraman were founded
between 2000 and 2009,7 which is about the same rate of growth as in
previous decades: between 1971 and 2000, for instance, the number of
Balinese traditional villages grew by a total of 270 communities (see also
Koesnoe, 1975, p. 37).
What the local citizenry considers a disruption of the harmony of the
realm and notions of how such disruptions can be rectified are now laid
down as local law in the respective written village constitutions (awig-
awig) and in the actual decisions (pararem) that local village tribunals have
arrived at in connection with concrete intra-village conflicts. While there
has been only little variation among desa pakraman in the actual awig-
awigs themselves, it is on the level of the pararem, a kind of local case
law, that we find a high degree of variation across Bali (Parwata, 2007,
pp. 51−2; Windia, 2008, pp. 4−9). Moreover, as local notions of etiquette
vis-à-vis gods, men, and nature are not explicated in legal texts but are
transmitted orally, “harmony” is still sufficiently vague as a concept, even
to locals, and thus allows for a wide range of interpretations by those who
are entitled to make them, that is, the favored orators, big men, and opin-
ion leaders among the local citizenry. These people are not necessarily part
of the elected village leadership, which alone is assigned the tasks of form-
ing village tribunals hearing cases and administering sanctions (Ramstedt,
2009, p. 347). However, they certainly form part of the audience of local
citizens that often guides the decision making of the village tribunals and,
as such, they are thus bound to make their points and root for or against
somebody or something (Sudantra, 2007, pp. 40−2).
Sanctions against members of the local desa pakraman community
accused of disrupting the social harmony differ depending upon the par-
ticular offense, and can include demands of material compensation in the
form of fines or confiscation of goods or land; eschatological measures
such as the funding and performance of purification rituals or denial of
access to the local cemetery; and psychological measures such as ostra-
cism and temporary expulsion from the village premises (Suardana, 2007,
pp. 71−3; Ramstedt, 2009, pp. 348−50). One of the more severe cases
of ostracism (kasepekang) in today’s Bali recently hit the headlines of the
New York Times.8 In 1972, the head of a local extended family of the sudra
caste suddenly laid claim to higher status by insisting on being addressed
with the honorific title of the wesia caste, whose members are, in Bali,
considered to be part of the traditional aristocracy. It is not uncommon
for families to “rediscover” a patrilineal ancestor affiliated with a higher-
caste group. This discovery, however, requires corroboration by a spirit
122 Martin Ramstedt

medium and a priest who can interpret the genealogical texts of the lin-
eages involved. Apparently, none of these authorities had extended such
corroboration, but the family head did not relent in his claim, thereby
threatening to upset the social order of the village guarded by the village
ancestors. Over the next three decades, tensions between him and his
neighbors rose. It was only with the implementation of village autonomy,
though, that the family was finally punished by kasepekang. The dispute
nevertheless continued, and in 2010, a village vote threatened the family
with eviction from the desa pakraman territory within the coming year.
The establishment of autonomous village jurisdictions throughout
Bali, thus, enabled the majority within this particular village to settle an
open score with a family whose head had obviously become overconfident
in his dealings with his fellow villagers—and the ancestors. After the fall
of Suharto in 1998, many Balinese seemed to have some axes to grind
with their neighbors. Although members of commoner lineages had
benefitted from the economic growth under Suharto and had acquired
academic degrees or had made good careers for themselves, up to the
end of the Suharto’s rule, key positions in almost every sector of soci-
etal organization were still held exclusively by members of high-caste lin-
eages. Emboldened by the fact that the implementation of the new village
jurisdictions in 2004 was not accompanied by a revitalization of colonial
judicial practices that had favored the old nobility, majority commoner
factions have sometimes kicked over the traces by kicking up trouble for
minority high castes.
In the desa pakraman Tusan in the district of Klungkung, for example,
the commoner majority in the village assembly wanted a group of fellow
citizens composed of nonordained members of a Brahmana lineage to
share equally in the communal labor for the village temples, and wrote
this into their village constitution. The Brahmana, however, strongly
opposed the move, invoking their traditional privilege of being exempted
from all communal labor. In the end, they threatened to sever their rela-
tionship with their cocitizens and to constitute their own autonomous vil-
lage. Higher-level customary law authorities and secular executives from
the district civil service were called in because the Brahmana could indeed
with some justification challenge the validity of the respective village law
for their particular case. The higher-level customary law authorities and
secular executives unanimously and successfully advocated for a revision
of the village constitution and training for the local customary law leaders
who had to implement this revision. The revision of the village constitu-
tion eventually honored the traditional privilege of the Brahmana. The
Brahmana, however, had to agree to pay a fine because they had dis-
turbed village harmony, an offense that necessitated the performance of
a purification ceremony to be sponsored by the perpetrators. In a similar
conflict that occurred in the district of Gianyar, the Brahmana minority
 Ba l i ’s New Vi l l ag e Ju ri s di c t ion s 123

repeatedly refused to pay the fine. After the intervention of the district
governor, they were eventually allowed to separate from the village and
form their own desa pakraman. This was a costly endeavor, though,
because they had to build three village temples and a cemetery of their
own in order to be fully recognized as a new desa pakraman community.
In the village of Keramas in the district of Blahbatuh, members of a
Brahmana lineage refused to perform their funeral and purification cer-
emonies at the village purification temple, as they had never done so for
fear of ritual pollution through sharing the same temple with members of
a lower caste. The Brahmana eventually decided to build their own purifi-
cation temple. This provoked a serious conflict between them and the rest
of the local citizenry that could only be resolved through the mediation of
customary law experts from the district capital, Blahbatuh. The success-
ful outcome of these efforts resulted in a compromise that entailed the
renewed participation of the Brahmana in the maintenance of the old vil-
lage purification temple, while they were allowed to continue to use their
new temple for their own purposes. In this way, the village constitution
was honored and harmonious relations between the villagers were kept,
while the Brahmana were given the means to avoid ritual pollution.
When forming the majority in other desa pakraman communities,
members of high-caste lineages have also sometimes lashed out against
commoners with whom they had bones to pick. In the desa pakraman
Mengwi in the district of Badung, for example, a dispute arose between
the majority, made up of high-caste families and their traditional entourage
of commoner families, and a minority consisting of members of a titled
commoner lineage (Pande) with high priests (Ida Mpu) of their own. As
the Pande traditionally do not acknowledge the authority of the Balinese
Brahmin priests (Ida Padanda) like the members of the high-caste fami-
lies and their entourage in Mengwi do, the Pande did not take holy water
from the village Brahmin for the performance of their rituals as required
by the village constitution. Their refusal was judged to be a disruption of
village harmony, as well as an offense against the invisible forces govern-
ing the realm of the village. The Pande were consequently denied access
to all three of the village temples and the cemetery. Moreover, they were
completely ostracized and thus excluded from the management of all vil-
lage affairs, including the management of—and benefit from—all com-
munal property, including the village commons. While these sanctions
were in effect, the road from their houses to the cemetery was blocked
with a fence of thorny branches. In response, the Pande prepared a cer-
tain piece of land as a makeshift cemetery for their funerals, and erected a
simple village assembly temple for their communal gatherings. When they
were finally threatened with expulsion from the village and confiscation of
their property, however, the Pande finally agreed to take holy water from
the local Brahmin priest whenever they participated in the performance
124 Martin Ramstedt

of common ceremonies at the village temples. In addition, they had to

sponsor a local purification ceremony and publicly apologize to their fel-
low villagers. They were, however, allowed henceforth to take holy water
from their own priests for all the life-cycle rituals to be performed for the
members of their own families.

C ONCLUSION
The ferocity of village sanctions against perpetrators of offenses, as well as
against members of village minorities and individual dissenters, has mean-
while caused a growing number of local citizens to vote with their feet,
literally by leaving their villages for good or figuratively by converting
to other religions, usually Christianity or Buddhism. Increasing conver-
sion, in turn, has been grist for the mill of the supporters of the nativist
nomospheric project, which blames outside influences for the cultural and
economic alienation of the Balinese. However, it has been precisely this
nativist initiative that has undermined both local tradition and solidarity
in the first place, in that it has aggravated a number of protracted conflicts
and provoked a wave of new disputes predicated upon rival interpretations
of “tradition.” The relative political and administrative success of the ini-
tiative, I have argued, builds upon two cycles of retraditionalization—the
first of which occurred during the late colonial period and the second
under Suharto—both equally prompted by a combination of political and
economic interests.
As I have shown, the rigid enforcement of a standardized neo-tradi-
tionalist regime in all traditional Balinese village communities after the fall
of Suharto has lacked any regard for the historical development of a high
degree of local variation among Balinese villages and the complexity of
Balinese culture beyond the limits of the villages. While it has ostensibly
been put in place in order to maintain or restore the sanctity of Balinese
landscapes, locations, and buildings, this neo-traditionalist regime has, in
fact, served to further the economic and political interests of local citi-
zens on the strength of Hindu–Balinese norms, concepts, and practices
that are actually in conflict with modern Indonesian citizenship as well as
with modern notions of Hinduism in and beyond Bali. The contradic-
tions inherent in the nativist nomospheric project are likely to continue to
provoke intra- and inter-communal disputes and conflicts in the future.

N OTES
1. Drawing on David Delaney’s concept (Delaney, 2010, p. 117), this par-
ticular nomospheric project refers to concerted efforts oriented toward
 Ba l i ’s New Vi l l ag e Ju ri s di c t ion s 125

remaking Bali more in accordance with a conception of social justice

rooted in local tradition.
2. The earliest Dutch colonial presence in northern Bali was established
in 1854, following the final success of three Dutch military expeditions
against the ruler of Buleleng between 1846 and 1849. The northern
part of the island came under direct colonial rule in 1882, and the rest
of the island was subdued by 1908 (Ramstedt, 1998, pp. 38−40; Schulte
Nordholt, 2000, pp. 244−8).
3. See also MacRae, 2003, p. 143; Ramstedt, 2009, p. 341; 2011a,
pp. 55−6.
4. For more on the traditional Balinese cosmology, see Ramstedt, 1998,
pp. 288−90, 399−400, 479−80.
5 For more details, see Ramstedt, 2009, pp. 345−50; 2011a, pp. 60−3.
6. See Knight Abowitz and Harnish, 2006, p. 661; Schulte Nordholt, 2007,
p. 404; Ramstedt, 2011a, p. 66.
7. See Data Desa Pakraman Kabupaten/Kota Se-Bali Tahun 2000−2009.
Denpasar: Majelis Utama Desa Pakraman.
8. See http://www.nytimes.com/2010/10/13/world/asia/13iht-bali.html.

R eferences
Benda-Beckmann, F. von, and K. von Benda-Beckmann. “Contested Spaces of
Authority in Indonesia.” In Spatializing Law: An Anthropological Geography
of Law in Society, edited by F. von Benda-Beckmann, K. von Benda-Beckmann
and A. Griffiths, 115–35. Farnham: Ashgate, 2009.
Bowen, J. R. Islam, Law, and Equality in Indonesia: An Anthropology of Public
Reasoning. Cambridge: Cambridge University Press, 2003.
Bundschu, I. Probleme der agrarischen Grundbesitzverfassung auf Bali. Hamburg:
Mitteilungen des Instituts für Asienkunde Nr. 143, 1985.
Creese, H. “Judicial Processes and Legal Authority in Precolonial Bali.” Bij-dragen
tot de Taal-, Land- en Volkenkunde 165, no. 4, (2009): 515−50.
Cribb, R. Digital Atlas of Indonesian History. Copenhagen: NIAS Press, 2010.
Darling, D. “Unity in Uniformity: Tendencies toward Militarism in Balinese
Ritual Life.” In Inequality, Crisis and Social Change in Indonesia: The Muted
Worlds of Bali, edited by T. Reuter, 196–202. London and New York:
RoutledgeCurzon,2003.
Delaney, D. The Spatial, the Legal and the Pragmatics of World-Making: Nomospheric
Investigations. Abingdon and New York: Routledge, 2010.
Djelantik, I. G. P., and H. J. E. F. Schwartz. Wetboek ‘Agama’ in het Hoog-Balisch
en Maleisch Vertaald. Batavia: Landsdrukkerij, 1918.
Encyclopædie van Nederlandsch-Indië (EvNI). Vol.: a-G (s’Gravenhage and Leiden:
Martinus Nijhoff and N.V v/h. E.J. Brill), 1917.
Fitzpatrick, D. “‘Disputes and Pluralism in Modern Indonesian Land Law.” Yale
Journal of International Law 22, (1997): 171−212.
126 Martin Ramstedt

Hoadley, M. C., and M. B. Hooker. An Introduction to Javanese Law: A Translation

of and Commentary on the Agama. Tuscon: The University of Arizona Press,
1981.
Holtzappel, C. J. G. “Introduction: The regional Governance Reform in
Indonesia, 1999–2004.” In Decentralization and Regional Autonomy in
Indonesia: Implementation and Challenge, edited by C. J. G. Holtzappel and
M. Ramstedt, 1–56. Singapore: ISEAS, 2009.
Hornbacher, A. “The Withdrawal of the Gods: Remarks on Ritual Trance-
possession and Its Decline in Bali.” In The Politics of Religion in Indonesia:
Syncretism, Orthodoxy, and Religious Contention in Java and Bali, edited by M.
Picard and R. Madinier, 167−91. London and New York: Routledge, 2011.
International Crisis Group (ICG). “The Perils of Private Security in Indonesia:
Guards and Militias on Bali and Lombok.” ICG Asia Report No. 67, Jakarta
and Brussels, 2003.
Knight Abowitz, K., and J. Harnish. “Contemporary Discourses of Citizenship.”
Review of Educational Research 76, no. 4, (2006): 653−90.
Koesnoe, M. Penelitian Hukum Adat di Bali dan Lombok 1971−1973: Laporan
Pokok. Surabaya and Nijmegen: Universitas Airlangga and Katholieke
Universiteit, 1975.
Korn, V. E. Het adatrecht van Bali. ‘s-Gravenhage: G. Naeff, 1932.
——— “Oosterse Visie op Westers Bewind.” Bijdragen tot de Taal-, Land- en
Volkenkunde 113, no. 1, (1957): 16−31.
Lekkerkerker, T. C. Hindoe-recht in Indonesië. Amsterdam: J.H. de Bussy, 1918.
Lev, D. S. “Judicial Unification in Post-Colonial Indonesia.” Indonesia 16, (1973):
1–37.
——— “Colonial Law and the Genesis of the Indonesian State.” Indonesia 40,
(1985): 57–74.
——— Legal Evolution and Political Authority in Indonesia: Selected Essays. The
Hague and Cambridge, MA: Kluwer Law International, 2000.
MacRae, G. “The Value of Land in Bali: Land Tenure, Land Reform and
Commodification.” In Inequality, Crisis and Social Change in Indonesia: The
Muted Worlds of Bali, edited by T. Reuter, 143–65. London and New York:
RoutledgeCurzon, 2003.
Nader, L. “Controlling Processes: Tracing the Dynamic Components of Power.”
Current Anthropology 38, no. 5 (1997): 711−38.
Parwata, A. A. G. O. “Memahami Awig-Awig Desa Pakraman.” In Wicara Lan
Pamidanda: Pemberdayaan Desa Pakraman Dalam Penyelesaian Perkara Di
Luar Pengadilan, edited by I. K. S. and A. A. G. O. Parwata, 49−66. Denpasar:
Upada Sastra, 2007.
Picard, M. “Cultural Tourism, Nation-building, and Regional Culture: The
Making of Balinese Identity.” In Tourism, Ethnicity and the State in Asian and
Pacific Societies, edited by M. Picard and R. E. Wood, 181–214. Honolulu:
University of Hawai’i Press, 1997.
——— “From Agama Hindu Bali to Agama Hindu and Back.” In The Politics of
Religion in Indonesia: Syncretism, Orthodoxy, and Religious Contention in Java
and Bali, edited by M. Picard and R. Madinier, 117−41. London and New
York: Routledge, 2011.
 Ba l i ’s New Vi l l ag e Ju ri s di c t ion s 127

Rai, I. B. “Penyelesaian Konflik Adat: Pengalaman di Kabupaten Gianyar.” In

Wicara Lan Pamidanda: Pemberdayaan Desa Pakraman Dalam Penyelesaian
Perkara Di Luar Pengadilan, edited by I. K. Sudantra and A. A. G. O. Parwata,
143−53. Denpasar: Upada Sastra, 2007.
Rais, J. “Planning Sustainable Land Management at Regional Level: The
Indonesian Case.” ITC Journal 3, no. 4, 273−7, 1997.
Ramstedt, M. Weltbild, Heilspragmatik und Herrschaftslegitimation im vorkolo-
nialen Bali: Eine Analyse des höfischen Diskurses. Frankfurt: Peter Lang, 1998.
——— “Hinduism in Modern Indonesia.” In Indonesia – A New Beginning?,
edited by S. Chandra and B. Ghoshal, 140–68. New Dehli: Sterling, 2002.
——— “Introduction: Negotiating Identities – Indonesian “Hindus” between
Local, National, and Global Interests.” In Hinduism in Modern Indonesia: A
Minority Religion between Local, National, and Global Interests, edited by M.
Ramstedt, 1−34. London: RoutledgeCurzon, 2004.
——— “Hindu Bonds at Work: Spiritual and Commercial Ties between India and
Bali.” The Journal of Asian Studies 67, no. 4, (2008): 1227−50.
——— “Regional Autonomy and Its Discontents: The Case of Post-new Order
Bali.” In Decentralization and Regional Autonomy in Indonesia: Implementation
and Challenge, edited by C. J. G. Holtzappel and M. Ramstedt, 329–79.
Singapore: ISEAS, 2009.
——— “Menafsirkan Kembali Tata Norma Bali Pasca-Orde Baru: Persoalan Tanah
dan Kegalauan Makna Ke-Bali-an.” In Kegalauan Identitas: Agama, Etnisitas,
dan Kewarganegaraan Masa Pasca-Orde Baru, edited by M. Ramstedt and F.
I. Thufail, 41–72. Jakarta: Grasindo, 2011a.
——— “Colonial Encounters between India and Indonesia.”In “South Asian
Transnationalisms: Cultural Exchange in the Twentieth Century,” ed. B. Sinha,
Special Issue. South Asian History and Culture 2, no. 4, 522–39, 2011b.
——— Islamisation by Law and the Juridification of Religion in Anomic Indonesia.
Max Planck Institute for Social Anthropology Working Paper No. 140, Halle/
Saale, 2012.
Robinson, G. The Dark Side of Paradise: Political Violence in Bali. Ithaca and
London: Cornell University Press, 1995.
Schulte Nordholt, H. The Spell of Power: A History of Balinese Politics 1650–1940.
Leiden: KITLV Press, 1996.
——— “The Making of Traditional Bali: Colonial Ethnography and Bureaucratic
Reproduction.” In Colonial Subjects: Essays on the Practical History of
Anthropology, edited by P. Pels and O. Salemink, 241–81. Ann Arbor: The
University of Michigan Press, 2000.
——— “Bali: An Open Fortress.” In Renegotiationg Boundaries: Local Politics
in Post-Suharto Indonesia, edited by H. S. Nordholt and G. van Klinken,
387−416. Leiden: KITLV Press, 2007.
Shachar, A., and R. Hirschl. “Citizenship as Inherited Property.” Political Theory
35, no. 3, (2007): 253–87.
Sirtha, I. N. Makna Sosial Hukum Dalam Aksi dan Interaksi Kelompok Masyarakat
di Tengah Perubahan Sosial: Studi Kasus Kelompok Masyarakat Petani Subak
di Daerah Irigasi Panaraga Girio Bali. Surabaya: Disertasi dalam Program
Pascasarjana Universitas Airlangga, 1996.
128 Martin Ramstedt

Smart, A., and G. C. S. Lin. ‘Local Capitalisms, Local Citizenship and Translocality:
Rescaling from Below in the Pearl River Delta Region, China.” International
Journal of Urban and Regional Research 31, no. 2 (2007): 280−302.
Spiertz, H. L. J. “The Transformation of Traditional Law: A Tale of People’s
Participation in Irrigation Management on Bali.” Landscape and Urban
Planning 20, (1991): 189–96.
Suardana, I. W. “Delik dan Sanksi Adat dalam Perspektif Hukum Nasional.” In
Wicara Lan Pamidanda: Pemberdayaan Desa Pakraman Dalam Penyelesaian
Perkara Di Luar Pengadilan, edited by I. K. Sudantra and A. A. G. O. Parwata,
67−86. Denpasar: Upada Sastra, 2007.
Sudantra, I. K. “Peranan Desa Pakraman dalam Penyelesaian Perkara Di Luar
Pengadilan.” In Wicara Lan Pamidanda: Pemberdayaan Desa Pakraman
Dalam Penyelesaian Perkara Di Luar Pengadilan, edited by I. K. Sudantra and
A. A. G. O. Parwata, 25−48. Denpasar Upada Sastra, 2007.
Valverde, M. “Jurisdiction and Scale: Legal ‘Technicalities’ as Resources for
Theory.” Social & Legal Studies 18, (2009): 139−57.
Vandergeest, P., and N. L. Peluso. ‘Territorialization and State Power in Thailand.”
In The Legal Geographies Reader, edited by N. Blomeley, D. Delaney, and R. T.
Ford, 177−86. Oxford and Malden: Blackwell, 2001.
Warren, C. Adat and Dinas: Balinese Communities in the Indonesia State. Kuala
Lumpur: Oxford University Press, 1993.
Windia, W. P. “Menyelesaikan Konflik Adat.” In Wicara Lan Pamidanda:
Pemberdayaan Desa Pakraman Dalam Penyelesaian Perkara Di Luar
Pengadilan, edited by I. K. Sudantra and A. A. G. O. Parwata, 119−26.
Denpasar: Upada Sastra, 2007.
——— Menyoal Awig-awig: Existensi Hukum Adat dan Desa di Bali. Denpasar:
Lembaga Dokumentasi dan Publikasi FH UNUD, 2008.
 8

SANCTITY AND SHARIAH

TWO ISLAMIC MODES OF RESOLVING

D I S P U T E S I N T O D A Y ’S E N G L A N D

John R. Bowen

Amid the din of tabloid accusations that Britain now enforces, “shari’a
law” has been lost the variety of ways in which British Muslim scholars
have combined religious legitimacy, quasi-judicial procedures, and social
outreach to create new kinds of Islamic institutions. I set out two such
institutions here to give a sense of that variety. Together they illustrate the
complex ways in which British Islamic institutions can and do articulate
positions on registers of spirituality and legalism.

M USLIM T RAJECTORIES TO E NGLAND

Alone among countries in Western Europe, England has a wide range of
highly organized institutions that mediate or arbitrate conflicts among
Muslims (Bano, 2004; Bowen, 2011). Only one of them, the Muslim
Arbitration Tribunal (MAT), headquartered at the Hijaz College north
of London, arbitrates in commercial or, less often, family conflicts.1 Other
institutions offer various forms of nonbinding mediation, where the doc-
uments produced are not enforceable in civil court. Some of these insti-
tutions are quite informal, in that a relative or local imam may be called
upon to resolve a dispute. However, in many cases involving family issues,
the parties may seek the aid of a shari’a council. Muslims can easily find
such councils in London, Birmingham, Bradford, Manchester, and else-
where. They provide downloadable forms on their Web sites, charge set
fees for services, and meet on scheduled days of the month.
These tribunals bring to England modes of resolving disputes that had
been established in South Asia. The fact that they were able to emerge and
develop successfully in England is due in part to the concentrated nature
130 John R. B owen

of Muslim settlement in English cities, and in part to the relative English

receptivity to the formation of local religious associations. Most British
Muslims come from South Asia, and in particular from the Mirpur dis-
trict of Pakistani Kashmir and the Sylhet district of Bangladesh (Werbner,
1990; Gardner, 1995; Shaw, 2000); these concentrations reproduce the
use of home-country languages. The practice of cousin marriage leads
many families to arrange marriages between their Britain-born sons or
daughters and close relatives back home. Religious tribunals fit relatively
well with English political convictions as well, insofar as religious norms
are seen as legitimate sources for resolving community disputes, whether
among Anglicans, Jews, or Muslims.
By the 1980s, some Muslims had begun to see Islam-based mediation
as a way of keeping things in the community and as a way of proclaiming
allegiance to an increasingly beleaguered faith (Lewis, 2002). I consider
here two of the many creative Islamic experiments in institution-building
in England. The first is a web of Sufi educational and social institutions
with headquarters in the Midlands, which has gradually broadened its
range of activities into legal and administrative domains. The second is a
shari’a council that is centered in London but draws on an England-wide
network of scholars, and which has narrowed its writ to accomplishing a
set of procedures designed to award religious divorces. The first seeks to
array a wide range of activities under the umbrella of a Sufi saint’s spiritu-
ality; the second seeks to justify a narrow set of procedures based on fair
procedures and knowledge of Islamic jurisprudence.

T HE H IJAZ U MBRELLA OF S ANCTITY

Centered at the rural Hijaz College Islamic University at Nuneaton, in
England’s Midlands, the Hijaz Community encompasses a wide range of
activities, including the school, an outreach program to Midlands-area-
troubled youth, the Muslim Insurance Company, and the MAT. The head
of the community is Shaykh Faiz al-Aqtab Siddiqi, acknowledged as pir
(spiritual leader) and spiritual successor to his father, Muhammad Abdul
Wahhab Siddiqi. The father’s tomb and shrine (his mazar in Sufi terms)
lies on the college grounds and, to his followers, bathes the grounds in
a blessed aura. When I attended the Hijaz annual Sufi gathering, the
Blessed Summit, in July 2010, one man explained to me that I could fol-
low events equally well anywhere on the 84 acres, “because when you
enter the grounds you are in his domain,” pointing to the mausoleum.
“He looks after you.”
The spiritual line focused on the shrine is a branch of the Naqshbandiya
order (tariqa) that for generations was based in the village of Ghosuhr
near Lahore (Geaves, 2000, pp. 125–31) and traces its spiritual lineage
through Shaykh Ahmad Sirhindi (d. 1624). In 1972, Muhammad Abdul
 Sanctity and Shariah 131

Wahhab Siddiqi moved to Britain and established a mosque in Coventry.

He retained his base in the Midlands but traveled throughout Europe,
where he developed followings of murids (followers and pupils). He was
particularly successful in the Netherlands, and I have met Dutch Sufis
who have traveled to the Blessed Seat, as adepts call the Hijaz center, in
order to seek consultation with the current Shaykh, Faiz al-Siddiqi. Unlike
other British Sufis, however, Muhammad Abdul Wahhab Siddiqi focused
on promoting education along two tacks: the classical Islamic curriculum
(the Dars al-Nizami) and British professional training. He was the first
British Sufi to establish a religious school, in Coventry in 1982 (Geaves,
2000, p. 127), and sent his four sons into law and medicine. Three of
them today cooperate in the Hijaz Community venture.
So committed was he to establishing in Britain what he saw as the
moderate mainstream of Islam, the Ahl al-Sunna wal-Jamaah, that he
asked to be buried there rather than being returned to Pakistan. When
he died in 1994, his body was maintained in Coventry until a mausoleum
could be built on the land purchased in Nuneaton for the new college.
To the best of my knowledge, this site is still the only Sufi tomb shrine in
Britain, and it may be the only one in Western Europe or North America
(Geaves, 2000, p. 129).
Today, the college accepts boys who are 11 years old or older, and
offers GCSEs and A-levels in the sciences and humanities alongside a
religious studies curriculum. It also offers a three-year Bachelor of Arts
degree in Islamic law and theology, and a four-year LLB (Bachelor of
Laws) course that prepares students for careers as barristers or solicitors
and is recognized by the respective accreditation bodies, for which they
take their examinations in London. Faiz al-Siddiqi is himself a barrister,
and made English legal training the special brand of the college. One
brother-in-law, Tauqir Ishaq, runs the college; Faiz’s brothers, Noor
Siddiqi and Zain Siddiqi, play leading roles in the broader network of
activities; another brother-in-law, Maulana Arif, and several others serve
as solicitors; and several law students play important roles. A number of
other men and women live and work at the Hijaz site.
Although Shaykh Siddiqi has been mediating in family conflicts for a
long time and continues to do so, it was in 2004−2005 that he and the
other Hijaz leaders decided to create the MAT to be able to resolve conflicts
among Muslims in ways that would be contractually binding. These do
not involve divorce, which cannot be arbitrated following the Arbitration
Act provisions, but vary from disputes between rival mosque groups over
leadership to conflicts within small businesses. The presence of lawyers at
Hijaz also means that the same person might mediate a family conflict,
propose a religious divorce, and act as solicitor for a civil divorce. Although
Shaykh Siddiqi insists that “we do not want to do the work of the Islamic
shari’a councils” and take on religious divorce work in a systematic way,
132 John R. B owen

the Hijaz site does become a kind of full-service religion and law center for
some young women, as in the first case discussed below.
Shaykh Siddiqi receives people on days when he is “at home” in his
spacious Hijaz office; he makes formal appointments to resolve disputes;
and he travels to cities in the Midlands and northern England to hold
similar sessions whenever warranted by the volume of requests. These ses-
sions are mainly consultations and requests for general advice about life
and sometimes business or legal affairs. Formal arbitrations consume only
a small portion of his time. Nonetheless, on the basis of his movements,
the British tabloid press and several ill-informed think tanks claim that
there are already dozens of MATs in England.
On a number of occasions, the shaykh and his assistant, Zeenat Aslam,
have arranged to have me interview those visitors who were willing to
speak with me after their consultations, as well as to set up interviews with
parties to arbitrations. The two cases below give some idea of the tone of
these processes, in which it is Sufi legitimacy more than any quasi-legal
dimension that is on offer.2

D ISSOLVING M EENA ’ S M ARRIAGE

On May 9, 2010, I interviewed Meena on the Hijaz campus, where she
now lives. She was 24 years old at the time, and had grown up in Yorkshire,
in the relatively small community of people with a Pakistani background.
Her parents arrived in England in the 1980s and, as she puts it, “My mum
is very stuck in Pakistani values.” As with many young people born into
these communities, Meena first spoke Punjabi and learned English only
after she entered school. As she was growing up, she saw that other girls
had relationships with boys, but she knew she would not be allowed to do
so. She went on to university, reading law in Manchester.
Meena knew from when she was very little that she would marry one
of her first cousins, because that was what girls around her had done. “I
could figure it out and see that this one boy would be him,” she said. He
had no education and lived in Pakistan, near Jhelum; he was her mother’s
brother’s son, and her mother wanted to help him. “She would send
remittances,” Meena explained. “It is hard over there when you are here
in England, and she could repay favors this way.” Meena’s sister had man-
aged to refuse all proffered spouses and married someone she had chosen.
“Somehow she got away with it,” Meena said. In 2008, Meena was mar-
ried off to the Pakistani cousin. They had only met once, three years prior
to the marriage. Since then, they had chatted over the telephone, and she
had tried unsuccessfully to find shared interests or ideas. After the reli-
gious ceremony (nikah), held in Pakistan, they did not take the usual next
step that completes the marriage process—going to the groom’s house
to eat and consummate the marriage (rukhsati). Instead, Meena and her
 Sanctity and Shariah 133

parents left for a three-day holiday in Dubai without the groom and con-
tinued on to England. The parents arranged for the cousin to get a visa
to join Meena in England.
She continued to speak with her new husband over the telephone.
Although her family is very close-knit, studying away from home allowed
her to withstand the ensuing family pressure to make the marriage work.
Two or three months after the nikah, she concluded that she and her
cousin could not succeed as a couple. Her sister, who had already married
“for love,” said that Meena could get divorced and that they could cancel
the visa. In Manchester, she met a woman who knew Shaykh Siddiqi and
who brought her to Nuneaton to meet him. She quickly felt confidence in
him; she could no longer trust her family, so whom could she now trust?
Her sister had been her confidante but now sided with her elder brother,
and both insisted that she give the marriage a go and wait until the cousin
did something wrong before divorcing. “But why should I wait if I know
I cannot live with him?” she asked. Shaykh Siddiqi said she should move
to London from Manchester to escape further pressure. He said that he
could easily give her a religious divorce (khula) because the marriage had
not been consummated. The Hijaz solicitor, Maulana Arif, told her to
cancel the cousin’s visa, and after some difficulty she was able to do so.
Meena did move to London and stayed there for three months, but,
she says, “life is too fast-paced there and I came from the north.” At that
point, she was invited to move to Nuneaton and live at Hijaz. MAT law-
yers arranged to have the marriage dissolved in England and have a khula
divorce declared by the courts in Pakistan. For a while, she traveled regularly
to London for law courses, but by 2012 she had abandoned her law studies
and worked at MAT. She had, however, met and conducted a nikah with
another man. She decided not to register the new marriage as an English
civil marriage. “Why do that?” she asks rhetorically. “We can always register
it later if we wish. Registering just complicates things.” She thinks it is bet-
ter to marry someone who already lives in England because “people from
abroad are just not compatible with us here.” Her cousin was an illiterate
farmer, and there is the problem of male pride. “For me, Islam is a box,”
she says. “It is not culture. He would have brought in Pakistani culture with
its male dominance. They use rituals adopted from Hindus there.”
Cases such as Meena’s occur frequently in England, where a large pro-
portion of young British Asians marry spouses still living in Pakistan or
Bangladesh (Shaw, 2000). It is these marriages that provide the bulk of
cases handled by the Islamic shari’a councils. It is also similar to other
cases involving Hijaz, in that she learned of Shaykh Siddiqi through a
mutual friend, sought advice, and then was able to draw on the full-ser-
vice dimension of the community, with a solicitor handling both the reli-
gious and the legal sides of her divorce, the insurance company providing
her with employment, and the college lodging her.
134 John R. B owen

R ESOLVING THE L INEN -H IRE S UCCESSION

On March 4, 2010, I interviewed a young man who had asked for con-
tractually binding arbitration from the MAT. Usman, of Bangladeshi ori-
gin, was 26 years old but seemed older. “My father used to take me with
him to meet people,” he explains. “It made me at ease with different
people.” He owned a linen-hire business in Birmingham, renting napkins
and tablecloths to hotels and restaurants. His father ran this business for
19 years, but had died 16 months earlier. “He was an important man in
the community; those are hard shoes to fill,” he says. Usman and his fam-
ily had a 60 percent share in the business, another man who worked in it
held 20 percent, and a third had 20 percent but was a silent partner. The
second partner died around the time Usman’s father did, and that man’s
son, Ridwan, a few years older than Usman, had previously worked in a
similar enterprise and wanted to play a major role in the business. Usman
refused. “I was selfish,” he admits. “I wanted to be the boss.”
From a friend who was working with the Hijaz community outreach pro-
gram, Usman had heard about MAT. It did not mean much to him that they
were Sufis; his father had never paid much attention to the difference between
Deobandis, Sufis, and other streams of Islam, and Usman worshipped at a
certain mosque just because it was conveniently located. It happened to be
a Deobadi one, but he thought about worship as an individual matter: as
he puts it, “It is just me here.” Talking with his friend sparked his interest
in learning about these differences. He would not have accepted guidance
in business matters from the imam of the Deobandi mosque because that
man thought about religion and business as separate things. Usman asked
Ridwan what he thought about approaching the MAT, and Ridwan agreed.
Indeed, the two of them had been childhood friends, had never argued, and
felt awkward talking about financial matters. The generation before them
would have asked community elders to mediate, but, Usman says, “For our
generation, we don’t trust the elders. They don’t seem to have much experi-
ence or success, so how would they know?”
When they arrived at Hijaz, Fiaz Hassan, a barrister in training who
works at the community, interviewed each of them separately and then
in a joint meeting, and had them sign the contract indicating they would
abide by the outcome. “I was not sure how things would come out,”
Usman explains, “but I said, ‘I’ll just trust the system.”’ Then they met
with Shaykh Siddiqi. He had read the notes of their intake interviews,
summarized how he saw the case, and then asked them if they agreed.
They did. At their final session, now with both Shaykh Siddiqi and Fiaz,
the shaykh told them of his decision, and then gave them guidance.
He said they should have the same pay because they did equal work,
and that Usman would be managing director, in charge of the com-
pany, while Ridwan would be a senior player, with a mission to develop
 Sanctity and Shariah 135

new business and to carry out marketing, because these were his skills.
Of course, the profits would still be split along the lines of the shares
(60/20/20), but there had been no profits to split from the previous
year, and only negligible profits up to that point in 2010. Usman dis-
cusses what happened next:

Shaykh Siddiqi then gave us guidance—business and investment advice—-

but also said, “If you run the business only for profit, where then is the
spiritual benefit?” He asked us to give back to the community. He asked us
to serve as role models for young people working in the Hijaz community.
There is no fee for the mediation, he said, but added that if we found a way
to contribute to Hijaz that would be fine.

Indeed, they donate a little bit from the business each month, and a
person from the Birmingham community outreach program of Hijaz has
contacted Usman to ask him to mentor younger men. He says he will
once he gets his business together. Ridwan also said he would do this. In
the meantime, he goes to weekly events for these young people and plays
badminton with them.

I asked if the experience was particularly Islamic in any way, and Usman
replied,
Shaykh Siddiqi explained how I had to offer my sister and mother their
share of the inheritance, that it was their right. But how can you divide
tangible assets? He suggested that we involve my mother more in the
business; that she play a role. And it was a really good idea, because we
are young, and she is an older figure in the Bangladeshi community; she
has a presence, a PR person. And we thought the resolution was fair.
Within the Asian community, we have all been brought up together,
have faith in each other, we did not want to screw each other over. I
thought I would have a problem, but it has been alright.

Now Usman chooses his mosque carefully. He thinks of himself as a Sunni

and Sufi, “What you would call Barelvi [a South Asian form of Sufism],”
he explains. He worships at the Ghamkol Sharif Masjid on Golden Hillock
Road in Birmingham, which he referred to as an ahl ul sunna mosque.
It is also the one closest to where he lives and the only one open around
the clock. This mosque is a center for the other major Sufi figure in
Birmingham, Sufi Abdullah (Geaves, 2000, pp.118−25). Sufi Abdullah’s
own pir, Hazrat Shah (also known as Zindapir, “the living pir”), is from
Kohat, on Pakistan’s northwestern border (Werbner, 2003).
Usman continues, “I am a very analytical thinker, always taking things
apart. I have been reading books, looking at the shops around Birmingham.
But I also recite the litany (wirid) of Shaykh Siddiqi’s father, and doing
136 John R. B owen

this helps me to turn off all this analytical thinking.” On the day we spoke,
he had come to Hijaz with his wife to spend the day, and he intended to
meditate at the mausoleum. “All this changed me. I had the beard before
this, but now I feel more connected with God.”
Ten days later, I followed Shaykh Siddiqi to Birmingham, where he
held nighttime “surgeries,” or open hours for consultations. Usman was
one of the many men and women gathered in the rooms belonging to
the Muslim Insurance Company, and as people left their session with the
shaykh, he would ask them if they would be willing to speak with me.
Most seemed to be. Among them was Ridwan, Usman’s partner in the
linen-hire business. When I asked him about Shaykh Siddiqi, he replied,

When I first heard about him, I thought it was a cult. These guys were
growing beards and praying all the time—kind of weird. Two years
like that and then I heard him speak, and he talked about purifying the
heart, not about Islam per se, and six months later I am a father and
I think, “Now I have responsibility and I want to get closer to God.”
So I come to Hijaz. When I saw Shaykh Siddiqi I told him I thought it
seemed like a cult, and he did not get mad but said, “I am sorry it seems
like this. Sometimes the brothers hang on every word, but they are
supposed to think for themselves, not just come to me for everything.
If someone has run a business and asks me about how to do that, I will
say, “Well what did you do before? Did that work? Why ask me?”
Tonight I talked with Arif [the solicitor] about fiqh [Qur’anic code of
conduct] questions. I don’t bring those to Shaykh Siddiqi because he
so busy; I go to see Arif. I talk with Shaykh Siddiqi about matters of
spirituality and also life’s problems. Every couple of months I come. I
ask his advice on business also.

In this case, Shaykh Siddiqi played the role of spiritual and also business
advisor, and incidentally resolved the dispute between the two partners.
Ridwan did not mention the arbitration; he had moved on to other things.
Hijaz ended up recruiting two new acolytes as the outcome of the dispute,
just as Meena had become a member of the community. Disputes begin
with practical concerns, but lead some individuals toward spirituality.
Unlike the Islamic shari’a council, we are about to discuss, Hijaz is
neither an office nor a council; it is a spiritual center with a full panoply of
activities, the MAT being but one. The MAT acts in other ways as well.
For example, it helped resolve a bitter dispute between two factions in the
mosque at Walthamstow in east London. In that case, other actors played
a more decisive role, including a non-Muslim policeman and a Muslim
judge. However, for those who approach Hijaz and Shaykh Siddiqi, the
resolution gains its legitimacy from the spiritual status of the pir and the
sanctity offered by the tomb shrine.
 Sanctity and Shariah 137

T HE S HARIAH C OUNCIL G UARANTEE OF P ROCEDURE

The Islamic shari’a councils carry out mediation in family disputes and
award religious divorces (Bowen, 2011). One of the largest councils
today is the Islamic Shariah Council (ISC) in London,3 which has offices
in a large house in a quiet residential area of Leyton in the eastern London
suburbs. Mediations may begin in a home or mosque, at the request
of the husband or the wife or family members, or at the ISC office. If
mediation fails, the case is brought to a formal meeting, including the
monthly meetings held next to the large Regents Park mosque in cen-
tral London. Six to ten Islamic scholars gather there to review cases and,
when they have enough information, grant divorces. The scholars come
from Pakistan, Bangladesh, and Palestine, and they also rely on colleagues
from Somalia, Sudan, and elsewhere to interview petitioners in their own
languages. Among themselves, the scholars deliberate in English, Arabic,
and sometimes in Urdu, depending on who is sitting at the table.
Each of these cases presents its own complicated history, but typically
the wife complains of her husband’s behavior and initiates a divorce. The
couple probably lives north of London, perhaps in Manchester, Oldham,
Leeds, or Bradford. The wife is supposed to have initiated a civil divorce
prior to applying for a religious divorce through the ISC, but many fail to
do so out of the erroneous belief that they do not need to request a civil
divorce if they were married in Pakistan or Bangladesh, and that the divorce
will be complete if they only go through the ISC. This is particularly true for
those who have only been married religiously. Before the formal proceed-
ings, the ISC will have tried to contact the husband by letter or phone, and
attempted to arrange a joint interview with both husband and wife present.
That effort usually fails, in part because in many cases the husband is not in
England, but someone, often one of the councilors, would have interviewed
the wife and delivered a report, together with supporting documents from
one or both parties. If one of the grounds for divorce is that they have been
separated, then they require proof in the form of two letters with witnesses.
The ISC sometimes sends back petitions lacking these letters.
According to the explicit rules of procedure adopted by the ISC, if
the husband seeks a divorce, it is considered a talaq (Islamic divorce pro-
nounced by the husband), and he will receive a certificate to that effect
from the council, but must pay any outstanding mahr (marriage gift from
husband to wife) to his wife. If the wife seeks the divorce, then it is called
a khula, and she must return or renounce her mahr. Mahr may be quite
substantial and can include money and gold. If her husband does not
contest the divorce, then it is granted quickly; if he does contest it, then it
requires the full procedure, including a full deliberation.
The scholars generally insist on four things (Bowen, 2011). First,
they require that there be a civil divorce proceeding if the marriage was
138 John R. B owen

registered in the United Kingdom or conducted abroad (many marriages

are never registered, and therefore do not require a civil divorce). Although
they do not necessarily wait for the completion of the civil divorce process
to finalize the Islamic divorce, if a final civil divorce decree, the “decree
absolute,” is granted, the councilors are likely to proceed quickly to
granting the wife’s request; they say that the marriage is over and there
is little sense in prolonging its Islamic dimension. Councilors also wish
to work in a way that complements the workings of the civil courts, in
the hope of future closer linkages between the two bodies. They know of
the existing collaboration between rabbinical tribunals and family courts
based on the Divorce (Religious Marriages) Act (2002), which allows civil
judges to suspend divorce proceedings between the decree nisi and the
decree absolute (the two stages of a civil divorce proceeding) if there is an
ongoing religious divorce. The law was motivated by the observation that
even after a civil divorce some Jewish men refused to grant their wives
religious divorces. Currently, the law only applies to Jewish proceedings,
and in any case, the issues facing Muslim women differ from those facing
Jewish women. However, for some shari’a councilors, the law indicates
that English courts might someday recognize their judgments as having
legal effect, and it leads them to value steps that would bring their own
procedures closer to those followed by civil judges.
Second, the councilors require that the two parties be separated for
one year, although some councilors recommend a two-year separation
period if the divorce is contested. As with the first requirement, this rule
is invoked for practical reasons, as a way of determining that the divorce
request is serious. It is a lower bar to clear than are the two-year and
five-year separation periods required for most divorces in English law
(depending on whether the divorce is not, or is, contested by the respon-
dent, respectively), but follows a similar logic.
Third, if the children live with the mother, and the father has indi-
cated that he has difficulty getting access to them, they ask her to give an
affidavit that she will allow the father to see his children. In recent years,
the wife often swears to this undertaking in the presence of a solicitor.
The ISC requires the undertaking in part to conform to what they think
a family court would do in these circumstances, and in part because they
consider it to be an Islamic norm that both parties be able to see their
children. Some councilors believe that English family courts tend to give
insufficient weight to the father’s need to see his children and that, conse-
quently, they need to pay particular attention to this issue.
Finally, they may ask the wife to return any mahr that she has already
received. Usually, they propose that she give it to the council for safekeep-
ing and notify the husband that he may come and collect it. If he does
not respond in six months, then they return it to her (or donate it to a
charity in cases where she so requests). Often the wife has also received
 Sanctity and Shariah 139

jewelry. Sometimes gold jewelry is clearly part of the mahr, and in those
cases, they require that she return it. Otherwise, they make no ruling
concerning its eventual disposition, on the grounds that the jewelry and
other goods given by one party to another around the time of a wedding
obey local social logics of gift exchange and are not the responsibility of
the council.

A TTESTING S EPARATION
The council changes procedures as councilors develop consensus around
a particular issue. For example, councilors long have considered the cou-
ple’s prior separation to be a critical element in establishing the serious-
ness and validity of the divorce request, but only in 2009 did they ask for
written attestations from two people, each such attestation witnessed by
two others. They justify this rule by invoking the rule’s function, and by
saying that when faced with multiple opinions from different schools of
Islamic jurisprudence, the council needs to establish a single, clear rule.
As one scholar said, “We want them to have been separated for a year,
so that we are not hasty.” Councilors often review the differing opin-
ions emanating from different Islamic legal schools before revalidating
their own rule as a workable compromise.4 The councilors believe that
the legitimacy of their outcomes, in the eyes of British officials, British
Muslims, and even overseas judges, depends on maintaining transparent
and consistently followed procedures.
These procedural rules are, however, the objects of continual discus-
sion and revision. Often applying the rules requires working against the
wishes of one or both parties. Letters have to be written to both parties,
and the council has to be assured that the letters have reached their desti-
nations, even if one party, usually the husband, does not want any part of
the proceedings. Efforts have to be made to hold interviews and a joint
meeting, but often the husband does not wish to attend and sometimes
the wife, too, sees no reason to prolong the interviews since the marriage
is so clearly over.
In January 2010, the ISC chief clerk, Atif Matin, explained to me the
rule regarding proof of separation:

Matin: We have a rule that the woman has to prove separation of at

least one year with two witnesses. Haitham [al-Haddad, a councilor]
urged us to add this rule six to eight months ago. I wish they had
not adopted the rule, because now I have to specify who does and
does not count as a witness; it cannot be family members, but per-
haps those are the only people who know about the matter. English
people, they say, “We do not like to air dirty laundry,” and they [the
couple and their families] keep these things to themselves. Why do
140 John R. B owen

they [the scholars] need two people to attest to it? Well, when the
scholars discussed this issue they said, well, judges require two wit-
nesses, and that is what you need for a talaq.
JRB: So it was a qiyas [an analogy, here referring to the talaq
procedure]?
Matin: Yes, a qiyas, so we have two witnesses here too. Haitham
insisted on this rule in cases where the husband has not responded
to our letters. If he responds and does not contest the fact of separa-
tion, OK, but the other scholars were assuming that even without a
response they could tell from the case, from what the wife said, that
there was separation. But perhaps, said Haitham, she is lying and she
sneaks out and they have sex? There may be one case in 200 like this,
but now we have to make a general rule, and then that will just lead
the one case to do some other trick.
JRB: Why require one year?
Matin: Well, the scholars said yesterday that many jurists had different
views about this: some said 60 years, some 10, some 5, some 1, and
they took the easiest number. Those jurists’ rulings had to do with
the cases where the husband has disappeared, but they apply it to
the length of separation.

The following week, on January 27, 2010, this issue came up during the
formal deliberations about a divorce petition. The wife had initiated pro-
ceedings with the ISC in June 2008, reporting that they had already been
separated for six months. The husband refused the invitations of the ISC
to attend a reconciliation session. She was told to begin the procedures to
obtain a civil divorce, which she ultimately received (the decree absolute)
in August 2009. The issue before the ISC was whether they had sufficient
grounds to grant her a religious divorce.
The scholar chairing the discussion of the case, Abu Sayeed, pointed
out that the English courts grant a decree absolute if after six weeks the
other party, here the husband, makes no response. However, Haitham
al-Haddad, the scholar who had been adamant about the need for proof
of separation, objected to giving her the Islamic divorce right away. “We
have not yet asked her to prove that they have been separated since that
time,” he said. “This is important.” The council’s clerk, Atif Matin, who
was studying for his law degree, noted that the grant of the decree abso-
lute proves that they have been separated because English courts require
that this be established. They continue the exchange, with two other
scholars, Suhaib Hasan and Khurram Bashir, joining in:

Haitham: In so many cases they say that they are separated but
they meet from time to time [and have sex]; we can’t just act on
emotions.
Abu Sayeed: They are living at different addresses.
 Sanctity and Shariah 141

Haitham: We have countless cases; here, she said [they separated] one
year ago, and then we asked when they last had relations and she
said two weeks ago. Because this will make our life easy [if we just
believe her].
Abu Sayeed: The recommendation is to end the marriage, so can we add
that we do so if she provides independent evidence of separation.
Suhaib Hasan: Here is proof. In a July 2008 letter, the husband says,
“She took all my goods and did not speak to me since December; I
am not allowed to see my son; I am required to pay child support. I
do not want to divorce so I can see my son.”
Abu Sayeed: Here I am going with Shaykh Haitham. There is still room
for suspicion; perhaps they still sleep together.
Khurram: The husband himself says there is no contact [between them]
and there is already a civil divorce. What else do you need? . . . Must
we as judges try to prove [all] things that are not before our eyes?
Abu Sayeed: In these matters, we have to be strict [in following rules].
Haitham: The physical thing has not been established; we want physi-
cal evidence. We cannot say, “This means . . . ”; we cannot assume
that civil divorce is proof of separation. I admit that the letter proves
that he admits [that they have not had sex].

The discussion continued and it became clear that Haitham was mainly
concerned with making the general point and would allow the marriage
to be dissolved, and indeed this is the action the council took. The coun-
cilors reminded themselves that they must be careful, and to that effect
they cited an oft-quoted hadith that two of three judges will be in hellfire,
and only the third will make the correct decision.
Haitham’s concern was that the council has to establish clear rules of
proof. On this occasion, he was less concerned about the basis for these
rules in classical jurisprudence, although on other occasions they have
discussed this issue as well. The others argued that the absence of such
explicit attestations should not keep them from dissolving the marriage
because (1) they can infer from various statements that the couple has
been separated for some time, and (2) they are already divorced legally, so
the council should let them get on with their lives.

W HO H AS I NITIATED THE D IVORCE ?

A similar issue of inference arises with respect to identifying the legal
initiator of the religious divorce. If the husband initiated the procedure
for a religious divorce at the ISC, or if he states he agrees with his wife’s
petition for divorce, then the divorce will be granted in near-automatic
manner. If the wife initiated the divorce procedure and the husband con-
tests it, then the council begins the full procedure, which can take months
and often over a year.
142 John R. B owen

As noted earlier, however, there is also often a civil marriage, and the
wife may have initiated civil divorce proceedings. Should the council infer
anything from what occurs in the civil divorce proceedings if they hap-
pen prior to the ISC deliberation? As Atif Matin, the ISC clerk, explained
to me, the starting assumption is that if the husband initiated the civil
divorce proceedings, or if the wife did and the husband did not contest
the divorce, then he agrees to the religious divorce as well. However,
things are rarely so simple:

Sometimes, even if he did initiate it [civil divorce], he will not agree to a

khula. He will say that he intended to divorce her only in civil fashion, that
he did not formulate an intention [niyya] to give her a religious divorce.
And so we have to give the wife’s request the full formal examination; we
have to contact the husband. And if then he asks for a full refund of mahr,
we will require it.

These procedural rules sometimes lead to objections on the part of

women seeking divorce. On one occasion in February 2010, I sat in on a
consultation with Shaykh Suhaib Hasan. He was holding sessions at the
Leyton mosque, the Masjid al Tawhid, as the ISC offices were undergo-
ing renovation. In the third case heard that afternoon, a young woman
who was born in Pakistan but now lived in Canada came accompanied
by a female friend from Malaysia. The first woman had petitioned for a
civil divorce from her husband, who also had been born in Pakistan. He
did not contest the divorce, and she had the decree absolute in hand.
The previous May she had come to see Abu Sayeed and had asked him,
“Now that I have my English divorce, why can’t I get an Islamic one?”
He instructed her to begin the proceedings. She told Suhaib that she had
never received the promised mahr even though her husband claimed to
have paid it in full. They had a number of financial disputes that had been
heard by the civil court.
Suhaib informed her that because her husband did not contest the civil
divorce in court, he should not only consent to an Islamic divorce, but
also that he had the right to take back any mahr he had given her. Suhaib
asked, “Can he prove it [his claim that he had given her the mahr]? No?
Well then just swear that you do not have it. Will you do that?” The
petitioner said that she would. Suhaib continued: ‘We are not required
to write to him because he did not contest the [civil] divorce, but it is a
matter of khula, so he does not have to pay you the mahr.” The woman
then read aloud a passage from the ISC Web site that says that if the hus-
band does not contest the civil divorce, then it is valid under Islamic law
as well. She asked why he did not have to pay the mahr he owes her, and
Suhaib responded by quoting the next section from the Web site, which
states that if a woman comes to the ISC for a divorce, then it is a khula.
 Sanctity and Shariah 143

He reminded her what that means: that she loses her right to mahr. This
went back and forth until the woman turned to me and asked, “You speak
English. What does this mean?” She handed me the printout of the Web
site. It did indeed say both of these things. I waffled and said that perhaps
the ISC is saying that a woman has been freed from her marriage by an
uncontested civil divorce, but if she wants to undergo the ISC procedure
then certain consequences would follow. She indicated her frustration
with the whole procedure, but said she would take the next step.
This woman had run into a particular complex dimension of the ISC’s
procedures. Note that Suhaib was ready to take as proven that the wife
had not received any mahr on the basis of her willingness to swear to that
effect. He also was set to presume that the husband agreed to a khula
divorce because he had not contested the civil divorce. These two pre-
sumptions permitted Suhaib to not contact the husband. These presum-
tions could have been contested on procedural grounds by other scholars,
who might have said (and have said regarding other cases), “Why should
we believe the wife?” And, as Atif Matin had explained to me, perhaps
the husband did not intend to give the wife a khula divorce as well as a
civil one. Suhaib, however, tends to argue that if there is a civil divorce,
the ISC should grant the khula divorce forthwith, on the grounds that it
makes little sense to do anything else. Indeed, we already saw him take
this position in the previous exchange among scholars.
However, Suhaib also reminded the petitioner that although the civil
divorce allows her to get on with her life, if she wishes to complete the
ISC procedures she will have to be willing to renounce any claim to mahr.
One might find this in contradiction to the notion that she could be
considered already divorced under Islamic law, as indicated on the Web
site, and indeed that is how the woman interpreted the situation. But it
is, essentially, a way for the ISC to forestall husbands’ objections to the
legitimacy of their wives’ claims. Husbands that the ISC has divorced at
their wives’ behest often call up to berate the clerk, claiming that the ISC
has no right to do so. They are less likely to protest if (1) there has been a
civil divorce, and (2) the ISC has said that they were free of the obligation
to pay outstanding mahr.
Suhaib Hasan and, to some extent, the ISC take a relatively permissive
stance regarding inferences to be drawn from the husband’s actions. The
presumptive procedural rules at play in the above example allow the coun-
cil to proceed as if no mahr had been paid and as if the husband had not
contested the khula. Their practical ability to maintain these presump-
tions rests on another rule: that once a woman begins a divorce action,
it is presumed to be a khula action, which will lead to her loss of mahr
rights. These are presumptive and not definitive rules, in that the coun-
cil on each count can find to the contrary: that the mahr was paid; that
the husband opposes the granting of a khula; and/or that circumstances
144 John R. B owen

indicate that the woman should be paid (or not be directed to return) the
mahr. Taken together, they have strategic value for the council in that
they allow the ISC to grant the religious divorce more quickly, and to say
to an irate (former) husband that he retains mahr rights.

C ONCLUSIONS
The Hijaz community and the ISC indicate two very different ways in
which British Muslim religious entrepreneurs have articulated religiosity
with legalism. The Hijaz community encompasses the MAT; decisions
are reached by the latter in the broader context of a Sufi network of edu-
cation and spiritual practice. The result of this encompassment depends
on the nature of the case. Meena, a young woman needing support, was
brought into the fold. Usman, a young businessman, developed a stron-
ger spiritual commitment. When the MAT has intervened in disputes over
mosque control, Shaykh Siddiqi has played on two registers: the weight
his word carries with ordinary mosque goers, and his knowledge of the
relevant English law.
By contrast, the ISC results from a narrowing of mandate. Formed in
1982 with the goal of treating a broad array of community problems, the
ISC now focuses on matters of religious divorce, although the individual
scholars give daily informal advice on a range of spiritual and social issues
as broad as one finds at Hijaz. The ISC has become a tribunal, and indeed
looks to the procedures found in English courts for some of its own rules.
Its religious legitimacy is in the sphere of fiqh, and draws on the precedent
of similar tribunals in operation in South Asia. Its credibility, though,
depends on crafting procedures with a difficult set of clients in mind:
warring wives and husbands, suspicious civil lawyers, and a substantial
anti-Islamic portion of the tabloid-reading public.
These two institutions offer different services and largely address dif-
ferent publics. There is little or no “forum shopping” between them.
Taken together, they illustrate how the development of juridical institu-
tions in Britain can become religious in widely varying ways, emphasizing
in the one case the importance of sanctity for resolving a conflict, and in
the other the importance of procedural regularity for legitimating the
work of a religious divorce tribunal.

N OTES
1. Unless otherwise specified, information derives from fieldwork carried out
in London, Birmingham, and Nuneaton between 2007 and 2011.
2. Because I have come to know people who have approached Shaykh Siddiqi
for advice through the intermediary of his staff, I do not have a scientific
sampling of all those who make enquiries.
 Sanctity and Shariah 145

3. Shariah is how the council spells the word in its name, so I also spell it thus
here. However, in all other usages, to be consistent with the rest of this
volume, I am rendering the word as shari’a.
4. There are various rules about separation prior to divorce that derive from
the several legal schools, and the councilors often invoke these madhhab-
specific rules, but the procedural rule that they follow is motivated by the
general Islamic ethical norm described here.

R eferences
Bano, S. “Complexity, Difference and ‘Muslim Personal Law’: Rethinking the
Relationship between Shariah Councils and South Asian Muslim Women in
Britain” (doctoral thesis, Department of Law, University of Warwick, 2004).
Bowen, J. R. “How Could English Courts Recognize Shariah?” University of St.
Thomas Law Journal 7, no. 3 (2011): 411–35.
Gardner, K. Global Migrants, Local Lives: Travel and Transformation in Rural
Bangladesh. Oxford: Oxford University Press, 1995.
Geaves, R. The Sufis of Britain: An Exploration of Muslim Identity. Cardiff [Wales]:
Cardiff Academic Press; 2000.
Lewis, P. Islamic Britain: Religion, Politics, and Identity among British Muslims,
2nd edn. London: Palgrave, 2002.
Shaw, A. Kinship and Continuity: Pakistani Families in Britain. London:
Routledge, 2000.
Werbner, P. The Migration Process: Capital, Gifts and Offerings among British
Pakistanis. Oxford: Berg, 1990.
——— Pilgrims of Love: The Anthropology of a Global Sufi Cult. Bloomington:
Indiana University Press, 2003.
 9

FORUM SHOPPING BETWEEN CIVIL AND

SHARIʿA COURTS

MAINTENANCE SUITS IN CONTEMPORARY

JERUSALEM

Ido Shahar

I NTRODUCTION
“
F orum shopping,” namely “[t]he practice of choosing the most favour-
able jurisdiction or court in which a claim may be heard” (Garner, 2001,
p. 590), is highly prevalent in situations of legal pluralism. In such situ-
ations, actors are often able to choose between several legal forums, and
tend to prefer the forum that they perceive as best serving their interests.
Surprisingly, this practice has received but meager attention in anthro-
pological studies of legal pluralism. Only a handful of anthropologists
have focused on such questions as: How do actors choose between legal
forums? What individual considerations, social norms, and political struc-
tures guide and constrain their choice? How does this choice affect the
outcome of the dispute? What is the accumulated effect of forum shop-
ping on the forums involved?
In fact, with the notable exception of Keebet von Benda-Beckmann’s
(1981) path-breaking article, “Forum Shopping and Shopping Forums—
Dispute Settlement in a Minangkabau Village in West Sumatra”, one can
hardly find academic publications that tackle these questions systemati-
cally. Of course, one can hit upon dozens of references to “forum shop-
ping” in anthropological studies of legal pluralism, but these references
are relatively marginal to these studies. Forum shopping appears in these
works as an epiphenomenon of other, presumably more important aspects
of legal pluralism.1
148 Ido Shahar

Why is it that anthropological studies of legal pluralism have generally

refrained from placing forum shopping in the limelight? Grappling with
this puzzle is beyond the scope of this chapter. It is clear, however, that
whereas although anthropologists have left the phenomenon of forum
shopping unattended, legal scholars have dealt with it quite extensively. A
brief review of the legal literature on forum shopping reveals that lawyers
are interested in this phenomenon not so much as a manifestation of legal
pluralism, but as a symptom of “conflict of laws” or “choice of laws.”
Especially abundant in this regard is the study of forum shopping in the
United States—a country that has some 50 state judicial hierarchies that
operate alongside several federal courts of general and specialist jurisdic-
tions. This complex structure of the American judicial system provides
incentives to shop for a forum, to the extent that the phenomenon has
been described as “a national legal pastime” (Alegro, 1999, p. 82, quot-
ing Wright, 1967, p. 333).
Legal scholars studying forum shopping at the interstate, state-federal,
and international levels tend to be highly critical of this phenomenon.
They view it as a disruptive practice that corrupts the legal system (e.g.,
LoPucki, 2006; Warner, 2007), interferes with the “efficient” implemen-
tation of a unitary rule of law (e.g., Norwood, 1996), and constitutes
a grave infringement of the principle of equality under the law (e.g.,
Weintraub 1999, p. 164). Accordingly, American law students have often
been taught that forum shopping is a terrible practice, performed only by
the most devious and manipulative of attorneys (Alegro, 1999, p. 80). In
recent years, however, some new thinking about forum shopping appears
to be gaining appeal among legal scholars. Several scholars have recently
called for reassessing this practice, emphasizing that some level of forum
shopping is inevitable and that the system needs to live with it. Moreover,
they have argued that some forms of forum shopping can be viewed
positively, and that the legal system may actually take advantage of it to
increase access to justice (Alegro, 1999; French, 2001; Zywicki, 2005).
However, legal scholars with a critical view of forum shopping and
those with a more favorable view share a common underlying assump-
tion: they assume that forum shopping involves a rational choice that
takes place within a “free market” of legal forums. Both assume—at least
for the purposes of their legal analyses—that litigants have a clear view of
their goals, interests, and priorities; are fully knowledgeable of the legal
forums available to them; have a clear understanding of the outcomes
that may ensue from appealing to each of these forums; and, moreover,
are free to choose among the forums regardless of any extra-legal consid-
erations and constraints. Even when the complexity of litigants’ consider-
ations is acknowledged, their decisions are portrayed as a simple outcome
of a rational deliberation of pros and cons (Hafner, 2003). Because this
choice is perceived as self-evident—the inevitable result of a rational
 Forum Shopping 149

calculation performed by a well-informed “consumer”—legal scholars

seem to believe that there is no point in directing attention to this deci-
sion-making process. Instead, they devote all their efforts to analyzing the
procedural and material loopholes that allow litigants to shop for forums,
and to evaluating the influence of this practice on the legal system and on
the administration of justice.
Without undermining the importance of legal and normative examina-
tions of forum shopping, I would like to argue that this phenomenon is
too widespread and too consequential to be left to the consideration of
legal scholars alone. I therefore call for a re-examination of this phenom-
enon from a socio-legal perspective. Such a perspective would highlight
the embeddedness of forum shopping practices within social, cultural,
and political contexts that are both enabling and constraining, and hence
would expose the limitations of legal scholars’ rational choice assump-
tions. It would examine the rational choices of forum shoppers as both
bounded (Simon, 1982) and enabled by the information they have at
their disposal and by (competing) normative orders and structures of
power and meaning. As was so convincingly shown by Keebet von Benda-
Beckmann 30 years ago, the cumulative decisions of litigants who shop
for forums also exert significant influence on the actions and decisions
of court officials. Consequently, the dialectical relations between “forum
shoppers” and “shopping forums”—between litigants’ actions and their
legal environment, or in other words, between agency and structure
(Giddens, 1984)—is of considerable interest as well.
To demonstrate the value of the suggested perspective on forum shop-
ping, this chapter presents a detailed analysis of forum shopping between a
civil court and a religious court in present-day Jerusalem. In contemporary
Jerusalem, Muslim women who wish to obtain an executable maintenance
order can file a claim in two different legal forums: a civil family court and
a religious shariʿa court, both of which reside in West Jerusalem.2 Both of
these courts belong to the Israeli state legal system: they are accountable
to legislation of the Knesset (the Israeli Parliament) and to judgments of
the Israeli High Court of Justice. Nevertheless, they are radically different
in almost every respect: they employ different bodies of law and different
rules of procedure; they speak different languages—Arabic in the shariʿa
court and Hebrew in the civil family court; and perhaps most significant,
each cultivates a different ethos and judicial agenda. Whereas the family
court embraces a strong Israeli, civil, and gender-equalizing ethos, the
shariʿa court is generally characterized by a Palestinian, Islamic, and patri-
archal ethos. Consequently, although the civil family court often provides
women with better financial arrangements than the shariʿa court, it also
constitutes an alienating environment for Muslim Palestinians, men, and
women alike. The choice between these courts is therefore a complicated
one, rife with meanings, tensions, and conflicts. This complexity makes
150 Ido Shahar

this case study especially useful for my purpose of examining the social,
cultural, and political embeddedness of forum shopping practices.
The chapter begins with a brief review of the history and legal status of
shariʿa courts and civil family courts in Israel. Following that, the unique
political and legal situation in Jerusalem, which makes legal pluralism and
forum shopping in this city especially charged and intricate, is discussed.
The subsequent section presents a close analysis of forum shopping among
Muslim women in Jerusalem seeking to obtain a maintenance order.3 This
account is based on five years of ethnographic fieldwork that I conducted
in the shariʿa court of West Jerusalem, on conversations that I had with
litigants, lawyers, shariʿa advocates, and qadis (Islamic judges), as well as
on an examination of court cases. The chapter concludes with a discussion
of the implications of these findings for broader socio-legal scholarship.

S HARI ʿ A C OURTS AND C IVIL F AMILY C OURTS

IN I SRAEL AND THE P ECULIARITIES OF L EGAL P LURALISM
IN J ERUSALEM

Israeli Shariʿa Courts

The system of shariʿa courts in Israel consists of eight courts of first
instance, which are spread in towns across the country, and one shariʿa
court of appeals. Except for the court of first instance in West Jerusalem,
all other courts serve communities of Palestinian–Israelis who, since 1948,
have been citizens of Israel. The shariʿa court in West Jerusalem, which
is the subject of this research, is unique in that it provides services to a
population of noncitizens—Muslim residents of East Jerusalem, which
was occupied and annexed in 1967. All the shariʿa courts in Israel are
presided over by Muslim judges (qadis), who are chosen by a public com-
mittee and appointed by the president of Israel. They have jurisdiction in
all matters pertaining to the personal status of Muslims in Israel.
While the shariʿa court system is part and parcel of the Israeli state legal
system, its exact relationship with this system is not easy to pin down. To a
significant extent, the domain of family law in Israel is a direct offspring of
the Ottoman Millet system (Friedmann, 1975). The Millet system was “a
personal status regime,” under which some non-Muslim religious minori-
ties were granted extensive religious and cultural autonomy. These religious
communities were allowed to establish their own autonomous courts, which
applied religious law and which had jurisdiction in matters of personal status
of their respective community members (Ursinus, 1993). Under the British
Mandate in Palestine (1917−1948), the Millet system was largely preserved.
Nevertheless, the Muslim shariʿa courts, which had previously been state
courts, were now introduced into the Millet-like personal status regime. This
new arrangement was later inherited by the state of Israel (Layish, 1965).
 Forum Shopping 151

The Israeli legislature refrained from promulgating a territorial family

law. Instead, the Israeli legal system incorporated this Millet-like struc-
ture, composed of religious courts working alongside civil courts. The
various religious courts continue to apply their religious codes, enjoying
broad jurisdictions. In the case of shariʿa courts, the material law that
they apply is the Ottoman Law of Family Rights (OLFR) from 1917—a
shariʿa code that was promulgated by the Ottoman Empire on the eve of
its disintegration.
Until 2001, Muslims in Israel had been obliged to appeal, in almost all
matters of personal status, to shariʿa courts, and could not resort to civil
family courts. Forum shopping was therefore not an option for them.
By contrast, Jews—and to a lesser extent, Christians—were allowed to
choose whether to appeal to a civil or a religious court in most matters
of personal status. This situation aroused criticism among women’s rights
organizations, which saw it as discrimination against Muslim women.
These organizations argued that shariʿa courts, with their patriarchal
religious code, provide unsatisfactory decisions from women’s point of
view. After a long public campaign,4 they succeeded in bringing about
legal reform: in 2001, the Knesset passed amendment no. 5 to the Family
Courts Law, which granted civil family courts jurisdiction in most matters
of Muslims’ personal status, except for marriage and divorce. The jurisdic-
tion of shariʿa courts in these matters was thus reduced from exclusive to
concurrent, and the door was opened for Muslim litigants to go forum
shopping between shariʿa courts and civil family courts.

Israeli Civil Family Courts

Civil family courts were only established in Israel quite recently (in 1995).
The establishment of integrative family courts constituted a major reform
in the field of family law in Israel, which affected not only the institu-
tional structure of the judicial system but also procedural and material
laws (Arbel and Geifman, 1997). However, this reform was not intended
to reduce the jurisdictions of the religious courts, as is specifically noted
in article 25 of the Family Courts Law. Thus, the enactment of the Family
Courts Law, 5755−1995, was not meant to change the basic Millet-like
features of the personal-status regime in Israel.
The judges in family courts are, of course, civil judges, who are by and
large Jewish. The language spoken in these courts is Hebrew, although
the courts must provide translation services to and from Arabic to liti-
gants who do not understand Hebrew. The courts apply a civil code of
procedure rule and a civil code of evidence rule, as well as a set of civil
material laws, which are for the most part oriented toward achieving
equality between the sexes.5 Yet the family courts are also supposed to
apply the religious code of the litigants (i.e., if litigants are Jewish, the
152 Ido Shahar

Jewish Halakha should be applied; if litigants are Muslims, the shariʿa

code should be applied). In effect, however, because of the different
codes of procedure and evidence rules, and because civil judges usually
lack education in religious law, their decisions tend to diverge significantly
from those of the religious courts.

Legal Pluralism in Jerusalem

Jerusalem has justly been likened to a powder keg, threatening to explode
at any moment (Friedland and Hecht, 1996, p. 3). Political, religious,
and legal tensions soar in this city, which is not only sacred to the three
monotheistic religions but is also at the very crux of the Israeli−Palestinian
conflict. No wonder, therefore, that legal pluralism is particularly conspic-
uous in this city, and that forum shopping is especially prevalent.
Between 1948 and 1967, Jerusalem was a divided city with a wall and
a buffer zone running down the middle: the western part of the city was
controlled by Israel, and the eastern part by the Hashemite Kingdom of
Jordan. West Jerusalem was almost exclusively Jewish, with only several
thousand Palestinians dwelling in a few urban neighborhoods (e.g., Beit
Ṣafāfa) and in some semiurban villages (e.g., Abū Ghosh). The abrupt
Israeli occupation of the Golan Heights, the Gaza Strip, and the West
Bank, including East Jerusalem, in June 1967 changed this situation alto-
gether. Unlike the rest of the occupied territories, which were put under a
“temporary” military regime, East Jerusalem was hastily annexed to Israel
just three weeks after the war ended (Brecher, 1978, pp. 25−6). Israeli
law was extended to the annexed area, and the Palestinian residents of
this area—a population of approximately 70,000—were granted the legal
status of “permanent residents” in Israel.6
In terms of their personal status, the Muslims in Jerusalem were sub-
jected to the rulings of the Israeli shariʿa court in Jaffa, some 50 km west of
Jerusalem. Yet, since Israel did not close the Jordanian-administered shariʿa
court that has been operating in occupied East Jerusalem, an unusual
situation of legal pluralism was created in the city. Recognizing that the
continued operation of an independent Jordanian court undermines
Israeli sovereignty in Jerusalem, Israeli authorities invested a great deal
of effort in trying to co-opt this court and bring it under the aegis of the
Israeli legal system. Yet the Jordanian court’s functionaries, who regarded
any cooperation with the Israeli authorities as an implicit approval of the
occupation and annexation of Jerusalem, consistently refused to submit.
Frustrated with this situation, Israeli authorities finally decided to estab-
lish an Israeli shariʿa court in West Jerusalem, and to stop recognizing the
decisions of the Jordanian court. By this double-edged policy, they were
aiming to compel Muslims residing in Jerusalem to attend an Israeli court
in all matters of personal status.
 Forum Shopping 153

At first, the Muslim population of Jerusalem was highly suspicious of

this new court, seeing it as an institution that was established as part
of a more general effort to diminish Muslim presence in the Holy City
(Welchman, 1990, pp. 95−6). Nevertheless, after several years, Muslim
Palestinians in Jerusalem began to recognize the benefits that may derive
from this court. The most significant advantage was that its decisions,
unlike those of the Jordanian court, were recognized and executed by
the Israeli authorities. Moreover, Muslim litigants soon discovered that
the new shariʿa court, despite being an Israeli court, does not necessarily
succumb to the Israeli agenda of the “Judaization of Jerusalem,” which
usually characterizes the policy of Israeli authorities in the city.
The complex interrelations between the Israeli shariʿa court and the
Jordanian shariʿa court—which continues to operate in East Jerusalem to
this very day—are beyond the scope of this chapter. Instead, the empirical
section below focuses on the two courts that provide, under Israeli rule,
executable orders in matters of personal status: the Israeli shariʿa court and
the civil family court. I focus on the phenomenon of forum shopping from
the point of view of litigants, leaving unattended the institutional level of
analysis. In other words, the effects of forum shopping on the judicial poli-
cies of the two courts under investigation will not be dealt with.

F ORUM S HOPPING IN J ERUSALEM , OR : H OW TO D ECIDE

W HERE TO F ILE A M AINTENANCE S UIT ?
The following short excerpt from my field notes,7 written at the Israeli
shariʿa court in West Jerusalem, is an example of the choice of forum—or
rather, the lack of choice of forum—that many of the litigants in this
court face. The date was April 7, 2004:

I arrived at the court in the morning . . . Hearings began at 9:00. At

11:00 the qadi left the room and went to a meeting of all the judges
at the shariʿa court of appeals. Having nothing better to do, I sat on
the green sofa in the court’s waiting room and chitchatted with Akram
al-Maliki [a shariʿa advocate]. When there was a moment of silence, a
middle-aged man who was sitting nearby approached me and inquired
who I was. I explained that I was an anthropologist conducting research
in the court . . . I excused myself and went to talk with him. I asked him
why he was there, and he replied that he was accompanying his daugh-
ter, who was to have a hearing concerning a maintenance claim that she
had filed against her husband. He said that his daughter had left the
conjugal home with her two young children (aged four and two) about
a month earlier, after she had been “viciously attacked” by her mother-
in-law. I asked why it had happened, and he said, “I don’t know. This is
what she’s like. They [his daughter and her mother-in-law] quarrel all
154 Ido Shahar

the time. She [the mother-in-law] doesn’t like how she [his daughter]
treats the children, she doesn’t like how she cooks, she doesn’t like how
she dresses. One morning she assaulted her and tore her dress.”
“And what did her husband do?” I asked.
“Her husband doesn’t protect her. He’s afraid of his mother . . . so she
ran away to me.”
I asked him why they chose to file the maintenance claim in this court,
and he answered, “I don’t know. My uncle knows the lawyer Abu
Sha‘bān [al-muhami Abu Sha‘ban], and he recommended him. We
went to see him in his office, and he said that we should file a claim
here. He is our lawyer.”

While my interlocutor described Abu Sha‘ban as a lawyer, this was not in

fact the case. The man was apparently unaware that Abu Sha‘ban was not a
lawyer (muhami), but a shariʿa advocate (murafi‘ shar‘i)—an attorney who
is allowed to represent customers in shariʿa courts alone, and not in any
other court. This means that once my interlocutor decided to contact Abu
Sha‘ban, his ability to shop for a forum was effectively reduced to zero.
This brief excerpt therefore brings up a very important point that
should be highlighted at the beginning of this analysis: many of the liti-
gants I came across in the shariʿa court did not, in fact, practice forum
shopping. These people were not informed of the intricacies of legal plu-
ralism in the domain of family law, and some of them were not even aware
of the possibility of choosing among different legal forums. Consequently,
they had no practical ability, nor incentive, to shop for a forum. Rather,
they were channeled to a specific forum by chance, coincidence, or—no
less important—social networks and references.
While some of those who represent litigants in the shariʿa court are
shariʿa advocates, others are in fact lawyers—familiar with both the shariʿa
and the civil courts. The latter often make sure that their clients are
informed of the various options available to them. One of the lawyers
who used to represent clients both in the shariʿa court and in the civil
family court once told me:

I recommend that my clients appeal to the family courts because rules of

evidence are less restrictive there. [In the family court] it’s enough to have
a deposition [stating that the husband had beaten his wife] and a medical
report signed by a doctor in order to obtain a maintenance judgment and a
protection order. In the shariʿa court you have to present evidence, to bring
witnesses . . . it’s much more difficult. (Conversation with Madhat al-Kishk,
May 26, 2002)

Indeed, as indicated by case no. 509/02, a wife appealing to the shariʿa

court may fail to substantiate her claims for maintenance payments due
 Forum Shopping 155

to insufficient evidence. In this particular case, a young woman sued her

much older husband, claiming that he, along with his first wife and her
adult children, had all attacked her in the conjugal home and had injured
her so badly that she was forced to go to the hospital several times for
treatment. According to her statement of claim, she had not returned to
the conjugal home since this incident (which had occurred four months
earlier), and remained instead in a “state of anger” (hardane) in her
father’s house. Her husband, she further argued, had expressed no wish
to bring her back to the conjugal home—he had never sent a delegation
of notables (jahah) to try and settle the dispute. She therefore asked the
court to establish that she is entitled to maintenance payments and to
determine the sum as it sees fit.
On the day of the hearing (April 29, 2002),8 both husband and wife
and their lawyers attended the court. The young wife was covered from
head to toe in a black robe, her face veiled by a hijab, and even her hands
wrapped in black gloves. Her husband, a man of about 60 years of age,
was dressed in a plain-looking outfit, and wore a big white knitted skull-
cap on his bald head. Both husband and wife were accompanied by rela-
tives (the husband by three of his grown-up children, and the wife by
her mother and brother). The difficulty faced by the wife was that the
presumed beating had occurred in the conjugal home, and there were
no witnesses to the event. Instead of witnesses, she tried to support her
claim by presenting corroborating evidence: a signed confirmation that
she had been taken by ambulance to a hospital; some medical reports of
her injuries; and a copy of a complaint against her husband that she had
filed with the police.
The husband’s attorney was not impressed by this evidence, and claimed
that none of it proved that the wife had indeed been beaten by her hus-
band. He further stated that for all we knew, she could have done this
physical damage to herself, and then called an ambulance and filed a false
complaint with the police. In response to these suggestions, a minor insur-
rection developed in the courtroom, as the parties began shouting at each
other. Only after several minutes of this ruckus was the qadi able to restore
order. He rebuked the husband’s attorney for suggesting that the wife had
fabricated her complaint, but accepted his assertion that the evidence sup-
plied by the plaintiff did not substantiate her claims. The qadi thus deter-
mined that the wife failed to prove her claims, and that the husband could
now take an oath of innocence.9 Whether the beating had occurred or not,
the husband did not hesitate, apparently, to take an oath, stating that he
had not beaten his wife on the day in question. Following this, the qadi
ruled that the wife’s suit for maintenance payments was thereby dismissed.
This example demonstrates that the stricter evidence rules applied in
the Israeli shariʿa courts might indeed present difficulties for women, and
might prevent them from earning maintenance payments, as argued by
156 Ido Shahar

the lawyer cited above. Another disadvantage of shariʿa courts from the
perspective of female litigants has to do with the average maintenance
payment that these courts grant. It is common knowledge among attor-
neys that a maintenance suit filed in the civil family court will probably
yield a larger sum than a similar suit filed in the shariʿa court. Although
there has been a significant increase in the average maintenance payment
granted by shariʿa courts over the last decade, the civil family courts still
have the upper hand. This gap can perhaps be explained by the socioeco-
nomic context: the population that attends the shariʿa court (Muslim-
Palestinians) usually comes from lower socioeconomic strata than the
population attending the civil family court (Jewish–Israelis). As a result,
the maintenance payments requested, and thence adjudicated, in the fam-
ily court are higher.
However, there is also another explanation: the civil family courts have
set a minimum maintenance payment that should be granted regardless
of the husband’s financial situation. By contrast, the shariʿa courts, which
“do not wish to disintegrate families,” as one of the lawyers told me,
“find ways to reduce the maintenance payment adjudicated to wives and
minors.” The underlying assumption is that if the maintenance payments
were higher, husbands would be motivated to divorce and thereby avoid
the need to pay their wives. Thus, a religious-normative view that regards
matrimonial reconciliation as a value in itself drives shariʿa courts to deter-
mine lower maintenance payments.
Thus far, we have recounted two very obvious advantages of filing
a maintenance suit in a civil family court rather than in a shariʿa court.
There are, however, also some noticeable advantages to shariʿa courts.
First of all, the religious identity of these courts is a considerable benefit in
the eyes of many potential litigants. Because these courts apply procedural
and material laws that are based on shariʿa concepts, they enjoy greater
religious legitimacy than the Israeli civil courts. The shariʿa courts are also
perceived as much more familiar and accessible to Muslim litigants: litiga-
tion in these courts is conducted in Arabic, and the security measures are
relatively loose. The civil family courts, by contrast, are often regarded
as hostile and uninviting legal institutions for Muslim litigants, men and
women alike. The language of litigation in these courts, as mentioned
above, is Hebrew; security measures are stringent; and the procedural and
material law is alien to Islamic norms.
Another more concrete advantage of shariʿa courts in cases of mainte-
nance suits has to do with their more efficient and prompt dealing with
these suits. As one of the attorneys told me, “If a client is [financially]
strained, I recommend that she appeals to the shariʿa court. There you
may get a temporary maintenance order [qarar mu’aqqat bi’l-nafaqa]
within a day, while in the family court it may take a full month” (conver-
sation with Madhat al-Kishk, May 26, 2002). When I asked what was the
 Forum Shopping 157

reason for this difference between the two courts, the attorney explained
that the shariʿa court is more expeditious because the shariʿa procedure,
unlike the civil procedure, does not require that the defendant’s husband
be informed about the suit before issuing a temporary order. As long as
a guarantor (kafil) commits himself to refunding maintenance payments
given to the wife if it is eventually decided that she is not entitled to these
payments, the court will issue a temporary maintenance order solely on
the grounds of the wife’s deposition.
Finally, some differences between the shariʿa court and the family court
can be either advantageous to women or harmful to them, depending on
their personal wishes and intentions. More specifically, the choice of a
religious or civil forum can exert, in itself, a significant influence on the
matrimonial dispute and on the future of the marriage. While this effect
may be desired by some women, it could be unwanted for others.
Although there are no credible statistics regarding this matter, the gen-
eral belief among attorneys working in the shariʿa court is that matrimo-
nial disputes that are adjudicated in the civil family court are much more
likely to end in divorce. As one of the lawyers explained, “I ask my client,
‘What do you want to achieve? Do you want reconciliation with your
husband? Or do you want to divorce?’ If she says that she wants a divorce,
I file a suit in the family court; if she says she wants reconciliation, I file a
suit here” (conversation with ‘Ali ‘Adlān, March 22, 2004). And another
lawyer told me,

Every woman in Jerusalem whose husband “caressed”10 her now goes to

the police station to complain and to file a suit in the family court. She
gets maintenance and a protection order, and the husband [gets] a criminal
record, and sits in prison . . . I went to Luba [a Jewish police officer in charge
of family violence cases in the Jerusalem district] and told her, “You divorce
half of Jerusalem.” She said, “Why?” I told her, “Because you too easily
charge husbands for beating their wives. You destroy Muslim families this
way.” (Conversation with Nawwāf al-Salaymī, June 8, 2004)

These comments illustrate that the considerations that guide litigants

when shopping for a forum can indeed be very complex. It appears, for
example, that a maintenance suit can sometimes serve not only as a cry for
financial help, but also as an effective device for pressuring an obstinate
husband. Indeed, if a woman dwells in “a state of anger” with her agnatic
family for a long period of time, and if the husband does not seem to be
in a hurry to end the dispute either by divorcing his wife or reconciling,
then the wife will need some sort of “leverage” in order to push the hus-
band into action.
The most effective leverage is a maintenance suit. It is an effective
maneuver for pressuring husbands because it is rather difficult to evade
158 Ido Shahar

payments that have been ordered by a court. Thus, a maintenance order

may force the husband either to reconcile with his wife or to divorce her.
Many maintenance suits filed in the shariʿa court are therefore pressur-
ing devices, and all the more so, probably, when a Muslim woman files a
maintenance suit at the civil family court.
However, why is it that an appeal to the family court is more likely to
bring about a divorce than an appeal to the shariʿa court? There are three
possible explanations. First, the shariʿa court in West Jerusalem—perhaps
like other shariʿa courts in other times and places—maintains a strong
preference for mediation and reconciliation over adjudication.11 While a
tendency for resolution without adjudication is also evident in civil family
courts,12 in the shariʿa courts this preference seems to be augmented by
a strong religious sentiment. According to a famous hadith, “Allah did
not make anything lawful more abominable to Him than divorce” (Sunan
Abu Dawud, vol. 2, p. 438 [no. 2177]). In line with this view, the qadis
in Israeli shariʿa courts usually go out of their way to facilitate conciliation
between spouses. For that purpose, they may recommend that the parties
replace in-court litigation with out-of-court semi-institutional mediation.13
The “traditional” reconciliation process that then unfolds is embedded
through and through in religious-normative discourse that views concilia-
tion in venerable terms. This process is therefore more likely to bring about
conciliation than the relatively formal procedures of the civil family court,
which are embedded in human rights and women’s rights discourses.
Second, as clearly reflected in the quotations above, the two courts
draw on very different cultural and ideological assumptions with regard
to men’s and women’s roles in the marital unit. While an “occasional”
beating of a wife is perceived by many Muslims in Jerusalem as legitimate,
although undesirable behavior,14 the common family court judge perceives
it as abominable, if not criminal, behavior. Even if the judges presiding
over the two courts share exactly the same progressive views on gender
relations, the fact that they serve different populations that embrace differ-
ent values and norm systems may produce very different judicial policies
in such cases. Thus, it is reasonable to assume that family disputes that
involve violence toward the wife have a greater chance of ending in concili-
ation if tried by the shariʿa court rather than the civil family court.
The third and final explanation of why appeal to the family court is
more likely to lead to divorce than the shariʿa court is the religious, cul-
tural, and political meanings attached to resorting to a court. As argued
by many scholars in the field of law and society, “going to law,” namely
filing a claim in a court, sometimes attests to a sharp escalation of the
conflict, for it draws the marital problems from the private sphere into
the public one. As a result, people often postpone this extreme course of
action as long as possible, hoping that their problems will be solved in
other ways (Engel, 1980, pp. 429−31; Basu, 2006, pp. 53−4). Still, there
 Forum Shopping 159

are degrees of exteriorization of private problems, and appeals to different

forums may be perceived as involving different degrees of “going public”
and different degrees of defiance.
In the case under focus, a woman’s decision to appeal to the civil family
court rather than to the shariʿa court might be perceived as more defiant
and destructive due to the religious implications of this act. From a reli-
gious point of view, an appeal to a secular court rather than to a religious
one is, of course, highly problematic. Another reason why resorting to the
civil family court may be perceived as a radical measure is the meaning of
this act from a Palestinian point of view. Although both courts belong to
the Israeli state legal system, the shariʿa court has gained legitimacy and
familiarity over the years. It is managed and presided over by Palestinian
Israelis, and in many respects it is sympathetic to the Palestinians and to
their national identity and interests. Choosing a secular “Zionist” court
over the shariʿa court can thus be perceived as disloyal not only on reli-
gious grounds but also on nationalist grounds.
Muslim husbands in Jerusalem may therefore perceive an appeal to the
civil family court as a move that is intended to escalate the conflict. Recourse
to the shariʿa court, by contrast, is more likely to be viewed as less offensive,
leaving the “door of reconciliation” (bab al-musallaha) relatively open.

C ONCLUSION
This research has demonstrated that forum shopping is a highly conse-
quential phenomenon from the disputants’ point of view, and that it can
exert significant influence on the outcomes of the legal process. In the case
of Muslim women in Jerusalem seeking to obtain a maintenance order,
the choice of a forum may determine the amount of the maintenance
payment, the timing of its award, and even whether it will be awarded
at all. Furthermore, this choice may determine whether the end result of
the legal altercation will be reconciliation or dissolution of the litigants’
marriage. This is a clear example of Galanter’s (1983, p. 34) contention
that “courts not only resolve disputes, they prevent them, mobilize them,
displace them, and transform them.” The first conclusion to be drawn
from this research is, therefore, that forum shopping is complicated and
significant enough to deserve full attention not only from legal scholars
but also from legal anthropologists.
A second conclusion has to do with how deeply embedded forum shop-
ping practices are in social, religious, and political contexts. This research
has demonstrated that contextual factors can determine, to begin with,
whether a person even knows that she or he can resort to different venues.
In addition, these factors can affect the considerations that guide litigants
and their legal advisors in choosing a forum, and they can certainly shape
the consequences of this choice.
160 Ido Shahar

The significance of contextual factors highlights the limits of the ratio-

nal choice model that seems to lie at the basis of so much legal discourse
on forum shopping. This research has shown that the rational delibera-
tions of forum shoppers are considerably “bounded,” to use Herbert
Simon’s term (1982). Rather than being a free choice made under condi-
tions of full knowledge, clear priorities, and unlimited resources, forum
shopping is bounded by partial information and uncertain priorities and
results. Furthermore, forum shopping is guided not only by narrow,
technical-instrumental rationality, but also by a different, broader kind
of rationality that is morally and ideologically informed. In other words,
forum shopping is guided not only by instrumentally rational (zweckra-
tional) action but also by value-rational (wertrational) action, to invoke
Weber’s terms (1978).
In the case of maintenance suits of Muslim women in Jerusalem,
choosing a forum may be based on narrow, instrumental considerations
(i.e., zweckrational) such as which forum is more likely to decide on a
large maintenance payment, or which choice would exert greater pres-
sure on an obstinate husband. Yet it may also be based on broader moral
and ideological considerations (i.e., wertrational), such as a preference to
negotiate one’s matrimonial dispute within the parameters of a religious,
Muslim-Palestinian normative order, rather than an Israeli−secular one.
It should be noted, however, that wertrational and zweckrational are not
always distinguishable in practice. It may very well be, for example, that
in the context of a matrimonial dispute, when accusations and counter-
accusations regarding immoral behavior are being thrown about, litigants
are particularly cautious not to supply ammunition to their rival spouse.
Consequently, a woman’s decision to steer clear of the civil family court
may be based not only on her own moral, ideological, and religious prefer-
ences, but also on the narrowly instrumental consideration that she might
be morally condemned for doing so, and hence lose points in the battle.
A third, related conclusion is that in some situations of forum shop-
ping, preferring one court over the other may be imbued with religious
and political meanings that may, in themselves, affect the outcomes of the
legal process. In the case study presented above, filing a maintenance claim
in the family court appears to be more likely to bring about the dissolution
of the marriage than filing such a claim in the shariʿa court. This is so not
only because of the characteristics of the forums in question—the material
laws they apply, their procedural codes, their organizational cultures, and
their ethos—but also because of the meanings that actors ascribe to filing a
claim in each of them respectively. In other words, because resorting to the
family court is perceived as a more defiant act than resorting to the shariʿa
court, the consequences of this act are indeed more severe.
Both the rationale and the outcomes of forum shopping are thus deeply
entangled in the “webs of meaning,” to use Geertz’s term, that actors
 Forum Shopping 161

weave and live within. This leads to the fourth and final conclusion, which
is that this phenomenon should not be left to the analysis of legal scholars
alone. To better understand practices of forum shopping, social scientists
in general—and legal anthropologists in particular—should contribute
their skills in exploring the intricate matrix of meaning and culture that
shapes these practices in concrete, day-to-day situations of legal pluralism.

N OTES
1. Examples of stusdies that deal with forum shopping in this manner include
Engel, 1980; Molokomme, 1991; Basu, 2006; Turner, 2006.
2. In fact, they can also choose to file a claim in other forums located in
East Jerusalem: the Jordanian shariʿa court and the Palestinian shariʿa
courts. However, the rulings of these courts are not recognized by the
Israeli authorities, and consequently the maintenance order may not be
enforced.
3. According to Islamic law, a man is obliged to maintain his wife as long
as they are married to each other (and provided that she is not declared
a recalcitrant wife). If a wife is repudiated or a divorce is attained, a man
is obliged to pay maintenance to his ex-wife for a waiting period of three
months (idda). Beyond that period, men have no obligation to support
their ex-wives.
4. For more on this campaign, see Shahar, 2007.
5. For example, the Age of Marriage Law, 5710−1950; Women’s Equal
Rights Law, 5711−1951; and the Capacity and Guardianship Law,
5722−1962.
6. According to Israeli law, permanent residents of the state of Israel may
carry an Israeli identification card, but are not allowed to participate in
elections for the parliament. They have freedom of access and work in
Israel, and they are entitled to all the social benefits of citizenship (e.g.,
national insurance allowances, health care, etc.). Nevertheless, unlike full-
fledged citizenship, permanent residency may expire if its holder resides
out of Israel for more than seven years.
7. All names used in this section are pseudonyms.
8. This was in fact the second hearing in this case. I did not attend the first
one, which had taken place on April 11. According to the court minutes,
during the first hearing the plaintiff presented her statement of claim, and
the defendant responded to it by denying that he ever beat his wife. He
then argued that there was no proper shar‘ia justification for his wife’s
leaving of the conjugal home, and asked the court to determine, there-
fore, that she was not entitled to maintenance. The court ordered the
wife to provide evidence supporting her claims at the next hearing, which
took place on April 29.
9. Taking an oath (half yamin) is a well-known legal procedure in Islamic
law that can be practiced in various circumstances. A famous maxim states
162 Ido Shahar

that “the burden of proof (by testimony) lies upon the one who makes
the allegation, and the oath belongs to him who denies” (al-bayyina ‘ala
al- muda‘i wa’l-yamin ‘ala man ankara). For a general discussion of the
mechanism of oath in Islamic law, see Brunschvig, 1960.
10. The lawyer was speaking in Arabic, but he used the Hebrew word litef
(caressed) here.
11. See, for example, Rosen, 1989; Mir-Hosseini, 1993, pp. 61−2.
12. See Arbel and Geifman, 1997, pp. 438−41.
13. If the parties agree, two mediators are nominated and informal mediation
begins. If reconciliation is achieved, the file is deleted from the court’s
schedule; if it fails, the parties return to legal litigation, to the exact point
at which it had been halted. For examples of files in the shariʿa court
of West Jerusalem in which such a procedure was resorted to, see cases
104/2000, 162/2000, 110/2002, 2883/2003, and 532/2004 (avail-
able in Petah Tiqwa, the shariʿa court archive).
14. This statement is based on my impression from dozens of conversations
with litigants and legal professionals. Thus, for example, several of my
male interlocutors paraphrased a well-known Qur’anic verse (Surat al-
Nisa’, verse 34), which instructs husbands how to treat a “wrongheaded”
wife. They explained to me that “if a husband has problems with his wife,
what should he do? First, he should approach her, and explain to her
patiently and calmly what she did wrong. If this doesn’t work, he should
move to another bed for a couple of days, and refrain from sleeping with
his wife. If this measure doesn’t help either, he should seek the assistance
of ahl al-khair (mediators), who will intervene in the dispute, trying to
achieve reconciliation. If this does not help, and his wife is still rebellious,
and refuses to obey him, he may resort to the most persuasive method:
educational beating (darb ta’dibi).” Of course, the fact that such views
are held—again, to my impression by the majority of the litigants (men
and women alike)—does not mean that there are no liberal or feminist
circles among Muslim Jerusalemites that may fiercely oppose such views.

R eferences
Abu Dawud, S. Sunan Abu Dawud, 5 vols. Bairūt: Dār Ibn Hazm, (1997 [11th
century]).
Alegro, M. G. “In Defense of Forum Shopping: A Realistic Look at Selecting a
Venue.” Nebraska Law Review 78, no. 1, (1999): 79−112.
Arbel, D., and Y. Geifman. “Family Court Law, 1995 – Critical Analysis.”
Hapraklit 43, no. 3 (1997): 431−52 (in Hebrew).
Basu, S. “Playing off Courts: The Negotiation of Divorce and Violence in Plural
Legal Setting in Kolkata.” Journal of Legal Pluralism 52, (2006): 41−75.
Benda-Beckmann, K. von. “Forum Shopping and Shopping Forums – Dispute
Settlement in a Minangkabau Village in West Sumatra.” Journal of Legal
Pluralism 19, (1981): 117−53.
 Forum Shopping 163

Brecher, M. “Jerusalem: Israel Political Decisions, 1947−1977.” Middle East

Journal 32, no. 1 (1978): 13−34.
Brunschvig, R. s.v. “Bayyina,” EI2, vol. I, p. 1150b, 1960.
Engel, D. M. “Legal Pluralism in an American Community: Perspectives on a Civil
Trial Court.” Law and Social Enquiry 5, no. 3 (1980): 425−54.
French, R. S. “Legal Retail Therapy: Is Forum Shopping a Necessary Evil?” Paper
presented at the Australian Legal Convention, Canberra, October 11–14, 2001.
http://www.austlii.edu.au/au/journals/FedJSchol/2001/8.html (accessed
September 11, 2012).
Friedland, R., and Hecht, R. To Rule Jerusalem. Cambridge: Cambridge University
Press, 1996.
Friedmann, D. “The Effect of Foreign Law on the Law of Israel: Remnants of the
Ottoman Period.” Israel Law Review 10, (1975): 192−206.
Galanter, M. “Reading the Landscape of Disputes: What We Know and Don’t
Know (and Think We Know) about our Allegedly Contentious and Litigious
Society.” UCLA Law Review 31, no.1,(1983): 4−71.
Garner, B. A. Black’s Law Dictionary, 2nd pocket edn. St. Paul: West Publishing,
2001.
Giddens, A. The Constitution of Society: Outline of a Theory of Structuration.
Berkley and LA: University of California Press, 1984.
Hafner, G. “Pros and Cons Ensuing from Fragmentation of International Law.”
Michigan Journal of International Law 25, no. 4, (2003): 849−64.
Layish, A. “Muslim Religious Jurisdiction in Israel.” Asian and African Studies,
1, (1965): 49−79.
LoPucki, L. M. Courting Failure: How Competition for the Big Cases Is Corrupting
the Bankruptcy Courts. Ann Arbor: University of Michigan Press, 2006.
Mir-Hosseini, Z. Marriage on Trial: A Study of Islamic Family Law, Iran and
Morocco Compared London: I.B. Tauris, 1993.
Mnookin, R. H., and L. Kornhauser. “Bargaining in the Shadow of the Law: The
Case of Divorce,” Yale Law Journal 88, no. 5, (1979): 950–97.
Molokomme, A. Children of the Fence: The Maintenance of Extra-Marital Children
under Law and Practice in Botswana. Leiden: African Studies Centre, 1991.
Norwood, K. J. “Shopping for a Venue: The Need for More Limits on Choice.”
University of Miami Law Review 50, no. 2, (1996): 267–334.
Rosen, L. The Anthropology of Justice: Law as Culture in Islam. Cambridge:
Cambridge University Press, 1989.
Shahar, I. “Legal Reform, Interpretive Communities and the Quest for Legitimacy:
A Contextual Analysis of a Legal Circular.”In Law, Custom and Statute in the
Muslim World: Studies in Honor of Aharon Layish, edited by R. Shahar, 198–
227. Leiden: Brill, 2007.
Simon, H. A. Models of Bounded Rationality. Cambridge, MA: MIT Press, 1982.
Turner, B. “Competing Global Players in Rural Morocco: Upgrading Legal
Arenas.” Journal of Legal Pluralism 53, no. 4 (2006): 101−40.
Ursinus, M. O. H. S.v. “Millet.” The Encyclopedia of Islam, 2nd edn, vol. VII,
61–4. Leiden and New York: E. J. Brill, 1993.
Warner, C. M. The Best System Money Can Buy: Corruption in the European Union.
Ithaca: Cornel University Press, 2007.
164 Ido Shahar

Weber, M. Economy and Society, edited by G. Roth and C. Wittich. Berkley: The
University of California Press, 1978.
Weintraub, R. J. “Choice of Law for Product Liability: Demagnetizing the United
States Forum.” Arkansas Law Review 52, no. 1, (1999): 152−76.
Welchman, L. “Family Law under Occupation: Islamic Law and the Shariʿa Courts
in the West Bank.” In Islamic Family Law, edited by C. Mallat and J. Connors,
93−115. London, Dodrecht, and Boston: Graham & Trotman, 1990.
Wright, J. S. “The Federal Courts and the Nature and Quality of State Law.”
Wayne Law Review 13, no. 2, (1967): 317–37.
Zywicki, T. J. “Is Forum-Shopping Corrupting America’s Bankruptcy Courts?”
Review of Courting Failure: How Competition for Big Cases is Corrupting
the Bankruptcy Courts, by L. LoPucki. (Working Paper 25, George Mason
University School of Law, 2005). http://law.bepress.com/cgi/viewcontent.
cgi?article=1031&context=gmulwps (accessed September 11, 2012).
 10

LEGAL PLURALISM IN THE

SUPREME COURT
LAW, RELIGION, AND CULTURE PERTAINING
TO WOMEN’S RIGHTS IN NEPAL*

Rajendra Pradhan

I NTRODUCTION
In May 1993, three years after the restoration of democracy and the
promulgation of a more liberal constitution, two women legal activists filed
the first public interest litigation (PIL) pertaining to women’s rights in the
Supreme Court of Nepal (Meera Dhungana v. HMG/N). Encouraged by
this case, the increasing influence of international human rights and wom-
en’s rights discourses, and powerful donor agencies promoting these rights,
legal activists subsequently filed more PILs pertaining to women’s rights,
including property rights for women and protection against marital rape and
discrimination in employment and citizenship.1 The petitioners cited the
modern and mainly secular Constitution and international law to challenge
the legal validity of gender-discriminatory state laws, especially provisions
in the National Code (Muluki Ain) that treated women as second-class
citizens.2 These discriminatory state laws were influenced by Hinduism, the
religion of the majority of the population in this Hindu kingdom. In ques-
tioning these state laws, the petitioners, themselves Hindus, challenged the
patriarchal Hindu state as well as the gender-discriminatory norms of the
majority of Nepalese. The state, as the respondent to the petitions, and
some Supreme Court judges vigorously defended gender-discriminatory
laws and traditional social order, sometimes warning of social chaos if these
laws were amended. Nevertheless, several decisions of the normally conser-
vative, upper-caste, Hindu male Supreme Court justices, especially begin-
ning in the late 1990s, were surprisingly favorable to women’s rights. These
166 R a j e ndra Pra dh a n

justices, sometimes commenting that gender-discriminatory laws reflected

traditional, “uncivilized,” and even “barbaric” norms, directed the state to
amend these laws so as to be in harmony with “modern” and “civilized”
international law. The most important of the legal changes that were sup-
portive of women’s rights were the 11th amendment to the Muluki Ain,
passed in 2002, and the more sweeping Gender Equality Act of 2006.3
The Supreme Court decisions and legal changes in favor of women’s
rights did not go uncontested. There were extensive debates throughout
the country about women’s rights, especially to property,4 as well as about
their sexuality, independence, and position within the family and the wider
Nepalese society. While many orthodox Hindus, both men and women,
supported traditional norms and patriarchal social order, modernists cam-
paigned for the acceptance of the emerging global culture of international
human rights, even if it entailed the abandonment of religious norms that
were inconsistent with international law. It could be argued that the sup-
porters of human rights law were at the same time advocating for the
adoption of a different cultural framework and different practices concern-
ing women’s rights and gender relations, for as many legal anthropologists
have noted, “Human rights law is itself primarily a cultural system” (Merry,
2009, p. 12). Certainly in the Supreme Court cases discussed below, argu-
ments for women’s rights based on international law articulated new or
different norms, meanings, symbols, and practices concerning gender rela-
tions and “women” and “men” as categories, especially when compared
to those arguments based on laws influenced by Hinduism.
In this chapter, I offer one reading of some of these Supreme Court
cases from a legal anthropological perspective. I will begin with a discus-
sion of the historical as well as present-day legal fields in Nepal under
conditions of legal pluralism, both in the sense of competing normative
orders (e.g., state law, religious law, and customary law), and within the
state legal system, that is, state legal pluralism (Woodman, 1998; see also
Benda-Beckmann, 2002). I will pay special attention to the declining
importance of religious law (Hindu norms) and the increasing signifi-
cance of secular, “modern” law in the state legal field.
State legal pluralism is also manifested in some Supreme Court cases,
as I will demonstrate in the next section, which discusses a PIL pertaining
to marital rape. In their “paradigm of argument,” the disputants and the
judges referred to a combination of laws drawn from different normative
orders to support their arguments and decisions concerning whether to
categorize nonconsensual sex between a man and his wife as marital rape.
Comaroff and Roberts (1977, p. 86) defined paradigm of argument as
“a coherent picture of relevant events and actions in terms of one or more
(implicit and explicit) normative referents” (italics in the original). In the
Supreme Court cases addressing the constitutional validity of the laws
pertaining to women’s rights, however, the paradigms of argument did
 Legal Plu ra l i s m i n t h e Su pre m e C ou rt 167

not focus on the facts (the “relevant events and actions”), but rather on
the norms (law), and the judges had to decide which norms were the
most relevant or valid for a particular case or argument. Two contrasting
paradigms of argument were used, one based on the secular Constitution
and international law, which support women’s rights and gender equal-
ity, and the other based on Hindu-inflected state law and religious law
(Hinduism), which discriminate against women.
I shall also argue that these court cases are not only about norms and
women’s rights, but they are also, more interestingly, cultural contesta-
tions over gender relations and different visions of society. Law is not only
about regulations, but also, as Clifford Geertz (1983) famously suggested,
a way of “imagining the real” and of constructing social reality. Different
legal orders, then, imagine the real and construct social reality differently,
and therefore offer different visions of society (Pradhan, 2003; 2007). It
could be argued that legal contestations are cultural contestations just as
legal constructions are cultural constructions (Merry, 2009). More spe-
cifically, I hope to show that these court cases are cultural contestations
because they involve opposing legal constructions or paradigms of women.
Hindu norms, as least as reflected in the paradigm of argument used by
the state authorities as defendants in the court cases and by some Supreme
Court judges, construct women as dependent, incomplete, different, and
unequal to men, while international human rights law, especially women’s
rights law, constructs women as independent, autonomous, and equal to
men. Similarly, the paradigms of argument concerning women’s rights are
also contestations over whether to adopt the global norms and culture of
international human rights and modern and civilized society, or to retain
traditional “customs,” social structure, and what modernists would regard
as “uncivilized” society, based mainly on Hindu norms.
In the concluding section, I reflect on the relations between legal
changes and cultural changes in a legal pluralistic, multicultural, predomi-
nantly rural society that is struggling to be “modern.”

H INDUISM , L AW , AND THE S TATE

Hinduism has been of central importance to Nepali polity and society ever
since Nepal emerged as a nation-state in the late eighteenth century. Nepal
was a Hindu kingdom and Hinduism its official religion until January
2007, when the Parliament proclaimed it a secular, republican state. The
upper-caste Hindus who ruled (and still rule) Nepal had an aggressive pol-
icy of Hinduization as a means of forging national identity, legitimizing its
rule, and governing the population. One instrument of this policy was the
law, especially the Muluki Ain, which was largely based on Hindu law and
which structured the society in terms of a single caste hierarchy, irrespec-
tive of the fact that the population included many indigenous communities
168 R a j e ndra Pra dh a n

who were not Hindus.5 The promulgation of the Muluki Ain in 1854
was an attempt to rule not only by the force of arms but also by means of
the cultural power of law to create meaning and construct social reality;
in other words through hegemony in addition to force (Chanock, 1985;
Lazarus-Black and Hirsch, 1994; Merry, 1994; 1995).
Although the Muluki Ain was heavily influenced by Hinduism, it did
permit and even include customary laws of different communities, Hindu
as well as non-Hindu, especially concerning family law (Fezas, 1990; 1993,
p. 16; Gilbert, 1993; Burghart 1996, p. 239; Khanal, 2002; Hofer, 2004;
Sharma, 2004, p. vii). However, over time increasingly more ethnic groups
adopted or were forced to conform to Hindu norms, especially concerning
inter-caste relations (Gellner et al., 1997; Pfaff-Czarnecka, 1997; Pradhan,
2002; Hofer, 2004) and to some extent family law (Gilbert, 1993).
A new Muluki Ain was promulgated in 1962 at the beginning of the
authoritarian Panchayat Regime (1960−1990), which was in some ways
more egalitarian than the earlier code in that, for example, it no longer
regulated intercaste relations. However, the new Muluki Ain continued to
discriminate against women and was even more intolerant of legal and cul-
tural pluralism than the old. During the Panchayat period, the state inten-
sified the processes of modernization, homogenization of cultures and
law, and Hinduization (Pfaff-Czarnecka, 1977; Tamang, 2000; Gellner,
2001; Pradhan, 2002; 2003). For example, the state attempted to enforce
a single system of family law and a “modern legal family” that was modeled
on high-caste Hindu norms (Bennett, 1979; Gilbert, 1993, pp. 467, 473;
Tamang, 2000, p. 136). This adversely affected the norms of non-Hindu
communities concerning, for example, marriage, property, and family.6
During the Panchayat period there were some changes in the Muluki Ain
related to family law, for example, regarding the minimum age of marriage,
mutual consent required for marriages to be valid, and limited rights of
daughters to ancestral property (if they remain unmarried until 35 years of
age), partly in response to the International Women’s Year of 1975 (Bennett,
1979). While these legal changes led to improvements in women’s rights, at
the same time the state regulated women more strictly than before (Gilbert,
1993, pp. 66−7; Tamang, 2000). Tamang (2000) aptly characterized these
legal changes as a movement from family patriarchy to state patriarchy.
The Muluki Ain was the main body of state law until 1951, with its main
competition being the customary laws of different communities. The legal
universe became more complex after 1951 with the adoption of several suc-
cessive Constitutions (e.g., in 1951, 1962, and 1990) and hundreds of acts
and regulations. These new state laws drew on “Western” legal traditions
and were to a large extent secular in the sense that they were not based on
or influenced by religious law, even though the Constitutions of 1962 and
1990 declared Nepal a Hindu kingdom. These Constitutions guaranteed
equality before the law and some fundamental rights to all citizens. There
 Legal Plu ra l i s m i n t h e Su pre m e C ou rt 169

were tensions and contradictions between different state laws, especially

concerning women’s rights as citizens in the Constitution and their rights
and obligations as daughters and wives as regulated in the Muluki Ain.
Hinduism’s influence has been in decline, and correspondingly there
has been a gradual secularization of the state and society (including the
law) in the second half of the twentieth century, but especially after 1990
(Gellner, 2001; Sharma, 2002; Toffin, 2006). Nevertheless, Hinduism
still strongly influences the laws—state law as well as customary law—that
regulate family and gender relations of Hindus, particularly concerning
ancestral property, marriage, and control over women.
In the 1990s, both the Constitution of 1990 and international human
rights law became important instruments for legal activists in their efforts
to change discriminatory state laws. The new Constitution provided the
legal space for the citizens to challenge any state law as unconstitutional,
and gave the Supreme Court the right to adjudicate on the constitution-
ality of laws (Dhungel et al., 1998, p. 43). The 1991 Nepal Treaties Act
pushed the rights of Nepali citizens even further by enabling them to
question the validity of any state law that contravened international law
ratified by Nepal. According to that act, such international laws would
take precedence over national laws.
Thus at the beginning of the 1990s, the legal universe in Nepal com-
prised a complex relationship between the secular, egalitarian parts of
state law (especially the Constitution and acts and rules pertaining to
numerous issues such as the regulation of forests, land, companies, and
tax), the nonsecular and discriminatory parts of state law (especially some
provisions in the Muluki Ain), religious law and customary law of differ-
ent communities, and international law. The significance and power of
this legal order varied according to time and context. The Supreme Court
cases discussed below were litigated within this plural legal field.
Before discussing the court cases, it may be of some use to point out
that the debates about women’s rights are part of the cacophony of wider
debates and social movements in Nepal that intensified after the restora-
tion of democracy in 1990, and especially with the onset of the decade-
long Maoist conflict (1996–2006). In these movements ethnic groups,
Dalits (previously classified as “untouchable castes”), religious minorities,
the landless, and others argued about and demanded social, economic,
political, and legal changes that would lead to a more equitable and just
society.7 Religion was an explicit or implicit part of many of these debates
and movements, which were sometimes framed in terms of demands for
a secular state and the abolition of the institution of Hindu monarchy
(the custodian of the hierarchical Hindu social order), or opposition to a
secular state and support for the Hindu monarchy.8
These movements and debates were influenced and even shaped not
only by local historical, social, political, and economic processes, but also
170 R a j e ndra Pra dh a n

by various globalization processes, including modernization,9 transna-

tional social movements, international law, and foreign aid.10 The influ-
ence of these globalization processes is clearly reflected in, for example,
the PILs and the Supreme Court decisions concerning women’s rights,
which are imbued with the “discourses” (if not the spirit) of international
human rights and women’s rights law.

S UPREME C OURT C ASES P ERTAINING TO

W OMEN ’ S R IGHTS
This section is based on a reading of approximately 40 women’s rights-re-
lated cases filed in the Supreme Court between 1993 and 2006. Although
many of the decisions of these cases have been published and even trans-
lated into English (Timalsena, 2003), I have used copies of the original
documents, all written in Nepali, to get a better understanding of the
arguments used and the laws invoked by the petitioners, respondents,
and judges. These cases can be broadly categorized into three groups: (1)
property-related (9 cases); (2) relating to sex, marriage, divorce, abortion,
and so forth (13 cases); and (3) miscellaneous concerned with gender-
discriminatory laws, including discrimination in employment, citizenship,
and applying for a passport (16 cases). I shall discuss only a few of these
cases in this section to illustrate state legal pluralism and the deployment
of Hinduism and other norms in the Supreme Court.

M ARITAL R APE
The Petition
In July 2001 Meera Dhungana filed a PIL in the Supreme Court (Meera
Dhungana v. HMG/N, case number 2058, no. 55) challenging the legal
validity of the law on rape in the Muluki Ain, which did not include
forced or nonconsensual sex between a husband and wife in its definition
of rape. The petitioner argued that because mutual consent is the most
important basis for sexual relations, any nonconsensual sexual relations
between a man and woman, whether they are married to each other not,
should be categorized as a crime of rape. She argued that the law concern-
ing rape was based on the assumption that upon marriage a husband has
permanent consent from his wife to have sex with her whenever he wants.
The petitioner argued that this assumption is a residue of the English
common law tradition that “a woman is her husband’s property.” She did
not refer to Hindu norms concerning conjugal sexual relations.
The petitioner framed her argument in support of defining forced sex
between a husband and his wife as marital rape with reference to article
11 of the Constitution and international law,11 both of which guarantee
 Legal Plu ra l i s m i n t h e Su pre m e C ou rt 171

women rights to equality and nondiscrimination. She added that the Beijing
Conference recognized marital rape as violence against women. The petition
concluded that the law on rape in the Muluki Ain discriminates between
citizens on the basis of gender. The law treats the wife as a second-class citi-
zen, which is in violation of the Constitution as well as international law.

The Arguments of the Respondents

In their written reply, the representatives of the government argued that the
law defines rape as nonconsensual sex between a man and a woman, but
that this law applies only in cases where a man rapes a woman who is not his
wife. They claimed that Hindu religion as well as the traditions and norms
of Nepal would never accept the proposition that a husband would force his
wife to have sex with him. Therefore, the law on rape does not contravene
the Constitution or any international law pertaining to women’s rights.
During the hearing, the legal representatives of the government made
several arguments in defense of the existing law. They first argued that the
Constitution guarantees rights to equality only among equals. Married
and unmarried women are not equal because they have distinct and differ-
ent statuses and family responsibilities. Second, the law concerning rape
was based on the social norm that marriage implies a permanent agree-
ment by the wife that her husband can have sex with her whenever he
wants. Third, the requirement that a husband needs his wife’s consent
to have sex with her is not congruent with Hindu religion and tradition.
Finally, perhaps sensing that they did not have any valid argument, they
warned of the serious consequences for society if laws that have been
operative since ancient times are amended.

The Judgment
In its judgment, the Supreme Court first remarked that rape is a “beastly,
inhumane, and uncivilized act, and considered an abominable crime in every
civilized, humane, and cultured society.” It argued that forced sex between
a man and woman, irrespective of their marital status, is rape, and that rape
infringes on the victim’s human rights. To quote this part of the judgment,

Women too are human beings and . . . they are entitled to all human rights to
which human beings are entitled. Women should have the right to exercise
these rights, irrespective of their marital status. For this reason, the conten-
tion that a husband is permitted to force his wife to have sex with him is
to deny women’s rights to an independent existence, a dignified life, and
self-determination. To force women to let their bodies be used against their
will is a serious infringement of their right to live with dignity and self-
determination, as well as a disparagement of their human rights.
172 R a j e ndra Pra dh a n

Addressing the question of whether Hinduism condoned marital rape,

the judges argued that it does not. On the contrary, they argued:

As Hinduism stresses purity, cleanliness, and good faith in conjugal life,

it would not be acceptable to declare that it permits a husband to com-
mit such an inhumane act as raping his wife. It is but natural that mutual
consent is necessary for sexual relations between husband and wife. The
dharmasastras [religious texts] can never legitimize such acts because the
purpose of true religion is to never despise or harm anyone. Declaring mari-
tal rape a crime will not disrupt family life; on the contrary, it will increase
love and harmony.

The ruling expanded the definition of rape to include marital rape as a

punishable offense. This interpretation of rape would be “concordant with
the spirit of the right to equality as enshrined in the Constitution, in the
international human rights and women’s rights instruments that Nepal has
ratified, as well as in the family and criminal laws that have been amended
from time to time in accordance with the prevalent social norms.”
The three parties used different combinations of legal orders to sup-
port their arguments. The petitioner used both state law (Constitution)
and international law, while the respondents relied on state law (Muluki
Ain) and Hindu norms. The judges used a combination of all three legal
orders—state law, international law, and, for good measure, Hindu norms.
From the manner in which the different legal orders were used in their
arguments, it is clear that for each party these legal orders do not exist
separately, but interact, mix, compete, and even fuse or hybridize as “law”
within the single legal field of the Supreme Court and in their minds—a
good example of state legal pluralism.

H INDU N ORMS , THE C ONSTITUTION , AND

I NTERNATIONAL L AW
In many Supreme Court cases pertaining to women’s rights the state,
the judges, and the petitioners invoke Hindu norms, tradition, or cul-
ture in conjunction with other legal orders to either defend (Chanda
Bajracharya v. HMG/N) or challenge (Prakash Mani Sharma v. HMG/N)
discriminatory laws. Hindu norms are explicitly or implicitly invoked
because Hinduism is the religion of the majority of the population as
well as the official state religion, and Hindu norms strongly influence
norms concerning family law and women’s rights. It could be suggested
that all arguments in the Supreme Court concerning women’s rights are
made with reference to or in the shadow of Hindu norms (to paraphrase
Mnookin and Kornhauser, 1979). These arguments are also made with
reference to or in the shadow of the Constitution and international law.
 Legal Plu ra l i s m i n t h e Su pre m e C ou rt 173

We Are Hindus
Sometimes the judges refer to Hindu norms to defend existing law even
though it contravenes the Constitution and international law. In Chanda
Bajracharya v. HMG/N (filed in January 1995), which concerned several
laws that discriminated against women, the judges argued:

It cannot be denied that our law has been greatly influenced by Hindu juris-
prudence. This is because article 4 of the Constitution has declared Nepal a
Hindu Kingdom, and according to article 19 (1) we are Hindus who, with
due regard to prevailing traditional practices (customs), are supporters of
the religion that has been in existence since ancient times.

The judges defended the laws that discriminate against women because
they are sanctioned by Hindu norms and also because, in their opinion,
men and women are “naturally different” and have different social sta-
tuses. They did not explicitly rule that these laws were either constitu-
tional or unconstitutional but, while warning of dire consequences for
society if the “socially accepted traditions and laws are changed,” they
ordered the government to introduce a bill in the Parliament after con-
sultations with the wider society and experts.

Divorced Women’s Rights to Ex-husbands’ Property

In Shyam Maskey v. HMG/N (filed in March 2003), the petitioner chal-
lenged the constitutional validity of subsection 4(1) of the chapter “On
Husband and Wife” in the Muluki Ain, which grants a woman the right
to receive a share of her husband’s property upon divorce, but denies
a man the right to his ex-wife’s property. He argued that this law dis-
criminates against men and contravenes the right to equality guaran-
teed by the Constitution and international law, including, ironically, the
Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW). He then presented his case for declaring this law
invalid, using a mixture of laws based on the Constitution and Hindu
norms, and went on to argue that such a law will pose a danger to the
character or reputation of women, as they may be tempted to remarry in
order to accumulate property:

Our religion and customs, as well as . . . the Constitution of Nepal, do

not accept the law that stipulates that the husband has to give a share
of his property to a woman of such meaningless relationship [i.e., after
divorce], that she does not have to return the property no matter how
often she remarries, and that she is entitled to a share of the property of
her other [future] husbands.
174 R a j e ndra Pra dh a n

If the law is to remain as it is . . . it will legitimize the accumulation of

property by women who, disregarding their “character,” may marry a
second, third, and more times, such that it will create the condition for
women to be tempted by greed to harvest property, even if they are
mindful of their “character” or reputation. This will seriously disturb
the social structure of a Hindu kingdom like ours.

The Court did not address the religious arguments of the petitioner.
While acknowledging that the law granting women rights to the property
of their husbands upon divorce could be considered inconsistent with
the Constitution and international law (as it gave more rights to women
than men), it did not declare them void because doing so would encroach
on the competence of the legislature and could have grave consequences
for the society. It directed the state to appoint a committee for extensive
study before amending the law.
In invoking Hindu norms and Hindu culture to defend discrimina-
tory laws, the state, some judges, and petitioners appeal to and reproduce
the norms and “culture” as interpreted and practiced by the majority of
Hindus. They blur the boundaries between religion and state law.12 This
is surprising in a legal field and institution, the Supreme Court, which
in theory is supposed to apply the rule of (state) law and draw sharp
boundaries between state law and religion. However, many petitioners
and judges who oppose discriminatory laws based on Hindu norms do
separate religion and state law.

C ONSTRUCTIONS OF W OMEN , T RADITIONAL C ULTURE ,

AND THE M AKING OF A G LOBAL C ULTURE IN N EPAL
The debates and paradigms of argument in the Supreme Court are not
only about women’s rights and gender justice, but they are at the same
time cultural contestations as revealed in the different constructions of
women and gender relations and in the different visions of Nepali society.
The debates are framed in terms of the opposition between tradition, cus-
tom, Hindu culture, and norms (as reflected in the Muluki Ain) on the
one hand, and “modern” norms and culture based on the Constitution
(modern law) and the emerging global or international norms and culture
based on international human rights law on the other.

C ONSTRUCTIONS OF W OMEN
The different legal orders that the disputants and the judges invoke in
their arguments construct “women” differently. In other words, the term
“women” has different meanings in different legal orders, which assign
different rights (and obligations) and practices to women. The Muluki
 Legal Plu ra l i s m i n t h e Su pre m e C ou rt 175

Ain and Hindu norms, at least as reflected in the arguments in the Court,
construct women as being physically soft and weak;13 dependent on men
throughout their lives (as daughters, wives and widows, “the legacy of
Manu’s laws”14); and as legally incomplete and incompetent persons
(women who have not reached the age of 35 may not apply for passports
without permission from their husbands or fathers).15 Women further-
more cannot pass on citizenship to their children (“citizenship by birth
through the mother is not permitted”),16 and they do not have full con-
trol over their own property (stri-angsa dhan),17 and thus always need to
be protected by the state and by men. Women as wives are constructed as
the “property of their husbands” (implicit in the jāri payment―the com-
pensation to be paid to a husband whose wife has eloped with another
man),18 and as “bodies’ to fulfill husbands” sexual desires19 and to give
birth to offspring (divorce can be granted to a man whose wife does not
give birth to a child for ten years). They are sometimes portrayed as being
avaricious, as the petitioner in Shyam Maskey v. HMG/N (quoted above)
claimed. Women are categorized as naturally as well as socially different
from men, thereby justifying different laws for men and women.20
In many of the cases, the petitioners as well as many of the judges offer
other constructions of women that challenge these traditional (Hinduism-
inspired) constructions of women by drawing on the Constitution as well
as international laws. The Constitution most often represents women as
citizens with rights equal to that of men, with an independent legal iden-
tity, and capable of acting on their own. The construction of women as
“citizens,” devoid of social identity, status, gender, and so forth, pro-
vides the legal space for conferring on them all the rights that all citizens
are guaranteed in the Constitution.21 The major exception to this is the
provision that mothers are not recognized as competent legal citizens in
matters relating to the acquisition of citizenship by their children (Laczo,
2003). Furthermore, women, like other categories of people such as chil-
dren, the elderly, and the poor, are conceptualized as dependent persons
who require the state’s protection and help.
The international human rights and women’s rights laws that the peti-
tioners and sometimes the Court advocate have different constructions
of women than the National Code and the Constitution. They advocate
rights such as the right to become a complete person and rights to equal-
ity, freedom, honor, self-determination, self-respect, coexistence, a digni-
fied life, and so on.22 These rights resonate with the core values of the
human rights system as listed by Merry (2009, p. 221): “individualism,
autonomy, choice, bodily integrity, and equality.” All women irrespective
of their citizenship, religion, ethnicity, profession, or marital status should
have these rights by virtue of the fact that they are women and human
beings. The category “women” constructed by international human and
women’s rights laws is that of an abstract, essentialized, universal woman
176 R a j e ndra Pra dh a n

(and human being), ostensibly devoid of further social or cultural iden-

tity, at least in some interpretations of these laws (Visweswaran, 2004).
Or perhaps one could say that the culture that the category “women”
represents in this construction is that of modern culture, and certainly
for many Nepalese, “Western” culture. By invoking international human
rights law, women’s rights activists and sometimes the judges attempt “to
replace cultural practices that are discriminatory with other cultural prac-
tices rooted in modern ideas of gender equality” (Merry 2009, p. 12).
One may add that they are attempting to replace (or add to) one con-
struction of women with other constructions.

U NCIVILIZED AND C IVILIZED S OCIETY :

H INDU N ORMS AND I NTERNATIONAL H UMAN R IGHTS
Human rights discourse divides the world into civilized and uncivilized
societies, corresponding to societies that have adopted international
human rights law and those that have not (Merry, 2009).23 During the
course of arguments in several of these Supreme Court cases, a contrast
was drawn between a traditional, barbaric, uncivilized society that sup-
ports gender-discriminatory laws and practices, and a modern, civilized,
global society that accepts the norm of gender equality. According to one
petitioner, “It is now beyond doubt that societies that accept the view
that women’s existence is similar to men’s have now become civilized and
advanced” (Punyabati Pathak v. HMG/N). Another petitioner (Prakash
Mani Sharma v. HMG/N) argued that the law that subordinated a woman
to her husband contradicted the modern human norm that every individ-
ual should have the capacity to become a complete person. Some of the
judges likewise commented on modernity, civilization, and international
norms, and the necessity of adopting laws that are in accordance with
global law and culture.
For example, in Meera Dhungana v. HMG/N, the Court noted that
“[a]cts that degrade the existence and dignity of women, infringe on their
right to self-determination, support their slavery and servitude, or treat
them like a piece of property are not suitable in this civilized age; they
were things done during the stone age.” Similarly, in Rina Bajracharya
v. RNAC, the Court observed, “In whichever country and era this eter-
nal fundamental principle [i.e., that human rights are available equally to
both men and women] has been observed, the condition of that country
or era has been golden or it has become civilized and humane. In con-
trast, discrimination between men and women marks countries as lacking
in civilization and development.”
In these constructions, the marker of modernity and civilized society is
the acceptance and adoption of gender equality and international human
rights law, in other words, a culture different from traditional (nonsecular,
 Legal Plu ra l i s m i n t h e Su pre m e C ou rt 177

inegalitarian) cultures that accept and reinforce gender discrimination.

Because the traditional culture, customary law, and state laws of many
societies are based on or draw inspiration from religion (Hinduism in
Nepal’s case), an opposition is made between secular and nonsecular soci-
ety and law. Modern law and international law are supposed to be secular,
corresponding to the secular modern, civilized societies.
The Supreme Court cases mentioned earlier explicitly or implicitly refer
to this debate between religion, custom, and traditional culture on the
one hand, and the secular, modern culture of international human rights
and gender equality on the other. These debates in the Court reflect the
debates in the wider society, which is striving to be “modern,”24 civilized,
and global, and yet retain its culture, which is changing, flexible, hetero-
geneous, and contested by different groups.

C ONCLUSION
The cases pertaining to women’s rights demonstrate that the disputants
and the judges in the Supreme Court of Nepal refer to a combination
of different legal orders to justify their arguments. In this plural legal
field, Hindu norms and Hindu “culture” are no longer as important or
powerful as they were in the past, and in fact are being strongly con-
tested, just as the dominant Hinduism-influenced norms and culture of
the society, especially concerning gender relations and women’s rights,
are being questioned, at least by urban, middle-class women. There is
thus a disjuncture between the dominant norms of the society and state
laws pertaining to women’s rights, on the one hand, and the emerging
norms and international culture of some sections of the society, as well
as of the Constitution and international human rights laws, on the other.
This disjuncture is reflected in the different constructions of gender rela-
tions and the category “women,” as well as in visions of society in differ-
ent legal orders. Thus, the arguments in the Supreme Court about rights
are always also explicitly or implicitly cultural contestations.
The disputants and the judges attempt to bring about or resist cul-
tural transformation by means of law because, to paraphrase Merry (2009,
p. 15), as law changes so does culture (though not necessarily at the same
pace), just as law may change in response to or along with cultural changes.
However, in situations of cultural and legal pluralism, the relations between
law and culture and legal and cultural change are not as straightforward as
the advocates of legal change, especially legal activists and judges, seem to
imply (Benda-Beckmann, 1989). New laws and new ways of constructing
social reality and relationships not only have to contend with other existing
and emerging laws and cultures for legal and cultural hegemony, but they
also usually may have very little impact in the everyday lives and gendered
cultural practices of the vast majority of men and women.
178 R a j e ndra Pra dh a n

The legal changes pertaining to women’s rights, while reflecting and

constituting the emerging hybrid Nepali culture of gender equality and
modern, independent women, are opposed by many orthodox Hindus,
both men and women, for they threaten the established “traditional” social
order and Hindu norms. It is doubtful whether conservative Hindus will
accept and practice the new gender-egalitarian law and culture, especially
concerning family law and women’s independence, just as in Europe, where
conservative Christians are reluctant to accept gender-egalitarian laws.25
Moreover, many indigenous groups and religious minorities oppose these
laws because they threaten the customary law of their patriarchal family
and social order, albeit in ways that differ somewhat from the threat felt
among the Hindus (Tamang, 2000). It is an open question whether the
indigenous groups who demand the right to self-govern their communi-
ties and retain their traditions, customary laws, and judicial systems as part
of the rights of indigenous peoples would adopt international law pertain-
ing to women’ rights, especially when the leaders of indigenous people’s
movements are predominantly men, with different priorities from those
of women. In the rural areas, these new norms and the emerging global
culture of which they are a part may remain distant and confined more to
rhetoric and discourse than practice. Will the new law and global culture of
women’s rights be confined to urban middle- and upper-class Nepalese?
Urban middle-class women of all castes and ethnic groups seem to both
desire and fear these new rights and the meanings and values associated with
them. While these new rights, such as the law that now entitles daughters
equal rights to ancestral property, promise to make them more free, inde-
pendent, empowered, and even respected, they fear that these rights may
affect relations—of love, affection, and reciprocity—between brothers and
sisters, husbands and wives, and even parents and children (Kunreuther,
2009). New laws generate new meanings and norms that over time may
become part of the legal and cultural fields of each community, even as they
are contested, resisted, desired, and feared. These new meanings and norms
may even become dominant not only among urban middle-class Nepalese
but also over time among the rural population. However, what the new
human rights law and new cultural meanings offer at present is yet another
repertoire of law, rights, and meanings in culturally and legally plural social
fields that both women and men can call upon to negotiate gender relations
in general and family relations in particular as they strive to lead their lives in
accordance with their aspirations in a rapidly changing society that is strug-
gling to come to terms with its past and an uncertain future.

N OTES
* I would like to thank Keebet von Benda-Beckmann for her very valuable
suggestions.
 Legal Plu ra l i s m i n t h e Su pre m e C ou rt 179

1. The documents of the Supreme Court cases were located and photo-
copied by Supriti Timalsena over a period of six months in 2008. I am
grateful to her for her diligence in helping me with this research. Thanks
are also due to Social Science Baha for partial funding of this research
project.
2. A study conducted by the Forum for Law, Women and Development
(FLWD, 2006) showed that there were more than 200 provisions in the
state law that discriminated against women.
3. The Interim Constitution of 2007 included equal rights for women as one
of the fundamental rights and also defined Nepal as a secular, republican
state.
4. Some of the debates, especially concerning women’s rights to ancestral
property, have been going on for decades (Bennett, 1979; Tamang,
2000; Kunreuther, 2009). For a critical review of women’s movements in
Nepal, see Tamang, 2009.
5. On the Muluki Ain, see Fezas, 1990; 1993; Hofer, 2004; Sharma,
2004.
6. For an example of this among the Limbus of eastern Nepal, see Gilbert,
1993, p. 474.
7. For further elaboration of these debates, see Gellner et al., 1977; Gellner,
2001; Hutt, 2001; Dixit and Ramchandran, 2002; Whelpton, 2010. The
consequences of the Maoist conflict on women’s movements and rights have
not been studied systematically, but see Tamang, 2009, for a brief summary.
8. On Nepal as a Hindu state and the debates on secularism, see Sharma,
2002; Toffin, 2006; Leve, 2007; Malagodi, 2010.
9. On modernization and development in Nepal post-1990, see Liechty,
2008; 2010; see also Leve, 2001; Rankin, 2001. For earlier periods, see
Pigg, 1992; 1993.
10. On the influence of foreign aid in Nepal, especially concerning women’s
rights, see Tamang, 2000; 2002b; 2009; Leve, 2001; Rankin, 2001.
On the influence of international aid in human and women’s rights dis-
courses, see Belbase and Pyakuryal, 2000; Sangroula and Pathak, 2002.
11. More specifically, she referred to the Universal Declaration of Human
Rights (1948), the International Convention on Civil and Political Rights
(1966), the International Convention on Economic, Social and Cultural
Rights (1966), and the UN Convention on the Elimination of All Forms
of Discrimination against Women (1979).
12. For a good discussion of the contested relations between religion and
law, see Kirsch and Turner, 2009.
13. In Jeet Kumari Pangeni v. HMG/N the dissenting note of a judge states,
“Our legislature, understanding very well that women are physically soft
and weak, has given a woman who is raped the right to kill her rapist in
‘self-defense,’ within an hour of the rape, and without this killing being
considered a crime.”
14. Prakash Sharma v. HMG/N. Manu is the legendary author of the founda-
tional Hindu legal text Manusmriti. See also Bennett, 1979, p. 14.
180 R a j e ndra Pra dh a n

15. Punyabati Pathak v. HMG/N.

16. Achyut Kharel v. HMG/N.
17. Lily Thapa v. HMG/N.
18. Chanda Bajracharaya v. HMG/N; Bennett, 1979, pp. 49−50; Fezas, 1993.
19. The judges’ opinion in Meera Dhungana v. HMG/N notes: “Upon mar-
riage a wife gives her husband permission to have sex with her whenever
he wants.”
20. Rina Bajracharya v. RNAC.
21. However, Tamang, 2002a, following Carol Pateman’s theory of gen-
dered citizenship, argues that citizenship in Nepal is gendered.
22. Prakash Mani Sharma v. HMG/N; Lily Thapa v. HMG/N; Punyabati
Pathak v. HMG/N; Meera Dhungana v. HMG/N (a marital rape case);
Annapurna Rana v. Kathmandu District Court; Sapana Malla v.
HMG/N (the rape of a prostitute).
23. Commenting on gender equality movements in Hong Kong, Merry
(2009, p. 212) concludes, “Allegiance to gender equality and human
rights was a sign, both to them and to the outside world, . . . that Hong
Kong deserved a place in the ‘civilized’ community of nations.”
24. See Liechty, 2008; 2010 for discussions of modernity among middle-
class Nepalese.
25. I am grateful to Keebet von Benda-Beckmann for this point.

R eferences
Belbase, N., and S. Pyakuryal. A Study on Gender and Judges. Kathmandu: Pro-
Public, 2000.
Benda-Beckmann, F. von. “Scape-goat and Magic Charm: Law in Development
Theory and Practice.” Journal of Legal Pluralism 89, (1989): 129–48.
——— “Who is Afraid of Legal Pluralism?” Journal of Legal Pluralism 47, (2002):
37–82.
Bennett, L. Tradition and Change in the Legal Status of Nepalese Women.
Kathmandu: Centre for Economic Development and Administration, 1979.
Burghart, R. The Conditions of Listening: Essays on Religion, History and Politics in
South Asia. Delhi: Oxford University Press, 1996.
Chanock, M. Law, Custom, and Social Order: The Colonial Experience in Malawi
and Zambia. Cambridge: Harvard University Press, 1985.
Comaroff, J. L., and S. A. Roberts. “The Invocation of Norms in Dispute
Settlement: The Tswana Case.” In Social Anthropology and Law, edited by I.
Hammett, 77–112. London, New York, San Francisco: Academic Press, 1977.
Dhungel, S. P. S., B. Adhikari, B. P. Bhandari, and C. Murgatroyd. Commentary
on the Constitution. Kathmandu: DeLF, 1998.
Dixit, K. M., and S. Ramchandaran, eds. State of Nepal. Kathmandu: Himal
Books, 2002.
Fezas, J.“The Nepalese Juridical Tradition and Its Sources: A List of the Ain Books
Kept in the National Archives.” Abhilekh 8, no. 8 (1990): 121–34.
——— “Custom and Written Law in Nepal: The Regulations Concerning Private
Revenge for Adultery According to the Code of 1853.” In Nepal: Past and
 Legal Plu ra l i s m i n t h e Su pre m e C ou rt 181

Present, edited by G. Toffin, 3–21. New Delhi: Sterling Publishers, 1993.

Forum for Women, Law and Development (FWLD). Discriminatory Laws in
Nepal and Their Impact on Women. Kathmandu: FWLD, 2006.
Geertz, C. Local Knowledge. New York: Basic Books, 1983.
Gellner, D. “From Group Rights to Individual Rights and Back: Nepalese
Struggles over Culture and Equality.” In Culture and Rights: Anthropological
Perspectives, edited by J. K. Cowan, M.-B. Dembour, and R. A. Wilson, 177–
200. Cambridge: Cambridge University Press, 2001.
Gellner, D., J. Pfaff-Czarnecka, and J. Whelpton, eds.Nationalism and Ethnicity in
a Hindu Kingdom. The Politics of Culture in Contemporary Nepal. Amsterdam:
Hardwood Academic Publishers, 1997.
Gilbert, K. “Legal Rights and Social Strategies: An Ethnographic History of
Family Law in Modern Nepal.” Ph.D. diss., Yale University, 1993.
Hofer, A. The Caste Hierarchy and the State in Nepal: A Study of the Muluki Ain of
1854. Kathmandu: Himal Books, 2004 [1977].
Hutt, M., ed. Nepal in the Nineties. Delhi: Oxford University Press, 2001.
Khanal, R. R. Nepalko Kanuni Itihas Ko Ruprekha (An Outline of Nepal’s Legal
History). Kathmandu: Revati Ram Khanal, 2002.
Kirsch, T., and B. Turner. Permutations of Order: Religion and Law as Contested
Sovereignities. Farnham: Ashgate, 2009.
Kunreuther, L. “Between Love and Property: Voice, Sentiment, and Subjectivity
in the Reform of Daughter’s Inheritance in Nepal.” American Ethnologist 36,
no. 3 (2009): 545–62.
Laczo, M. “Deprived of an Individual Identity: Citizenship and Women in Nepal.”
Gender and Development 11, no. 3 (2003): 76–82.
Lazarus-Black, M., and S. F. Hirsch. Contested States: Law, Hegemony and
Resistance. New York and London: Routledge, 1994.
Leve, L. “Between Jesse Helms and Ram Bahadur: Women, NGOs, ‘Participation’
and ‘Empowerment’ in Nepal.” PoLAR: Political and Legal Anthropology
Review 24, no. 1 (2001): 108–28.
——— “Secularism is a Human Right: Double-binds of Buddhism, Democracy,
and Identity in Nepal.” In The Practice of Human Rights: Tracking Law Between
the Global and the Local, edited by M. Goodale and S. E. Merry, 78–113.
Cambridge: Cambridge University Press, 2007.
Liechty, M. Suitably Modern: Making Middle Class Culture in a New Consumer
Society. Kathmandu: Martin Chautari, 2008.
——— Out Here in Kathmandu: Modernity on the Global Periphery. Kathmandu:
Martin Chautari, 2010.
Malagodi, M. “Minority Rights and Constitutional Borrowings in the Drafting
of Nepal’s 1990 Constitution.” European Bulletin of Himalayan Research 37,
(2010): 56–81.
Merry, S. E. “Courts as Performance: Domestic Violence Hearings in a Hawai’i Family
Court.” In Contested States: Law, Hegemony and Resistance,edited by M. Lazarus-
Black and S. F. Hirsch, 35–58. New York and London: Routledge, 1994.
——— “Resistance and the Cultural Power of Law.” Law and Society Review 29,
no. 1, (1995): 11–26.
——— Human Rights and Gender Violence: Translating International Law into
Local Justice. Delhi: Oxford University Press, 2009.
182 R a j e ndra Pra dh a n

Mnookin, R., and L. Kornhauser.“Bargaining in the Shadow of Law: The Case of

Divorce.” Yale Law Journal 88, no. 5, (1979): 950–97.
Pfaff-Czarnecka, J. “Vestiges and Visions: Cultural Change in the Process of Nation-
building in Nepal.” In Nationalism and Ethnicity in a Hindu Kingdom: The
Politics of Culture in Contemporary Nepal, edited by D. Gellner, J. Pfaff-Czarnecka
and J. Whelpton, 419–70. Amsterdam: Hardwood Academic Publishers, 1997.
Pigg, S. L. “Inventing Social Categories through Place: Social Representations
and Development in Nepal.” Comparative Studies in Society and History 34,
no. 3, (1992): 491–513.
——— “Unintended Consequences: The Ideological Impact of Development in
Nepal.” South Asia Bulletin 8, no. (1 and 2), (1993): 45–58.
Pradhan, R. “Ethnicity, Caste and a Pluralist Society.” In State of Nepal, edited by
K. M. Dixit and S. Ramchandaran, 1–21. Kathmandu: Himal Books, 2002.
——— “Legal Pluralism, Models of Society and the Politics of Cultural Difference
in Nepal.” In Legal Pluralism and Unofficial Law in Social, Economic and
Political Development. Papers of the XIIIth International Congress, 7–10,
Chiang Mai, Thailand, Vol. II, edited by R. Pradhan, 443–61. Kathmandu:
ICNEC, 2003.
——— Negotiating Multiculturalism in Nepal: Law, Hegemony, Contestation
and Paradox. Paper Presented at the Conference on Constitutionalism and
Diversity, Kathmandu, August 22–24, 2007.
Rankin, K. “Governing Development: Neoliberalism, Microcredit, and Rational
Economic Woman.” Economy and Society 30, no. 1, (2001): 18–37.
Sangroula, Y., and G. Pathak. Gender and Laws: Nepalese Perspective. Kathmandu:
Pairavi Prakashan, 2002.
Sharma, P. R. The State and Society in Nepal: Historical Foundations and
Contemporary Trends. Kathmandu: Himal Books, 2004.
Sharma, S. “The Hindu State and the State of Hinduism.” In State of Nepal, edited
by K. M. Dixit and S. Ramchandaran, 22–38. Kathmandu: Himal Books, 2002.
Tamang, S. “Legalizing State Patriarchy.” Studies in Nepali History and Society 5,
no. 1, (2000): 127–56.
——— “Dis-embedding the Sexual/Social Contract: Citizenship and Gender in
Nepal.” Citizenship Studies 6, no. 3, (2002a): 309–24.
——— “The Politics of ‘Developing Nepali Women.”’ In State of Nepal, K. M.
Dixit and S. Ramchandaran, 161–75. Kathmandu: Himal Books, 2002b.
——— “The Politics of Conflict and Difference or the Difference of Conflict in
Politics: The Women’s Movement in Nepal.” Feminist Review 91, (2009):
61–80.
Timalsena, R. K., ed. Some Landmark Decisions of the Supreme Court of Nepal.
Kathmandu: Supreme Court of Nepal, 2003.
Toffin, G. “The Politics of Hinduism and Secularism in Nepal.” Studies in Nepali
History and Society 11, no. 2, (2006): 219–40.
Visweswaran, K. “Gendered States: Rethinking Culture as a Site of South Asian
Human Rights Work.” Human Rights Quarterly 26, no. 2, (2004): 483–511.
Whelpton, J. A History of Nepal. Delhi: Oxford University Press, 2010.
Woodman, G. R. “Ideological Combat and Social Observation: Recent Debates
about Legal Pluralism.” Journal of Legal Pluralism 42, (1998): 21–59.
 11

NATURAL LAW, RELIGION, AND

T H E J U R I S P R U D E N C E O F T H E US
SUPREME COURT

Lawrence Rosen

The question of whether the law is becoming more entwined with reli-
gion is an especially pressing issue in the US context. For while there is
no formal bar to courts using the language or concepts of religion, and no
limits on the ways in which a document like the US Constitution—itself
treated by some with religious reverence—may be interpreted, the polar-
ization of political discourse has also been accompanied by the intrusion
of religiously inflected notions into the legal domain. This becomes evi-
dent in the quiet but very significant move to the language and precepts
of “natural law,” which may have begun to influence the decisions of vari-
ous jurisdictions, most importantly the US Supreme Court.
Natural law has never had a formal place as a source of American law.
Scholars and judges may argue that their approaches are based on con-
formity to the “natural”: Lon Fuller (1946, p. 378) could argue that the
antidote to personal predilection is for the judge to “discover the natural
principles underlying group life,” while others have argued that natu-
ral law is revealed in the consent of the governed (Wright 1994−1995,
p. 466). Even if natural law is not mentioned specifically it may, neverthe-
less, be discernible in various forms and other terms in American legal
thought.1
Overall, there are three main types of natural law: one based on the
natural sciences; one derived from divine injunction, commonly inscribed
in sacred texts; and one grounded in a set of moral propositions not linked
to a specific religious or scientific doctrine. Variants exist for each type:
those based on science may be regarded as “facts” to which courts should
184 L awrence Rosen

grant judicial notice or strong evidential weight (facts that are said to be
provable by impartial and stringent criteria); those based on the common
features of multiple religious doctrines (such that their application would
not seem to favor any particular faith); and those whose morality has
become so pervasive within a society as to appear integral to its history
and easily accessed by common sense. Each requires some degree of inter-
pretation, although the first claims its legitimacy on the basis of neutral
methods, the second on divine commands, and the third on being suf-
ficiently widespread and vital to social stability as to appear self-evident.
Moreover, each form may be made explicit by judges or cast in terms that,
intentionally or not, mask the underlying basis of its authority. Thus, to
some, natural law is nothing more than a veil cast over personal beliefs,2
while for others the accepted sources of the law—statutes, constitutions,
and case law—are themselves but the overt expressions of natural law’s
deeper structure. That the entire matter may, therefore, seem to exist
only in the eye of the beholder or as a way of rationalizing and legitimiz-
ing what may not be acknowledged overtly gives to this subject both its
sought-for reason for being and its distinctive flavor in particular jurispru-
dential contexts.
In this chapter, I will first trace some of the ways in which natural law—-
whether called that or not—has found its voice at certain moments in US
law. Turning then to the present US Supreme Court, I will consider in what
ways natural law might play a role in the thinking of the more conservative
members of the Court. There are currently six Catholics on the Court,
four of whom—Scalia, Roberts, Alito, and Thomas—are very conservative
(whereas Kennedy is more moderate and Sotomayor is liberal), and the par-
ticularities of their orientations are, therefore, especially relevant.3 Finally, I
will suggest that this is neither a cabal nor a hypocritical move on the part of
the conservative justices, but that their orientation is one American politi-
cians and commentators have been reluctant to address, particularly when a
nominee is being considered for appointment to the Court.

N ATURAL L AW IN A MERICAN L EGAL T HOUGHT

Natural law in the West generally refers to those principles God is said to
have fixed in the world that can be discerned by human reason. It may
incorporate revealed law “written in the hearts of man” (Romans 2:14ff.)
or be generalized (“Natural Law underwrites morality as such, rather than
any particular moral code”: Cross and Livingston, 2005, p. 1139)4. In
American jurisprudence opposition to natural law accelerated after the
Civil War, when Justice Holmes and others asserted that there are no objec-
tive concepts of right and wrong to which judges may appeal (Alschuler,
2002, pp. 9–10). By the late nineteenth century, reference to natural law
had been largely replaced by “natural rights,” a phrasing that not only
 Nat u ra l L aw , R e l i g i o n 185

recalled the founders’ terminology but also implied a shift from commu-
nitarian values to the property rights of individuals. The present revival of
natural law has been furthered by a union of Catholics and Evangelicals
brought together by the social issues they share—anti-abortion, public
accommodation of religion, limitation of sexual expression, and main-
tenance of “traditional” family forms. They have engaged in a division
of labor, with the Catholic intellectuals emphasizing the theological and
philosophical side, and the Evangelicals adding political clout in regions
previously ill-disposed to the Church of Rome.5 Both groups have pros-
pered economically, thus reinforcing their shift from communitarian val-
ues to those related to private property. Politically, their alliance—which
they refer to as “co-belligerency”6—was particularly compatible with the
presidency of George W. Bush, who found in natural law a way to imag-
ine that if the obstacles to freedom were simply eliminated—as, say, in
Iraq—democracy would take its natural course. Moreover, this intellec-
tual alliance undoubtedly influenced President Bush’s choice of Supreme
Court nominees.
On the intellectual side, the Catholic natural law movement has found
in John Finnis, Robert George, and others the advocates for drawing
natural law back into American jurisprudence. George (2008) character-
istically argues that certain communitarians and individualists share a mis-
taken view of human nature and the human good: as humans incorporate
reason and freedom, it is simply a matter of practical reasoning to apply
natural law principles to everyday adjudication. Judges may deduce pre-
cepts from natural law just as mathematicians or natural scientists do in
their realms. Key words like “flourishing,” “fulfillment,” and “dignity,”
which are associated with natural law, form a central part of this discourse
and now find their way into some judicial opinions.
We can note here several conceptual shifts. Natural law is elided with
practical reasoning (as in Thomistic thinking); history and tradition reveal
the truth of natural law’s substantive propositions; and even Holmes’s
“descriptive sociology” is marshaled to further authorize its universal
claims. Others, like Wolterstorff (2008), argue against any nonreligious
base for the morality of law, as even secularists and unbelievers are said
to derive their legal precepts from biblical sources, while libertarians like
D’Amato (2007−2008) argue that natural law stems from the universal
proposition that no party may take advantage of another. The connection
to America is commonly made through a particular reading of the US
Constitution and its predecessor documents.
For contemporary natural law proponents, the Constitution must
be seen against the backdrop of such documents as the Declaration of
Independence, itself read as grounded in Christian doctrine. Seeing the
United States as a Christian nation, they cite the Declaration for its refer-
ence to the “Laws of Nature and of Nature’s God,” and take this to mean
186 L awrence Rosen

the Christian view thereof.7 In support, they cite not the founders’ deism,
but their references to the Creator—even though almost none of these is
to Christ or Christianity, and none appears in the final Constitution. The
stakes are high. As Martin Marty has said, “The more you can associate
Christianity with the founding, the more you can sway the future Supreme
Court. Establish the founders as Christians, and you have it made” (Shorto,
2010).8 Indeed, Robert George has referred to the Constitution as a kind
of transparency or overlay, beneath which one can read the Declaration,
and beneath both the Sacred Text (as most authoritatively interpreted by
the Roman Catholic Church) in conformity with the founders’ original
intent.9 Indeed, many Catholic thinkers assert that natural law must exist
irrespective of particular faiths’ recognition of it. Father John Courtenay
Murray (1960, p. 41) is often quoted for his assertion that “Catholic par-
ticipation in the American consensus has been full and free, unreserved
and unembarrassed, because the contents of this consensus—the ethical
and political principles drawn from the tradition of natural law—approve
themselves to the Catholic intelligence and conscience.” “It is not an
American belief,” he declares, “that free government is inevitable, only
that it is possible, and that its possibility can be realized only when the
people as a whole are inwardly governed by the recognized imperatives of
the universal moral law” (Murray, 1960, p. 36).
The clearest judicial proponent of tradition as a source for legal deci-
sion making and of natural law thinking generally is Justice Antonin Scalia
(Biskupic, 2010). In a statement that provoked a great deal of attention,
Scalia (2002) cited St Paul for the idea that “government derives its moral
authority from God”; that “[t]hese passages from Romans represent the
consensus of thought until very recent times not just of Christian or reli-
gious thought, but of secular thought regarding the powers of the state”;
and (in a statement that provoked special controversy) that one can detect
“the tendency of democracy to obscure the divine authority behind
government.”10 Rather than invoke natural law directly, however, Scalia
and the other conservative justices employ other conceptual categories.
All legal systems engage in the manipulation of categories. Thus,
Edward Levi (1949) characterized the American common law system as
“a moving system of categorizing concepts.” Indeed, in the common law
what often happens is not so much picking a category to get the desired
result, but that a category starts to fill up in a particular manner through
case application and then comes to have implications that are less favored
by those who have previously employed it, which in turn prompts a shift
to a more accommodating category. Thus, the federal Constitution’s
Commerce Clause was extended to include many civil rights only for it
later to become (for certain judges) too problematic a category to include
affirmative action legislation, at which point the existing category was
warehoused and there was a shift to a new legal paradigm.11 All of this
 Nat u ra l L aw , R e l i g i o n 187

bears on the question of natural law in American jurisprudence because

what may have fit for some judges under one category or terminology
may later shift to another—which is precisely what has occurred with
natural law.12
Two of the categories under which natural law may be subsumed are
those of “history” and “tradition.” Under these rubrics, a number of
conservative scholars and judges argue that one is not merely upholding
the cultural identity of a nation, but also those deeper precepts of nature
that have given rise to our institutions. Thus, Chief Justice Rehnquist
cited “history” in support of restricting the ability of Native Americans
to engage in certain religious practices; Justice White cited “tradition” in
rejecting challenges to state sodomy laws; and Justices Scalia and Thomas
have referred to the “traditions of our people” in support of the display
of religious symbols on government lands.13 Clearly one cannot say that
such rationales have no other source than the religious beliefs of these
judges, but the language in some of their judicial opinions does suggest a
link between religious foundations and the choice of legal concepts.
Catholic judges and scholars have been as concerned as any about the
appropriate relation of their religious beliefs to judicial decisions.14 Scalia
himself should be taken at his word when he says that his religion has
no bearing on his decisions, although I know of no case—certainly not
those involving the death penalty—in which he has stated that he had to
rule one way as a judge while feeling compelled to decide differently as
a believer.15 As one would expect, there have been commentators on all
sides of the issue. Judge D’Army Bailey (2006, p. 446) argues that one’s
beliefs should be relevant to one’s judgments, especially when the judge
might have to recuse himself. Failure to ask about the beliefs of Supreme
Court nominees, he says, may be “polite,” but “[i]n reality, however,
the judges have beliefs, their beliefs are relevant to their decision-mak-
ing, and sharing those beliefs will not threaten impartial justice. Those
beliefs should be open to inquiry.”16 Some (e.g., Franck, 2006, p. 452)
regard any such inquiry as starting down the path of asking what kind
of Catholic (or Protestant, or Jew, etc.) one is. Others, like Judge Pryor
(2006, p. 358, italics added), argue that “Catholics should welcome a
conversation about the religious faith of federal judges,” but add that “a
federal judge has no authority to use natural law as a way to subvert the
clear commands of the positive law”. They fail, however, to indicate what
should be done when matters are not clear. Regrettably, much of this dis-
cussion never addresses whether natural law, based in one’s faith, may be
drawn upon in such adjudication. The result is either to leave the question
aside for fear it will spark inappropriate questioning of one’s religion, or
to obscure the role that natural law is actually playing.
For example, in the creationism case (Edwards v. Aguillard), Justice
Scalia refers to “evidences,” a concept, drawn from canon law thinking
188 L awrence Rosen

that implies there are indications in this world of the underlying natural
law precepts of revealed religion. He goes on to speak of “our ancient
tradition of contra bonos mores,” a similar canon law derivation that is not
usually part of the common discourse of American law.17 In McCreary
County, KY v. American Civil Liberties Union, a case concerning the dis-
play on public property of the Ten Commandments, Scalia relied on the
commandments’ historical significance to claim that the Mosaic law pos-
sessed only a secular purpose, while in another case he denied any right
of visitation to the father of a child whose mother was married to another
man because such a family form was not “rooted in the traditions and
conscience of our people.”18 Scalia especially emphasizes traditional prac-
tices in his decisions concerning homosexuality, as for example in Romer,
where he characterizes Justice Kennedy’s reference to state “animosity”
to homosexuals as being “animosity to evil,” when Kennedy never makes
use of the word “evil.”19 And his decision in United States v. Virginia,
a case requiring a state to admit women to an all-male military acad-
emy, clearly relies on the idea that a state may reasonably conclude that
the particular style of that academy’s programs is unsuitable for females
because of women’s very nature. It is, of course, perfectly valid to claim
that the Constitution leaves many matters of morality to the states, but
it is difficult if not impossible to find a case in which Scalia or the other
conservatives on the Court have, notwithstanding assurances to the con-
trary, actually ruled for a state practice about which they had moral res-
ervations.20 Thus, while we cannot say that natural law underlies many of
these justices’ decisions, we can point out such instances in which natural
law thinking appears very close to the surface, and how the language of
the natural law movement has shifted to embrace a widening range of
discourses and legal results.
Another stream to which the contemporary natural law movement
has attached itself is that of “natural rights.” This has, of course, long
been part of natural law thinking, but its current manifestation carries
with it several distinctively American implications. First, as we have seen,
it associates natural law with the rights expressed in the pre-Constitu-
tional documents of the republic. Second, it forges a link to the argu-
ments of one of the key intellectuals the conservative movement has
appropriated, namely, Leo Strauss, particularly as he set forth his ideas
in Natural Right and History (Strauss, 1999 [1953]). Although his own
politics were ambiguous and his view of nature one of possibilities and
questions rather than positivistic certainties, the Straussians have taken a
simpler and more absolute stand, indicating, for example, that men natu-
rally have precedence over women, or—as Hadley Arkes, an enthusiastic
Straussian and recent convert to Catholicism, argues—that marriage man-
ages nature (Norton, 2004, pp. 75−94). Third, switching to a discourse
of natural rights coincides with a move from the more communitarian
 Nat u ra l L aw , R e l i g i o n 189

view associated with natural law to a greater emphasis on individually held

private property, a move that further links the natural law proponents to
the conservative movement generally.21 Fourth, the concept of natural
law may even be extended to take over the civil rights discourse, as when
Justice Clarence Thomas, in his confirmation hearing, stated that in his
prior work as a “part-time political theorist for [the] Equal Employment
Opportunity Commission my interest in this area of natural rights was
looking for a way to unify and strengthen the whole effort to enforce our
civil rights laws” (quoted in Flax, 1998, p. 26). In these multiple termi-
nologies, then, the natural law thinkers have successfully imported natural
law concepts into the contemporary political and juridical environment
(Lane, 2008).
Perhaps nowhere has the issue of natural law been raised—and evad-
ed—more directly than in the confirmation hearings of recent conser-
vative Catholic nominees to the Supreme Court. The process began at
the hearings for Clarence Thomas.22 It was Senator (now vice president)
Joseph Biden, chair of the Judiciary Committee that reports out a nomi-
nee for the full Senate vote, who focused on natural law. He may have
been provoked by a number of comments Thomas had made in earlier
speeches, such as his statement that “[w]ithout recourse to higher law,
we abandon our best defense of a court that is active in defending the
Constitution but judicious in its restraint and moderation. Higher law
is the only alternative to the willfulness of both runamok majorities and
runamok judges.”23 Or Biden may have been concerned by Thomas’s
assertion:

The rule of law in America means nothing outside constitutional govern-

ment and constitutionalism, and these are simply unintelligible without a
higher law. Men cannot rule others by their consent unless their common
humanity is understood in light of transcendent standards provided by the
Declaration’s “Laws of Nature and of Nature’s God”. Natural law provides
a basis in human dignity by which we can judge whether human beings are
just or unjust, noble or ignoble.24

Introducing the hearings, Senator Biden referred to the ‘radical’ types

of natural law now being debated among scholars and to the “radical
change in direction that some are urging on the Court under the banner
of natural law.” A Catholic himself, Biden made clear that he thought
natural law was at the heart of the entire confirmation inquiry.25 Yet in his
questioning Biden made two missteps: he focused on natural law debates
rather than on where the candidate himself would go for guidance when
the law is unclear; and he failed to pin the candidate down to some hypo-
theticals or well-established precedents through which to explore the
actual content of his natural law thinking. Biden was so embroiled in
190 L awrence Rosen

his own demonstration of intellectuality that he left the door open for
Republican Senator Alan Simpson to undercut his questioning by show-
ing that there were numerous debates within the ranks of Straussians,
natural law thinkers, and theologians. As a result, Thomas was able to
dismiss the entire issue as a mental exercise rather than a source for adju-
dicating in an environment of uncertainty.
The result of the misguided discussion in the Thomas hearing was
that further consideration of natural law largely fell to the wayside when
subsequent nominees appeared before the committee. Thus by the time
John Roberts was being considered for Chief Justice in 2005, Biden
had shifted from asking about natural law to asking about stare deci-
sis, and the hearings the following year for Samuel Alito barely touched
on the topic.26 The nomination by President Bush of Harriet Miers in
2005 showed that without some clear indication, whether through natu-
ral law/rights thinking or a deep record of decisions consonant with it,
even an ostensibly conservative nominee might lack conservative sup-
port. A Catholic convert to Evangelical Christianity, Miers would seem
to have straddled the two parts of the co-belligerency alliance. Indeed,
Bush made her faith an indicator of her reliable conservative credentials
when he said (in the proper code words for the faithful), “Well, we know
her religious beliefs.”27 But conservatives—perhaps recalling how they
felt betrayed by the assurances of Bush’s father about the proclivities of
Justice Souter or Reagan about Justice Kennedy—felt her record was
too thin to be sure she would support their agenda. Although Bush told
his allies to “trust me” and emissaries were sent to mollify all sides, it
was not enough for the conservatives, and Miers was pressured to with-
draw.28 The whole issue of natural law and natural rights in confirmation
hearings may be said to have come to a ludicrous halt when, in 2009,
one senator, perhaps thinking he could trap even a liberal Catholic into
supporting his view, asked Sonia Sotomayor whether she agreed that gun
ownership was a God-given natural right, a question that (like so many
others) the nominee easily ducked (Dworkin, 2010).

T HE P OLITICS OF N ATURAL L AW
It is, of course, impossible to state with any certainty that natural law
thinking, grounded, say, in Catholic legal thinking is at the base of any
judge’s decision in America. The direct use of natural law in such deci-
sions would be wholly inappropriate because Americans profess to import
religion into the law only in the most generalized of ways. Nor is the
argument that there is an unmistakably Catholic–Evangelical alliance in
any way an assertion that this constitutes some sort of illegitimate move-
ment. To the contrary, it is a perfectly permissible quest for understanding
and influence within the American political system. It is also clear that
 Nat u ra l L aw , R e l i g i o n 191

one of the intellectual and political tactics of the movement has been to
appropriate concepts that are not linked exclusively to the form of natural
law the proponents profess.29 Thus, as we have seen, the particular use of
natural rights, tradition, conscience, and similar concepts has facilitated
the merging of various political and religious streams that may not have
occurred if the term natural law was used overtly. What is quite clear
is that this movement does exist, that it has proven very successful as a
vehicle for supporting judicial nominees (as well as Justice Department
officials and Supreme Court clerks), and that it has been vital to the politi-
cal alliance of previously antipathetic denominations.30 Indeed, we can see
this movement as part of a larger pattern of divisions among justices of the
current Supreme Court.
The Court has properly been characterized as one whose members
are, on each side of the liberal-conservative divide, in lock-step with one
another on a wide range of issues—and with the political party of the
president who appointed them.31 But while some would argue that each
side lacks an overarching theme that draws together decisions on such
diverse matters as abortion, states’ rights, affirmative action, environmen-
tal concerns, stem cell research, gay marriage, and gays in the military, it
might be suggested that for the conservatives there is a common theme,
namely, the belief that the more decentralized the government the more
influence ethical leaders may be able to exercise on the formation and
interpretation of laws and the enhancement of those extra-legal moral
pressures that should predominantly govern the central concerns of our
lives. What links the decisions of the Supreme Court’s conservative wing,
then, is not a logic of case decisions, but the logic one finds in any culture,
in which the operative themes nevertheless partake of just that quality of
imprecision that permits each of the justices to assume that his or her view
is more correct without disrupting goals that are, at least for the moment,
shared. Words like “tradition” and “conscience” maintain both open tex-
ture and common pursuits: as Max Gluckman (1965, p. 326) noted, it is
as true of culture as of the legal that “[t]he ‘certainty’ of law resides in the
‘uncertainty’ of its basic concepts.”
Finally, while no one can enter the mind of any judge to determine
whether he or she has actually made a decision on the basis of personal,
religious, political, or psychological motivations, there is certainly enough
evidence from earlier decisions to indicate that such has, at times, been
the case. For example, a justice who, in the late nineteenth century could
say that “divine law” and “the nature of things” precludes a woman from
becoming a member of the bar,32 or the fact that as many as 27 justices
who owned slaves may have been influenced by their belief that slavery was
not inconsistent with God’s law, or some judges’ belief that the American
flag is rendered sacred not simply by emotional attachment but by its
symbolizing the state’s legitimacy as “God’s minister” are all propositions
192 L awrence Rosen

that have had persuasive force in their day. This is certainly not to say that
beliefs grounded in natural law are necessarily right or wrong. Rather it
is to suggest that failure to take seriously the role of natural law in the
current thinking of those justices (and other judges, legal scholars, and
politicians) who profess a sincere attachment to it because we are afraid
of appearing critical of another’s religious beliefs33 is not only to fail to
attend to those who honestly seek to persuade us of their arguments, but
also to hide from the factors that may be influencing, directly or indi-
rectly, some aspects of current American jurisprudence.

N OTES
1. One would not, for example, expect a present-day court to express its
moral claims as baldly as did earlier justices. Thus in 1890 Justice Fields,
in Davis v. Beason, said: “Bigamy and polygamy are crimes by the laws
of all civilized and Christian countries. To extend exemption from pun-
ishment for such crimes would be to shock the moral judgment of the
community.” Nor would we expect even the four conservative Catholic
justices who dissented in Christian Legal Society v. Martinez to adopt the
language of one brief that spoke of adultery as “sins against nature.”
2. As Ely (1980, p. 50) observed, “The advantage, one gathers, is that you
can invoke natural law to support anything you want. The disadvantage
is that everybody understands that. Thus natural law has been sum-
moned in support of all manner of causes in this country—some worthy,
some nefarious—and often on both sides of the same issue.” See also
Dershowitz, 2005.
3. Although the four conservative Catholics commonly vote the same way,
they do not always seem totally united. Speaking of Thomas, Scalia once
said, “I’m a conservative, I’m a textualist, I’m an originalist, but I’m not
a nut” (quoted by Jeffrey Toobin in an interview with Terry Gross on
National Public Radio’s Fresh Air program, September 19, 2007). Justice
Alito poked fun at Scalia’s originalism when, in oral argument in a case
involving video games, he followed up on a remark by Scalia by saying, “I
think what Justice Scalia wants to know is what James Madison thought
about video games.” Scalia, apparently not amused, replied that he was
concerned by what Madison thought about violence (Schwarzenegger,
p. 17). The rift between liberals and conservatives on the Court is
reflected in the fact that even their clerks are now largely chosen for their
political compatibility, and that even the justices communicate mostly in
writing and rarely visit each other’s offices (Toobin, 2007, pp. 117−8;
Liptak, 2010).
4. Aquinas refers to natural law as “rational creatures’ participation in the
eternal law.” For a general discussion, see d’Entreves, 1970.
5. A precipitant to this alliance may, ironically, have been the decision (writ-
ten by Scalia) in Employment Division v. Smith supporting a state statute
 Nat u ra l L aw , R e l i g i o n 193

restricting use of peyote by Native Americans and setting the standard

of constitutional review only at the level of a “rational relationship,”
thus potentially allowing states to limit various religious practices. As a
result, numerous religious groups coalesced to get Congress to reset the
standard to the higher “compelling state interest” under the Religious
Freedom Restoration Act, a law that was in turn deemed by the Court, in
City of Boerne v. Flores, an unconstitutional infringement of its decision-
making powers.
6. On co-belligerency and its organizational implications, see Mohler, 2003,
as well as articles in that same issue of Touchstone by Robert George and
Father Richard Neuhaus. All has not been perfect in the relationship:
Neuhaus does not like the Evangelicals’ “overly confident claims to being
born again,” their “forced happiness and joy,” and their “awful music”
(Linker, 2007; Boyer, 2010). Many Catholics, especially Hispanics, now
identify simultaneously as Catholic and Evangelical.
7. One poll (First Amendment Center, 2010) shows that 53 percent of
Americans agree with the proposition that the Constitution “establishes
a Christian nation,” a view that reinforces the conservatives’ ability to
unite disparate elements of the polity under an implied rule of natural
law. (Another 15 percent agree “mildly” with the proposition, and only
26 percent disagree.)
8. In Church of the Holy Trinity v. U.S., the Court cites the Declaration
in holding that an anti-sweatshop law cannot bar a congregation from
bringing into the country a minister of its choice (Fletcher, 2001).
9. Introductory remarks by Prof. George to the first Walter Murphy Lecture
at Princeton University. Some advocates of applying natural law to US
case law also cite the Mayflower Compact and the Federalist Papers in this
discussion. While it is true that a working draft of the Bill of Rights drawn
up by Roger Sherman stated that “[t]he people have certain natural rights
which are retained by them when they enter into Society,” including the
right “of acquiring property,” the final draft contains no reference to
natural rights (Mitgang, 2010).
10. Scalia (2002) further states that “in the words of a Supreme Court
opinion from the 1940s ‘we are a religious people, whose institutions
presuppose a Supreme Being,”’ and that St Paul was correct to assert
that government carries the sword as “the minister of God,” to “execute
wrath upon the evildoer” (citing Romans 13:1−5). The article prompted
a strong editorial against Scalia’s position by the Washington Post and a
heated exchange between Sean Wilentz and Laurence H. Tribe (2002).
11. Small wonder that Kuhn (1962) analogized paradigm shifts in science to
the reasoning process in the common law.
12. Justice Hugo Black, in his dissent in Griswold v. Connecticut at n. 4, says:
“A collection of the catchwords and catch phrases invoked by judges who
would strike down under the Fourteenth Amendment laws which offend
their notions of natural justice would fill many pages.” A list of such
catchwords and phrases follows.
194 L awrence Rosen

13. Scalia’s reference in Bowers v. Hardwick to the “ancient roots” of laws

against sodomy is critiqued by Justice Stevens in McDonald v. Chicago.
By comparison, Justice Kennedy prefers the term “dignity,” a choice that
some have claimed reflects his own view of the principles, drawn from
his Catholic religious background, said to underlie the Constitution.
Attributing Kennedy’s jurisprudence to his Catholicism is, however,
insupportable from the available record, and his definitive split with Scalia
after the Court (in Lawrence v. Texas) struck down a state sodomy statute
turns more on the relevance to Constitutional interpretation of devel-
oping standards of behavior in the United States and abroad than on
religious promptings as such. As Judge Richard Posner says, “Kennedy is
a natural lawyer—a believer in the existence of universal moral principles
(the source of his ‘own sense of ethics and morality’) that informs—and
constrains—positive law” (Posner, 2008, pp. 311, 257 for the internal
quote from Kennedy; see also Toobin, 2007, pp. 223−4; Posner, 2010).
14. For a particularly thoughtful approach, see Noonan, 2009. Although
Judge Noonan’s essay is not focused on the situation of believing
Catholics, he does assert, “I do not understand the authority attributed
to conscience unless in some way it is responsive to God” (Noonan, 2009,
pp. 238−9). It is important to note that the usual style of American legal
opinions requires that a judge give reasons that are not based on personal
moral or religious orientations, thus maintaining a focus on common
grounds of argument even if, in truth, personal beliefs deeply affect the
outcome.
15. Scalia (2002) has said that if that were the case a judge would have to go
along with the statute or resign his post: “If a state were to permit abor-
tion on demand, I would—and could in good conscience—vote against an
attempt to invalidate that law because the Constitution gives the federal
government (and hence me) no power over the matter.” Scalia acknowl-
edges, particularly in the death penalty situation, that so far Church doc-
trine fortunately does not require him to change his opposition to the
abolition of the death penalty. For a recent iteration of whether American
judges and politicians must follow Church teaching, see Kmiec, 2009.
16. See also Carter (1989, p. 943), who asserts that “the religiously devout
judge ought to be free to rest her moral knowledge on her religious faith”
in the performance of her judicial duty. For a more general discussion, see
Greenawalt, 1994.
17. See Rosen, 1989. See also Erie v. Pap’s A.M. (Scalia and Thomas concur-
ring).The term bonos mores, although antiquated, is occasionally used in
contract law.
18. Michael H. v. Gerald D. citing Snyder v. Massachusetts. Scalia refers to
“tradition” 41 times in his opinion and repeatedly speaks of the tradi-
tional family, asserting that “to provide protection to an adulterous natu-
ral father is to deny protection to a marital father” (Michael H., p. 130;
italics in original). Compare, too, the case of Troxel v. Granville (for both
 Nat u ra l L aw , R e l i g i o n 195

cases, see Dubler, 2008). For a statement about the unnatural nature of
gay marriage, see the opinion of New York Times columnist and Atlantic
editor Ross Douthat (2010), who first converted to Pentacostalism and
then Catholicism.
19. Scalia—speaking also for Rehnquist and Thomas—argues that, in the
name of states’ rights, “Coloradans are, as I say, entitled to be hostile to
homosexual conduct” (Romer v. Evans, italics in the original). He further
referred to the Colorado law as an effort to “preserve traditional mores
against the effects of a politically powerful minority” that had “high dis-
posable income,” and he characterized the majority as furthering the so-
called homosexual agenda.
20. One possible exception is Scalia’s willingness to join the Brennan major-
ity in the flag-burning case, Texas v. Johnson, a position made all the more
curious because he later argues in Smith in favor of a lower standard
of scrutiny for state action than the Brennan majority had accepted in
Johnson.
21. The history of natural rights discourse is less fraught with religious over-
tones than that of natural law and, at least since the Enlightenment, has
carried overtones of a property-based republicanism that no government
has the right to alter (Edelstein, 2009).
22. Antonin Scalia’s confirmation hearing may not have addressed the issue
of natural law because President Reagan had just had his nomination of
Robert Bork turned down in a bitter Senate fight and his replacement
nominee, Douglas Ginsburg, had to withdraw after questions arose about
his use of marijuana. Moreover, the movement of Catholic natural law
was only gathering political force when Scalia was nominated in 1986 to
replace William Rehnquist, who was being moved up to Chief Justice.
23. Federalist Society for Law and Public Policy Studies, University of Virginia
School of Law, March 5, 1988. All of Thomas’s comments quoted here
were appended to the record of the confirmation hearings and are avail-
able at http://www.gpoaccess.gov/congress/senate/judiciary/sh102–
1084pt1/117–126.pdf.Thomas is also cited in the record as having said,
“The American conception of the rule of law presupposes appreciation
for the political philosophy of natural rights in all departments of govern-
ment. The conservative failure to appreciate the importance of natural
rights and higher law arguments culminated in the spectacle of Senator
Biden, following the defeat of the Bork nomination, crowing about his
belief that his rights were inalienable and came from God, not from a
piece of paper. We cannot expect our views of civil rights to triumph by
conceding the moral high ground to those who confuse rights with wil-
fulness” (Keynote Address, Pacific Research Institute’s Civil Rights Task
Force, August 4, 1988).
24. Quoted in the Senate hearings from “Affirmative Action: Cure or
Contradiction?” Center Magazine, November/December 1987. Thomas
also said, “a renewed emphasis on economic rights must play a key role in
196 L awrence Rosen

the revival of the natural rights philosophy that has brought this nation to
its second bicentennial year” (Pacific Research Institute speech, August
10, 1987).
25. In his opening statement to the nominee Biden said, “Judge Thomas,
you come before this committee, in this time of change, with a philoso-
phy different from that which we have seen in any Supreme Court nomi-
nee during my 19 years in the Senate, for, as has been widely discussed
and debated, you are an adherent of the view that ‘natural law’ philoso-
phy should inform the Constitution. Finding out what you mean when
you say you would apply a ‘natural law’ philosophy to the Constitution
is, in my view, the most important task of these hearings.” Biden then
went on to describe several types of natural law thinking before asking his
questions of the candidate.
26. The nominees also switched tactics by asserting that they were only
“umpires” in their judicial role, a stance that accorded with their repeated
assertions that they had “no agenda.” Their subsequent decisions on the
Supreme Court call this claim into question.
27. Quoted in Bailey, 2006, p. 445. On the Miers appointment, see
Greenburg, 2007, pp. 237−84; Toobin, 2007, pp. 329−45.
28. Robert George and Hadley Arkes were reportedly among these emissar-
ies (Kirkpatrick, 2005). In his last days in office Bush awarded George,
a banjo-picking West Virginian and ardent Catholic who could speak to
the Evangelicals as well as his co-religionists, the nation’s second highest
civilian award, the Presidential Citizens Medal.
29. It is also quite clear that the conservative Catholics on the Court, regard-
less of how central their attachment to natural law may be, almost always
vote in a bloc. In the opinion of Court-watcher Jeffrey Toobin (2009),
“After four years on the Court, however, Roberts’s record is not that of
a humble moderate but, rather, that of a doctrinaire conservative. The
kind of humility that Roberts favors reflects a view that the Court should
almost always defer to the existing power relationships in society. In
every major case since he became the nation’s seventeenth Chief Justice,
Roberts has sided with the prosecution over the defendant, the state over
the condemned, the executive branch over the legislative, and the corpo-
rate defendant over the individual plaintiff. Even more than Scalia, who
has embodied judicial conservatism during a generation of service on the
Supreme Court, Roberts has served the interests, and reflected the val-
ues, of the contemporary Republican Party.” Thus, “In a case about the
free-speech rights of students, Roberts wrote the opinion approving the
suspension of a high-school student in Alaska for holding a sign that said
‘BONG HiTS 4 JESUS’ on a street off school grounds. The Chief Justice
said the school had the right to ‘restrict student speech at a school event,
when that speech is reasonably viewed as promoting illegal drug use.’
Thomas, characteristically, wrote a concurring opinion urging the Court
to go farther and hold that students have no First Amendment rights at
 Nat u ra l L aw , R e l i g i o n 197

all. But the larger point remained that Roberts, Scalia, and Thomas voted
together in that case, as they do virtually all the time. ‘These kinds of
distinctions among the conservatives are just angels-on-the-head-of-a-pin
stuff,’ says Theodore B. Olson, the former Solicitor General.”
30. On the movement as a whole, and the crucial role of the Federalist
Society in particular, see Teles, 2010. Like so many commentators, how-
ever, Teles does not discuss the natural law aspect of this movement.
31. Remarks by Christopher Eisgruber, “Law at Princeton,” October 21,
2010, Princeton University, Law and Public Affairs Reunion speech.
32. “The natural and proper timidity and delicacy which belongs to the
female sex evidently unfits it for many of the occupations of civil life”
(Bradwell v. Illinois).
33. Judge Pryor (2006, p. 347), of the federal circuit court, has written,
“During my confirmation hearing in June 2003, a few members of the
Senate Judiciary Committee raised questions about my ‘deeply held’
beliefs, whether I was ‘asserting an agenda of [my] own, a religious belief
of [my] own, inconsistent with separation of church and state.’ When
Chairman Hatch responded to these statements by asking me about
my religion and then asserting that ‘in every case’ he could see, I had
‘followed the law regardless of [my] personal, deeply felt, strongly felt
religious beliefs,’ two other Senators [Leahy and Specter] objected to
Chairman Hatch’s reference to my religion.” For a general discussion, see
Horwitz, 2006.

R eferences
Alschuler, A. W. Law Without Values: The Life, Work, and Legacy of Justice Holmes.
Chicago: University of Chicago Press, 2002.
Bailey, D’ A. “The Religious Commitments of Judicial Nominees – Address by
Judge Bailey.” Notre Dame Journal of Law, Ethics, and Public Policy 20, no. 1
(2006): 443–46.
Biskupic, J. American Original: The Life and Constitution of Supreme Court Justice
Antonin Scalia. New York: Farrar, Strauss and Giroux, 2010.
Bowers v. Hardwick, 478 U.S. 186, 1986.
Boyer, P. J. “Frat house for Jesus: The entity behind C Street.” The New Yorker
September 13, 2010.
Bradwell v. Illinois, 83 U.S. (Wall) 130, 1873.
Carter, S. L. “The Religiously Devout Judge.” Notre Dame Law Review 64, no. 5
(1989): 932–44.
Christian Legal Society v. Martinez, 130 S. Ct. 2971, June 28, 2010.
Church of the Holy Trinity v. U.S., 145 U.S. 457, 1892.
City of Boerne v. Flores, 521 U.S. 507, 1997.
Cross, F. L., and E. A. Livingstone. “Natural Law.” In The Oxford Dictionary of
the Christian Church, 3rd rev. edn, edited by F. L. Cross and E. A. Livingstone,
1139. Oxford: Oxford University Press, 2005.
198 L awrence Rosen

D’Amato, A. “Natural Law – A Libertarian View.” Florida International University

Law Review 3, no. 1 (2007–2008): 97–111.
Davis v. Beason, 133 U.S. 333, 1890.
d’Entreves, A. P. Natural Law, 2nd rev. edn. London: Hutchinson University
Library, 1970.
Dershowitz, A. Rights From Wrongs: The Origins of Human Rights in the Experience
of Injustice. New York: Basic Books, 2005.
Douthat, R. “The marriage ideal.” New York Times August 9, 2010, A19.
Dubler, A. R. “Constructing the Modern American Family: The Stories of Troxel
v. Granville.” In Family Law Stories, edited by Carol Sanger, 95–111. Mineola,
NY: Foundation Press, 2008.
Dworkin, R. “The temptation of Elena Kagan.’ New York Review of Books July
2010.
Edwards v. Aguillard, 482 U.S. 578, 1987.
Ely, J. H. Democracy and Distrust: A Theory of Judicial Review. Cambridge, MA:
Harvard University Press, 1980.
Employment Division v. Smith, 494 U.S. 872, 1990.
Edelstein, D. The Terror of Natural Rights: Republicanism, the Cult of Nature, and
the French Revolution. Princeton: Princeton University Press, 2009.
Erie v. Pap’s A.M., 529 US 277, 2000.
First Amendment Center. State of the First Amendment Report, September
2010. http://www.firstamendmentcenter.org/pdf/SOFA.Sept.2010data.pdf
(Question No. 7), accessed December 18, 2010.
Flax, J. The American Dream in Black and White: The Clarence Thomas Hearings.
Ithaca: Cornell University Press, 1998.
Fletcher, G. The Secret Constitution. New York: Oxford University Press, 2001.
Franck, M. J. “The Unbearable Unimportance of the Catholic Moment in
Supreme Court History.” Notre Dame Journal of Law, Ethics, and Public Policy
20, no. 1 (2006): 447–53.
Fuller, L. L. “Reason and Fiat in Case Law.” Harvard Law Review 59, no. 3,
(1946): 376–95.
George, R. “Natural Law.” Harvard Journal of Law and Public Policy 31, no. 1
(2008): 171–96.
Gluckman, M. The Judicial Process among the Barotse. Manchester: Manchester
University Press, 1965.
Greenawalt, K. “The Use of Religious Convictions by Legislators and Judges.”
Journal of Church and State 36, no. 3 (1994): 541–55.
Greenburg, J. C. Supreme Conflict: The Inside Story of the Struggle for Control of the
United States Supreme Court. New York: Penguin Books, 2007.
Griswold v. Connecticut, 381 U.S. 479, 1965.
Horwitz, P. “Religious tests in the mirror: the constitutional law and constitu-
tional etiquette of religion in judicial nominations.” Social Science Research
Network, April 19, 2006. http://papers.ssrn.com/sol3/papers.cfm?abstract_
id=897816&high=%20paul%20horwitz, accessed May 29, 2013.
Kirkpatrick, D. D. “A year of work to sell Roberts to conservatives.” New York
Times July 22, 2005.
 Nat u ra l L aw , R e l i g i o n 199

Kmiec, D. M. “Catholic judges and abortion: did the pope set new rules?” Time
February 20, 2005.
Kuhn, T. S. The Structure of Scientific Revolutions. Chicago: University of Chicago
Press, 1962.
Lane, F. S. The Court and the Cross: The Religious Right’s Crusade to Reshape the
Supreme Court. Boston: Beacon Press, 2008.
Lawrence v. Texas, 539 U.S. 558, 2003.
Levi, E. H. An Introduction to Legal Reasoning. Chicago: University of Chicago
Press, 1949.
Linker, D. The Theocons. New York: Doubleday Anchor, 2007.
Liptak, A. “A sign of the court’s polarization: choice of clerks.” The New York
Times September 6, 2010.
McCreary County, KY v. American Civil Liberties Union, 545 U.S. 844, 2005.
McDonald v. Chicago, 561 U.S. 3025, 130 S. Ct. 3020, 2010.
Michael H. v. Gerald D., 491 U.S. 110, 1989.
Mitgang, H. “Handwritten draft of a bill of rights found.” The New York Times
December 25, 2010.
Mohler, R. A., Jr. “Standing Together, Standing Apart: Cultural Co-belligerency
without Theological Compromise.” Touchstone: A Journal of Mere Christianity
16, no. 6, July/August 2003.
Murray, J. C. We Hold These Truths: Catholic Reflections on the American
Proposition. New York: Sheed and Ward, 1960.
Noonan, J. T., Jr. “Conscience and the Constitution.” In Law and Democracy in
the Empire of Force, edited by H. Jefferson Powell and J. B. White, 238–49.
Ann Arbor: University of Michigan Press, 2009.
Norton, A. Leo Strauss and the Politics of American Empire. New Haven: Yale
University Press, 2004.
Posner, E. “The decider.” The New Republic January 11, 2010.
Posner, R. How Judges Think. Cambridge, MA: Harvard University Press, 2008.
Pryor, W. H. “The Religious Faith and Judicial Duty of an American Catholic
Judge.” Yale Law and Policy Review 24, 347–62, 2006.
Romer v. Evans, 517 U.S. 620, 1996.
Rosen, L. “Continuing the Conversation: Creationism, the Religion Clauses,
and the Politics of Culture.” In The Supreme Court Review 1988, edited by
P. B. Kurland, Gerhard Casper, and Dennis J. Hutchinson, 62–86. Chicago:
University of Chicago Press, 1989.
Scalia, A. “God’s justice and ours.” First Things May 2002.
Schwarzenegger v. Entertainment Merchants, U. S. Supreme Court Oral Argument,
November 2, 2010. http://www.supremecourt.gov/oral_arguments/argu-
ment_transcripts/08–1448.pdf, accessed August 27, 2012.
Shorto, R. “How Christian Were the Founders?” New York Times February 14, 2010.
Snyder v. Massachusetts, 291 U.S. 97, 1934.
Strauss, L. Natural Right and History. Chicago: University of Chicago Press,
1999 [1953]).
Teles, S. M. The Rise of the Conservative Legal Movement: The Battle for Control of
the Law. Princeton: Princeton University Press, 2010.
200 L awrence Rosen

Texas v. Johnson, 491 U.S. 397, 1989.

Toobin, J. Nine: Inside the Secret World of the Supreme Court. New York: Anchor
Books, 2007.
——— “No more Mr. nice guy: the Supreme Court’s stealth hard-liner.” The New
Yorker, May 25, 2009.
Troxel v. Granville, 527 U.S. 1069, 1999.
United States v. Virginia, 518 U.S. 515, 1996.
Wilentz, S., and L. H. Tribe. Jurist: Legal Intelligence Forum, 2002. http://jurist.
law.pitt.edu/forum/forumnew60.htm, accessed August 27, 2012.
Wolterstorff, N. Justice: Rights and Wrongs. Princeton: Princeton University Press.
2008.
Wright, R. G. “Is Natural Law Theory of Any Use in Constitutional Interpretation?”
Southern California Interdisciplinary Law Journal 4, (1994–1995): 463–87.
 12

DIVINE LAW AND ECCLESIASTICAL

HIERARCHY

Matthias Kaufmann

I NTRODUCTION
As the editors state in the introduction, discussions about religion in
disputes these days tend to be dominated by the challenge that certain
radical interpretations of Islam pose to the liberal “Western” state, a chal-
lenge that is eagerly transferred to the whole of Islam by interested circles.
Only on second thought or because of special circumstances do we think
about the disputes that are still—or again—provoked by another global
player with a universal religious program—the Catholic Church. It some-
times gets involved and even intervenes in disputes about such contro-
versial issues as birth control, abortion, gay marriage, and research with
embryo stem cells. Again, we are inclined to think that this concerns dis-
putes between the Catholic Church on the one side and state institutions,
public figures, and all types of formal and informal groups on the other.
The Catholic Church appears as a monolithic block with a law of its own,
immutable for centuries, especially since the dogma of the infallibility of
the Pope was established in 1870—and this is what it tries to be. But if we
look more closely, we find that there are religious disputes both with and
within this Church. It is of particular interest that there is even an ongo-
ing dispute concerning one of the core instruments of Church law with
which the permanence, continuity, and eternity of its contents should be
secured, that is, the institution of divine law. Divine law is seen as given
directly by God and therefore beyond human disposition. It is conceived
as something that guarantees the persistence of ecclesiastical doctrine and
structure. For this reason, the fact that there is a continuing religious and
legal dispute over some of its contents becomes even more important.
In this chapter, I examine a few examples of such disputes to see how a
202 Mat thias Kaufmann

strategy of immunization against these disputes fails, and ultimately to see

how recourse to divine law has had the unintended effect of initiating an
ongoing inner-Catholic conflict, leading to something that looks quite a
bit like legal pluralism.
I first present a sketch of the history of divine law in Christian theol-
ogy, which is indispensable for an adequate understanding of current dis-
courses. I then go on to provide some hints concerning currently—or at
least recently—disputed questions and different views on Church dogma
and politics. Finally, I shall discuss a recent controversy within the German
Catholic Church that sheds some light on different interpretations of divine
law and points out how it was used to create some form of legal pluralism
within the realm of Christian religious law by establishing an additional
source of legal decisions beyond the usual procedures of canonical law.

H ISTORY OF D IVINE L AW
Talk of divine law in Christianity seems to have its origins in the works of
the Latin Church fathers, and in some sense seems to have derived from
the traditional Roman distinction between liturgical law—fas or ius poli—
and temporal or mundane law—ius fori. Another important source is the
stoic influence on Augustine, evident in his declaration that the eternal
law of nature is “divine reason and the will of God which commands
the preservation of natural order” (Contra Faustum I, XXII, c. xxvii).
One of the first places where these influences come together is in Isidor
of Seville’s early sixth-century work Etymologiarium Liber V. De legibus
et temporibus (chapter 2), in which Isidor divides the laws that govern
humans into those that are of natural and divine origin and those arising
out of human custom. Gratian, the author of the most influential col-
lection of canon law works in the Middle Ages, the Decretum Gratiani,
established around 1140, explicitly cites Isidor in the first chapter. After
asserting in the introduction to his first distinction that the “human race
is ruled by two [laws], namely by natural law and by custom,” he con-
tinues: “All laws are either divine or human. The divine ones are from
nature, the human ones from custom, and therefore they differ from the
first ones insofar as different peoples appeal to different customs.”1
On the other hand, not all rules of divine law mentioned in the
Decretum Gratiani and similar texts belong to natural law: “The cer-
emonial observances and various other rules laid down for the Jews in
the Old Testament were divinely promulgated but they were not natural
law” (Tierney, 1963, p. 310). Gratian calls this kind of positive divine
legislation constitutio. As can be seen from the differences between the
Old and New Testaments, this kind of divine law is capable of change. In
contrast, natural law did not originate with biblical revelation, but with
the very existence of rational creatures, that is, human beings.2 In this
 D i vi n e L aw a n d E c c l e s i a s t i c a l H i e r a r c h y 203

tradition, then, divine law and natural law were seen as overlapping, but
not as identical.
As we see, even at a rather early stage in the theoretical development,
we have two more or less separate conceptions of divine law. The first sees
divine law as given by God; God is understood in these texts as the summa
natura, the highest nature, and/or the natura naturans, the nature
responsible for the nature that creates all beings and gives them a natural
law that is written in the hearts of all rational beings. The term natura
naturans stems from Averroes, Ibn Rushd’s commentary on Aristotle,
and had enormous influence on authors like Giordano Bruno and Baruch
Spinoza. However, this debate did not end with the Middle Ages or in
the early Enlightenment period. As recently as within the last 50 years,
this view of God has alarmed some Catholic theologians because, in their
view, it opens the door to pantheism.
A second conception of divine law sees God as the highest lawgiving
authority, the one who orders the aforementioned ceremonial procedures
and similar things by several means, the most important of which is rev-
elation within the Old Testament and the Gospels (I shall discuss other
ways of recognizing divine law below). Within the medieval and early
modern debate, there are divergent views among renowned exponents of
theology about how closely related these two conceptions of divine law
are. In the thirteenth century, Thomas Aquinas made an explicit distinc-
tion between the lex naturalis and the lex divina: the former includes the
natural human inclination to do good, whereas the latter (1) rules on mat-
ters of an ultimate, supernatural character, (2) clears up legal questions,
(3) takes care of the “inner” motives of men inaccessible to temporal
legislation, and (4) punishes those who succeed in escaping human judg-
ment. Ioannes Duns Scotus (1266–1308) asserted that the only natural
law is that God has to be honored, and as such only the first two of the
Ten Commandments (sometimes he says only those on the first tablet)
are really natural laws; the others are positive divine laws that fit very well
with natural law. Jean Gerson, in the early fifteenth century, maintained
the thesis that divine law—in its strict sense—could not be understood by
the “natural light” (lumen naturale). This means that human reason is
not capable of deducing divine law, which is directed toward the spiritual
goal, whereas natural law can be recognized by any man who is not hin-
dered in his use of reason.3 In opposition to Gerson and differing from
Aquinas, the Jesuit Luis de Molina stated in late the sixteenth century that
natural law is divine law because it is given to us by God.4
I mention these positions to make it clear that there has never really
been a unique, unanimous, uncontested interpretation of divine law, even
within the Catholic tradition. This will be of particular relevance in the
sections to come. But first let us take a brief look at the Protestant tradi-
tion. Martin Luther viewed the lex divina as a purely spiritual law in the
204 Mat thias Kaufmann

Regnum Christi—the Kingdom of Christ. It is efficacious in a merely

spiritual manner in the true Church proving the presence of the reign of
God on earth. Is serves a general legitimizing function for the Church,
but it is difficult to use as a basis for a realizable legal ordering of the
Church (Heckel, 1997, p. 344). At the same time, Luther rather harshly
rejected the claim of the uprising peasants in 1525 that, according to
divine law, everybody had to be free from serfdom. Melanchthon, on the
other hand, used divine law in controversies with Catholic theologians
on celibacy, and later authors such as Thomasius used it much as the
Jesuits did, despite his harsh verbal criticism of them. Without referring
to the subtle details, this shows that the theoretical differences did not
always coincide with the separation of the confessions. Since the late eigh-
teenth century, there has been an overwhelming tendency to more or less
return to Luther’s view of divine law. Thinkers like Erik Wolf, who want
to understand it as an immutable fundament of order, are the exception.
Some authors still want to legitimize the Church as a whole by ius divi-
num, whereas theorists such as Adolf von Harnack see any ecclesiastical
ius divinum as an “illegitimate fiction.”

S OME A SPECTS OF THE D OGMATIC D EBATE

Still, the difference between, for example, the Lutheran and the Catholic
interpretations of divine law is that for the latter at least some of the rules
of Church law represent divine law and are, therefore, immutable (even for
the pope), while others are ius mere ecclesiasticum—merely ecclesiastic—in
other words, human law. The main criterion for a norm to be consid-
ered part of divine law is that it was either ordered by Jesus himself or it
was a practice in the early church, the Urkirche, as it is called in German.
Protestants, on the other hand, see all legal institutions, whether ecclesi-
astical or state law, as human creations. The crucial differences between
the two churches are to be found in the contrary opinions concerning
the ordination of women, the institution of bishops, and celibacy (which
is also a special case within the Catholic debate). In simple terms, there
seem to be two main strategies among Catholic scholars concerning these
questions. One advocates the intensification of historical research in order
to find out what the customs of the early church actually were, as well as
what was happening at the time of the apostles. For example, celibacy has
generally not been considered by a majority of scholars to belong to divine
law, but merely to be a strong obligation and universal law coming from
later developments in the Western Church (the Council of Trent [1563]
also followed this line of argumentation); however, there have been recent
efforts to show the opposite. Referring mainly to the Gospel of Matthew
(19:12), where Christ recommended that his followers make “themselves
eunuchs for the kingdom of heaven’s sake,” but also to an alleged practice
 D i vi n e L aw a n d E c c l e s i a s t i c a l H i e r a r c h y 205

in early Christianity of continence even from those priests who were mar-
ried, Stefan Heid finds it “venturous” to see celibacy as a mere human
law (Cochini, 2000; Heid, 2008). Another example is the belief that the
Holy See’s location in Rome was determined by divine law because St
Peter decided to settle in Rome. This explains the harsh reactions to a
book by Otto Zwierlein (2009), in which he tries to show that there is no
proof that Peter was ever in Rome. Only a few months later, another book
appeared in which its three authors defend the traditional view that Peter
was martyred in Rome, and criticize in the preface the “bigoted meticu-
lousness” of people like Zwierlein, with which the traditions of St Peter are
“deconstructed” (Gnilka et al., 2010, p. 7).
Even more important—in the sense of raising more public aware-
ness—might be the debate regarding the question of whether women
had held key positions of responsibility or served as priestesses in the early
church. In 2010, Pope Benedict XVI reaffirmed that neither he nor the
present Church had the authority to ordain women because priestesses
were “absent from the community of Jesus Christ” (Benedict, 2010).
Given that priestesses were common in many other religious groups at
that time, yet were excluded from the original church, he argues that
divine law prohibits the ordination of women. This is in accordance with
the Pope’s declaration on May 21, 2010 that the attempted sacred ordi-
nation of a woman is one of the normae gravioribus delictis (more serious
offenses), the punishment for which is “reserved to the Congregation for
the Doctrine of Faith.”5
On the other hand, there have been several publications within the past
few years insisting that there were women in high positions in the early
Christian Church, noting, for example, that in his letter to the Romans,
Paul even speaks of a female apostle named Junia. Ute Eisen (2000),
who had already published a book on this topic a number of years ago,
recently confirmed her interpretation of the New Testament, giving a bib-
liographical “update” to provide even more proof that there were female
apostles, female prophets, female presbyters, priestesses, and even female
bishops in the early Christian community (Eisen, 2010). Nevertheless,
she notes that from the first century on there were attempts to eliminate
women from the ecclesiastical hierarchy, which were ultimately success-
ful. But Junia “succeeded” in being accepted as a female apostle until
Aegidius of Rome (1245−1316) changed her name to the male name
Junias. This change was accepted by Martin Luther and further perpetu-
ated by Erwin Nestle in his critical edition of the Greek text. On the other
hand, the papyrologist Peter Arzt-Grabner affirms that, according to the
available manuscripts, the female name is much more probable, and for
this reason it replaces the male version in the 4th edition of the Greek
New Testament of 1998 (Arzt-Grabner, 2010, referring, inter alia, to
Epp, 2005). Another example of the later degradation of an important
206 Mat thias Kaufmann

woman is Phoebe, who not only brought Paul’s letter to the Romans, but
was also mentioned several times as a person in a high position (e.g., as a
prostatis—a leading person), but who in later translations was reduced to
a “servant of the community of Kenchrea” (Eisen, 2010, p. 210).6
In my view, to understand why the Holy See does not show much inter-
est in this kind of research, it is useful to have a look at a number of papers
by Karl Rahner that explain the Catholic position in these matters and which
I take as representative of the alternative strategy of discussing the relation-
ship between divine law and the customs of the early church. One of the
reasons Rahner is of relevance here is that he has had an enormous influence
on Catholic theology and the thinking of people such as Joseph Ratzinger,
to name but one. To be clear, Rahner does not treat the problems of celi-
bacy or women’s ordination in the papers I will refer to here. Nevertheless,
what is important in the present context is that he deals with the position of
bishops—in relation to the Pope, to their dioceses, and to the Church as a
whole. Even though the papers by Rahner quoted here do not deal with the
issue of women’s ordination, Robert Spaemann, an outstanding German
Catholic philosopher, recently wrote a letter to the Frankfurter Allgemeine
Zeitung in which he referred to Rahner in support of his contention that the
Catholic Church cannot ordain women as priests, because to do so would
be a substantial breach of divine law.7 We do not know why Jesus did not
ordain women, Spaemann says, but we know that he did not and we have
to follow him on this point. Alluding to assertions that this practice contra-
venes antidiscrimination acts of the European Union and other institutions,
he declares that if the state were to interfere in the rights of the Church,
forcing it to violate divine law, then the real Church would have to move
underground. While this could possibly be an interesting case of confronta-
tion between divine law and state law, we will deal with a case of (possible)
opposition between divine law and church law in the next section. Let us
begin with a presentation of Rahner’s reflections.
First, Rahner explains why certain ecclesiastical institutions can be
legitimately understood as being of divine law in Catholic interpretations
of the Gospel. He explicitly makes reference to divine law insofar as it is
different from natural law (Rahner, 1962, p. 265), and is founded on
revelation. The issues before us are what can be interpreted as revelation
and why it is to be seen as divine legitimation of certain ecclesiastical
institutions. Rahner starts from the metaphysical premise that the essence
of an entity such as the Church itself or perhaps some of its institutions,
as well as the essence of a ius divinum, may remain the same despite
changes to its Gestalt, in other words, changes in its shape or concrete
realization. According to “good scholastic doctrine”—or more accurately
what Rahner considers to be good scholastic doctrine—we can only rec-
ognize this essence via the conversio ad phantasma, which in this con-
text means something like the extraction of the persisting universal, the
 D i vi n e L aw a n d E c c l e s i a s t i c a l H i e r a r c h y 207

essence, from our experiences, and the maintenance of awareness of the

shape the essence has taken under historically conditioned circumstances
(Rahner,1962, p. 251f.). Rahner is, however, quite clear that he will have
to find a response to the question of how we can recognize that a certain
order is not only a contingent ordering of a certain time but also an eter-
nal rule established as such by the founder of the Church Himself. Only
in this last case are we confronted with divine law that cannot be changed
even by the highest ecclesiastical authorities. Rahner gives as a counter
example the duty to wear a veil while attending divine services (p. 256),
and notes that even the rules concerning life in the community as given
in the Gospel of Matthew 18 are, by a kind of tacit consent, not used “as
they are standing there” (p. 256).
The steps of Rahner’s argument are as follows:

1. The historical development of an institution may be irreversible even if

it is contingent and not necessarily such as it is for logical or theologi-
cal reasons. With regard to Church history, this means that even those
developments that happened after apostolic times, including develop-
ments in Church law, may be irreversible.
2. Additionally, the decisions of freely acting persons, not to mention
the decisions of other entities like ecclesiastical institutions, may be
(legitimately) irreversible as long as they are possible realizations of
the essence of these entities. From these two he then concludes the
next statement.
3. The concept of such a decision conforming to the essence (even if not
necessitated by this essence) and creating valid law is conceivable. It
may be the case that this essence develops over time, just as it is the
essence of man to be a rational being, but his rationality cannot be
found in human embryos.
4. An irreversible decision of the Church that creates law and is in accor-
dance with the essence of the Church can be seen as ius divinum if it hap-
pened during the time of the Urkirche, that is, the Church in apostolic
times (there are a number of different terms for this in English, includ-
ing the original church, the early church, and the primitive church).
This is because according to the Catholic view the apostles are not only
viewed as those who pass on Christ’s revelation but also as bearers of
revelation themselves. It could even be argued that the time of the origi-
nal church should not end with the death of the last apostle.
5. Irreversible legal decisions in accordance with the essence of the
Church taken in postapostolian times should not be excluded from
divine law a priori. For example, according to Rahner, it would not
be easy to prove that the monarchical rule of episcopacy, as opposed
to the collegial structure of the single Christian communities, was an
impossibility when Jesus left his community.
208 Mat thias Kaufmann

This last point shows, in my view, one of the difficulties in Rahner’s

argument. He acts as if he were skeptical regarding our human capacities
of recognition—and in this way he is quoted by Spaemann and others—
but in reality he just turns the burden of proof onto those who do not
share his views. Normally, a person claiming the right to absolute ruler-
ship has to prove the legitimacy of this claim, and it is not enough to say
that it will be difficult to prove the contrary and that it is not impossible
that the legitimacy may be demonstrated someday.
Second, those decisions of the original church that are to be seen as
divine law show, in the view of many discussants, a considerable arbi-
trariness. Why, for example, are the ordination of bishops, the prohibi-
tion against the ordination of women, and the placement of the Holy
See in Rome (including the primacy of the bishop of Rome) divine law,
while the duty to wear a veil in divine services is not? And why are there
still debates within the Catholic Church concerning celibacy? To say that
the first three are in accordance with the essence of the Church and the
fourth one is not presupposes either that it is clear to everyone (or at
least to those with the right insight) what this essence is, or that there is
an institution that has the right to determine this. Both views have been
passionately contested, as we know. The problem is aggravated when for
other authors accordance with the essence of the Church does not suffice
for a rule to become part of divine law, even if the rule itself is a necessary
constituent of the essence of the Church (Pree, 1995, p. 119).
Third, as we have seen, it is not at all clear that women were not
ordained in the original church or that Saint Peter in fact did move to
Rome. Furthermore, there has never been unanimity about whether the
ordination of bishops is of divine law. In the early seventeenth century,
Francisco Suárez, one of the important counselors to the Pope and a very
distinguished scholastic thinker, bluntly denied it in the fourth chapter
of the third book of his De legibus ac deo legislatore. Suárez furthermore
claimed that his interpretation of this point was in accordance with the
majority of theologians (Suárez, 1967, p. 377). Again, Rahner and others
might say that this is not so important, as the essence of Church institu-
tions does not depend on these details, and in any case we still have the
problem of disagreement about the essence. This is particularly important
in cases where two essences might conflict with one another. In another
paper, Rahner deals with just such a scenario. The fact that the primate
of the Pope and the authority of the college of bishops and their right to
lead their flocks are both of divine law leads to a situation in which there is
no legal possibility for making a clear-cut decision as to which one should
prevail and in which cases (Rahner, 2005). There are many specialists of
Church law who assert that divine law has been changing and that it is
still changing. They insist on the mutability of the immutable, claiming
that divine law is not so much to be understood as a certain normative
 D i vi n e L aw a n d E c c l e s i a s t i c a l H i e r a r c h y 209

text, but as part of the common search for legal truth in the commu-
nity (Pree,1995, 1996). These experts have warned us that a premature
declaration of institutional forms as “divine” could throw the shadow of
ideology on the institution of divine law itself (Pree, 1995, p. 122). Later
developments could give the impression that this warning was justified.

A S PECIAL C ASE OF C ONFLICTIVE I NTERPRETATION OF

R ELIGIOUS L AW IN D ISPUTE
By now it should be clear that divine law has never been an uncontested
entity within the Catholic theological tradition, neither in its normative
content nor in its legitimizing structure. As to the special question con-
cerning the ordination of bishops, it has been mentioned that Francisco
Suárez, a very influential theologian in his time and a brilliant metaphysi-
cian, did not accept it as divine law. We should bear this in mind when we
return to the previously mentioned possibility that Church law in general
and divine law in particular could be in conflict with state law, for exam-
ple, if it runs counter to antidiscrimination legislation.
In 2005 there was an even more interesting conflict between “ordinary”
Church law and the claim to divine law on the part of Bishop Gerhard
Ludwig Müller of Regensburg, a city in eastern Bavaria. In the context of
a conflict between his excellency and some Catholic lay movements with
names such as “The Church from Below” and “We Are the Church,”
the bishop suspended a priest from his diocese and dissolved the council
of the diocese—an aggregation of clerics and laypersons that was firmly
established within his and other dioceses in Germany in accordance with
the law-like decisions of the so-called Würzburger Synode from 1971
to 1975 (Müller, 2005). The central committee of German Catholics
accused him of having violated Church law because these councils had
been installed by the conference of German bishops, and according to the
constitution of this council, it could only be dissolved with the agreement
of its members.8 The bishop denied this claim and insisted that, according
to divine law, he had the divine right to take these actions. In the dis-
cussion that followed, specialists of Church law, including Sabine Demel
from the University of Regensburg, argued that the fact that the ordina-
tion of a bishop is accorded by divine law does not necessarily mean that
a bishop automatically derives rights and powers that would position him
above valid ecclesiastical law (Demel, 2005). In other words, according to
the tradition of canon law, the fact that he is a bishop can be interpreted
as being of divine law, but this does not imply that he has divine authority
in his orders. If such an authority were accepted as divine law, it would
install something like an additional lawgiving institution, which might
easily lead to legal pluralism. To be clear: the bishop has the right of leg-
islation, execution, and jurisdiction (Can. 391, § 1 Codex Iuris Canonici)
210 Mat thias Kaufmann

in his part of the Church following the requirements of the law. However,
there were doubts as to whether this included acts of administration that
were not in accordance with canon law. This was the critique uttered by a
number of participants in the debate, and the bishop’s recourse to divine
law seems to indicate that he himself was not quite sure about this.
It is interesting to have a look at the legal procedure that followed
the bishop’s decision. Prof. Grabmeier, a (former) member of the dio-
cese council, initiated the so-called hierarchical recourse, meaning that he
undertook the standard process that a complaint of this kind must go
through according to canon law.9 This process starts with an initial request
to withdraw the decision via a complaint at a congregation at the Holy See
and moves up to the final decision of the Apostolic Signature, which is the
highest competent court for these kinds of problems in Rome. In their
final decision,10 the members of the court supported the bishop’s right to
legislation (that had not been doubted) and rejected the plaintiff’s claim,
saying it was unfounded. Yet, as Sabine Demel has observed, they did not
provide an answer to the question at stake because they denied their com-
petency in the matter (Demel, 2007; 2008). While the bishop declared this
nonjudgment a vindication of his view, commentators such as Demel see it
differently. Furthermore, the other German bishops showed considerable
reluctance to agree to Bishop Müller’s way of treating laypersons (Orth,
2005). To relate this back to the topic at hand, the question of whether
divine law permits a bishop to overrule canon law was left open by the
Roman court, which, in its judgments of other cases, did not show such a
reluctant attitude. For example, in another case at Regensburg connected
with Bishop Müller, the members of the court quickly rejected the com-
plaint of a former member of various councils who had been removed from
those councils by Bishop Müller because of his resistance to the bishop’s
“reforms,” judging that the complaint was “lacking any foundation.”11
The reluctance to render a definitive decision concerning the bishop’s
divine law might be connected to the aforementioned problem that the
primate of the Pope and the authority of the college of bishops and their
right to lead their flocks are both of divine law. Denying the bishop a
certain divine right through a decision of a court close to the Pope would
have brought these two divine law provisions into direct confrontation and
exposed the clear contradiction between them. This, in turn, could give
the impression that God contradicts himself, something that, according
to traditional Catholic thinking, God cannot do despite his omnipotence.
Thus, the question remains open, and it seems at least possible that a legal
authority apart from the normal procedures of ecclesiastical law could
exist. In other words, it would appear that there is something like legal
pluralism within such a monolithic structure as the Catholic Church.
 D i vi n e L aw a n d E c c l e s i a s t i c a l H i e r a r c h y 211

C ONCLUSION
The foregoing reflections have demonstrated that even within a legal reli-
gious structure that is perceived as static and impermeable from the out-
side, there is lively dispute even, or perhaps especially, on those topics that
are understood to be unchangeable because they are of divine origin. The
attempt by Church authorities to use divine law to justify certain legal
interventions has led to bitter reactions and creates situations where there
is a plurality of law within the law of the Church. It looks as if any attempt
to end disputes on religious issues via authoritarian decisions is even more
condemned to failure in the modern world than it has been in the past. It
will be interesting to see how far Catholic authorities will be able to grasp
this insight and to integrate it into their policy.

N OTES
1. Omnes lege saut divinae sunt, aut humane. Divinae natura, humanae mor-
ibus constant, ideoque he discrepant, quoniam aliae aliis gentibus placent.
2. Decretum Gratiani, Distinctio 5; dictum ante cap. 1, that is, remark
before the first chapter.
3. Liber de Vita spirituali animae, Lectio secunda (Gerson, 1987, pp. 16f.,
21ff.).
4. Molina, 1659, Treatise V, disputatio 46, 14.
5. See article 5 of the Congregation for the Doctrine of the Faith: Letter to
the bishops of the Catholic Church and to the Ordinaries and Hierarchs,
regarding the modifications introduced in the Normae de gravioribus
delictis, May 21, 2011. Available at http://old.usccb.org/mr/Norms-
English.pdf, accessed December 25, 2012.
6. On Phoebe, see also Merz, 2010.
7. Frankfurter Allgemeine Zeitung, October 20, 2010, p. 30.
8. For more concerning the events, see Schuck, 2006.
9. A summary of the problem at stake and of the different steps of the legal
procedure is given in Demel, 2008.
10. Prot. N. 38415/06 CA Regensburger Rechtssache Beachtung von Rechten
(J. Grabmeier―Kleruskongregation), published in German, translation by
the bishop’s office (http://www.bistum-regensburg.de/download/bor-
Media0473005.PDF, accessed December 29, 2012). See also the collec-
tion of documents and articles at the Web site (www.bistum-regensburg.
de/borPage003563.asp?sop=xl, accessed December 29, 2012)and further
publications of the Bischöfliche Pressestelle.
11. Prot. N. 40073/07 CA Regensburger Rechtssache Erklärung der Unfähigkeit
zum passiven Wahlrecht (Herr F. Wallner—Kleruskongregation), published
in German, translation by the bishop’s office (www.bistum-regensburg.de/
download/borMedia1002305.pdf, accessed December 29, 2012).
212 Mat thias Kaufmann

R eferences
Apostolic Signature Prot. N. 38415/06 CA Regensburger Rechtssache Beachtung
von Rechten (J. Grabmeier—Kleruskongregation).
Apostolic Signature Prot. N. 40073/07 CA Regensburger Rechtssache Erklärung der
Unfähigkeit zum passiven Wahlrecht (Herr F. Wallner—Kleruskongregation).
Arzt-Grabner, P. „Junia, die rehabilitierte Apostelin. Aus der Werkstatt der
Exegeten: Ein textkritischer Beitrag.“ Bibel und Kirche 65, no. 4 (2010):
243–5.
Augustine, Contra Faustum Manichaeum. English Translation Available http:// gno-
sis.org/library/contf1.htm.
Benedict XVI. Light of the World: The Pope, the Church and the Signs of the Times.
San Francisco: Ignatius Press, 2010.
Cochini, C. The Apostolic Origins of Priestly Celibacy. San Francisco: Ignatius Press,
1990.
Congregatio pro Doctrina Fidei. “Decretum Generale de Delicto Attentatae
Sacrae Ordinationis Mulieris, 19 Decembris 2007.” Acta Apostolicae Sedis 100,
(2008):403.
Demel, S. “Die bischöfliche Vollmacht und der Diözesanrat.” Stimmen der Zeit
223, (2005): 665–78.
——— “Roma Locuta, Causa Infinita Est!: Rom Hat Gesprochen und Die
Rechtliche Bewertung der Aufhebung des Diözesanrates von Regensburg ist
Nach Wie Vor Offen.” Orientierung 71, (2007): 90–3.
———“Die endgültige Entscheidung Nicht zu Entscheiden.” Orientierung 72,
(2008): 104–8.
Eisen, U. Women Officeholders in Early Christianity: Epigraphic and Literary
Studies Collegeville: Liturgical Pr, 2000.
——— “Frauen in Leitenden Positionen. Im Neuen Testament und in der Frühen
Kirche.“ Bibel und Kirche 65/4, (2010): 205–13.
Epp, E. J. Junia. The First Woman Apostle. Minneapolis: Augsburg Fortress Pub,
2005.
Gerson, J. “Liber de Vita Spirituali Animae (1402).” In Joannis Gersonii Opera
Omnia, Vol. III, Sp. 1–72; Antwerpen 1706, reprint Hildesheim, 1987.
Gnilka, C., S. Heid, and R. Riesner. Blutzeuge. Tod und Grab des Petrus in Rom.
Regensburg: Schnell & Steiner, 2010.
Heckel, M. Gesammelte Schriften, vol. 3. Tübingen: Mohr Siebeck, 1997.
Heid, S. “L’origine del celibato nella chiesa primitiva.” Osservatore Romano,
October 4, 2008.
Merz, A. “Phoebe von Kenchreä. Kollegin und Patronin des Paulus.” Bibel und
Kirche 65, no. 4 (2010): 228–32.
Molina, L. de. De Iustitia et Iure, Mainz: Editio Novissima,1659 [1593].
Müller, G. L. “Bischöfliche Anordnung zur Änderung der ‘Satzung für die
Pfarrgemeinderäte in der Diözese Regensburg’ und der ‘Wahlordnung für die
Pfarrgemeinderäte in der Diözese Regensburg’ (vom 15.11.2001) vom 12.
April 2005.” Archiv für katholisches Kirchenrecht 174 (2005): 177–9.
Orth, S. “Gemeinsam: der Regensburger Bischof Gerhard Ludwig Müller besch-
neidet Rechte der Laienräte.” Herder-Korrespondenz 59, (2005): 598–9.
 D i vi n e L aw a n d E c c l e s i a s t i c a l H i e r a r c h y 213

Pree, H. “Zur Wandelbarkeit und Unwandelbarkeit des Ius divinum.” Theologia et

Ius Canonicum (1995): 111–35.
——— “Ius Divinum between Normative Text, Normative Content and Material
Value Structure.” The Jurist 56, (1996): 41–67.
Rahner, K. “Über den Begriff der ‘Ius Divinum’ im katholischen Verständnis.”
In Schriften zur Theologie V, edited by K. Rahner, 249–77. Zürich/Einsiedeln:
Benziger, 1962.
——— “Über das Ius divinum des Episkopats.” In Sämtliche Werke, vol. 16,
edited by K. Lehmann, J. Baptist, A. Metz, A. Raffelt et al., 309–56. Freiburg:
Herder, 2005.
Schuck, M. “Die Macht eines Bischofs.” Materialdienst des Konfessionskundlichen
Instituts Bensheim 57, (2006): 21–2.
Suárez, F. De legibus ac Deo legislatore. Madrid: Instituto de Estudios Políticos,
1967 [1624].
Tierney, B. “Natura Id Est Deus: A Case of Juristic Pantheism?” Journal of the
History of Ideas 24, (1963): 307–22.
Zwierlein, O. Petrus in Rom. Berlin/New York: De Gruyter, 2009).
 13

RELIGION, MODERNITY, AND

INJURY IN THAILAND

David M. Engel

I NTRODUCTION
When Thailand’s 1
ruling elite transformed the polity in the late nine-
teenth and early twentieth centuries and created a nation-state with
European-style courts and law codes, it proceeded down a familiar path
toward “legal modernity.” The ideology of modern law is said to rest on
a shift from religious to secular legitimation. Fitzpatrick (1992, pp. 54,
56) describes this imagined shift toward secularization as a basis for what
he calls “the mythology of modern law”:

The story is so well known as not to bear repetition without tedium. To

summarize, it is a story of the separation and dominance of a secular power
in the initial form of the centralizing monarchies of medieval and early
modern Europe. Although some god is invoked for a time as a final source
of law, political rule assumes a secular sweep in which the divine becomes
incidental or irrelevant. Natural and divine law become subordinate to the
self-sufficient determination of positive law—the law posited by the will
of the sovereign. Like its divine counterpart, law is autonomous and self-
sustaining. It is independent of any exterior reality.

Thus, the mythology of legal modernity rests on a new conceptual dis-

tinction between law and religion, which are necessarily separated, as
Thomas Jefferson famously remarked, by a “wall” between church and
state. Modern law, writes Unger (1976, pp. 84−5), “presupposes that
no one group in the society has a privileged access to religion and moral
truth,” and that the proper role of law is therefore to establish a neutral
“process for conflict resolution” rather than to endorse one set of cultural
practices or religious beliefs over another.
216 Davi d M . Eng e l

Recent critics, however, have challenged the mythology of modern

law, even in European and American settings, and have convincingly dem-
onstrated the impossibility of separating law from religion in the modern
nation-state (Asad, 2003; Sullivan, 2005). This chapter builds on such
critiques and aims to extend them by analyzing the establishment of a
modern and secular law of injuries in Thailand during the early twentieth
century. Its focus is Lanna, the culturally rich and distinctive northern
region whose historic capital is the city and province of Chiangmai. Legal
modernity in the lives and consciousness of Lanna injury victims took a
strange and unexpected turn. For them, as they considered whether and
how to seek a remedy, law did not become autonomous and secular; it
simply “went away.”

P REMODERN L AW AND R ELIGION IN I NJURY C ASES

The establishment of a modern legal system in Thailand served as a cor-
nerstone of the state-building efforts of King Chulalongkorn (Rama V)
and his princes.2 New courts, laws, and judges symbolized Thailand’s
ascension to the ranks of the “civilized” countries of the world and helped
to ward off the threat of colonization by England and France. Yet, viewed
from another perspective, the establishment of modern Thai tort law
was merely one aspect of a broad-based assault on the religions and cul-
tures of upcountry Thailand. It is difficult to know whether the drafters
of the Civil and Commercial Code’s “Wrongful Acts” provisions (Civil
and Commercial Code, Book II, Title V), promulgated in 1935, con-
sciously intended that the new tort law would reinforce the government’s
campaign to control and “rationalize” Lanna’s distinctive religious and
cultural practices. But from the perspective of Lanna residents, the new
courts and law codes, including the provisions on wrongful acts, must
have represented one element in Bangkok’s broader strategy aimed at the
destruction of their way of life.
To understand the actual effects of Thailand’s legal modernization, it
is necessary to begin with a description of the pre-existing Lanna legal
system. Lanna law has not received the scholarly attention it deserves and
is sometimes overlooked in conventional accounts of Thai legal history.
From Lanna’s perspective, however, the new laws and legal institutions
did not merely replace the royal law texts of the Siamese kings, of which
the most famous and important was the Law of the Three Seals. They also
uprooted and eliminated vibrant legal traditions in other regions of the
country that differed significantly from the Law of the Three Seals in the
extent to which they incorporated local religious and cultural practices.
Premodern Lanna law texts, known as Mangraisat, were copied by
monks on palm-leaf manuscripts and stored in local temples. They claimed a
provenance dating back to King Mangrai, who founded Chiangmai in 1296.
 Religion, Modernity, and Injury in Thail and 217

In the 1980s, a group of Thai scholars led by Prasert na Nagara transcribed

and published a number of these texts in their original northern Thai lan-
guage, with a parallel translation in modern central Thai (na Nagara et al.,
1988−1989). A complete manuscript from Nan Province is also available
in English (Wichienkeeo and Wijeyewardene, 1986). Unfortunately, the
Mangraisat texts have received limited scholarly attention, a neglect that
reflects a broader tendency to mute the history of cultural subjugation that
occurred during the creation of the modern Thai state (Loos, 2006, p. 15).
Drawing on five Mangraisat manuscripts from the collection pub-
lished by Prasert na Nagara et al., the following discussion focuses on
provisions that deal either with injuries or with Lanna religious practices
that are relevant to the resolution of disputes generally. The texts selected
for analysis in this chapter are identified by the temple or private collec-
tion in which they were found:

1. Wat Sao Hai (originating in Lanna and later discovered in a central

Thai temple in Saraburi; the initial portion of this code is analyzed in
Griswold and na Nagara, 1977);
2. Wat Chai Sathan;
3. Wat Chiang Man;
4. Wat Chang Kham (discovered by Richard Davis in a temple in Nan
Province and later published in Thai and translated into English by
Aroonrut Wichienkeeo and Gehan Wijeyewardene, 1989);
5. Notton (named not for a temple but for a former French consul in
Chiang Mai, Camille Notton, who collected the original version of
this manuscript).

All five texts are roughly similar in content and structure. All contain
a peroration that connects the text to its mythical origins in the reign of
King Mangrai. They feature numerous provisions dealing with important
social relationships: master–servant, husband–wife, and parent–child in
particular. The texts, for example, list 20 classes of women, and specify
different legal obligations pertaining to each as well as different punish-
ments for men who commit adultery with women of each class. The texts
also refer to crimes and assaults, inheritance, corvée labor, the “decimal
organization of society” (Wyatt, 1984, p. 247), types of disputes, types
of legal procedures and decisions, the characteristics of good and bad
judging, and much else. Wichienkeeo (1996, pp. 31, 34−8) suggests that
the Mangraisat texts reveal diverse influences, including the Vinaya, early
Mon law texts, and later Burmese texts. Yet she also observes that there is
much that is distinctively Lanna in the Mangraisat.
Injuries in the Mangraisat are conceptualized in terms of Lanna beliefs
about human society and the supernatural. Premodern law aimed to sup-
port and protect such religious beliefs and practices, and the law in turn
218 Davi d M . Eng e l

was legitimated by them. The Mangraisat texts frequently mention local

guardian spirits and the direct or indirect role they play in causing or
preventing injuries or death. The Chai Sathan text, for example, specifies
punishment for any person who cuts down a tree or a house belonging to
a guardian spirit, which could cause a member of the household to die:

A person cuts down the tree belonging to the guardian spirit of the principal-
ity or of the village in the area where the tree grows. Or he cuts and damages
the household guardian spirit. This is offensive to the guardian spirit of the
village, principality, and household. He must provide ritual implements to
perform a ceremony for the guardian spirits of the principality and village
and must perform a proper ceremony. If he fails to present offerings and
perform the ceremony, and the head of the household or a member of the
household dies, if a child, wife, ox, or buffalo dies, the person who committed
the act must pay compensation for all of these losses. There should be no fine,
because the payment should be regarded as a fine. (Chai Sathan, p. 60)3

The Mangraisat also prohibits deliberate desecration or destruction of

spirit shrines, in part because such acts may cause injury or death to fel-
low villagers: “For burning the spirit shrine of the village, for destroying it
completely, for razing it to the ground, the fine is 110 baht, silver” (Chang
Kham, p. 25). The Mangraisat texts prohibit other acts that might anger
or insult the guardian spirits. For example, a villager who carries a corpse
through a rice field or, worse, leaves it there, may offend the guardian
spirit of the field and must provide an offering to appease it:

If one carries a corpse through the rice field of another, the owner of the
corpse must pay the value of the rice and must beg forgiveness of the owner
of the rice field by offering two vessels of liquor, two pairs of chickens,
flowers, and four candles. If one leaves a corpse in the rice field of another,
the rice field then becomes the possession of the owner of the corpse, who
must pay twice its value. He must find a pig of a size whose hock can be
grasped in one’s fist, two vessels of liquor, two pairs of chickens, puffed
rice, flowers, and four pairs of candles so that the owner of the rice field can
offer them to propitiate the guardian spirit of the rice field. If one buries a
corpse in the rice field of another, the owner of the corpse must leave the
field and provide two vessels of liquor, two pairs of chickens, puffed rice,
flowers, four pairs of candles, and one pig to the owner of the rice field.
(Chiang Man, p. 243)

Mislocation or destruction of boundary markers in the fields also requires

ritual propitiation of the spirits:

If a person places markers in the wrong location or destroys someone’s

marker, the person who puts the marker in the wrong place should be
fined 52 silver pieces. The person who destroys the marker should pay the
 Religion, Modernity, and Injury in Thail and 219

value of the marker, ten silver pieces, but he should be fined nine times this
amount. Whoever destroys the marker at the initial boundary of the rice
field or the garden, that person should bring two vessels of liquor, two pairs
of chickens, and two candles to propitiate the guardian spirits of the rice
field and of the garden, which he has offended. He should be fined 110
silver pieces. (Sao Hai, p. 74)

Even a marketplace has a guardian spirit. A person who damages or

destroys a market must not only pay a fine in an amount that varies with
the size of the market, but he must also “bring ritual objects to offer
the guardian spirit of the market according to customary practice” (Chai
Sathan, p. 92). Similarly, one text contains a provision dealing with
offenses against the spirit of a dam:

If a person dares to destroy the shrine of a dam and commit an offense

against the guardian spirit of the dam, or if he damages the dam itself,
he must restore the shrine and the dam to their original condition. He
must arrange the ceremonial objects properly and must restore the dam
to its original condition. If he cannot do this, he must provide food for
someone else to do it in his place. If he fails to provide food, he must pay
50 silver pieces to pay for food for everyone who helped. If he does not
rebuild the shrine or bring the ceremonial objects but he asks only to
repair the dam or to restore it to its original condition, do not allow him
to do it. (Sao Hai, p. 74)

In sum, a key role of the Mangraisat is to uphold Lanna spirit practices

by protecting guardian spirits from offensive behavior or by ensuring
that proper rituals are performed if such behavior occurs. The role of the
guardian spirits was central both to Lanna religious life and to the social
problem of injuries. When a villager suffered harm, even in an accident
that did not ostensibly involve any other person, the root cause was likely
to be an angry guardian spirit who was offended by someone’s act of dis-
respect. Injuries thus had a collective aspect, since an entire community
could be threatened by improper conduct, which could provoke the spirits
and result in physical harm or death to a villager. Causality of injuries was
understood to a large extent in terms of supernatural interventions. It is
likely that spirit mediums in nineteenth-century Lanna—as in northern
Thailand today—were regularly consulted in injury cases so they could
channel the guardian spirits and explain the underlying causes of injuries.
The collective and relational understanding of injuries is also evident
in Mangraisat references to the khwan, a spiritual essence found in all
living beings and in some natural objects such as rice fields and moun-
tains.4 Practices related to the khwan are extremely important in Lanna
and elsewhere in Thailand. Injuries are typically defined in terms of harm
to or loss of the khwan, and damage payments are colloquially called kha
220 Davi d M . Eng e l

tham khwan—payment to restore the khwan. The khwan of all villagers

are interrelated, and if one villager’s khwan escapes and flies away from
the village community, it can weaken others or damage the fabric of social
relationships of which the injured person is a part. Thus, the collective
aspect of personal injuries derives from a notion of the human personality
that is not highly individuated or sharply bounded (Tanabe, 2002).
It is noteworthy, then, that provisions of the Mangraisat often refer
to the khwan and the need to propitiate it. In the following example, the
khwan is a key aspect of the harm suffered by an injury victim:

One person asks another to cut down a tree. He does not intend that the
tree should fall on the worker, but it does fall on him and kills him. He
should pay 250 silver pieces. Do not fine him. He should help the children
and wife of the deceased with the cremation. If the tree falls and he says
nothing, if he intends that the other man should die, and he does die, he
should pay that man’s price plus twice that amount, for a total of 750 silver
pieces. If he had no intent and the worker’s head is broken, he should pay
the cost of medicine in the amount of 110 silver pieces. He should provide
a vessel of liquor and a pair of chickens, and he should perform a ceremony
to bind the khwan. If the worker’s body is broken and his organs are dam-
aged, he should help with the cost of treatment. Whatever the expense of
treatment, the person should pay it. Once the treatment is finished and the
worker has recovered, the person should provide a vessel of liquor and a
pair of chickens to recall the khwan. (Chai Sathan, p. 82; similar provisions
appear in Chang Kham, p. 39 and Sao Hai, p. 85)

The collectivization of injury through propitiation of the khwan is evi-

dent in a passage from the Wat Sao Hai text, which suggests that des-
ecrating a rice field harms the khwan of the rice, as well as offending the
guardian spirit of the field, and thereby affects all who depend on rice to
sustain life:

If anyone defecates or urinates on bales of harvested rice, he should bring

two vessels of liquor and two pairs of chickens to present to the spirit of the
field and the khwan of the rice. His act is offensive because rice is a sacred
thing that sustains life for all people, so he should be fined 110 silver pieces.
(Sao Hai, p. 75)

Such provisions suggest not only a close relationship between nineteenth-

century Lanna law and religion, but also a distinctive concept of injury
itself, a concept shaped by practices involving spirits, khwan rituals, and
Buddhism. The prohibitions against conduct that offends the spirits or
harms the khwan convey an understanding of injuries as either the cause
or consequence of affronts to the sacred. Acts resulting in physical injury
or death were understood primarily in terms of harm to the victim’s
 Religion, Modernity, and Injury in Thail and 221

intangible essence and to relationships within a community of souls and

spirits, and not in terms of the damage they inflicted on the body. This
concept of injury, deeply rooted in Lanna religion, was sustained by the
Mangraisat.
In addition to guardian spirits and khwan, ghosts represent another
element of the traditional Lanna worldview with implications for injuries.
“Ghosts” here refer to the souls of identifiable persons who remain after
death to interact with living persons. In Thai, ghosts are called phi, but the
same word refers to guardian or locality spirits, who are not necessarily iden-
tified with a recently deceased individual.5 Yet ghosts are relatively distinct
from spirits in Lanna culture. Every individual possesses an enduring spiritual
essence known as winyan, a kind of “soul” that survives even after death and
may be reborn in another living being. If proper rituals are not performed,
particularly in the case of those who suffer abnormal or violent deaths (tai
hong), the winyan may become an especially dangerous kind of ghost, phi tai
hong, which can harm anyone who comes near the spot of the fatality. Such
ghosts seek to cause another death so that the soul of the new victim will
take their place and release them to pursue their spiritual journey.
The five Mangraisat texts discussed in this chapter do not explicitly
associate injuries with ghosts, although the connection is very often
found in present-day Lanna—and presumably was familiar during the
Mangraisat era. The concept of winyan, however, is mentioned in the
Mangraisat. Inanimate property, for example, is referred to as “things
without winyan.” The requirement that wrongdoers pay funeral costs for
those who die at their hands is surely an indirect reference to the need to
propitiate the winyan of those who die abnormally, in order to prevent
phi tai hong from threatening the entire community. Moreover, a few
provisions indirectly refer to ghosts. One of the most curious is a brief
provision concerning the rape and murder of a child: “If a man has sexual
relations with another’s child and causes death, he should be required to
live with the corpse. If he refuses, he should be fined 52 silver pieces” (Sao
Hai, p. 71; see also Chai Sathan, p. 67). The editors of these texts derive
the expression “live with the corpse” (which they gloss as “to live and eat
with the corpse”) from the more laconic wording in the original palm-
leaf manuscript that, translated literally, means, “He must take/accept the
ghost [phi].” The exact meaning of this phrase is obscure, but it seems
reasonable to surmise that the provision refers to the phi tai hong of a
child who was killed in a particularly violent and despicable manner. To
require the killer to remain in the presence of the child’s corpse over an
extended time would mean direct exposure to the most dangerous type
of ghost, a terrible punishment indeed.
To conclude, the injury-related provisions of the Mangraisat provide
rich evidence that the legal texts were closely linked to traditional Lanna
religious practices, particularly those related to spirits, ghosts, Buddhism,
222 Davi d M . Eng e l

khwan, and winyan. The Mangraisat aimed to protect sacred aspects of

Lanna religion, and religion also shaped and legitimated the law itself. As
a result of the close interconnections between law and religion in Lanna,
the core understanding of injury had certain distinctive characteristics. The
essence of injury was its harm to the relational networks linking humans
to one another and to the supernatural. Injury practices required wrong-
doers to apologize and pay for or perform rituals that would appease
the spirits, ward off ghosts, earn merit for the victim (whether living or
deceased), and mend the damage to the community as a whole.

M ODERNIZATION OF R ELIGION IN L ANNA

Legal modernity arrived in Lanna in the late nineteenth and early twen-
tieth centuries as the entire political framework underwent a process of
reorganization and centralization, and the king’s handpicked representa-
tives arrived to squeeze local princes and ruling elites from power. Distant
regions such as Lanna fell under Bangkok’s direct control for the first
time. But the administrative transformation was not just political and
legal in nature. The centralization and modernization of law went hand in
hand with a transformation of Thai religion. The Sangha Act of 1902 had
particular significance for Lanna, where it was enforced starting in 1910
(Keyes, 1971, p. 556). It created a centralized administrative hierarchy
for all temples and clergy (Ishii, 1986, pp. 69−70), and it established new
rules regulating individual clerical conduct, monastic governance, and
ordination. By adopting “policies which aimed at the incorporation of all
Theravada Buddhists within the kingdom into a single national church”
(Keyes, 1971, p. 555), Rama V tightened his grip on all the regions of
the newly established Thai state through religious reform as well as legal
reform.
Legal and religious modernity together, by removing injury cases from
the control of the Mangraisat, had profound implications for Lanna cus-
tomary practices. Although the connection between tort law and religious
reform may seem obscure, Harding (2008) has convincingly demon-
strated the legal significance of Thailand’s religious transformations, of
which the Sangha Act of 1902 was surely the most consequential. In this
section, I consider the establishment of modern religion in Lanna. In the
next section, I shall examine the interrelationships between religious and
legal modernization.
As Tiyavanich (1997) has observed, the version of Theravada
Buddhism endorsed by the highest authorities in Bangkok was quite dif-
ferent from the Buddhism that had long prevailed in Lanna (sometimes
known as Yuan Buddhism). The Bangkok orthodoxy, especially after the
efforts of King Rama IV to “purify” Buddhism by severing its links to
magic and sorcery (Keyes, 1975, p. 89), tended to emphasize Buddhism’s
 Religion, Modernity, and Injury in Thail and 223

intellectual and rational aspects, particularly the study of Buddha’s life

and teachings (see also Harding, 2008). By contrast, Buddhism in Lanna,
as in other regions outside Bangkok, tended to emphasize the dramatic
and emotional dimensions of Buddhism, presented by local monks to
their congregations through colorful recitations of the Jataka tales (stories
of the prior incarnations of the Buddha), rather than sermons about the
life and teachings of the Buddha himself (Tiyavanich, 1997, pp. 30−4).
In addition, Lanna and other regional traditions placed greater emphasis
on meditation practice by monks and their lay followers than did Bangkok
traditions (Tiyavanich, 1997, p. 37).
Bangkok authorities had deep concerns about what they considered
deviant practices by Lanna clergy and laypersons. Lanna culture, as we
have seen, emphasizes the role of spirits in the lives and activities of
humans (Rhum, 1994; Ramitanon, 2002). Spirit worship is, of course,
non-Buddhist in derivation, as are the widely prevalent practices related
to ghosts, magic, astrology, and sorcery. Although “purified” forms of
Buddhism would reject such accretions, Lanna Buddhism traditionally
embraced them and adopted “an accommodative attitude towards popu-
lar animistic religiosity” (Cohen, 2000, p. 142). Monks in Lanna presided
over ceremonies to remove phi tai hong (malevolent ghosts) from the site
of roadside fatalities. They hosted and sometimes worshiped at shrines
for guardian spirits on their temple grounds. Monks performed rituals
for the spirits in trees or forests so they would not harm passers-by. Much
to the chagrin of Bangkok authorities, who insisted that monks should
not engage in strenuous labor, Lanna monks even plowed the rice fields
side-by-side with villagers in order to maintain harmonious relations with
spirits of the fields (Tiyavanich, 1997, p. 24).
Bangkok ecclesiastical authorities found such deviant practices alarm-
ing and sought to end them by insisting that only men trained in ortho-
dox Theravada Buddhism could be ordained as monks. This presented
a considerable challenge, as the relevant texts and exams were written
in the central Thai language, a dialect in which most Lanna monks and
aspiring monks were not proficient (Tiyavanich, 1997, p. 44). Moreover,
the Sangha Act of 1902 confined ordination to designated temples whose
fidelity to Bangkok Buddhism could be trusted. The new restrictions were
also intended to curtail the authority of the ton bun, charismatic holy men
who, according to Lanna tradition, were elevated to positions of high
popular status (Cohen, 2000, p. 142).
The most famous of the ton bun in Lanna at the time of the nineteenth-
and twentieth-century political transformations was Khruba Siwichai, a
monk from a simple village background born in 1878 in the province
of Lamphun, very close to Chiangmai (Keyes, 1982, p. 154). Siwichai
was an extraordinarily popular exemplar of the values and traditions of
Lanna Buddhism. He was thought to have supernatural powers and was
224 Davi d M . Eng e l

venerated by the local population. Khruba Siwichai defied the new laws
and continued to ordain monks despite not having been designated a
qualified “preceptor” (Keyes, 1971, p. 557). For his insubordination,
Siwichai was called to Bangkok and confined on two different occasions
until, in 1935, he signed an agreement to abide by the new laws and
restrictions. Siwichai probably obtained in return a promise from authori-
ties in Bangkok to adopt a less aggressive policy toward Lanna religious
traditions (Keyes, 1971, p. 558; Tiyavanich, 1997, p. 45).
Yet it is apparent that the Bangkok authorities continued to regard
Lanna religious practices with disdain and had a constant fear of popular
rebellion. Noting that “the Bangkok elite acted like a colonial power,
imposing its own rules and language over local customs and languages,”
Tiyavanich (1997, p. 44) quotes a revealing report by a religious inspec-
tor from Bangkok who visited Siwichai’s birth district in Lamphun:

In general, people in Li District are submissive. But when it comes to reli-

gion, they are very stubborn. They only listen to the one person whom
they respect [e.g., Khruba Siwichai]. The anti-Thai language feeling is
widespread. In some government schools, desks, chairs, and benches were
either burned or thrown into the forest. The district education officers are
constantly worried. The village headman did not dare to take action. He is
more concerned about his own safety.

Much was at stake in Bangkok’s effort to disseminate its own version of

Buddhist orthodoxy and to suppress Lanna traditions. Khruba Siwichai
is still revered as a saint in northern Thailand, yet Bangkok’s control over
the monks and temples of Lanna is now relatively firm.

L EGAL M ODERNIZATION AND I NJURY D ISPUTES

Both the legal and the religious foundations of the Mangraisat were
attacked by the Thai policies of modernization. Like the reform of the
Sangha, the reform of the Thai legal system entailed the establishment of
a centralized administrative structure accompanied by new laws, proce-
dures, and institutions. New courts of justice appeared in Lanna, the role
of judge was functionally differentiated from that of the ruling prince, and
cases decided in Lanna were subject to review in Bangkok. Under modern
Thai tort law, the very concept of injury was transformed, and injury cases
were extricated from Lanna practices that had formerly determined how
they were viewed and decided.
In contrast to the injury provisions of the Mangraisat, the definition
of a tortious personal injury in section 420 of the Civil and Commercial
Code of 1935 (Book II, Title V, Wrongful Acts) contains no reference
to khwan, winyan, or the guardian spirits: “A person who, willfully or
 Religion, Modernity, and Injury in Thail and 225

negligently, unlawfully injures the life, body, health, liberty, property, or

any right of another person, is said to commit a wrongful act and is bound
to make compensation therefor.” Other provisions on wrongful acts make
no mention of religion or, indeed, any aspect of Thai culture. The new
Thai tort law views injury and death in terms of economic loss, inability to
work, cost of medical treatment, and loss of financial support. It assumes
an individuated legal subject and a concept of harm confined to the body
of the victim rather than the interconnected social and spiritual network
that was fundamental to the Mangraisat. The extent of damage is now
measured by the market (medical expenses and lost wages) rather than the
cost of performing religious rituals.
These characteristics of the new Thai tort law typify the autonomous
and secular qualities of legal modernity. Modern law, as we have seen, must
maintain a position above the various religious beliefs that jostle and con-
tend in the diverse societies of the nation state. It reduces religious world-
views and practices to the status of multiple opinions in a pluralistic society,
none of which should be regarded officially as more true than others. Yet
the conventional story of legal modernity, with its inexorable march toward
secularization, rationality, and autonomy, did not in fact bear much relation-
ship to the realities of legal life in Lanna. The twin processes of legal and
religious reform took a strange turn as Lanna residents either ignored or
quietly resisted the imposition of modernity by the Thai state. By focusing
on injuries and injury litigation, it is possible to tell a rather different story
about the persistence and ultimate demise of the world of the Mangraisat.
Passage of the new Thai law of torts did succeed in banishing explicit
reference to Lanna culture and religion from the Chiangmai Provincial
Court. Observation of injury litigation in the mid-1970s confirmed that,
except in the oath administered to witnesses, no judge, lawyer, or legal doc-
ument made any explicit reference to ghosts, spirits, or even to Buddhism
(Engel, 1978). Nevertheless, a close reading of the pleadings and witness
testimony, as well as interviews with litigants and village leaders at that
time, revealed that customary Lanna law and religion still provided the
framework for resolving injury disputes. Litigation rates were low, and most
cases were mediated and settled outside of court by village authorities in
accordance with longstanding Lanna norms and procedures. Injury cases
that did reach the Chiangmai Provincial Court were generally anomalies, in
which customary law was unavailable or inapplicable for some reason. For
example, the court was used as a substitute dispute resolution mechanism
to bridge the gap when the disputants came from distant villages and lacked
a common mediator, or when one party’s official position or status made
mediation impossible (such as several instances in which the injurer was the
village chief). In such cases, the court served as an alternative authority that
could require the injurer to heed the demands of the victim and engage in
negotiations. These cases were almost always settled and withdrawn rather
226 Davi d M . Eng e l

than being fully adjudicated. The persistence of Lanna law and religion was
evident in the terms of such settlements, which required injurers to pay the
costs of traditional ceremonies for earning merit or recalling the khwan.
Thus, despite the determined campaign to uproot and destroy Lanna
religion, law, and culture, the effort was only partially successful through-
out much of the twentieth century. Mangraisat texts did indeed disap-
pear, and so did traditional adjudication by Lanna princes who had been
sensitive to the requirements of Lanna customary law. Yet the customary
practices associated with the Mangraisat lingered for some time after the
enactment of the Civil and Commercial Code in 1935. The role of Lanna
religion and law was, however, hidden from view and could not be openly
acknowledged by legal professionals in the modern Thai state.
This situation appeared to change only in the last decades of the twen-
tieth century. As I have documented elsewhere (Engel and Engel, 2010),
interviews with injury victims and analysis of litigated injury cases in the
1990s revealed that the Lanna customary law of injuries had finally begun
to disappear. Injury victims demonstrated a diminished awareness of non-
judicial mechanisms that could compel the injurer to pay compensation.
Because most interviewees no longer lived in their birth villages, they
had grown increasingly unfamiliar with Lanna norms and practices for
handling injury cases. Spirit-based rituals had become less central to their
lives. As the expectation of a remedy faded in the late twentieth cen-
tury, litigation in tort cases actually declined.6 Injury victims preferred
to forgive the injurer and perform meritorious acts that would increase
their own karma rather than pursue a remedy in any forum, judicial or
nonjudicial. They no longer viewed the court as a backstop or a gap filler
when customary law broke down. Instead, they viewed law as contrary to
religion, which they had begun to characterize with reference to abstract
Buddhist precepts rather than the unique syncretic form of religious prac-
tice that had long prevailed in Lanna.
When interviewed, injury victims almost never referred to law in any
form and tended to assume that it was up to them to deal with the causes
and consequences of their own misfortune. Significantly, they still per-
ceived their mishaps with reference to concepts found in the Mangraisat
texts. They were still aware of the importance of spirits and ghosts and of
the need to guard against misfortune by increasing one’s store of merit.
Yet the distinctive syncretic form of Buddhism that evolved in Lanna over
the centuries had been weakened and replaced by a delocalized religiosity
that was no longer village-based or even rooted in northern Thai culture.
Injured persons did not associate this form of Buddhism with a set of
remedial mechanisms they could actually use. As a result of social and
demographic transformations, Lanna beliefs and practices regarding inju-
ries had disappeared, but Thailand’s official tort law was not perceived as
a viable replacement to alleviate the suffering of injury victims or provide
 Religion, Modernity, and Injury in Thail and 227

a solution to the root causes of their problems. Injury victims in Lanna

society found themselves bereft of any form of legal redress.

C ONCLUSION
The conventional story of legal modernity portrays secular and “rational”
legal institutions as displacing those that were historically embedded in
religion. According to this view, legal modernization in Thailand should
have severed the law of injuries from local religious understandings and
practices, and should have replaced it with a neutral and autonomous
system of dispute resolution. We know enough about the conventional
view, however, to regard its claims about the ascendance of modern law
with skepticism. The strategic efforts of the Thai ruling elite in the late
nineteenth and early twentieth centuries should be considered part of
what Asad (2003, p. 13) calls the “project” of modernity, an attempt by
those in power to institute such principles as “constitutionalism, moral
autonomy, democracy, human rights, civil equality, industry, consumer-
ism, freedom of the market―and secularism.” Asad goes on to note that
the “new experiences of space and time, of cruelty and health, of con-
sumption and knowledge” involve a process of disenchantment, “a strip-
ping away of myth, magic, and the sacred.”
Yet the modernization “project” of the ruling elite in Bangkok did
not fully match Asad’s theory. Our consideration of injury cases in Lanna
has suggested that the stripping away of myth, magic, and the sacred
was a highly selective process. Although the new tort law was manifestly
secular, its latent function was to impose a religious orthodoxy on deviant
regional traditions and to institutionalize a purified form of Buddhism as
the national religion. Admittedly, in certain respects this was a “modern”
project, supported by bureaucratization and rationality rather than what
was seen as charismatic authority and magic, but it was not exactly a move
in the direction of secularism, if that term is understood to involve a
decoupling of government, politics, and law from religion.
If the aim of modern Thai law was to bring injury disputes into insti-
tutional settings that featured “rational,” secular legal procedures, then it
failed miserably, at least in Lanna. Although injury cases in “premodern”
Lanna society could not be abandoned because the interests of an entire
community were at stake, injury victims in present-day Lanna almost
never pursue a remedy, and they overwhelmingly reject modern tort law
as a mechanism for dispute resolution. Litigation is not only daunting and
expensive, but it also appears to violate what are now viewed as the funda-
mental Buddhist principles of forgiveness, mercy, and nonattachment.
If the aim was to establish a wall of separation between church and
state, that goal, too, was not fully achieved. It is true that the overt con-
nections between law and religion that characterized the Mangraisat have
228 Davi d M . Eng e l

disappeared as a result of the Thai state’s twin assaults on Lanna reli-

gious and legal traditions. Yet Buddhism played a key role in the politi-
cal and cultural conquest of Lanna, and it continues to guide the legal
consciousness and actions of injury victims. The links between law and
religion remain highly significant but are now subtle and cannot be offi-
cially acknowledged, since doing so would violate the requirements of
secular legality. As a result, the twin triumphs of state law and religion in
Lanna have resulted paradoxically in the complete absence of any form of
remedy for those who suffer harm at the hands of another.
It may be inaccurate to label these developments a form of secular-
ism, or even modernity, but they are surely consistent with the goals of
Thailand’s ruling elite more than a century ago as they prepared their
country to step onto the world stage as a unified, independent, and “civi-
lized” nation-state. Bringing an end to the world of the Mangraisat was
a higher priority than resolving individual injury disputes. In this sense, at
least, Lanna’s loss was Thailand’s gain.

L AW C ODES
Thai Civil and Commercial Code, Book II: Obligations, Title V: Wrongful Acts,
1935.
Sao Hai. Palm leaf manuscript from Wat Sao Hai. Republished Basic Research on
The Ancient Lanna Law: Analysis of its Legal Structure and Texts as Inscribed in
Palm Leaves from Time Immemorial, Vol. 3, Book 3, edited by P. na Nagara, P.
Chaisangsukkul, and A. Wichienkeeo. Bangkok: Thai Khadi Research Institute,
Thammasat University, 1988.
Chai Sathan. Palm leaf manuscript from Wat Chai Sathan. Republished Basic
Research on The Ancient Lanna Law: Analysis of its Legal Structure and Texts
as Inscribed in Palm Leaves from Time Immemorial, Vol. 3, Book 6, edited by
P. na Nagara, P. Chaisangsukkul, and A. Wichienkeeo. Bangkok: Thai Khadi
Research Institute, Thammasat University, 1989.
Chiang Man. Palm leaf manuscript from Wat Chiang Man. Republished Basic
Research on The Ancient Lanna Law: Analysis of its Legal Structure and Texts
as Inscribed in Palm Leaves from Time Immemorial, Vol. 3, Book 3, edited by
P. na Nagara, P. Chaisangsukkul, and A. Wichienkeeo. Bangkok: Thai Khadi
Research Institute, Thammasat University, 1988.
Notton. Palm leaf manuscript from collection of Camille Notton. Republished
Basic Research on The Ancient Lanna Law: Analysis of its Legal Structure and
Texts as Inscribed in Palm Leaves from Time Immemorial, Vol. 3, Book 3,
edited by P. na Nagara, P. Chaisangsukkul, and A. Wichienkeeo. Bangkok: Thai
Khadi Research Institute, Thammasat University, 1988.
Chang Kham. Palm leaf manuscript from Wat Chang Kham, Nan Province.
Republished The Laws of King Mangrai (Mangrayathammasart), Transcribed
in modern Thai by A. Wichienkeeo. Translated into English and edited by A.
Wichienkeeo and G. Wijeyewardene. Canberra: Department of Anthropology,
Research School of Pacific Studies, The Australian National University, 1986.
 Religion, Modernity, and Injury in Thail and 229

N OTES
1. Although “Thailand” was known as “Siam” until its name was officially
changed in 1939, for simplicity and clarity I use “Thai” and “Thailand”
throughout this chapter.
2. I have described the details of the creation of the modern Thai legal system
in Engel, 1975, 1978.
3. English translations are my own unless otherwise indicated. Note that a
similar provision appears in the Sao Hai text on p. 66.
4. According to Keyes (1977, p. 116), “This ‘vital essence’ exists in plural
forms, occupying 32 parts of the human body, according to the Thai belief.
In practice, villagers throughout the region think of the ‘vital essence’ as
a unity. The ‘vital essence’ must be in the body of the human, the rice, or
the animal lest the human or animal suffer misfortune and eventually die
or the rice be deprived of its nutrient quality and its fertility. Thus, periodic
rites are performed in order to secure the ‘vital essence’ to the body, such
rites for humans occurring on such occasions as a radical change in status,
a shift of residence, or a serious accident or disease.”
5. Some guardian spirits are identified with historical or mythological figures,
such as former kings or princes (Morris, 2000).
6. The decline in tort litigation rates becomes evident when the number of
case filings per year is compared to the frequency of injuries. Litigation
rates in the Chiangmai Provincial Court from the 1960s through the
1990s are analyzed in Engel and Engel, 2010.

R eferences
Asad, T. Formations of the Secular: Christianity, Islam, Modernity. Stanford:
Stanford University Press, 2003.
Cohen, P. T. “A Buddha Kingdom in the Golden Triangle: Buddhist Revivalism and
the Charismatic Monk Khruba Bunchum.” Australian Journal of Anthropology
11, no. 2 (2000): 141–54.
Engel, D. M. Law and Kingship in Thailand during the Reign of King
Chulalongkorn. Ann Arbor: University of Michigan Center for South and
Southeast Asian Studies, 1975.
——— Code and Custom in a Thai Provincial Court: The Interaction of Formal
and Informal Systems of Justice. Tucson: University of Arizona Press, for the
Association for Asian Studies, 1978.
Engel, D. M., and J. S. Engel. Tort, Custom, and Karma: Globalization and Legal
Consciousness in Thailand. Stanford: Stanford University Press, 2010.
Fitzpatrick, P. The Mythology of Modern Law. London: Routledge, 1992.
Griswold, A. B., and P. na Nagara. “Epigraphic and Historical Studies, No. 17:
The ‘Judgments of King Măn Rāy.”’ Journal of the Siam Society 65, no. 1
(1977): 137–60.
Harding, A. “The Eclipse of the Astrologers: King Mongkut, His Successors, and
the Reformation of Law in Thailand.” In Examining Practice, Interrogating
230 Davi d M . Eng e l

Theory: Comparative Legal Studies in Asia, edited by P. Nicholson and S.

Biddulph, 305–39. Leiden, The Netherlands: Martinus Nijhoff, 2008.
Ishii, Y. Sangha, State, and Society: Thai Buddhism in History. Translated by P.
Hawkes. Honolulu: University of Hawai’i Press, 1986.
Keyes, C. F. “Buddhism and National Integration in Thailand.” Journal of Asian
Studies 30, no. 3 (1971): 551–67.
——— “Buddhist Pilgrimage Centers and the Twelve-Year Cycle: Northern Thai
Moral Orders in Space and Time.” History of Religions 15, no. 1 (1975):
71–89.
——— The Golden Peninsula: Culture and Adaptation in Mainland Southeast
Asia. New York: Macmillan, 1977.
——— “Death of Two Buddhist Saints in Thailand.” Journal of the American
Academy of Religions [JAAR] Thematic Studies 48, no. 3–4 (1982): 149–80.
Loos, T. Subject Siam: Family, Law, and Colonial Modernity in Thailand. Ithaca,
NY: Cornell University Press, 2006.
Morris, R. C. In the Place of Origins: Modernity and its Mediums in Northern
Thailand. Durham: Duke University Press, 2000.
Na Nagara, P., P. Chaisangsukkul, and A. Wichienkeeo, eds. Basic Research on
The Ancient Lanna Law: Analysis of its Legal Structure and Texts as Inscribed
in Palm Leaves from Time Immemorial, Vol. 3, Book 3. Bangkok: Thai Khadi
Research Institute, Thammasat University, 1988–89.
Ramitanon, S. Phi jao nai [Spirits of the Nobility], 2nd edn. Chiangmai: Ming
Műang Press, 2002.
Rhum, M. R. The Ancestral Lords: Gender, Descent, and Spirits in a Northern Thai
Village. Special Report No. 29. Monograph Series on Southeast Asia. DeKalb:
Center for Southeast Asian Studies, Northern Illinois University, 1994.
Sullivan, W. F. The Impossibility of Religious Freedom. Princeton: Princeton
University Press, 2005.
Tanabe, S. “The Person in Transformation: Body, Mind and Cultural
Appropriation.” In Cultural Crisis and Social Memory: Modernity and Identity
in Thailand and Laos, edited by S. Tanabe and C. F. Keyes, 43–67. Honolulu:
University of Hawai’i Press, 2002.
Tiyavanich, K. Forest Recollections: Wandering Monks in Twentieth-century
Thailand. Honolulu: University of Hawai’i Press, 1997.
Unger, R. M. Law in Modern Society: Toward a Criticism of Social Theory. New
York: The Free Press, 1976.
Wichienkeeo, A. “Lanna Customary Law.” In Thai Law: Buddhist Law: Essays on
the Legal History of Thailand, Laos and Burma, edited by A. Huxley, 31–42.
Bangkok: White Orchid Press, 1996.
Wichienkeeo, A., and G. Wijeyewardene, trans. and eds. The Laws of King
Mangrai (Mangrayathammasart): The Wat Chang Kham, Nan Manuscript
from the Richard Davis Collection. Canberra: Department of Anthropology,
Research School of Pacific Studies, The Australian National University, 1986.
Wyatt, D. K. “Laws and Social Order in Early Thailand: An Introduction to the
Mangraisat.” Journal of Southeast Asian Studies 15, no. 2 (1984): 245–52.
 14

LAW AND RELIGION IN HISTORIC TIBET

Fernanda Pirie

B uddhism provided legitimating ideas for political authority in Tibet

from at least the eleventh century.1 The Ganden Potrang government of
the Dalai Lamas, which administered central Tibet from the mid-seven-
teenth to the mid-twentieth centuries, explicitly promoted a concept of
harmony between the religious and the political. However, what place did
law occupy within this ideological scheme, and what were the practical links
between religious and legal practices? In a book on The Legal Cosmology
of Buddhist Tibet, French (1995, pp. 345–46) suggests that “religion per-
meated the secular legal system in the form of Buddhist standards, logic,
factoring, jurisprudential concepts, and reality shifts that moved argu-
ment into otherworldly reasoning”. Religion, in her account, dominated
Tibetan attitudes to conflict, which they related to incorrect vision caused
by one of the six root afflictions in Buddhist philosophy (1995, p. 73),
leading them to interpret legal cases in terms of inner morality, afflicted
mental views, and the true nature of reality (1995, p. 288).
This picture is not, however, supported by research into conflict reso-
lution in Tibetan regions. Ethnographic studies from two different parts
of the region have noted its pragmatic, rather than religious, orienta-
tion (Pirie, 2006; 2008), while studies of historical documents recording
the resolution of disputes in central Tibet indicate little or no appeal to
Buddhist ideas (Schuh, 1984). The question I address in this chapter
is why religious ideas did not play a more explicit role within practices
of conflict resolution, given the ideological links between religion, poli-
tics, and law. Reviewing historical legal texts, I suggest that the relation-
ship between law and religion was, in fact, characterized by disjunctions
and tension as much as by harmony and coherence. In Tibetan terms,
the realm of chos (religion), heavily influenced by texts that originated
in India, did not provide cosmological or jurisprudential foundations for
232 Fe rna nda Pi ri e

the khrims (laws) or judicial practices. The result was that the administra-
tion of criminal punishments and practices of conflict resolution remained
fragmented, decentralized, and unsystematic.

B UDDHIST C OSMOLOGY AND L EGAL P RACTICES

In The Golden Yoke (1995), French suggests that “ordinary” Tibetans
understood law “as a kaleidoscopic cosmology”: their “jurispruden-
tial concepts” included “the absolute uniqueness of each circumstance,
the absence of precedent, the importance of karmic sanctions, and the
legal structure of the country as a pulsating mandala” (1995, p. 16).
“Tibetans,” she states, “believed that their legal system was permeated
with the moral requirements of the Buddha and that the self-regulation of
each individual’s mind was the key to all social systems” (1995, p. 343).
“Derived from the rich source of Buddhist philosophy,” she concludes,
“Tibetan legal cosmology is based on assumptions about the world as
simultaneously both wholly interconnected and completely particular”
(1995, p. 346).
There have been cogent scholarly critiques of French’s work, in particu-
lar, her use of historical texts (Huber, 1998; van der Kuijp, 1999) and her
attribution of complex and esoteric Buddhist concepts to illiterate peasants
and nomads (Frechette, 1996; Huber, 1998). An examination of the his-
toric documents collected by Dieter Schuh from central Tibet, moreover,
reveals that there was very little, if any, reference to Buddhist principles in
agreements recording the resolution of conflicts or the creation and con-
firmation of legalistic relations concerning land and taxation, either under
the Ganden Potrang government or during earlier periods (Schuh, 1976;
1981; 1988; Schuh and Pukhang, 1979). There were gestures toward
legal authority, implicitly that of the Dalai Lama, who was invoked as the
khrims bdag (the legal lord) in the preamble to many documents; there
were references to the ideals of peace and harmony, especially in docu-
ments recording the settlement of disputes. However, they do not other-
wise refer to, or implicitly invoke, Buddhist cosmological ideas.
During ethnographic fieldwork in Ladakh, an agricultural area at the
western end of the Tibetan plateau, moreover, I found a striking disjunc-
tion between the realms of village law and village religion. Neither the
Buddhist deities and local spirits nor the ritual practitioners were regarded
as being concerned with the issues of conflict and local social order; the
philosophical principles of the Buddhist texts were considered to be mat-
ters of concern for the religious elite, not for the village meeting (Pirie,
2006; 2007a). At the other end of the plateau, among the nomadic pas-
toralists of Amdo, I found that high-status monks and reincarnate lamas
were called upon to mediate the most intractable and bloody feuds that
arise among their tribes. However, the principles upon which they acted
 L aw and Religion in Hist oric Tibet 233

were those of revenge-based compensation, involving the payment of

blood money and its equivalent for injuries (Pirie, 2008). Fieldwork
among “ordinary” Tibetans, then, indicates little overlap either between
the cosmology and ideas of Buddhism and lay attitudes to conflict, or
between the religious activities of the monks and the local practices devel-
oped to deal with disputes.
What French describes is not, however, fantasy. At some level, at least
among her informants, there was a projection of religious ideas onto the
socio-legal world. Those informants appear mainly to have been members
of the former government in Lhasa, and it is perhaps not surprising that the
official ideal of harmony between the religious and political realms should
have led them to present their legal practices and codes to her as part of a
single cosmological whole. As I describe in more detail, there were legal
codes, distributed widely in the region, which claimed to be based on
religious principles. There were also historical narratives about the ancient
Tibetan empire that described the simultaneous adoption of Buddhism
and creation of a legal system as foundational acts on the part of the great
emperors. In other words, there was an impulse within literary and elite
religious circles to present Tibetan law as founded on Buddhist principles
and as part of a historical legacy of the great Buddhist emperors.
Nevertheless, contrary to what French supposes, religious ideas did
not permeate or generate an extensive legal system with relevance for
local populations. In this chapter, I consider some of the extant texts,
legal codes, narratives, and private documents in order to ask why this
may have been the case.

T HE H ISTORY OF THE L AW IN T IBET

The Tibetan Empire
The imperial texts found in the Dunhuang caves, which constitute our pri-
mary source of knowledge about the Tibetan empire (ca. 600–850 AD),
indicate the existence of an imperial legal system. A few surviving frag-
ments of legal texts (Thomas, 1936; Richardson, 1989–1991) specify rules
for compensation and punishment for theft, injury, and accidents. The
levels of compensation were set according to rank and status, that is, such
laws sought to establish social status as much as resolve conflicts. There is
also evidence of the centralization and systematization of judicial practice
within the empire. A text on divination and law, for example, contains a
set of instructions given by the central government to local officials about
which rules to apply, and how, in specific cases (Dotson, 2007).
The Dunhuang Annals (Bacot et al., 1940; Stein, 1986), a near-
contemporaneous record of the events of each year, indicate that the
idea of lawmaking as an imperial activity was important. In the Annals
234 Fe rna nda Pi ri e

for the years 654 and 655—among references to the places where the
emperor and his ministers resided, diplomatic relations, marriages, and
building projects—are references to the making of a census (rtsis mgo)
and laws (bka’ grims kyi yi ge).2 The importance of imperial lawmaking
was confirmed by the Old Tibetan Chronicle, written some two centuries
later (Bacot et al., 1940; Stein, 1986). This text attributes lawmaking
(bka’ grims)—along with the introduction of Buddhism and writing—to
Songtsan Gampo, the first Tibetan emperor. In fact, Songtsan Gampo
died in 649, so he is unlikely to have done most of the things attributed
to him here. What is important is that the Tibetan emperors were, during
this period, glorified as great administrators, as well as for their statecraft
and rule making, their great customs, and their good, heroic kingdom. It
was only later, as Dotson (2006) points out, that their activities came to
be characterized as part of an essentially religious project. The time and
nature of the first substantial influence of Buddhism in Tibet is a matter of
considerable debate (Stein, 1986), but it certainly postdates the political
and legal foundations of the empire.

Postimperial Texts
The disintegration of the empire in the ninth century led to a period of
political fragmentation, during which no stable regime dominated until
the rise of Sakyapa in the late thirteenth century.3 Religio-political dynas-
ties, largely clans that had been important during the imperial period, now
sought to reestablish power, relying both upon ancestral links with the
empire and on their religious inheritance. Very often, ruling families were
allied to particular religious temples or communities, something that served
as a marker of status. The concept of lineage became central to the author-
ity of religious scholars and sects; they would (and still do) claim to have
texts derived directly from India or to have received teachings transmitted
in an unbroken line from one of the great historical religious figures.
In the narratives that appeared during this period and subsequent cen-
turies, imperial history was presented as a Buddhist project, and it is here
that we find the first clear expression of the idea that lawmaking had
been based on religious principles. The eleventh-century Dba bzhed, for
example, a text described as “the royal narrative concerning the bring-
ing of Buddhism to Tibet,” recounts that Songtsan Gampo made law
(bka’ khrims) on the basis of the ten virtues (dge ba bcu) (Wangdu and
Diemberger, 2000). These “virtues” comprise a set of moral rules, rather
like the Ten Commandments, which had already been mentioned in an
eighth-century text. These references in the Dba bzhed were, therefore, an
explicit attempt to link imperial lawmaking with the reception of religious
morality in Tibet. In fact, the imperial laws that survive bear no obvious
relation to these moral rules, nor was any such relation claimed in the
 L aw and Religion in Hist oric Tibet 235

Annals. Moreover, the khrims described in the Dba bzhed included pay-
ment of blood money, compensation for theft, mutilation punishments
for sexual misbehavior, and the use of oaths to prevent lying; in practice,
they bear very little relation to the ten virtues. Nevertheless, the claim was
that imperial lawmaking had been based on religious principles.
Lawmaking was mentioned in several twelfth-century histories (Stein,
1986). The Ma ni bka’ ’bum of around 1200, for example, depicted Tibet
as having been a non-Buddhist country civilized by the force of Buddhism
(Dreyfus, 1994, p. 208). As part of this project, it was said that Songtsan
Gampo made laws (bka’ khrims) based on the ten virtues and the mi chos
(another set of moral precepts), and that these laws replaced capital pun-
ishment with blood money. Royal law (rgyal khrims), the text explained,
was sinful before it was allied with religious law (chos khrims) and based
on the ten virtues.
Although there is no consistent narrative among these texts, they almost
invariably refer to either Songtsan Gampo or Tri Song Detsen, the most
famous of the Tibetan emperors, as the originators of Tibetan law; they
describe the kings’ laws as having superseded an earlier system of punish-
ments, replacing capital punishment, in particular, with the payment of blood
money; and there is a general differentiation between the rgyal khrims and
the chos khrims (royal and religious law). Imperial law, which had been essen-
tially secular, was now being reconstrued as a religious project, something
that had replaced, and remained distinct from, an earlier (sinful) system of
secular laws and punishments. At the level of historiography, that is, there
was an attempt to portray the contemporary Tibetan polities as successors to
the legacy of the great Tibetan emperors, whose foundational acts, including
lawmaking, had been guided by the principles of Buddhism.

The Mongol period

In the early thirteenth century, the Mongols conquered Tibet.4 The reac-
tion of Tibet’s religious leaders was to convert the Mongols to Buddhism,
leading to what has been described as a patron–client relationship between
their respective leaders: the secular (Mongol) ruler or khan was the patron
and also the disciple of the religious (Tibetan) teacher or lama. It is a
relationship that essentially continued into the era of the Dalai Lamas,
and from around 1260—with the rise of the Sakya regime under Mongol
patronage—it was described as a relationship between two systems (lugs
gnyis). During this period, the Mongol khans patronized a number of reli-
gious leaders associated with different religious sects, ultimately choosing
to support the Dalai Lamas’ Gelukpa sect, which led to the foundation of
the Ganden Potrang government in the 1640s.
For a brief time in the fourteenth and fifteenth centuries, however, as
the Mongols’ Yuän dynasty in China weakened, their power also waned on
236 Fe rna nda Pi ri e

the Tibetan plateau. This gave the opportunity for the Tibetan Pagmodru
religious order, under Changchub Gyaltsan, to rise to power (Kapstein,
2006, pp. 117–18). Having wrested power from the Sakyapa, Changchub
Gyaltsan styled himself “desi” (sde srid), an imperial term for regent. He is
said to have modeled his regime upon that of the early emperors, claiming
to be restoring “the ancient kings’ monarchic ideal” by reviving national
laws and customs (Tucci, 1949, p. 23; Snellgrove and Richardson 1968,
p. 153; Dreyfus, 1994, p. 210). This included the formulation of a law
code that implicitly evoked the laws of the imperial period. This code has
become known as the khrims yig zhal lce bcu gsum/bcu drug (the book of
13/16 laws) or the zhal lce.5
The code is a curious mixture of poetic and metaphorical phrases and
exhortations, along with rules for the conduct of officials, general state-
ments about punishments, more specific rules about compensation, and
rules for legal procedures. For example:6

By the thousand illuminating rays of light of the officers let every subject
be prosperous, and happy, like the garden of the lotus flower. Therefore
you, the officers, whom I the king have appointed should forsake all self-in-
terest and consider the duty of the government as of foremost importance;
perform ceremonies for the state, follow the footsteps of the former kings
and support the religion of Buddha . . . During the festival of the fifth month
hold grand prayers in every district . . . In the case of old debts if interest and
part of the principal is paid, arrangements for the payment of the balance
should be made without settling final accounts.
Burn the malicious (prickly) thorn in the fire of law and by the rain of the
cloud of law let the earth be turned into a fertile one . . . Arrest them that
quarrel with their unequals. Bind the wicked in a terrifying manner. Seal it
(the binding) by putting them in the stock.
In serious cases, such as murder by a gang, rioting between people and
monks, fighting on account of enmity and other evil acts which are much
against the law, in such cases impose a fine from 15 to 80 ounces of gold in
pieces, according to the circumstances of a case. In smaller offences such as
death due to accident, robbery due to hunger, in such cases impose a fine
from 3 to 5 ounces of gold in dust, according to the crime . . . In general,
one ounce of gold dust is equivalent to 96 bushels (of barley) . . . If the value
is converted into goods, one chapob [probably four bricks of tea] is equal
to one ounce of gold dust, yaks of two or three years old are equal to one
ounce.
[A]ccording to former law, pay three sho for one drop of blood of a high
class person, two sho for a drop of blood of a middle class person, and one
sho for a drop of blood of the lowest class. Give a horse for breaking teeth,
give a sheep for pulling hair, but if a priest is hurt for violating the rules, if
a subject is hurt by the ruler for violating the king’s law, and if parents hurt
their child in those cases no penalty is imposed.
 L aw and Religion in Hist oric Tibet 237

Like the imperial laws, many of these provisions are as concerned with
social status as they are with conflict resolution, and although there are no
obvious links with surviving texts, they may have drawn upon then-extant
precedents. We do not have any direct evidence about how and why the
code was created and used. However, it appears to reflect the administra-
tive and political concerns of its time; it is what we might expect from a
rising political power, concerned with warfare, establishing a system of law
and order, and formalizing judicial procedures. The earliest extant copy
(probably from the sixteenth century) asserts that the code replaced the
Mongols’ laws (hor khrims) with a set of Tibetan laws (bod khrims). In fact,
there is no evidence that the Mongols in Tibet created and applied a set
of written laws, but it is quite possible that they were administering jus-
tice, in various ways, or that the Sakyapa had adopted Mongol procedures.
Changchub Gyaltsan clearly wanted to assert control over this area of gov-
ernmental administration at a time when Mongol power was waning. Given
the importance of the imperial legacy in contemporary historical narratives,
it seems only natural that he should have done this by modeling himself on
the great Tibetan emperors, whose activities included the making of laws.
Parallels can be drawn with the lawmaking activities of the Germanic
kings of early medieval Europe. As Wormald describes (1999, pp. 27–30),
law codes represented an aspect of imperial dignity, as legislation had
been, par excellence, a function of the Roman emperors. Of course, we
do not know how, if at all, the zhal lce were used, either by the Pagmodru
or subsequent rulers. However, the existence of copies from more than
one and two centuries later, and into the Dalai Lamas’ period, indicates
that they came to acquire symbolic as well as practical significance. As
Wormald points out, the Germanic codes were unlikely to have been
practical instruments of justice, containing unsystematic or even illogical
provisions and being written at a time when literacy was rare. Thus, he
says, we should think in terms of their aspirational significance: legislation
“projected an image of society which corresponded with the ideological
aspirations . . . of its articulate classes” (1999, p. 34). A comparison with
Changchub Gyaltsan’s lawmaking seems apposite.
The secular and lawlike nature of this code contrasts sharply with the
historic narratives from the same period. Its claim to religious provenance
and authority was limited to the assertion that the laws were derived from
formulations by Songtsan Gampo, based on religious precepts (Meisezahl,
1973, p. 225). In reality, the pragmatic concerns of a political administra-
tion dominated.
Copies of the zhal lce dating from 1583 and 1636 indicate that the
code continued to be significant for Tibetans after the Mongols reestab-
lished power in the fifteenth century. However, in a parallel tradition, the
historical narratives, with their images of a synthesized political, legal, and
238 Fe rna nda Pi ri e

religious realm, were further elaborated and expanded.7 The Padma bka’
thang, for example, is a revised biography of Padmasambhava, the Indian
teacher invited by Tri Song Detsen to spread Buddhism in Tibet, dated to
around 1412 (Toussaint, 1933). This explicitly distinguishes two systems,
rgyal khrims (king’s law) and chos khrims (religious law). Tri Song Detsen,
it relates, supplemented the royal law, which was like a golden yoke or a
heavy ingot, with religious law, which was like a silken knot, soft and sacred,
and which he had brought from India. What the text lists as laws are not
very lawlike, however. What are, presumably, meant to represent the chos
khrims comprise a list of moral exhortations: “Let whoever writes, enunci-
ates, preaches, or expounds the dharma instruct children usefully; let the
sick be treated with the help of nurses and ceremonies; let those who blush
in shame not ally themselves with the shameless; let there be no stealing”
(Toussaint, 1933, p. 269). This is more like a vision for an ideal society
than a set of rules. It forms a complete contrast to the zhal lce’s hard-nosed
rules and lists of punishments. Equally, what is presumably meant to rep-
resent royal laws is a list of unspecific punishments: “Let the murderer pay
the blood price; let the thief repay; let straightforwardness distinguish the
decrees of justice; let the liar be banished to the frontiers; let all be forced
to obey” (Toussaint, 1933, p. 271). This is a general vision for what a
good judicial system ought to achieve. This part of the text seems to be,
among other things, an ideological attempt to reconcile (contemporary)
practices of punishment with Buddhist principles. In the text, any details
of legal substance―specific rules, distinctions between statuses, crimes,
punishments, and rules for compensation—have disappeared. What are
described as khrims have become statements of general moral principle or
exhortations for the organization of a good legal system.
Another text, known as the Mkhas pa’i dga ston, was written in the
mid-sixteenth century. This new version of an older text includes a section
known as the Narrative of Law and State, parts of which date back to the
empire, with what are probably tenth- and eleventh-century additions of
Buddhist motifs (Uray, 1972; Dotson, 2006). It also includes references
to the lugs gnyis, the dual system of secular and religious institutions, and
to a set of 16 mi chos (moral rules). The section is divided into a set of
complicated, and not very logical, lists, encompassing six codes and 36
institutions, with numerous subdivisions and secondary lists. Among these
are references to legal practices and complicated rules for the presentation
and stages of a legal case, which probably date back to the empire. There
is also a section containing legal provisions: 15 royal laws, 16 moral rules,
and 6 great laws (one each against murder, theft, adultery, and falsehood;
another prohibiting theft from royal tombs; and one concerning official
proclamations) (Dotson, 2006, p. 323). Many of these seem to be surviv-
als from the empire, in particular those concerning the payment of blood
money according to rank, the four great laws, the ten virtues, and some
 L aw and Religion in Hist oric Tibet 239

matters of legal procedure. However, in this text, the legal provisions have
been transformed into a complex set of lists and cycles of institutions,
ranks, principles, and rules.
This extreme formalism incorporates the khrims into a formulaic his-
torical narrative, which presents an esoteric, cosmological, and historical
view of the world associated with Buddhist ideology, mythologizing, and
eulogies for the great emperors. It is clear that the document is part of
a lineage of narratives that borrow passages and ideas from earlier texts,
melding together provisions that probably date back to the empire with
more recent ideas and formulations. What is clear, however, is that the
section on lawmaking indicates a desire to present Tibetan law as part of
the imperial legacy. Of course, this is also what Changchub Gyaltsan was
doing, but he created a code that looked like it might actually have been
applied, and which may have reflected the pragmatic nature of contempo-
rary legal practices and punishments.
In the meantime, there is no other evidence of secular lawmaking by
subsequent Tibetan rulers.8 This was a turbulent time, with competi-
tion between dynasties, monasteries, and polities, in which the Mongols
played an influential part (Snellgrove and Richardson, 1968, pp. 153–55;
Kapstein, 2006, ch. 5). The idea of reincarnation and its use as a politi-
cal strategy became important, and eventually the Mongols supported
the Gelukpa sect under its line of reincarnated lamas, known as the Dalai
Lamas. The Ganden Potrang government was established in the mid-
seventeenth century, at the time of the Fifth Dalai Lama, with its seat in
Lhasa in the newly constructed Potala palace.

T HE G ANDEN P OTRANG G OVERNMENT

By this point, then, the Tibetan intellectual world contained a practi-
cal, but not very new, legal code, the zhal lce, and copies from 1583
and 1636 indicate its continuing importance for Tibetan elites. It also
contained a set of historical narratives that attributed lawmaking to the
earliest Buddhist emperors.
Much has been written about the Fifth Dalai Lama, and I cannot
analyze his role as an administrator here in any detail. He was a prolific
writer, as well as a practical administrator, who traveled widely in Tibet
and beyond (Snellgrove and Richardson, 1968, p. 201; Kapstein, 2006,
pp. 140–1). However, contrary to what French (1995, p. 46) implies, he
did not create a substantially new legal code. Rather, he reproduced, and
tacitly adopted, the zhal lce (Schuh 1984). In 1643, in the early days of the
Ganden Potrang government, 13 of the zhal lce were listed in a text that
also contains a historical narrative discussing the relationship between the
Dalai Lamas and the Mongol rulers (Ishihama, 1993, p. 39). The Fifth
Dalai Lama’s historical chronicle lists 15 of the rules, attributing them to
240 Fe rna nda Pi ri e

Changchub Gyaltsan, and claiming that he had based them on the ten
virtues of Songtsan Gampo (Ahmad, 1995, pp. 141–2). In this way, he
was reproducing the legal/religious ideology of the historical narratives.
The zhal lce were subsequently reproduced and distributed around Tibet:
we have copies from the nineteenth and twentieth centuries (Meisezahl,
1973), and references to their being in the possession of district officials
(Macdonald, 1932), including in Sakya, which had remained semi-inde-
pendent into the twentieth century (Dawa Norbu, 1974), and Sikkim, an
independent kingdom from the mid-seventeenth century (White, 1894).
At the highest levels of government, therefore, neither the Fifth nor any
of the subsequent Dalai Lamas or their regents engaged in any founda-
tional acts of lawmaking. Rather, they presented as Tibetan law a code
created by Changchub Gyaltsan, on the grounds that it was part of a
lineage descended from Songtsan Gampo.
Meanwhile, the Ganden Potrang developed new bureaucratic struc-
tures. There are debates about the extent to which the Tibetan state
could be called a rational bureaucracy in a Weberian sense, or if it is bet-
ter characterized as a galactic polity with an exemplary ritual center, after
Tambiah’s (1985) model (Michael, 1982; Samuel, 1993). However, there
is no doubt that it did have a substantial bureaucracy. For example, a docu-
ment issued in 1681 by Desi Sangye Gyatso, minister of the Fifth Dalai
Lama, contains 21 rules and a myriad of subrules supposed to govern the
behavior and competence of government officials. It makes fine distinc-
tions about grades of officials, salaries, qualities of food, and serving dishes
(Cüppers, 1997). Another document issued by the Fifth Dalai Lama con-
tains seating rules for officials (Cüppers, 1997). Versions of zhal lce from
the seventeenth and nineteenth centuries form parts of documents con-
taining other rules regarding legal costs, types of punishments, and lists of
weights and measures (Meisezahl, 1973; 1992). A considerable number
of edicts and instructions were issued by the Ganden Potrang government
to regional officials (French, 1995, pp. 233–5). It was not, therefore, that
the government did not have the capacity or inclination to make decrees,
regulations, and rules. Nevertheless, instead of issuing new laws—which
might have been a means of unifying the entire polity—or attempting to
systematize or codify legal practices to create a form of common law, the
Fifth Dalai Lama and his advisers decided to adopt and distribute the zhal
lce as Tibetan law. His successors did likewise, and nineteenth- and twen-
tieth-century versions are copied, almost word for word, from the earliest
extant versions. Indeed, the one attempt to update the laws, undertaken
by Doring Taji in 1867, was limited to some rearrangement of the sections
and updating of the language (Meisezahl, 1973).
A law code created in the fourteenth century, containing provisions
for specific punishments and levels of compensation in different cases,
was, therefore, being distributed and described as Tibetan law into the
 L aw and Religion in Hist oric Tibet 241

twentieth century. Chandra Das, in his dictionary (1902, p. 1068),

describes the zhal lce as “enactments in force in Tibet.” This code could
hardly have been the practical basis for judicial practice six centuries after
it was written, however. There were courts in the main political centers,
at least in Lhasa and Sakya, in the nineteenth and twentieth centuries, but
there is no evidence that the code was ever referred to in detail by the
judges. Dawa Norbu (1974), for example, describes an ornately bound
copy of the zhal lce in the Sakya courtroom, which was ceremoniously
consulted on delicate points of procedure, but to which only the highest
officers had access. There is no evidence that any of its laws were ever
applied in detail (Cassinelli and Ekvall, 1969, ch. 6).
What appears to be important about the zhal lce during this period
was not their content but the fact that they were attributed to Songtsan
Gampo. This is referred to in several accounts (Macdonald, 1932;
Richardson, 1962, p. 16; Dawa Norbu, 1974) as well as in copies of the
texts themselves (White, 1894), and it was obviously the way they were
described at the time. In other words, they were more a symbol of the
long history and religious origins of the government than practical judi-
cial instruments. What seems to be an administrative document had come
to represent the religio-political heritage of the Dalai Lamas’ regime.

L EGAL P RACTICES
What is, then, interesting about the Dalai Lamas’ regime, given its rela-
tively complex and rational bureaucracy, is the lack of lawmaking. This is
matched by a relatively unsystematized administration of justice. Apart
from Lhasa, where some government officials were designated as judges,
there were no Tibetan legal professionals (Kapstein, 2006, p. 191).
Indeed, in descriptions of legal practice and records of cases, there is
evidence of reluctance on the part of central government ministers to
decide cases, preferring to send them back to the regions in which they
had originated for decision by local officials (Cassinelli and Ekvall, 1969,
pp. 92–3; Schuh, 1981, p. 227; Pirie 2007a, pp. 165–6). Documents col-
lected and translated by Schuh (1976; 1981; 1988; Schuh and Pukhang,
1979) recording the outcome of legal cases indicate that they mostly took
the form of mediation, and could only be concluded by an agreement
between the parties.9 To the extent that they invoked any form of law,
this was found in references to older documents that had concerned the
same topic—ownership or use of a particular piece of land or monas-
tic property, for example—and the authority of their authors. Moreover,
there are few references to religion, either expressed or implied, save the
invocation of the merits of peace and harmony in settlement agreements.
These documents are, for the most part, pragmatic, concerned with such
242 Fe rna nda Pi ri e

matters as the ownership and use of monastic property, taxation of land

and transport, the control of serfs, and so on.
At the same time, criminals were being tried and punished (Schuh,
1984). Despite claims from as early as the twelfth century that religious
law had replaced barbaric punishments, there was a caste of executioners
in early-twentieth-century Lhasa (Goldstein, 1989, p. 208). Such prac-
tices seem to have been an ongoing problem for higher-level officials,
however, and French (1995, p. 324) describes an incident in which the
local monks made a public plea for reduction in the severity of a mutila-
tion penalty. Monks, especially from the dominant Gelukpa sect, occu-
pied at least half of the government offices (Goldstein, 1989, pp. 8–10).
Their reluctance to get involved in legal cases is highlighted by the case of
Lungshar, an important official who was accused and convicted of treason
during the political struggles of the early twentieth century. Severe penal-
ties, in this case mutilation, were thought appropriate, and executioners
were called upon to put his eyes out. However, the highest level officials
were unwilling to take responsibility for either verdict or sentence, and
the regent would not sign orders for either, on the basis that he was a
monk (Goldstein, 1989, p. 208).
Certain patterns and precedents appear in these documents and prac-
tices, but they lack any explicitly stated organizing or guiding principles or
rules, whether based on religious principles or otherwise. It is not surpris-
ing that the practices I noted in both Ladakh and Amdo remained largely
localized, or that they differed so markedly (Pirie, 2007b). Although
these are recent studies, I found no evidence that there had ever been
more centralized or systematic practices in these areas.

C ONCLUSIONS
Religious establishments and individuals were at the heart of most politi-
cal developments on the Tibetan plateau from the end of the empire to
the fall of the Dalai Lamas’ regime in the mid-twentieth century. The
notion of a lineage of authority emerged during the early years as the
basis on which clans, religious leaders, their establishments, and their
texts sought to establish legitimacy; and the texts and narratives “discov-
ered” at this time invoke the legacy of an essentially Buddhist empire.
During the Mongol period, the religious authority of the lamas gained
new significance, and Tibetan Buddhism became firmly established as the
legitimating notion for political authority, culminating in the principle of
chos srid zung ’brel (harmony between religion and law).
As Kapstein (2006, p. 138) points out, however, “sustained reflection
on the basis of political organization itself was never part of traditional
learning.” While the scholars developed an ideology of religious law—chos
 L aw and Religion in Hist oric Tibet 243

khrims―practical legal documents, including the zhal lce, did little more
than pay lip service to Buddhist thought and concepts. Apparently a prag-
matic document, the zhal lce later became important, not as the basis for
the administration of justice, but as a symbol of the religio-historic lineage
of the Dalai Lamas. As such, it might be compared with the legal codes
created in imperial China. The Tang created a penal code in the seventh
century, for example, which acquired such prestige that it was adopted,
practically without modifications, during the subsequent Zhou and Song
periods. Even after the reorganization undertaken by the Ming in the
fourteenth century and the revision and expansion under the Qing (1644–
1910), a substantial proportion of the code consisted of articles taken,
unchanged, from the Tang code (Bodde and Morris, 1967, pp. 59–63;
Johnson, 1979).10 As MacCormack puts it, many aspects of the Chinese
penal codes, and of their legal processes in general, stemmed from a con-
cern for the preservation of the ancient moral traditions of humanity and
from a great respect for the traditions of the ancestors (1996, xv, 32).
Thus, we should, perhaps, not be too surprised at the reverence for the
old Tibetan law texts and a reluctance to engage in explicit acts of revi-
sion. In early-seventeenth-century England, too, leading jurists attributed
the qualities of the common law firmly to its antiquity and immemorial
usage. As Pocock describes in his famous study (1957, pp. 36, 50), the
idea of custom convinced men that the law was ancient and that it had
always been what it was now.
We can, then, see two contradictory impulses in the history of Tibetan
law. First, there was a move to make law, that is, rules for the conduct
and regulation of social life. This occurred within the legal system of the
empire and during the time of Changchub Gyaltsan. A similar move can
be seen in the preservation and distribution of the zhal lce under the
Ganden Potrang government: the idea that the Tibetan government had
its own laws was important. Second, there was a move to theorize about
law, as about many other things, in historical and religious terms. This
resulted in the attribution of lawmaking to ancient Tibetan emperors and
their religious project and to the influence of Buddhist moral codes.
These two tendencies pulled in different directions, however, and an
ideological tension between the religious and the secular ran, and still
runs, through Tibetan history and historiography. In the twelfth cen-
tury it was claimed that rules for blood money replaced physical punish-
ments, but the punishments continued, both as a matter of record and
of practice. Under the Ganden Potrang government, legal cases were
not something that officials were keen to get involved in, unlike in the
imperial period when emperors were glorified for their statecraft and
lawmaking. For a monk to be involved in the business of secular law was
not ideologically desirable.
244 Fe rna nda Pi ri e

If we read back the evidence from the twentieth century, as seems

reasonable, we can assume that there was a myriad of localized, disparate,
more or less effective systems for the resolution of conflict throughout
the history of Tibet. Not only was there no apparent inclination to har-
monize them, but also neither was there a ready conceptual framework
into which such practices could be fitted.
French is right that there was a Tibetan Buddhist vision of a good and
moral life. She is also right that there was an impulse to construe legal and
political documents and practices in terms of historic Buddhist authority.
However, this only occurred at the most elite and abstract levels, and she
is wrong to suggest that it led to the development of a Buddhist legal
system or, indeed, to any systematized form of legal practices. There is
no evidence that Buddhist concepts permeated actual practices of con-
flict resolution. What is notable about Tibet is, rather, the lack of law,
particularly within the Ganden Potrang government. Religion remained
a legitimating factor at the level of ideology, as expressed in the ideal of
harmony between the political and the religious, but it did not provide
a practical set of moral or other ideas for the foundation of a legal sys-
tem. Meanwhile, practices of conflict resolution remained fragmented,
localized, heterogeneous, and, as far as the available evidence suggests,
essentially nonreligious.

N OTES
1. I use the term “Tibet” to refer to the large area encompassing parts of
China, India, Nepal, and Bhutan in which the populations are ethnically
Tibetan.
2. I transcribe Tibetan terms according to the Wylie system (1959), adding
a phonetic transcription only for the most common phrases. Khrims, also
spelled grims in these early documents, is the general Tibetan term for
law or rules, sometimes also for custom.
3. The historical details in this section have been largely drawn from Kapstein
(2006, pp. 100–9). The Sakyapa are a monastic order, which effectively
ruled central Tibet from the mid-thirteenth to the mid-fourteenth centu-
ries from their monastery and base in Sakya.
4. The historical details in this section are largely drawn from Kapstein
(2006, pp. 110–23).
5. There are no surviving copies from the Pagmodru period, but references
are found in the biography of Changchub Gyaltsan, and there is a copy
that Meisezahl dates to 1583 (Schuh, 1984; Meisezahl, 1992).
6. I quote here from a twentieth-century translation prepared for Charles
Bell, the British representative in Tibet, which is now in the British
Library, and which I have very slightly amended for grammatical sense.
As Meisezahl points out, the provisions of the early code were repeated,
 L aw and Religion in Hist oric Tibet 245

substantially unchanged, in numerous later versions, but the language is

difficult and the code has never been properly translated.
7. A fourteenth-century version of the Ma ni bka’ ’bum, for example,
records an oration on the part of Songtsan Gampo in which he expounds
on the necessity of legislation and proclaims both the four fundamental
laws (against murder, theft, adultery, and false witness) and the 16 moral
rules (mi chos) (Stein, 1986).
8. French (1995, pp. 43–6) asserts that the Tsang kings made law codes,
but her references are obscure and this seems to be an attribution of the
zhal lce to the Tsang.
9. Dieter Schuh has translated and analyzed, in these publications, a con-
siderable number of legal documents, and much more work is needed
to consider their significance for the analysis of the Tibetan legal realm.
Here, I simply rely upon a few of his most important conclusions and
patterns that recur throughout the texts.
10. The laws of Hammurabi, who ruled Babylon from 1792 to 1750 BC,
were also copied and recopied over the following millennium (Bottéro,
1987, p. 196), while the Irish codes created in the seventh and eighth
centuries were copied, with glosses and commentaries, until the collapse
of the Gaelic order in the seventeenth century (Kelly, 1988, pp. 225–31,
250–63).

R eferences
Ahmad, Z. A History of Tibet by the Fifth Dalai Lama. Bloomington: Indiana
University, 1995.
Bacot, J., F. W. Thomas, and C. Toussaint. Documents de Touen-Houang Relatifs a
l’Histoire du Tibet. Paris: Librairie Orientaliste Paul Geuthner, 1940.
Bodde, D., and C. Morris. Law in Imperial China: Exemplified by 190 Ch’ing
Dynasty Cases. Cambridge: Harvard University Press, 1967.
Bottéro, J. Mésopotamie: l’Ecriture, la Raison et les Dieux. Paris: Gallimard, 1987.
Cassinelli, C. W., and R. Ekvall. A Tibetan Principality: the Political System of Sa
sKya. Ithaca: Cornell University Press, 1969.
Cüppers, C. “Some Aspects of Tibetan Administration under the Dga’ ldan Pho
Brang Government.” In Tibetan Studies, edited by H. Krasser, M. T. Much,
E. Steinkellner, and H. Tauscher. Wien: Verlag der Österreichischen Akademie
der Wissenschaften, 1997.
Dawa Norbu. Red Star over Tibet. London: Collins, 1974.
Dotson, B. “Administration and Law in the Tibetan Empire: the “Section on
Law and State” and its Old Tibetan Antecedents” (DPhil thesis, University of
Oxford, 2006).
——— “Divination and Law in the Tibetan Empire.” In Contributions to the
Cultural History of Early Tibet, edited by M. Kapstein and B. Dotson. Leiden:
Brill, 2007.
Dreyfus, G. “Proto-nationalism in Tibet.” In Tibetan Studies, vol. 1, edited by P.
Kvaerne. Oslo: Institute for Comparative Research in Human Culture, 1994.
246 Fe rna nda Pi ri e

Frechette, A. “Review of ‘The Golden Yoke.’” Himalayan Research Bulletin 16,

no. 1&2 (1996): 54–57.
French, R. The Golden Yoke: the Legal Cosmology of Buddhist Tibet. Ithaca: Cornell
University Press, 1995.
Goldstein, M. A History of Modern Tibet, 1913–1951: The Demise of the Lamaist
State. Berkeley: University of California Press, 1989.
Huber, T. “A Foreigner at the Judge’s Feet: Review of ‘The Golden Yoke.’” Tibet
Journal 23, no. 3 (1998): 78–91.
Ishihama, Y. “On the Dissemination of the Belief in the Dalai Lama as a
Manifestation of the Bodhisattva Avalokitesvara.” Acta Asiatica 64 (1993):
38–56.
Johnson, W. The T’ang Code. Princeton: University Press, 1979.
Kapstein, M. The Tibetans. Oxford: Blackwell, 2006.
Kelly, F. A Guide to Early Irish Law. Dublin: Institute for Advanced Studies,
1988.
MacCormack, G. The Spirit of Traditional Chinese Law. Athens: University of
Georgia Press, 1996.
Macdonald, D. Twenty Years in Tibet. London: Seeley, 1932.
Meisezahl, R. O. “Die Handschriften in den City of Liverpool Museums.”
Zentralasiatische Studien des Seminars für Sprach und Kulturwissenschaft
Zentralasiens 7, (1973): 221–84.
——— “Die Ta’i Si Tu Fassung des ‘Kodex der 13 Gesetze.’” Oriens 33, (1992):
307–37.
Michael, F. Rule by Incarnation. Boulder: Westview Press, 1982.
Pasang Wangdu and H. Diemberger. dBa’ bzhed. Wien: Verlag der Österreichischen
Akademie der Wissenschaften, 2000.
Pirie, F. “Secular Morality, Village Law and Buddhism in Tibetan Societies.”
Journal of the Royal Anthropological Institute 12, no. 1 (2006): 173–90.
——— Peace and Conflict in Ladakh: The Construction of a Fragile Web of Order.
Leiden: Brill, 2007a.
——— “Order, Individualism and Responsibility: Contrasting Dynamics on the
Tibetan Plateau.” In Order and Disorder: Anthropological Perspectives,edited
by K. von Benda-Beckmann and F. Pirie, 54–73. Oxford: Berghahn Books,
2007b.
——— “Violence and Opposition among the Nomads of Amdo: Expectations of
Leadership and Religious Authority.” In Conflict and Social Order in Tibet and
Inner Asia, edited by F. Pirie and T. Huber, 217–40. Leiden: Brill, 2008.
Pocock, J. G. A. The Ancient Constitution and the Feudal Law: A Study of English
Historical Thought in the Seventeenth Century. Cambridge: University Press,
1957.
Richardson, H. Tibet and its History. London: Oxford University Press, 1962.
——— “Early Tibetan Law Concerning Dog-bite.” Bulletin of Tibetology 25,
no. 3 (1989): 5–10.
——— “Hunting Accidents in Early Tibet.” Tibet Journal 15, (1990): 5–27.
——— “An Early Judicial Document from Tibet.” Journal of the Royal Asiatic
Society 1, no. 3 (1991): 383–88.
Samuel, G. Civilized Shamans: Buddhism in Tibetan Societies. Washington:
Smithsonian Institution Press, 1993.
 L aw and Religion in Hist oric Tibet 247

Schuh, D. Urkunden und Sendschreiben aus Zentraltibet, Ladakh und Zanskar, 1.

Teil: Faksimiles. Sankt Augustin: VGH Wissenschaftsverlag, 1976.
——— Grundlagen tibetischer Siegelkunde: Eine Untersuchung über tibetische
Siegelaufschriften in ’Phags-pa-Schrift. St Augustin: VGH Wissenschaftsverlag,
1981.
——— “Recht und Gesetz in Tibet.” In Tibetan and Buddhist Studies
Commemorating the 200th Anniversary of the Birth of Alexander Csöma de
Körös. Budapest: Akadémiai Kiadó, 1984.
——— Das Archiv des Klosters bKra-shis-bsam-gtan-gling von sKyid-grong, 1. Teil.
Bonn: VGH Wissenschaftsverlag, 1988.
Schuh, D., and J. K. Pukhang. Urkunden und Sendschreiben aus Zentraltibet,
Ladakh und Zanskar, 2. Teil. Sankt Augustin: VGH Wissenschaftsverlag,
1979.
Snellgrove, D., and H. Richardson. A Cultural History of Tibet. London:
Weidenfeld and Nicolson, 1968.
Stein, R. A. “Tibetica Antiqua IV: la Tradition Relative au Début du Bouddhisme
au Tibet.” Bulletin de l’École Française d’Extrême-Orient 74, (1986): 169–96.
Tambiah, S. “The Galactic Polity in South East Asia.” In Culture, Thought and
Social Action, 252–86. Cambridge, MA: Harvard University Press, 1985.
Thomas, F. W. “Law of Theft in Chinese Kan-su.” In Zeitschrift für Vergleichende
Rechtswissenschaft. Stuttgart: Verlag Ferdinand Enke, 1936.
Toussaint, G.-C. Le Dict de Padma. Paris: Librairie Ernest Leroux, 1933.
Tucci, G. Tibetan Painted Scrolls, vol. 2. Roma: Libreria dello Stato, 1949.
Uray, G. “The Narrative of the Legislation and Organization of the Mkhas pa’i
dga’ ston.” Acta Orientalia Academiae Scientiarum Hungaricae 26, no. 1
(1972): 11–68.
van der Kuijp, L. “The Yoke is on the Reader: A Recent Study of Tibetan
Jurisprudence.” Central Asiatic Journal 43, (1999): 266–92.
White, J. C. “Sikhim Laws.” In The Gazeteer of Sikhim, edited by H. H. Risley.
Calcutta: Bengal Secretariat Press, 1894.
Wormald, P. Legal Culture in the Early Medieval West: Law as Text, Image and
Experience. London: Hambledon Press, 1999.
Wylie, T. V. “A Standard System of Tibetan Transcription.” Harvard Journal of
Asiatic Studies 22, (1959): 261–76.
 CONTRIBUTORS

John R. Bowen is the Dunbar-Van Cleve professor in Arts and Sciences

at Washington University in St. Louis, and a recurrent visiting professor
at the London School of Economics. He has been studying Islam and
society in Indonesia since the late 1970s, and since 2001 has worked
in France, England, and North America on problems of pluralism, law,
and religion, and in particular on contemporary efforts to rethink Islamic
norms and civil law. He has published extensively on Islam with special
attention to Indonesia, France, and the United Kingdom.
Franz von Benda-Beckmann († January 2013) was a research affiliate
of the Department Law and Anthropology at the Max Planck Institute
for Social Anthropology in Halle, Germany. Until the end of 2012, he
headed the project group “Legal Pluralism” at this institute, together with
Keebet von Benda-Beckmann. He was professor emeritus of Wageningen
University (the Netherlands) and an honorary professor of the Universities
of Leipzig and Halle. He carried out fieldwork in Malawi, West Sumatra,
and the Central Moluccas in Indonesia. He published widely on legal plu-
ralism, property, social insecurity, law and development, and legal anthro-
pological theory.
Keebet von Benda-Beckmann is a research affiliate of the Department
of Law and Anthropology at the Max Planck Institute for Social
Anthropology in Halle, Germany. Until the end of 2012, she headed
the Project Group Legal Pluralism at this institute, together with Franz
von Benda-Beckmann. She is honorary professor in the Universities of
Leipzig and Halle. She has carried out fieldwork in West Sumatra and the
Central Moluccas in Indonesia and in the Netherlands. She has published
widely on legal pluralism, social insecurity, dispute management, natural
resources, law and development, and legal anthropological theory.
Thomas J. Csordas received his Ph.D. in anthropology from Duke
University in 1980. He is currently professor of Anthropology at the
University of California, San Diego. His publications include The Sacred
Self: A Cultural Phenomenology of Charismatic Healing (Berkeley:
University of California Press, 1994), Language, Charisma, and Creativity:
250 Co nt ri bu t o rs

Ritual Life in the Catholic Charismatic Renewal (Berkeley: University of

California Press, 1997), and Body/Meaning/Healing (New York: Palgrave,
2002).
David Engel is SUNY Distinguished Service Professor of Law at the State
University of New York at Buffalo. His scholarship deals with law and
society in Southeast Asia, particularly Thailand, and in the United States.
Previous publications concerning injuries, religion, and legal culture
include Tort, Custom, and Karma: Globalization and Legal Consciousness
in Thailand (with Jaruwan S. Engel) and Fault Lines: Tort Law as Cultural
Practice (with Michael McCann).
Julia Hornberger (Ph.D.) is a senior researcher at the Chair of Social and
Cultural Anthropology of the University of Konstanz and a research affili-
ate of the African Centre for Migration and Society at the University of
the Witwatersrand. She is also a cofounder of the Johannesburg Workshop
in Theory and Criticism (JWTC) (www.jwtc.org.za). She is the author
of Human Rights and Policing. The Meaning of Violence and Justice in
the Everyday Policing of Johannesburg. Her current work focuses on the
(international) policing of counterfeit medications and health.
Carolien Jacobs is a postdoctoral researcher at the Special Chair
Humanitarian Aid and Reconstruction at Wageningen University, the
Netherlands. She currently works on an evaluation of development aid
in Liberia and the Democratic Republic of Congo, and is the DRC coor-
dinator of the Secure Livelihoods Research Consortium. Before join-
ing Wageningen University, she worked at the Project Group “Legal
Pluralism” of the Max Planck Institute for Social Anthropology in Halle,
Germany, focusing on the role of religion in disputing and public order
in Mozambique.
Matthias Kaufmann studied mathematics, philosophy, and political sci-
ence. His Ph.D. thesis (a discussion of Carl Schmitt’s works with the
methods of analytic philosophy) won the Heinz-Meier-Leibnitz-Award of
the Bundesministerium für Bildung und Wissenschaft in 1988. His habili-
tation thesis (1992) was on reference and truth in William Ockham’s
thinking. Since 1995, he is professor of Philosophy at the Martin-Luther-
Universität Halle-Wittenberg, Germany. His research fields are political
philosophy, philosophy of law, philosophy of language (including prob-
lems of intercultural translation), and bioethics.
Michael Lambek is professor of Anthropology at the University Toronto
Scarborough, where he holds a Canada Research Chair. He is the author
of The Weight of the Past: Living with History in Mahajanga, Madagascar
and editor of Ordinary Ethics: Anthropology, Language and Action, among
several other works.
 Co nt ri bu t o rs 251

Ziad Munson is associate professor of Sociology at Lehigh University.

He studies social movements, religion, and politics. He is the author of
The Making of Pro-Life Activists (Chicago, 2009) as well as a variety of
articles and book chapters on the abortion debate and American politics.
Fernanda Pirie is university lecturer and director of the Centre for Socio-
Legal Studies at the University of Oxford. She has carried out fieldwork
for over a decade on the Tibetan plateau. Her studies have centered on
conflict resolution, social order, and tribe–state relations, and have lead to
publications on violence, conflict, order, and disorder. More recently she
has been working on Tibetan legal history and legalism.
Rajendra Pradhan is dean of the Nepā School of Social Science and
Humanities in Kathmandu and was chair of Social Science Baha for eight
years until 2010. He has conducted research, inter alia, on religion among
the Hindu Newars of Kathmandu, food habits of the Tarai inhabitants,
and care of the elderly in a Dutch village. He is currently researching on
discourses concerning women in the domains of law, print media and
oral narratives. His publications include several edited volumes, inter alia
Water Rights, Conflict and Policy (1997), Water, Land and Law: Changing
Rights to Land and Water in Nepal ( 2000), Law, History and Culture of
Water in Nepal (2003), and Legal Pluralism and Unofficial Law in Social,
Economic and Political Development (2003).
Martin Ramstedt is senior researcher in the Department of Law and
Anthropology at the Max Planck Institute for Social Anthropology,
Halle/Saale, Germany. His research currently focuses on the intersec-
tion of law, religion, and ethnicity in Indonesia and Europe. Previous
publications include a German language monograph on ritual and gov-
ernance in precolonial Bali and the edited volumes Hinduism in Modern
Indonesia (Routledge, 2004); Decentralization and Regional Autonomy
in Indonesia (ISEAS, 2009), coedited with Coen J.G. Holtzappel; and the
Special Issue Law and Religio-Ethnic Identity in Post-new Order Indonesia
(Asian Ethnicity 13/4), coedited with Fadjar I. Thufail.
Lawrence Rosen is Cromwell professor of Anthropology at Princeton
University, and adjunct professor of Law at Columbia Law School. A
member of the US Supreme Court bar, his books include The Anthropology
of Justice; The Justice of Islam; The Culture of Islam; Law as Culture; and
Varieties of Muslim Experience. His articles have appeared in The American
Scholar, The Times Literary Supplement, The London Review of Books, The
Chronicle of Higher Education, and the op-ed pages of The New York
Times, The Los Angeles Times, and The International Herald-Tribune.
Ido Shahar is lecturer at the Department of Middle Eastern History at
the University of Haifa, Israel. He is a legal anthropologist specializing
252 Co nt ri bu t o rs

in Islamic law and its application, particularly in shari‘a courts. His fields
of research include the anthropology of law; the Palestinian minority in
Israel; legal pluralism; and Muslim rural societies. He published on these
topics in Islamic Law and Society, Theoretical Inquiries in Law, Political
and Legal Anthropology Review, and other journals. His book on the insti-
tutional and political dynamics of legal pluralism in Jerusalem is forth-
coming in Ashgate.
Bertram Turner is senior researcher at the Max-Planck Institute for
Social Anthropology in Halle, Germany. He was academic assistant at the
Institute of Social Anthropology and African Studies in Munich between
1993 and 2001 and has held university teaching positions at various uni-
versities. He has published widely on the anthropology of law, religion,
conflict, morality, development, and resource extraction.
 Index
Abdullah, Sufi, 135
Abel, R.L., 101
abortion, 37–53, 170, 185, 191,
194 n15, 201
Aceh province, Indonesia, 118
“Action against Crime,” 78, 86
“Adopt a Cop” program, 86
Aegidius of Rome, 205
affirmative action, 186, 191
African National Congress, 81
Agamben, G., 16 n2
Ahl al-Sunna wal-Jamaah, 131
alcohol, 61–63, 83
Alito, Samuel, 184, 192 n3
Amdo, Tibet, 232, 242
ancestor people, 9–10
ancestor spirits, 94
Bali, 112, 114, 116, 122
Morocco, 66
Sakalava, 2–7, 9–10, 12–14
Anglican Church, 20
apartheid, 76, 80–81, 91 n2
Apolstolic Signature, 210
apostles, 204, 207
female, 205
Aquinas, Thomas, 192 n4, 203
Arabic language, 149, 151,
156
Arab Spring, 70 n6
Arbitration Act (Britain), 131
Arif, Maulana, 131, 133, 136
Aristotle, 203
Arkes, Hadley, 188, 196 n28
Arzt-Grabner, Peter, 205
Asad, T., 227
Aslam, Zeenat, 132
Association de Développement Local,
61
Augustine, St., 202
awig-awig, see village constitutions
(awig-awig, Bali)
Babilahy (Sakalava ancestor spirit),
11, 13
Bailey, D’Army, 187
Bali, 111–28
Bali Province Regulations (BPRs,
Indonesia)
No. 2/1988, 117
No. 2/PD/DPRD/1972, 116
No. 3/2001 + 2003, 118–20
No. 6/1986 on Status of the
Traditional Balinese Village
Communities, 117
No. 16/2009 on Planning of the
Spatial Arrangement, 118
Ballarin, Marie-Pierre, 4, 16 n6
Bana Pele program, 81
Bangladesh, 130, 134, 137
Bashir, Khurram, 140–41
Basic Agrarian Law (BAL,
Indonesia), 116
Beijing Conference on Women, 171
Bell, Charles, 244 n6
Bemazava faction, 7, 9, 16 n10
Bemihisatra faction, 7, 9
Benda-Beckmann, Franz von, 15n1,
16 n7, 69
Benda-Beckmann, Keebet von, 69,
147, 149
Benedict XVI, Pope (Joseph
Ratzinger), 205, 206
254 Index
Benjamin, Walter
“Critique of Violence,” 84–85
Bible, 101–4, 106, 185
1 Corinthians, 102
Deuteronomy, 100
Gospel of Matthew, 103, 204–5,
207
Gospels, 203
New Testament, 202, 205–6
Old Testament, 8, 202, 203
Romans, 103, 205, 206
Biden, Joseph, 189–90, 195 n23,
196 n25
bishops, ordination of, 204, 206,
208–9
Black, Hugo, 193 n12
blood money payments, 233, 235,
238, 243
Boina (Madagascar), 2–8
Bork, Robert, 195 n22
Bourguignon, E., 24
Bowen, John R., 129–45
Bowers v. Hardwick, 194 n13
Brahmana lineage, 122–23
Brahmin priests, 112, 123–24
Brennan, William J., Jr., 195 n20
Britain, see England
British Mandate in Palestine, 150
Bruno, Giordano, 203
Buddha, 223
Buddhism
Bali, 119, 124
Lanna or Yuan, 220–25
Thai Theraveda orthodox,
222–24, 227–28
Tibet, 231–39, 243–44
bureaucracy, 240, 241
Burma, 217
Bush, George W., 185, 190, 196
n28
calendar
Bali, 117
Islamic, 64–65, 68, 69
rural Morocco, 64–65
canon law, 187–88, 202, 209–10
Carter, S.L., 194 n16
Casablanca bombing, 70 n6
caste system
Bali, 112, 114, 121–24
Nepal, 167–68
Catholic Charities, 38
Catholic Church, 20
confessional space of, 33
crisis pregnancy centers and, 42,
44–45, 47, 49, 51 n6
divine law and disputes within,
201–4, 206–11
Mozambique and, 95
natural law and US Supreme
Court and, 184, 186–97
Protestant church vs., 203–5
celibacy, 204–6, 208
cemeteries and graves, 66, 121, 123
Chanda Bajracharya v. HMG/N,
172, 173
Changchub Gyaltsan, ruler of Tibet,
236–37, 239–40, 243, 244 n5
Chiangmai Province (Thailand), 216
Chiangmai Provincial Court,
225–26, 229 n6
children, 80
rape of, 221
visitation and, 138
China, 243
choice, framing of, 41–44, 46, 50,
51 n8, n11
Christianity
ancestral practice and, 2
Bali, 114–16, 119, 124
crisis pregnancy centers and, 38,
43, 50
gender equality and, 178
history of divine law and, 202–4
Israel, 151
Mozambique, 94–96, 100–107
Native American Church and, 20
natural law in US and, 185–86,
193 n7
secession and, 6
 Index
see also Bible; Catholic Church;
Evangelical Protestants;
Protestants
Christian Legal Society v. Martinez,
192 n1
Christian Right, 51 n14
Chulalongkorn, King of Thailand
(Rama V), 216, 222
“Church from Below, The,” 209
Church of John Maranke
(Mozambique), 95
Church of the Holy Trinity v. U.S.,
193 n8
citizenship
Bali, 112, 118–21
Nepal, 165, 170, 175
City of Boerne v. Flores, 193 n5
Civil and Commercial Code,
“Wrongful Acts” provisions
(Thailand, 1935), 216, 224–26
civil family courts
England, 131, 133, 137–38,
140–44
Israel, 151–52, 154–60
“civilized” society, 166, 167, 171,
176–77, 180 n23, 192 n1,
216
Claremont district (South Africa),
80–82
co-belligerency alliance, 185, 190,
193 n6
Comaroff, John L., 12, 166
common law, 186, 193 n11, 243
communitarian values, 185, 188–89
community or collective
Lanna injury cases and,
219–20, 222
Pentecostal representation and,
77, 82, 85–86, 88–89
temple rituals and, 120
community policing forums (CPFs),
75–91
Condit, C.M., 51 n8
Conference of German bishops,
209, 210
255
“conflict of laws,” 148
conservatives, 814, 186–92, 196–97
conversio ad phantasma, 206–7
Corten, A., 78
Council of Trent (1563), 204
creationism, 187–88
crime, 77–79, 82
crisis pregnancy centers (CPCs),
37–50, 51 n4, n14
Csordas, Thomas J., 19–35
curses, 30, 63
customary law
Bali, 111–17, 122–23
divine law vs., 202
Lanna, 222, 225–27
Morocco, 58, 59
Nepal, 168–69, 178
see also specific regions and
religions
Dalai Lama, Fifth, 239–40
Dalai Lamas, 231–32, 235, 237,
239–43
Dalits, 169
D’Amato, A., 185
Dar al-Islam (house of Islam), 69
Dar-ul-kufr/harb (house of
disbelief/war), 69
Das, Chandra, 241
Davis, Richard, 217
Davis v. Beason, 192 n1
Dawa Norbu, 241
Dba bzhed (Tibetan text), 234, 235
death penalty (capital punishment),
194 n15, 235, 242
deism, 186
Delaney, David, 57, 124 n1
Demel, Sabine, 209, 210
democracy (democratization)
Bali, 113, 119–20
Nepal, 169
South Africa, 76, 77, 82, 86, 90
US, 185
Deobadi Islam, 134
depression, 27, 29, 31–32
256
Derrida, J., 16 n2
desa pakraman citizenship (local
village), 118–23
“dignity,” 194 n13
diocese council, dissolution of,
209–10
discretion, 84–85, 87–88
divine law, 120, 183, 184, 191,
201–13
divorce
civil (England) 131, 133, 137–38,
140–44
Islamic Shariah Council
(England), 137–44
Israeli Muslims, 157–60
Nepal, 170, 173–74
Sufi Hijaz Center (England),
131–33
Divorce (Religious Marriages) Act
(UK, 2003), 138
Doany Ndramisara (Sakalava
ancestral shrine), 3–7, 10–12
Doe v. Bolton, 39
domestic violence
Israel, 155–58, 162 n14
South Africa, 81, 87
Domestic Violence Act (South
Africa), 87
Dotson, B., 234
Douthat, Ross, 195 n18
Dunhuang Annals, 233–35
Duns Scotus, Ioannes, 203
Durkheim, E., 3, 5, 6
Dutch colonial government (Bali),
113–15, 124, 125 n2
Dutch Reformed Church, 78
early Christian Church (Urkirche),
204–8
early Islam, 68
ecclesiastical hierarchy, 201,
204–13
Edwards v. Aguillard, 187–88
Eickelman, D.F., 59
Eisen, Ute, 205
Ely, J.H., 192 n2
Index
Emergency Law No. 1/1951 on
Preliminary Steps toward the
Unification of the Civil Courts
(Indonesia), 115
employment discrimination, 165,
170
Employment Division v. Smith, 192
n5, 195 n20
Engel, David M., 215–30
England
17th century, 243
common law tradition, 170
Islamic dispute resolution in,
129–45
Erie v. Pap’s A.M., 194 n17
“essence” of the Church, 207–8
European Union, 206
Evangelical Protestants
crisis pregnancy centers, 38, 43,
50, 51 n6
natural law in US and, 185,
190–91, 193 n6, 196 n28
see also specific denominations
Evans-Pritchard, E.E., 12
Family Courts Law (5755–1995,
Israel), 151
family law
Israel, 150–59
Mozambique, 96, 97, 101, 104
Muslim institutions in England,
129, 131–32, 137–38
natural law in US and, 185, 188,
194 n18
Nepal, 168–69, 178
rabbinical tribunals in England
and, 138
see also divorce; marital rape; and
other specific issues
Family Research Council, 51 n14
Federalist Papers, 193 n9
Federalist Society, 197 n30
fetal pain and heartbeat bills, 50 n1
Field, Stephen J., 192 n1
Finnis, John, 185
Fitzpatrick, 215
 Index
fluidity, 77, 88–90, 96
foreign aid, 170, 179 n10
forgiveness, 102–7, 218, 226, 227
Forum for Law, Women and
Development (FLWD), 179 n2
forum shopping, 104, 144, 147–64
framing, 51 n7
FRELIMO party, 95
French, R., 233, 239, 242, 244,
245 n8
The Golden Yoke, 231, 232
French, T.J., 107 n1
French colonialism, 2, 4, 62, 65
Freud, S., 16 n3G
Fuller, Lon, 183
Galanter, M., 159
Ganden Potrang government
(Tibet), 231–32, 235, 239–41,
243, 244
gay marriage, 191, 195 n18, 201
Geertz, Clifford, 160, 167
Gelukpa sect, 235, 239
gendered citizenship, 180 n21
gender equality, 149, 151, 165–78
Gender Equality Act (Nepal, 2006),
166
George, Robert, 185, 186, 193 n9,
196 n28
German Catholic Church, 202, 206,
209–10
Germanic kings, early medieval, 237
Gerson, Jean, 203
ghosts (phi), 221–23, 225, 226
malevolent (phi tai hong), 221,
223
Ghosuhr village (Pakistan), 130
Gianyar district (Bali), 122–23
Ginsburg, Douglas, 195 n22
globalization, 170, 178
Gluckman, Max, 7–9, 12, 15,
16 n13, 191
“God Moves Big Time in
Sophiatown” (Web article), 78
Goffman, E.
Frame Analysis, 51 n7
257
Gorongosa (Mozambique), 93–106
Grabmeier, J., 210
Gratian
Decretum Gratiani, 202
Great Service (Sakalava
fanompoabe), 2–4, 7–9
Greek mythology, 8
green revolution, 116
Gregorian calendar, 65
Griffiths, Anne, 69
Griswold, A.B., 217
Griswold v. Connecticut, 193 n12
guardian spirits
Bali, 112, 118
Lanna, 218–21, 223–24, 229 n5
Gulliver, P., 101
Habibie, B.J., 111
Haddad, Haitham al-, 139–41
Hammurabi, 245 n10
Harding, A., 222
harmony
Bali, 114, 119–24
Salafi, 68
Tibet, 231–33, 241–42, 244
Harnack, Adolf von, 204
Hasan, Shaykh Suhaib, 140, 142–43
Hassan, Fiaz, 134
Hatch, Orrin, 197 n33
Hazrat Shah (Zindapir), 135
healing
Christian pastors and, 101–2
Native American Church and,
19–34
spirit mediums and, 94, 96
Hebrew language, 149, 151, 156
Heid, Stefan, 205
Hijaz College Islamic University at
Nuneaton, 129–36
Hijaz Community, 130–31,
134–35, 144
Hinduism
Bali, 111–12, 115, 118–20
Nepal, 165–78
Hirschman, A., 16 n2
“history,” as category, 187
258
Holmes, Oliver Wendell, Jr., 184,
185
Holy See, 206, 208
homosexuality, 188, 191, 195 n18,
n19, 201
Hornberger, Julia, 75–92
human rights, 158
as cultural system, 166, 175
see also international human
rights law
Ibn Rushd
Averroes, 203
Igreja Evangélica Assembleia de
Deus (Mozambique), 95
“imagining the real,” 167
immanence and transcendence, 89
India, 113, 116, 231, 234, 238
indigenous rights, 178
Indonesia, 111, 114–24
Indonesian Constitution Bill of
Human Rights, 119–20
Indonesian Ministry of Religious
Affairs, 115
Indonesian Parliament, 118
injury cases
Lanna, 216–28
Tibet, 233
International Convention on Civil
and Political Rights, 179 n11
International Convention on
Economic, Social and Cultural
Rights, 179 n11
international human rights law,
165–78
International Women’s Year of
1975, 168
Iraq, 185
Irish codes, 245 n10
irrigation associations (subak), 114,
116–17
‘Isawa religious congregation, 63,
65
Ishaq, Tauqir, 131
Isidor of Seville
Index
Etymologiarium Liber V. De
legibus et temporibus, 202
Islam (Muslims), 2, 129–45
Bali, 112, 114–16
classic curriculum (Dars
al-Nizami), 131
Indonesia, 111
Mozambique, 107 n2
political, 55
popular (Morocco), 55–68, 70
Salafi, 56, 58–62, 64, 68–70,
70–71 n6
shari’a council (England), 137–44
shari’a court (Israel), 149–58
Sufi (England), 131–36
“West” vs., 201
Islamic calendar, 64–65, 68
Islamic pluralism, 70 n6
Islamic Shariah Council (ISC,
London), 137–44
Israel, 149–64
civil family court, 151–52,
154–61
state legal system, 149–51
war of 1967, 152
West Jerusalem shari’a court,
149–61
Israeli High Court of Justice, 149
Israeli Knesset, 149, 151
Jacobs, Carolien, 93–110
Japan, 115
Jataka tales, 223
Jeet Kumari Pangeni v. HMG/N,
179 n13
Jefferson, Thomas, 215
Jerusalem, 147, 149–64
East, 150, 152
West, 152–53, 158
Jesuits, 204
Jesus Christ, 204–6
Jews, 138, 151, 152
Johannesburg (South Africa), 75–92
Jordanian shari’a court (East
Jerusalem), 152–53, 161 n2
 Index
Julian calendar, 65
Junia (apostle), 205
Kapstein, M., 242, 244 n3
karmic sanctions, 232
Kathrada Park squatter camp
(Johannesburg), 81
Kaufmann, Matthias, 201–13
Kennedy, Anthony, 184, 188, 190,
194 n13
Keramas village (Bali), 123
Keyes, C.F., 2294
khrims yig zhal lce bcu gsum / bcu
drug (Tibetan book of 13 / 16
laws), 236–41, 243, 245 n8
khula (Islamic divorce sought by
wife), 137, 142–43
khwan (spiritual essence in living
beings), 219–22, 224, 226
Kleinman, A., 24–25, 34
Kuhn, T.S., 193 n11
Laclau, E., 77
Ladakh (Tibet), 232, 242
lamas, 235, 242
Lamphun Province (Thailand),
223–24
land allocation
Bali, 116
Morocco, 63
Tibet, 232, 242
Lanna (Thailand), 216–28
Latour, B., 77, 90
Law No. 5 /1979 on Village
Government (Indonesia), 117
law of decree, 84–85, 91 n4
“law of the police,” 85
Law of the Three Seals (Thailand),
216
Lawrence v. Texas, 194 n13
legal pluralism
Catholic Church and, 202, 210
forum shopping and, 147–48,
150, 152–53
Nepal and, 165–81
259
Levi, Edward H., 186
Lhasa (Tibet), 239, 241, 242
liberals, 190, 192 n3, 201
libertarians, 185
Lozi people, 16 n13
Luker, K., 46
Lungshar, Tsipön, 242
Luther, Martin, 203–5
Lutherans, 43
MacCormack, G., 243
Madagascar, 2–18
Madison, James, 192 n3
magic, 97, 222–23, 227
Mahajanga (Madagascar), 3, 7, 10
Maine, Sir H., 12
maintenance payments, 150,
153–60, 161 n2, n3
Maliki, Akram al-, 153
Mangrai, King of Chiangmai,
216–17
Mangraisat (Lanna law texts),
216–22, 224–28
Ma ni bka’ ‘bum (Tibetan text),
235, 245 n7
Manu, 179 n14
Manusmriti (Hindu law text),
179 n14
Maoists, 169, 179 n7
marital rape, 165–66, 170–72
marketplace, 60–62, 64, 66, 219
marriage
English Muslims and, 130,
132–33
natural law in US and, 188
Nepal and, 168–70
see also divorce
marriage gift (mahr), 137–39,
142–44
Marshal-Frantani, R., 78
Marty, Martin, 186
Matin, Atif, 139–40, 142, 143
Mayflower Compact, 193 n9
McCreary County, KY v. American
Civil Liberties Union, 188
260
McDonald v. Chicago, 194 n13
mechanical cohesion (fusion), 8
mechanical division (fission), 6, 8,
14
Meera Dhungana v. HMG/N, 165,
170, 176, 180 n19
Meisezahl, R.O., 244 n5, n6
Melanchthon, Philipp, 204
Merina people, 2
Merry, S.E., 175, 177, 180 n23
Michael H. v. Gerald D., 194 n18
mi chos (Tibetan moral rules),
234–35, 238, 244, 245 n7
Miers, Harriet, 190
Millet family law system, 150–51
Ming dynasty, 243
Mkhas pa’i dga ston (Tibetan legal
text), 238
modernity, 90
Bali, 113, 120
Lanna, 215–16, 222, 224–27
“mythology of,” 215–16
Nepal, 166, 168, 170, 174,
176–77
Molina, Luis de, 203
Mongol law code (hor khrims), 237
Mongol period (Tibet), 235–39,
242
Mon law texts, 217
morality
choice frame and, 38
Native American Church healing
and, 29–30, 33
natural law in US and, 183–85,
188, 192 n1
Pentecostal community policing
and, 76–80, 82, 88–89
Tibetan Buddhism and, 231,
234–35, 238, 244, 245 n7
Moral Regeneration Movement, 77
Moroccan Constitution, 59
Morocco, 55–73
Mozambican civil war, 103, 107 n1
Mozambican Department of
Religious Affairs, 95
Mozambique, 93–110
Index
Müller, Gerhard Ludwig,
209–10
Muluki Ain, see Nepal National
Code (Muluki Ain)
Munson, Ziad, 37–53
Murray, John Courtenay, 186
Muslim Arbitration Tribunal
(MAT), 129–36, 144
Muslim Insurance Company, 130, 136
Na Nagara, Prasert, 217
Nan Province (Thailand), 217
Narrative of Law and State (Tibetan
legal text), 238–39
National Right to Life Committee
(NRLC), 47
Native American Church (NAC)
of Navajoland, 19–35
Plains Indians and, 19–21
Native Americans
natural law and, 187, 193 n5
natural law
divine law and, 202–3
US and, 183–92
natural light (lumen naturale), 203
“natural rights,” 184–85, 188–91,
195 n21
Navajo traditional religion, 20,
31–32
Nepal, 165–82
Nepal Constitution, 165, 167–75,
177
Interim (2007), 179 n3
Nepal National Code (Muluki Ain),
165–71, 173–76
11th amendment (2002), 166
Nepal Parliament, 167, 173
Nepal Supreme Court, 165, 170–82
Nepal Treaties Act (1991), 169
Nestle, Erwin, 205
Netherlands, the, 131
see also Dutch colonial
government (Bali)
Neuhaus, Richard, 193 n6
New York Times, 121
night raids, 84–85
 Index
nomosphere, 57–58, 67, 111
Noonan, J.T., Jr. 194 n14
Notton, Camille, 217
Old-Javanese law codes, 114–15
Old Tibetan Chronicle, 234
Olson, Theodore B., 197 n29
organic division of labor, 6, 9–12,
14–15
Orientalist projects, 113–14
originalism, 192 n3
ostracism, 121–23
Ottoman Law of Family Rights
(OLFR, 1917), 151
Padmasambhava, 238
Padma bka’ thang, 238
Pagmodru religious order, 236,
237, 244 n5
Pakistani immigrants (England),
130, 132–33, 135, 137, 142
Palestinians, 149, 152,
159, 161 n6
Palestinian shari’a courts, 161 n2
Panchayat Regime (Nepal), 168
Pande lineage, 123–24
papal infallibility, 201
Papua Province (Indonesia), 118
paradigm of argument, 166–67, 174
paradigm shifts, 193 n11
particularist division of labor, 9, 10
passports, women and, 170, 175
pastoral care, 81–82, 88–89
Pateman, Carol, 180 n21
patriarchy, 149, 151, 165, 166,
168, 178
Paul, St., 186, 193 n10, 205, 206
Pentecostal Church, 75–90, 195
n18
Peter, St., 205, 208
peyotism, 20–28, 30, 193 n5
Phoebe (Biblical figure), 206
Pirie, Fernanda, 231–47
Piscatory, J., 59
Plains Indians, 20
Pocock, J.G.A., 243
261
poison ordeal, 97
police
Morocco and, 61–63
Mozambique and, 104
South Africa and, 75–78, 82–89
“police law,” 85
police violence, 82–85
polygamy, 102
Portuguese colonialism, 62, 95
Posner, Richard, 194 n13
Potala palace, Tibet, 239
Pradhan, Rajendra, 165–82
Prakash Mani Sharma v. HMG/N,
172, 176
prayers, 86–87, 101–4
pregnancy counseling, see crisis
pregnancy centers
pro-choice movement, 41–42, 46, 50
pro-life movement, 37–53
property rights
natural rights and, 185, 189,
195 n21
women and, 165–66, 168–70,
173–75, 178, 179 n4
Protestants
divine law and, 203–4
see also Christianity; Evangelical
Protestants; and specific
denominations
Pryor, Judge, 187, 197 n33
psychology, 31–33
public interest litigation (PIL,
Nepal), 165–66, 170
punishment (sanctions)
Bali, 114–15, 121–24
Lanna, 118, 221
Mozambique, 99–100, 104, 105
Tibet, 232–33, 235, 238, 240,
242, 243
see also specific punishments
Punyabati Pathak v. HMG/N, 176
purification rituals, 114, 121–22,
124
qadis, 148, 150, 158
Qing dynasty, 243
262
rabbinical tribunals, 138
racial tension, 81, 91 n2
Rahner, Karl, 206–8
Ramadan, 63–65, 67
Rama IV, King of Thailand, 222
Rama V, King of Thailand
(Chulalongkorn), 216, 222
Ramstedt, Martin, 111–28
Rappaport, Roy, 5–6, 13
rational choice, 148–49, 160
Reagan, Ronald, 190, 195 n22
reconciliation, 67, 94–95,
98–107
reform Hindus, 112, 116
Rehnquist, William, 187, 195
n19, n22
reincarnation, 239
Reiner, R., 85
Religious Freedom Restoration Act
(US), 193 n5
representation, 77, 88–89
retraditionalization, 113–14,
116–17, 124
revenge-based compensation, 233
Rhema church, 78
rice fields, 218–20, 223
Rina Bajracharya v. RNAC, 176
rituals
Bali, 112, 118–23
Lanna, 223
peyote, sensory experience in,
32–33
Sakalava and right to perform, 5
see also purification rituals; and
other specific rituals
“rituals of rebellion,” 8
Roberts, John, 184, 190, 196–97
n29
Roberts, S.A., 166
Roe v. Wade, 39
Romer v. Evans, 188, 195 n19
Roque, Albino, 93–94
Rosen, Lawrence, 183–200
royal law (rgyal khrims, Tibet),
235, 238
royalty or nobility
Index
Bali, 114–16, 122–24
Sakalava succession conflicts, 3–8,
10–11, 14
Tibet, 234
rules of evidence, 154–56, 161 n8
sacred
conflicts over nature of and rights
to, 1–15, 16 n7
injuries and, and Lanna,
220–21, 227
peyote healing and experience
of, 29
profane vs., 67
space and, in Bali, 115, 118
space and time and, in Morocco,
56–58, 60–70
Sacred Text, 186
saints, local Moroccan, 60,
65, 67
Sakalava, 1–15
Sakya regime, 234–37, 240–41,
244 n4
Salafiyya, 56, 59–62, 64, 68–70,
71 n6
Sangha Act (Thailand, 1902),
222, 223
Sangye Gyatso, Desi, 240
Sayeed, Abu, 140–41, 142
Scalia, Antonin, 184, 186–88,
192–97
Scheitle, Chris, 38
Schuh, Dieter, 232, 241, 245 n9
science, 183–84, 193 n11
secession (schismatic splitting,
fission), 2, 6–8, 14, 15
secular law
Bali, 120, 122
international law as, 177
Nepal, 166, 169
Thailand, 215, 225, 227
Tibet, 235, 243
segmentation, 7–8
separation of church and state, 5,
215–16
7 Trumpet Ministry, 75
 Index
shari’a, 68
English councils, 129–31, 133,
137–44
Israeli courts, 149–64
shari’a advocate (murafi’shari’a),
154
Sherman, Roger, 193 n9
shrines
Bali, 112, 118–19
Lanna, 218, 219, 223
Sakalva, 2–4, 7, 10–14
Sufi, 130–31, 136
Shyam Maskey v. HMG/N, 175
Siddiqi, Muhammad Abdul Wahhab,
130–31, 136
Siddiqi, Noor, 131
Siddiqi, Shaykh Faiz al-Aqtab,
130–36, 144 n2
Siddiqi, Zain, 131
Sikkim, 240
Simon, Herbert, 160
Simpson, Alan, 190
Sino-Indonesians, 119
Sirhindi, Shaykh Amad, 130
Siwichai, Khruba, 223–24
Skolnick, J., 85
Sloterdijk, Peter, 77
Snyder v. Massachusetts, 194 n18
social reality, constructing, 167–68,
174, 176–78
sodomy laws, 187, 194 n13
Solway, Jackie, 15n1
Somalia, 137
Song dynasty, 243
Songtsan Gampo, Emperor of Tibet,
234–35, 237, 240–41, 245 n7
Sophiatown (South Africa), 75–91
sorcery, 222–23
Sotomayor, Sonia, 184
Souss region (Morocco), 59, 64–65
Souter, David H., 190
South Africa, 75–92, 107
Spaemann, Robert, 206, 208
spatiotemporal parameters, 55–57,
61–70
Spinoza, Baruch, 203
263
spirit mediums
Bali, 121–122
Lanna, 219
Mozambique, 94–100, 104–6
Sakalava (Madagascar), 2–3, 7,
9–15, 16–17 n14
spirits
Bali, 115
“eaten,” 108 n7
Lanna, 218, 220–23, 225, 226
Moroccan sacred spaces, 66
Mozambique, 106
peyote ritual, 30–31, 33
retaliation by, 99–100
Sakalava, 2, 8
spiritual animals, 93–94
state laws and authority
apartheid South Africa, 80–82
Balinese customary institutions,
113–17
Church law vs., 209
community policing in post-
apartheid South Africa, 76–77,
83–85, 88–90
Morocco, 58, 61, 63
Nepal and women’s rights,
166–69, 172
Sakalva, 4, 7–8, 12, 16 n7
states’ rights, 191, 195 n19
stem cell research, 191, 201
Stevens, John Paul, 194 n13
Strauss, Leo
Natural Right and History, 188
Straussians, 188–90
Suárez, Francisco, 209
De legibus ac deo legislatore, 208
succession
business, 134–36
royal, 2, 4, 6–8, 14, 15, 16 n12,
n14
Sudan, 137
Sufism, 58, 130–36, 144
Suharto, 117, 122, 124
Sukarnoputri, Megawati, 111
Sung, L.K., 25
Sylhet district (Bangladesh), 130
264 Index
Taji, Doring, 240
talaq (Islamic divorce pronounced
by husband), 137, 140
Tamang, S., 168, 180 n21
Tambiah, S., 240
Tang dynasty, 243
Teles, S.M., 197 n30
Ten Commandments, 188, 203
ten virtues (dge ba bcu), 234, 235,
238, 240
Texas v. Johnson, 195 n20
Thailand, 215–30
Theravada Buddhism, 222–23
Thomas, Clarence, 184, 187,
189–90, 192 n3, 194–97
Thomasius, 204
Thomistic thinking, 185
Tibet, 231–47
Tibetan Empire, 233–35, 238–39
time, concepts of, 57, 61, 64–65,
67–68
Tiyavanich, K., 222, 224
tomb guardians, 9–10
ton bun (charismatic holy men),
223–24
Toobin, Jeffrey, 196 n29
tort law, 216–30
tradition
Bali, 113, 117
Mozambique, 93–100, 104–6
natural law and, 186, 187, 191,
194 n18, 195 n19
Nepal, 174, 176–78
rival interpretations of, 124
see also specific belief systems,
locations, and religions
transnational religious activism,
59–60
transnational social movements, 170
Tribe, Laurence H., 193 n10
Tri Song Detsen, Emperor of Tibet,
235, 238
Troxel v. Granville, 194 n18
truth seeking, 97–100, 104–5, 107
Tsang kings, 245 n8
Turner, Bertram, 55–73
ultrasounds, 44–45, 51 n14
‘umma (community of Muslims), 69
UN Convention on the Elimination
of All Forms of Discrimination
against Women (CEDAW),
173, 179 n11
Unger, R.M., 215
United States, 5, 183
crisis pregnancy centers, 37–53
forum shopping in, 148
natural law and, 183–200
peyote religion and, 19–35
religious conversions and, 44
United States v. Virginia, 188
Universal Declaration of Human
Rights, 179 n11, 194 n8
US Congress, 37, 193 n5
US Constitution, 183
Bill of Rights, 193 n9
Commerce Clause, 186
First Amendment, 196 n29
Fourteenth Amendment, 193 n12
natural law and, 185–86, 193 n7,
194 n13, 196 n25
US Declaration of Independence,
185–86, 193 n8
US Justice Department, 191
US Senate Judiciary Committee,
189–90, 195 n22, 197 n33
US Supreme Court, 39, 47,
183–200
clerks, 191
confirmation hearings, 187,
189–91, 195–97
Valverde, M., 120
video method, 97–98
village constitutions (awig-awig,
Bali), 115, 121–24
village council (Morocco), 61
village jurisdictions (Bali), 112, 116,
119–24
village law (Tibet), 232–33
village temples (Bali), 118–21, 123
village tribunal decisions (pararem,
Bali), 121
 Index 265

Vinaya, 217 Wilentz, Sean, 193 n10

violence
Bali Hindus and, 112
ghosts and, 221
law-preserving vs. law-making,
84–85
Moroccan market dispute and,
61–64
pro-life activists and, 47–48, 52
n16
war spirits and, 108 n8
Wahid, Abdurrahman, 111
Washington Post, 193 n10
Wat Chai Sathan (Tibetan legal
text), 217, 218
Wat Chang Kham (Tibetan legal
text), 217
Wat Chiang Man (Tibetan legal
text), 217
Wat Sao Hai (Tibetan legal text),
217, 220
Weber, M., 160, 240
webs of meaning, 160–61
West Bank, 152
Western culture
Nepal and, 168, 176
radical Islam and, 201
White, Byron R., 187
Wichienkeeo, Aroonrut, 217
Wijeyewardene, Gehan, 217
Wilson, R.A., 107
winyan (enduring spiritual essence),
221–22, 224
witchcraft, 28, 31, 94, 104
Wolf, Erik, 204
Wolterstorff, N., 185
women
constructions of, in Nepal, 167,
169, 171, 174–77
early Christian, 205–6, 208
Israeli civil family courts, 158
Lanna Mangraisat and, 217
natural law and, 188, 191
ordination of, 204–6, 208–9
as peyote ritual healers, 22
as Sakalava monarchs, 2
women’s rights, 151, 165–82
Wormald, P., 237
Würzburger Synode, 209
Wylie, T.V., 244 n2
Yuän dynasty, 235
zawiyya (religious convent), 60,
63–64, 66
zhal lce, see khrims yig zhal lce bcu
gsum / bcu drug (Tibetan book
of 13 / 16 laws)
Zhou dynasty, 243
Zwierlein, Otto, 205