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State Legitimacy and Religious Accommodation
The Case of Sacred Places
Janosch Prinz
Department of Philosophy, Maastricht University, The Netherlands
j.prinz@maastrichtuniversity.nl
Enzo Rossi
Department of Political Science, University of Amsterdam, The Netherlands
e.rossi@uva.nl
Abstract
In this paper, we put forward a realist account of the problem of accommodation of
conicting claims over sacred places. Our argument takes its cue from the empirical
nding that modern, Western-style states necessarily mould religion into shapes that
are compatible with state rule. At least in the context of modern states, there is no pre-
political morality of religious freedom that states ought to follow when adjudicating
claims over sacred spaces. Liberal normative theory on religious accommodation
which starts from the assumption of a pre-political morality of religious freedom is
therefore of limited value. As an alternative, we suggest that the question of contested
sacred places should be settled with reference to the purposes of the state, at least as
long as one is committed to the existence of modern states. If one nds the treatment
of religion by the state unsatisfactory, our argument provides a pro tanto reason for
seeking alternative forms of political organization.
Keywords
holy places – political realism – religious accommodation – religious conict – state
legitimacy
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1 Introduction
In this paper, we use the debate over state treatment of sacred places as a start-
ing point for showing that any answer to normative questions of religious ac-
commodation by states—liberal or otherwise, although we focus primarily
onliberal states—must be subordinated to the question of state legitimacy,
namely the question of the purposes for which the state may carry out its core
activities. That is to say, there is no pre-political morality of religious freedom
that the state ought to comply with, because the very idea of the political sa-
lience of religion cannot be separated from the question of state legitimacy.
Consider how actor constellations difer in the state formations, for example,
after the fall of the Ottoman Empire and in early modern Europe. Or think of
the vastly diferent models of so-called state-religion relations in contempo-
rary EU states, ranging from established churches to purported state neutrali-
ty. The issue of religious freedom or religious accommodation is internal to
what it means for a state to be a state in its respective context.
Our argument to this efect relies on an empirical claim. We use historical
and anthropological literature to show that, at least in the case of the modern
(Western) state, shaping religion into a legible and governable phenomenon is
essential to the proper functioning of the state. Indeed, even the accompany-
ing notion of equal citizenship should be understood within these constraints.
In a sense, this is a debunking genealogy of liberal discourse on religious free-
dom and freedom of conscience: the liberal illusion of a politics guided by mo-
rality causes these theorists to overlook the constraints posed by the nature of
their primary tool for implementing this morality, namely the state. The guid-
ing insight here, to quote Raymond Geuss, is that “ethics is usually dead poli-
tics: the hand of a victor in some past conict reaching out to try to extend its
grip to the present and the future.” The victor in the relevant past conicts has
overwhelmingly been the state.
Concretely, in the case of sacred places, we must reconcile ourselves to the
fact that, as long as the modern state is our primary vehicle for the solution to
political problems of non-optional coexistence, religious practices, broadly
speaking, ought to be subordinated to the proper functioning of state institu-
tions. Whether a certain road ought to be kept open on the Sabbath, then, is
not a matter of guring out whether doing so is compatible with allowing
some religious citizens to act according to their conscience, or whether it hurts
Jocelyne Cesari, “Disciplining Religion: The Role of the State and Its Consequences on
Democracy”, 2 Journal of Religious and Political Practice (2016), 135.
Raymond Geuss, Politics and the Imagination (Princeton University Press, 2010).
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their religious feelings. Rather, it is a matter of whether the account of religious
freedom that counsels closing the road as opposed to keeping it open is the
optimal way of serving the purposes of the state, which in turn ought to be
specied by a theory of state legitimacy, in turn constrained by a realistic un-
derstanding of the capabilities and limitations of the state as a political
structure.
The upshot of our argument is an exclusive disjunction. One can either ac-
cept the subordination of religious freedom to statist priorities, or, should one
nd such a conclusion normatively unpalatable, one can question the suitabil-
ity of the state as a social technology for solving political problems.
The argument proceeds as follows. We begin with a schematic picture of the
standard way of framing the issue of state-religion relations in Anglophone
liberal political philosophy. We then ofer a general critique of this approach,
drawing primarily on two empirically-oriented bodies of scholarship, on reli-
gion and on the state. On the basis of this general critique, in the last section
we discuss the concrete question of sacred places.
2 The Problem: the Relationship between the Liberal State and
Religion
How should the liberal state accommodate religious demands concerning the
status of sacred places? The standard way to think about this question—
indeed the standard way of posing it, which is prevalent in contemporary An-
glophone political philosophy—is to try to work out whether granting these
demands is compatible with the commitment of the state to equality for all
citizens. Much of the debate rests on the question whether it is possible to
grant religion a special form of protection while relying on non-religious rea-
sons appropriate to a liberal state, or at the other end of the spectrum of posi-
tions, whether religious freedom even needs to be a right, or can rather be “dis-
aggregated” across a bundle of other rights. One way of understanding the
question of whether religion is special is to consider the status of religious
Compare Micah Schwartzman, “What If Religion is not Special?”, 79 University of Chicago Law
Review (2012), 1352, to Andrew Koppelman, “Neutrality and the Religion Analogy”, 14 North-
western Public Law Research Paper (2014) or Andrew Koppelman, “Religions as a Bundle of
Legal Proxies: Response to Micah Schwartzman”, 51 San Diego Law Rev. (2014), 1079.
Cécile Laborde, “Religion in the Law: The Disaggregation Approach”, 34 Law and Philosophy
(2015), 581; Cécile Laborde, Liberalism’s Religion (Harvard University Press, 2018). For a synop-
tic view of this debate, see Leora Batnitzky & Hanoch Dagan (eds.), Institutionalizing Rights
and Religion: Competing Supremacies (Cambridge University Press, 2017).
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freedom vis-à-vis other rights. If freedom of religion is a basic liberty in liberal
states, what should we do when it clashes with other basic liberties? Should,
for example, blasphemy be prohibited, even against a backdrop of general free-
dom of speech? On what grounds, if any, can we say that religious freedom
should have priority over other basic liberties? We will not take sides in this
debate. We will, however, query one of its presuppositions, namely the idea
that there is a pre-political sphere of religious belief and practice that the state
ought to accommodate. To see what that means, we begin by considering this
utterly simplied version of the standard liberal argument for special religious
accommodation.
1. The state ought to respect religious freedom.
2. The state ought to treat all citizens equally.
3. At times, respect for religious freedom requires sacricing other liberties.
4. Sacricing some liberties for the sake of religious freedom does not vio-
late the equal treatment of all citizens.
5. Therefore, at times, the state ought to sacrice some liberties for the sake
of religious freedom.
Most of the debate on whether religion is special turns on the soundness of
(unpacked versions of) this argument or of its mirror version, which yields a
negative conclusion. Typically, the focus is on the third and fourth premise,
and the prevalent question is whether and how the special status of religion
implied by these premises can be supported from a non-religious standpoint.
Here, however, we focus on the rst and second premises. We do not contest
their truth, as this would not be tenable in a liberal context. Rather, we seek to
determine from what premises they may themselves follow, to show that this
way of approaching the issue misunderstands the relationship between the
state and religion, not in a normative but in a descriptive sense, with respect to
the constraints posed by the nature of the state.
As the schematic argument above shows, the debate is typically framed as
an exercise in nding policies that are respectful both of religious practice or
belief and of equality between citizens. This in turn presupposes that there is
a social phenomenon—religion—whose nature is determined independently
of the political agency of the state. The same is true for equality between citi-
zens: the second premise suggests that there is a pre-politically determined
notion of equality, and that the state ought to protect it or promote it.
As one would expect, there is a ourishing debate on what liberal equal
citizenship is and what it entails, and on whether liberal states employ a
Supra note 1 and Jocelyne Cesari, “Religion and Politics: What Does God Have To Do with It?”,
6 Religions (2015), 1330.
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descriptively correct account of religion. It would probably be unwise to try to
ofer even a cursory overview of the debate on equality. Suce it to note that it
is typically couched as a matter of rst determining the sense in which citizens
are equal, then working out how this equality may be brought about, through
the agency of the state and by other means. What we have in mind, for in-
stance, is the debate on “equality of what” and the related one on “recognition
vs. redistribution.” To simplify, in both cases, but especially in the former, the-
orists try to work out what the currency of egalitarian justice is before they
proceed to ask what one may do to bring it about, including through the agen-
cy of the state. This tendency is even more explicit in the more recent debate
on respect and the basis of equality, which concerns the features of human
beings on which the commitment to equal treatment is based, both in private
morality and on the part of the liberal state. The standard way of grounding the
second premise in the above argument is to posit that there is a pre-political
and, therefore, state-independent notion of equality that the state ought to
honour. Given the purposes of this paper, we do not discuss the origin of liberal
equality.
The debate on the nature of religion and its consequences for liberalism is
both more self-contained and better suited to introduce the general argument
we want to put forward here. The debate starts from the contribution of schol-
ars of religion and puts forward a critique of the standard liberal discourse of
religious accommodation. The general idea is that liberal states claim to be
inclusive with respect to all forms of religion, but improved descriptions of
religious belief and practice show that this is not the case and that arguably
that it could not even be the case. Elsewhere, one of us called this set of argu-
ments the “descriptive challenge.”
Elizabeth S. Anderson, “What Is the Point of Equality?”, 109 Ethics (1999), 287; G. A. Cohen,
“Equality of What? On Welfare, Goods, and Capabilities”, in: Martha Nussbaum & Am-
artya Sen (eds.), The Quality of Life (Oxford University Press, 1993), 9; Amartya Sen, “Equal-
ity of What?”, in ibid.: The Tanner Lecture on Human Values, vol. (Cambridge University
Press, 1980), 197.
Nancy Fraser & Axel Honneth, Redistribution or Recognition? A Political-Philosophical Ex-
change (Verso, 2003); Axel Honneth, The Struggle for Recognition: The Moral Grammar of
Social Conlicts, Cambridge ( Press, 1995); Iris Marion Young, Justice and the Politics of
Diference (Princeton University Press, 1990).
Ian Carter, “Respect and the Basis of Equality”, 121 Ethics (2011), 538.
The “so” in this sentence is an entailment, not a biconditional. It is not as if politics and
the state are co-extensive.
To illustrate this challenge and critique it, we reproduce, with some modications, parts
of the argument from Enzo Rossi, “Understanding Religion, Governing Religion: A Realist
Perspective”, in Cécile Laborde & Aurélia Bardon (eds.), Religion in Liberal Political Phi-
losophy (Oxford University Press, 2017), 55.
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The challenge makes a claim against the self-attributed inclusiveness of lib-
eralism toward all manner of religions. A descriptively inaccurate account of
religion precludes fair treatment of religion. To know what to do about reli-
gion, we need to use our best available understanding of what religion is.
Theliberal treatment of religion is normatively decient because it is descrip-
tively awed. The critique assumes various forms, not all compatible with
eachother, but the most common descriptive critique is that liberal religious
freedom is unfair to some non-Western religions because it is modelled on
post-Reformation Christianity, particularly Protestantism. The idea is that
Protestant religion is belief-based, whereas many non-Western religions are
practice-based. The view that the liberal posture toward religion is a product
of the Protestant Reformation is hardly novel in historical research, or even
in contemporary liberal theory. What is relatively novel in political philoso-
phy, however, is the thought that this particular derivation of liberal religious
freedom generates normative diculties, perhaps more so once the range of
religions present in liberal polities expands beyond the various branches of the
Judaeo-Christian tradition. To capture this thought, a general account of the
bare structure of the descriptive challenge to traditional liberal religious free-
dom will suce. The challenge can be schematically presented as follows:
(1) Liberal accommodation of religion is modelled on Christianity/Protes-
tantism (belief-and/or obligation-based, private religion).
(2) Many non-Western religions are not belief-and/or obligation-based and/
or they are not private.
(3) To be fair, religious accommodation policy must be modelled on the sa-
lient characteristics of all afected religions.
(4) Thus, liberal accommodation of religion is unfair to many non-Western
religions.
In 2015, Cécile Laborde put forward a reformulation of this criticism that is
more conversant with Anglophone politico-philosophical treatments of the
See Stanley Fish, “Mission Impossible: Setting the Just Bound between Church and State”,
in Stephen M. Feldman (ed.), Law & Religion: A Critical Anthology (New York University
Press, 2000), 383; Saba Mahmood, Politics of Piety: The Islamic Revival and the Feminist
Subject (Princeton University Press, 2005); Jef Spinner-Halev, “Hinduism, Christianity,
and Liberal Religious Toleration”, 33 Political Theory (2005), 28–57.
Spinner-Halev, supra note 11.
Guido De Ruggiero, The History of European Liberalism (Oxford University Press, 1925
[1920]); C. B. Macpherson, The Political Theory of Possessive Individualism (Oxford Univer-
sity Press, 1962); William T. Cavanaugh, The Myth of Religious Violence (Oxford University
Press, 2009); Brad S. Gregory, The Unintended Reformation (Harvard University Press,
2012).
John Rawls, Political Liberalism (2nd ed., Columbia University Press, 1994).
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issue than with the praxis of liberal states: traditional liberal law on religious
accommodation is ultimately capable of correctly capturing what is valuable
in beliefs and expressive practices, but it is too narrowly focused on matters of
obligation and conscience. This way of making the point begins to show what
is not quite right with the standard version of the descriptive challenge, name-
ly that it is not obvious that its descriptive claims have the advertised norma-
tive implications. This is because, as Laborde can help us see, premise (3) above
is false:
The political theorists’ approach is normative… It seeks to identify the
core values that should be protected by the law. As a result, it eschews
purely descriptive or semantic approaches to legal terms. When it consid-
ers freedom of religion, it is not concerned with dening what religion
is – an elusive project at best, as critical scholars of religion have amply
shown. Rather, it rejects any essentialist or semantic approach; and is
concerned with identifying the core values that the law can properly ex-
press… [W]e would not want the law to capture the whole of the value of
religion. At best, the law will put forward an interpretive notion of mar-
riage, or of religion. That a particular law or theory does not capture what
religion really is, therefore, is not, in itself, a sucient objection to it.
What matters is that the law, or the theory, expresses and protects the cor-
rect underlying values. It is at this more fundamental level that interpre-
tive approaches must be assessed and evaluated.
In other words, even if producing a satisfactory and relatively uncontroversial
description of religion were possible, it would not by itself generate an account
of religious freedom, suited to the purposes of liberal law. States are not aca-
demic institutions. They are not in the business of describing reality for the
sake of knowledge, nor can they be, if they are to remain states. A key feature
that makes states states is their way of channelling social phenomena to t
within their pre-constituted aims—chiey the aim of securing order and sta-
bility, and achieving legitimacy in doing so. As shown below, this resonates
Laborde, supra note 4.
Laborde, supra note 4, 593, emphasis added.
Although these are generally descriptive claims, they become normative for us in the
sense outlined in the rst chapter of Bernard Williams’s In the Beginning was the Deed
(Princeton University Press, 2005), when considering the legitimacy of our respective
state(s).
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both with realist approaches to political theory and with James C. Scott’s
theory of “state simplication,” that is, his analysis of the tendency of states
to reinterpret and transform social phenomena to make them legible, and thus
amenable to the particular kind of rule that comes with the state form.
For now though, let us focus on Laborde’s response to the descriptive
challenge:
[I]t is not enough simply to say ‘religion is X and Y’. What is required is to
identify the specic normative values which make X or Y legally relevant.
Just saying that a practice or institution is multi-faceted and internally
complex, and irreducible to anything else (as is surely the case with reli-
gion) does not mean that it must be recognized as such in the law… So we
need to know what kind of good is being protected in every case, and the
good cannot be assumed to follow from the mere description of the em-
pirical dimension of religion.
In this case, (3) needs to be modied:
[T]he claim should not be that the existing law does not protect all that is
religious, according to some ordinary-meaning, semantic understanding
of the term. Rather, the claim is that the law fails to protect practices
which exhibit those normative values – still to be specied – which are
valuable in religion.
The salient values, then, will have to be specied “against the implicit or ex-
plicit background of a theory of fairness as inclusiveness.”
Although Laborde is right in pointing out these shortcomings of the de-
scriptive challenge, we identify a sense in which it does not do justice to our
best empirical understanding of what states are, and therefore it does not
demonstrate a viable way of framing questions of religious accommodation.
Our concern is that Laborde’s call for determining the place of religion within
the liberal state by appeal to normative considerations fails to appreciate the
degree to which these considerations are intertwined with the state itself.
Enzo Rossi & Matt Sleat, “Realism in Normative Political Theory”, 9 Philosophy Compass
(2014), 689.
James C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition
Have Failed (Yale University Press, 2005).
Laborde, supra note 4, 595.
Ibid., 584.
Ibid., 583.
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Laborde’s normativity is pre-political, which is not a kind suited for political
theorizing. The values she seeks to specify are moral. We argue that we need to
consider what about governing religions, and sacred places in particular, is
most conducive to the state meeting its purposes, which in turn cannot be
specied simply from one’s moral wish list, but must be understood in light of
a correct account of how states may or may not deal with religious phenome-
na. Before asking what the state ought to do, we should ask what the state is,
and so what it may do, which is not merely a point about feasibility. Realists
will already be sympathetic to this critique. To try and win over those who do
not share this methodological perspective, we hope to be able to show empiri-
cally why pre-political normativity will not do.
Consider the empirical case for the falsity of (1). Liberal religious accommo-
dation is not modelled on Christianity or Protestantism. By its nature, the state
gets to pick out the features of reality that suit its purposes. In so doing, the
state transforms the object of its rule, in the sense of “when all you have is a
hammer, everything looks like a nail.” Crudely, the proto-liberal state made
Protestantism into what it is so that it could govern it. We wish to substanti-
ate this claim by combining two sets of observations by empirical scholars
from disparate elds. First, we draw on a general account of the operation of
state simplication and reshaping of reality. Second, we leverage recent re-
search on the historical origins of the liberal notion of religion and of its place
in politics.
The rst point has been made most eloquently by James C. Scott:
No administrative system is capable of representing any existing social
community except through a heroic and greatly schematised process of
abstraction and simplication. It is not simply a question of capacity… It
is also a question of purpose. State agents have no interest—nor should
Talal Asad et al., Is Critique Secular? Blasphemy, Injury, and Free Speech (New York: Ford-
ham University Press, 2013), ix-x, recognized how states shape religion when claiming that
“secularism does not merely organize the place of religion in nation-states… but also
stipulates what religion is and ought to be.” Their claim that religion becomes “Protestant-
ized” is separate from the claim that liberal religious accommodation is not modelled on
Protestantism. Given that many of the people who were in favor of state centralization
also felt oppressed by the pre-reformation order, it is not surprising that it would appear
that the reshaping of religion by the state contains more elements of Protestantism, albeit
of less radical forms. Yet, the people who were pushing for state centralization were not
necessarily Protestant (e.g., Richelieu in France) (see Mark Koyama, “Ideas were not
enough: Locke, Spinoza and Voltaire were all brilliant, but religious freedom in Europe
was driven by statecraft not philosophy.” 2017. . Retrieved 18 Feb. 2020, https://aeon
.co/essays/the-modern-state-not-ideas-brought-about-religious-freedom).
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they—in describing an entire social reality, any more than the scientic
forester has an interest in describing the ecology of a forest in detail.
Their abstractions and simplications are disciplined by a small number
of objectives, and until the nineteenth century the most prominent of
these were typically taxation, political control, and conscriptions. They
needed only the techniques and understandings that were adequate to
these tasks.
Scott draws on a variety of case studies—from state-sanctioned scientic
forestry to land tenure schemes, from urban planning to the creation of
surnames—to illustrate and substantiate this general claim. More precisely, as
anticipated, there are two claims here:
These state simplications, the basic givens of modern statecraft… did
not successfully represent the actual activity of the society they depicted,
nor were they intended to; they represented only that slice of it that inter-
ested the ocial observer. They were, moreover, not just maps. Rather,
they were maps that, when allied with state power, would enable much of
the reality they depicted to be remade.
Thus, state simplications both describe selectively and reshape by describing.
Recent historical research on the place of religion in Western political dis-
course and practice bears this out. Again crudely, historians and theologians
have shown how the category of religion is a product of the liberal or proto-
liberal state. William Cavanaugh summarised his and other historians’ nd-
ings in this way:
What counts as religion and what does not in any given context is contest-
able and depends on who has the power and authority to dene religion
at any given time and place… the concept of religion… is a development
of the modern liberal state; the religious-secular distinction accompa-
nies the invention of private-public, religion-politics, and church-state
Scott, supra note 19, 22–23.
Ibid., 3.
This does not mean that matters of faith and worship did not play an important role in
the early modern struggles, which are often called “wars of religion” and which led to
Western state formation (see Barbara Diefendorf, “Were the Wars of Religion about Reli-
gion?”, 15 Political Theology (2014), 552; William T. Cavanaugh, “Religious Violence as Mod-
ern Myth”, 15 Political Theology (2014), 486; James Bernard Murphy, “Religious Violence:
Myth or Reality? A Symposium on William T. Cavanaugh’s The Myth of Religious Vio-
lence”, 15 Political Theology (2014), 479.
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dichotomies. The religious-secular distinction also accompanies the
state’s monopoly over internal violence and its colonial expansion.
[W]hat counts as religious or secular depends on what practices are be-
ing authorized. The fact that Christianity is construed as a religion,
whereas nationalism is not, helps to ensure that the Christian’s public
and lethal loyalty belongs to the nation-state.
Taken in isolation, the points about state simplications and about the partic-
ular history of the Western liberal conception of religion may seem to leave the
argument untouched. But their conjunction illuminates an important point of
realist avour: the reason why Western states have historically tended to treat
religion as a belief-and obligation-centric univocal practice, or rather to sculpt
it into one, is that this shape is most amenable to the exercise of state power.
Empirical work shows how many states that do not t the Western mould lack
the technology and power to exert this kind of inuence. One may further
posit that it is for this reason that religions from those societies do not take
forms that are easily governed by Western states. One may even argue that it is
the only amenable shape: the history of progressive enlargement of religious
freedom coincided with an increasing standardization of the forms that the
tolerated religions were supposed to take. The notion of religion at stake here
crystallized just as the early-modern, sovereign state won its evolutionary
struggle against other forms of political organization, from the Italian city-
states to the Hanseatic League, to name just the main defeated contenders.
Before the victory of the Western modern state over its competitors, religion
was, in a sense, closer to being an alternative though coopted form of social
organization rather than a subset of social practices, at least under central
state government.
The point here is precisely that success in regimenting religion, in making it
legible and thus governable, was one important factor in the success of the
state. Or, conversely, the success of the state in making social practices legible
Cavanaugh, supra note 13, 59–60. Also see Gregory, supra note 13.
Markus Daechsel, “Seeing Like an Expert, Failing Like a State? Interpreting the Fate of a
Satellite Town in Early Post-Colonial Pakistan”, in Marcel Maussen et al., (eds.), Colonial
and Post-Colonial Governance of Islam: Continuities and Ruptures (Amsterdam University
Press, 2011), 155.
Hendrik Spruyt, The Sovereign State and Its Competitors (Princeton University Press,
1994).
As borne out by Spruyt’s inuential reconstruction of the rise of the modern state in
Europe.
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from an administrative point of view and in expanding its enforcement capac-
ity paved the way for moving from identity-based rules to general ones, which
in turn provided support for freedom of religion, as Johnson and Koyama have
argued. The extension of state capacity, e.g., taxation and abolition of inter-
nal tarifs, correlated with a stronger identication with the nation and with
“general rules,” as they show by comparing grievance books from places just
inside and just outside the Cinq Grosses Fermes customs union, in 1788.
The best option of the state is to mould religion into a manageable shape. In
this case, the most manageable shape is the belief-and obligation-centric one,
given the desideratum of legal consistency and the technologies of legibility
and social control made available by the rise of the modern European state.
In a nutshell, those states made religion relatively toothless by reducing it to a
single, private practice rather than a public, political contender. This sort of
simplication is what the state does to make the social world legible, a condi-
tion for the efective use of its power. Any corresponding process of selection
of the normative goals of states is constrained by the types of things that states
are. It is not as if the state—or the theorist laying down norms for the state—
can discover a correct account of what is important or morally relevant about
religion, then proceed to devise policies compatible with this discovery. States
must nd ways to coexist with their social environment. They do so by making
social phenomena legible, and in so doing they alter these phenomena. How
exactly they go about it depends on the social phenomena and the actor con-
stellation in question. This process is constitutive of states, at least with
regard to modern, Western-style states. This is especially important for liberal-
ism, because the modern Western state is the one form within which liberalism
developed, and to which—as we know from standard Weberian analyses of
the bureaucratic rationality of statecraft—it is arguably tied by more than
mere historical contingency.
Noel D. Johnson & Mark Koyama, Persecution & Toleration: The Long Road to Religious
Freedom (Cambridge University Press, 2019), 250.
A customs union initiated in 1664, which eliminated internal customs and included about
half of French provinces at the time.
Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford University
Press, 2003).
Note here that when Western forms of statehood were later “exported” to contexts that
had a more diverse religious landscape, the position that states took toward religion was
not typically one of tolerance and freedom; think of the change from the relative religious
freedom within the Ottoman Empire to the deterioration in the successor states (see Ce-
sari, supra note 1).
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3 The State and Sacred Places: a Realist Approach
So far we have looked at the state-religion nexus in general. We can now re-
strict our focus to the issue of sacred places, in particular to contested sacred
places, which are the most dicult cases, after which it will be possible to
deal with the easier ones. In what way does the liberal state make the issue of
contested sacred places legible? And what room for normative theorizing does
answering this question leave us?
Although debates on sacred places are common, and the political-philo-
sophical literature tends to take claims about such spaces at face value, if only
because this is how such claims present themselves as political problems,
there is little agreement about what should count as a sacred place. Deep
disagreements across time and place about what constitutes a sacred place are
a key factor in making conicts over contested sacred places so seemingly in-
tractable. Some scholars even question whether “sacred place” is a useful
analytical category, for example, as opposed to the more accurate and less con-
tentious, although arguably less politically expedient, “ritual space.” This is
telling, insofar as it is a way to begin to see how sacred places are not part of the
fabric of the world, but rather the result of social processes of recognition. This
is far too general a claim, however, and not even a particularly controversial
one. What we need to consider is the form taken by that process of recognition
under the hegemony of the state.
A bird’s eye view of historical, anthropological, and archaeological evidence
from the early states of antiquity to, more important, the modern Western
state, shows a tendency toward covariation between political structures and
ways of recognizing the status of sacred places. But summarizing the evidence
for such a long period would be neither possible nor necessary here. What is
Our understanding of contested sacred places includes conicting claims advanced by
several religious groups as well as disputes about whether a place is sacred, e.g., between
land developers and a religious or tribal community.
We remain neutral on the more abstract issue of whether contestation is a necessary fea-
ture of politics. If it is, the cases we do discuss are the only relevant ones anyhow.
See Thomas Coomans et al. (eds.), Loci Sacri: Understanding Sacred Places (Leuven: Leu-
ven University Press, 2012); Alyson L. Greiner, “Sacred Space and Globalization”, in Stanley
D. Brunn (ed.), The Changing World Religion Map: Sacred Places, Identities, Practices and
Politics (Springer, 2015), 363; for the early modern period, see Will Coster & Andrew Spicer
(eds.), Sacred Space in Early Modern Europe (Cambridge University Press, 2005).
For a comparison between the choreographies of the sacred in the context of the diferent
successor states to Ottoman Empire, see Elazar Barkan & Karen Barkey (eds.), Choreogra-
phies of Shared Sacred Sites (Columbia University Press, 2015).
Bernard Williams, Truth and Truthfulness (Princeton University Press, 2002).
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most relevant for our purposes is the relationship between the modern state
and religion. In a number of inuential works, Talal Asad has demonstrated
how religion is not a universal category, nor a “given” that states simply must
deal with. Rather, it is a “modern historical object,” shaped by the same ideol-
ogy that accompanied the rise of the modern European state:
[W]hat appears to anthropologists today to be self-evident, namely that
religion is essentially a matter of symbolic meaning linked to ideas of
general order… is in fact a view that has a specic Christian history… [R]
eligion has come to be abstracted and universalized. In this movement
we have not merely an increase in religious toleration, certainly not
merely a new scientic discovery, but the mutation of a concept and a
range of social practices which is itself part of a wider change in the mod-
ern landscape of power and knowledge. That change included a new kind
of state, a new kind of science, a new kind of legal and moral subject.
This general attitude translates into the more particular issue of the handling
by the state of spatial conict. To crudely simplify, the simplication strategy
of the state always played a role in determining what was to count as a sacred
space and what such recognition entailed. There is no such thing as a sa-
credspace, in a politically salient sense of the term, that is not the product of
state agency to a signicant extent. One important consequence of this fact
is that we cannot make epistemically reliable moral judgments as to why the
state treats claims for or against granting special status to certain spaces with
fairness, because the very notion of sacred space is typically itself the prod-
uct of the state. The way that the category of religion is shaped by state
simplications may lead one to expect sacred places to have decreased
in importance proportionally with the increase in state capacity, given the
preferences of the state for belief-centered understanding of religion. To the
extent that sacred places stand in for a rival, ritual-and practice-centered
Talal Asad, Genealogies of Religion (Johns Hopkins University Press, 1993), 4.
Ibid., 42–43, emphasis added.
Although not dissimilar, struggles for being recognized as a state and struggles for being
recognized as a sacred space do not take place at the same level. The outcomes of the
former have a much stronger efect on the latter than vice versa.
By analogy, this is as if authors were asked to referee their own papers. There are good
epistemic reasons against this practice. We develop this method of realist ideology cri-
tique in Janosch Prinz & Enzo Rossi, “Political Realism as Ideology Critique”, 20 Critical
Review of International Social and Political Philosophy (2017), 348; see also Enzo Rossi &
Carlo Argenton, “Property, Legitimacy, and Ideology: A Reality Check”, The Journal of Poli-
tics (forthcoming, 2020).
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understanding of religion, sacred places are reminders of the still ongoing
struggle between state simplication and alternative forms of social organiza-
tion. That the governance of sacred spaces is one of the areas in which contem-
porary states have recourse to identity-based rules, the replacement of which
with general rules was one of the hallmarks of the advent of the modern state
form, attests to this challenge. There is a remaining tension in the manner in
which the state makes sacred places legible: by seeking to make the social pow-
er of the sacred subservient to its purposes through applying state simplica-
tions, the state still gives the concept of the sacred just enough continued so-
cial recognition for it to challenge the state form later.
Where do those broadly descriptive considerations leave us in terms of nor-
mative options to direct political agency? In their seminal paper on sacred
places, Gideon Sapir and Daniel Statman classied and reviewed the most
common philosophical rationales for special accommodations of claims on
sacred places. We are inclined to agree with their conclusion that “the theoreti-
cal basis for the special protection granted to holy places is not entirely clear
and is rather unstable,” therefore we do not take issue with any of their cri-
tiques of the various positions they discuss. We argue that one should be even
more sceptical of standard liberal political philosophy on this issue. Sapir and
Statman also noted that they found it “rather upsetting to be reminded that
social and legal arrangements are often much more a result of power relations
than of moral principles”. We lack the resources to determine the extent to
which reality is upsetting, but the preceding discussion helps establish two
points concerning Sapir and Statman’s conclusions, and more generally, what
a realist approach to political philosophy would recommend regarding the
choices of the state about sacred places.
First, we would like to extend Sapir and Statman’s scepticism about philo-
sophical accounts of the special status of sacred places, whether they are based
on freedom of conscience, cultural rights, or other accounts of the sui generis
status of religion. If our argument succeeds, it shows that it is not as if the cor-
rect way of squaring the religious freedom – equality circle has not yet been
found. Rather, it cannot be found because trying to regiment state agency with
pre-political moral principles is possible only if one misunderstands what sort
of entities states are. For states are not as pliable to one’s normative wishes as
political philosophers often assume them to be, although this is not to say that
Gideon Sapir & Daniel Statman, “The Protection of Holy Places”, 10(1) The Law & Ethics of
Human Rights (2016), 153; see also Gideon Sapir & Daniel Statman, State and Religion in
Israel: A Philosophical-Legal Inquiry (Cambridge University Press, 2019).
Ibid., 153–154.
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there is a universal logic of statecraft—contextualism remains key in a realist
framework. The often contradictory rationales for religious accommodation
found in academic and public discourse are simply the ideological residue of
diferent ways of negotiating the task of state simplication, to return to Scott’s
terminology. For instance, as some liberal states simplify through neutrality
and some through laïcité, while claiming adherence to broadly similar or over-
lapping sets of constitutional commitments, it is not surprising that ostensible
justicatory tensions emerge. All these simplication strategies are imperfect
and leave a residue of cases that do not quite t the mold.
Here one may wonder whether we have lapsed into the descriptive fallacy
Laborde aptly diagnosed in parts of “critical religion” scholarship. To address
this objection, we need to appreciate why our point about the state is not
merely one about feasibility constraints, although it may at rst sight appear
so. The objection is this: the fact that states mould social practices such as reli-
gion to suit their purposes says nothing about whether they have (moral, pru-
dential, etc.) reason to do so, unless one can also show that such state simpli-
cation is the only feasible option. But this objection fails to appreciate the
import of Scott’s point about state simplications: it is not as if states chose to
behave as they do; if they did not behave this way, they would not be states. The
realist argument we put forward explains why states mould religious phenom-
ena into easily governed shapes: the issue is that states need to solve what Ber-
nard Williams called the “rst political question,” namely the provision of
legitimate order, or in Sapir and Statman’s parlance, “the fear of violence and
public disorder.” As we have seen, modern states based on the European
model have quite specic ways of achieving these aims. The priority of answer-
ing the rst political question still leaves many normative questions open as to
how the state may best pursue that goal. How the purposes of the state are
specied in a particular context is not something for political philosophers to
determine; it should be left to the rough and tumble of politics that wins the
day.
This realist approach opens a new way of thinking about the justication of
religious accommodation, at least in political theory. The approach we have in
Williams, supra note 17.
The links between liberal realism and the “liberalism of fear” championed by Judith Shk-
lar are well understood by now (see Katrina Forrester, “Judith Shklar, Bernard Williams
and Political Realism”, 11 European Journal of Political Theory (2012), 247).
At least in democracies, there should be limits to what can count as politics rather than
raw domination (see Janosch Prinz & Enzo Rossi, “Financial Power and Democratic Le-
gitimacy: How to Think Realistically about Public Debt”, Social Theory and Practice
( forthcoming).
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mind is familiar to constitutional scholars, according to whom religious ac-
commodation is a matter of balancing state priorities and the requests of reli-
gious groups. Political theorists are typically dismissive of this approach: if
there are obligations to respect religious commitments, balancing will not do.
But here we have shown that this type of moralistic reasoning requires, among
others, the false premise that religion is independent of the state and therefore
must be treated fairly by it. The realist lesson is that there is no pre-political
morality of religious freedom. Thus, in a way, the realist approach we propose
can aford a vindication of the relatively hard-nosed, gritty reasoning found in
constitutional theory and practice.
We argue for an approach according to which the recognition and regula-
tion of sacred sites depends on the judgment of the state of what would mini-
mize the chance of failing to provide a legitimate order. This is not to say, how-
ever, that might makes right. As Bernard Williams argued, and as much realist
literature has shown, the establishment of order does not count as a proper
political relationship, as opposed to suspended warfare, if the order does not in
some way make sense to those subjected to it.
Such an approach would not involve compromise between “state” and “re-
ligion.” In our account, governing contested sacred places should be guided
by prudential reasoning by states about the efect on the legitimacy of the po-
litical order, rather than by trying to determine which religion has the most
Christopher L. Eisgruber & Lawrence G. Sager, Religious Freedom and the Constitution
(Harvard University Press, 2007).
Yuval Jobani & Nashon Perez, “Governing the Sacred: A Critical Typology of Models of
Political Toleration in Contested Sacred Sites”, 7 Oxford Journal of Law and Religion (2018),
250, capture the hard nature of these choices in their insightful outline of the advantages
and disadvantages of a range of approaches to the governance of contested sacred sites.
They do not consider, however, how the state has shaped the category of religion, and
hence their outline is of limited use for our purposes.
Supra note 17.
Emmanuela Ceva & Enzo Rossi (eds.), Justice, Legitimacy, and Diversity: Political Authority
Between Realism and Moralism (Routledge, 2013); Matt Sleat, “Legitimacy in Realist
Thought: Between Moralism and Realpolitik”, 43 Political Theory (2014), 314. This is not a
moral commitment but a point following from a conceptual claim about the distinction
between politics and war (Hall, 2015). On the normative status of this claim there is an
ongoing debate (see, e.g., Eva Erman & Niklas Möller, “Why Political Realists Should Not
be Afraid of Moral Values”, 40 Journal of Philosophical Research (2015), 459; Robert Jubb &
Enzo Rossi, “Political Norms and Moral Values”, 40 Journal of Philosophical Research
(2015), 455; Robert Jubb & Enzo Rossi, “Why Moralists Should Be Afraid of Political Values:
A Rejoinder”, 40 Journal of Philosophical Research (2015), 465; Janosch Prinz, “Principles,
practices and disciplinary power struggles in political theory”, European Journal of Politi-
cal Theory (2019).
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objective claims to “holiness” or “sacredness” of a place. Compromise be-
tween state and religion could not play a central role, because the religious
claims, according to our arguments above, are not—now and around here—
state-independent artefacts. Such an approach would divide conicts over
contested sacred spaces into two main but not neatly separated categories and
recommend responses accordingly.
On one hand, there is conict over contested sacred places as power struggle
over social and political control (of the purposes) of the state; for example, which
religion, if any, the state favours. If conicts over the governance of sacred
places boil down to such power struggles, special status would distract from
what these conicts are about. To the extent that claims regarding sacred
places are instrumental to gaining control of state power, without seeking to
transform the state form, no special governance provisions would seem neces-
sary in our approach, although there may be borderline cases. An example of
this could be the dispute in the early 1980s over the then newly funded settle-
ment of Rajneeshpuram in Oregon: a minority religious group started settling
an area adjacent to an existing city (Antelope), and subsequently obtained in-
corporation as a new city whose local government, including education and
security, it completely controlled. The ensuing successful legal challenge by
the Oregon State Attorney was ostensibly centred on the Establishment Clause
of the US Constitution. Our political realist reading, however, is in line with
what jurisprudence scholars of the American legal realist school would say:
judicial decisions of this kind are always determined by extra-legal factors:
moral and political convictions, interests, etc. In particular, we think that a
One may reasonably worry that such an approach is liable to give some groups a threat
incentive: Are groups more likely to have their demands met the more they menace pub-
lic order? To avoid a straightforward armative answer, it seems that those in charge will
have to make complex cost-benet calculations. It is not in the spirit of realist political
theory to provide detailed blueprints or algorithms for how those calculations should be
conducted (see Enzo Rossi, “Being Realistic and Demanding the Impossible”, Constella-
tions (2019)).
There are important diferences if one of the groups involved has been discriminated
against or is at the weaker end of a historical power diferential relating to state capture.
As we have suggested above, in liberal democracies there should be limits to how far the
rough and tumble of politics may cater to the interests of a very limited segment of the
population. We cannot, however, do justice to this topic here.
Our schema does not, however, cover international conicts over sacred places.
James T. Richardson, Regulating Religion: Case Studies from Around the Globe (Springer,
2003).
Brian Leiter, “Legal Formalism and Legal Realism: What is at Issue?”, 16 Legal Theory
(2010).
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realist approach counsels giving priority to extra-legal considerations pertain-
ing to the successful answering of the rst political question.
On the other hand, there is conict over contested sacred places that in-
volves a challenge to the state as the main form of social organization. Here the
task of the state would be to show arguments for why it provides a superior
form of social organization for all considered. Such a challenge comes to the
fore when the understanding of the sacred presented in the contestation is
incompatible not only with the particular policies of the state, but with state
simplication of religion altogether, for example, because they cannot capture
the sacredness at issue. Consider the recent protests over the Dakota Access
pipeline. The Native American Standing Rock Sioux Nation claims that the
construction of the pipeline would disturb their sacred land. Existing legisla-
tion for the protection of freedom of religion, however, has not served Native
American religions, despite the “American Indian Religious Freedom Restora-
tion Act” of 1978. Arguably, because of the divergence of their land-based un-
derstanding of religion from state simplied religion, Native American groups’
understanding of the sacred is not protected within the US state. If conict
over sacred space involves a claim to self-determination or sovereignty, it is a
direct challenge to the state order. If conict over contested Native American
sacred land is a case of mobilizing interpretations of a concept (the sacred),
which are less compatible with the current form of the state than the estab-
lished interpretations, in order to change the state from within, then it is a hy-
brid between the rst and second category. The example is further complicated
by the fact that a group that was forcibly integrated into the state society can
achieve recognition for its claims only through the organs of that state, the
same one that disregarded its prior claims to self-governance. Dealing with
such challenges is less a question of adjudicating between competing claims
than one of nding out whether state-based politics can satisfactorily incorpo-
rate the claims of groups that have historically been marginalized, in many
ways precisely through state simplication and other, even more brutal forms
of state-building.
Building on that last point, we note that we are left with an exclusive dis-
junction, which may or may not exhaust the available options, but the two we
mention strike us as the most appealing ones, and we do not try to adjudicate
between them. On one hand, one may embrace the hard-nosed priority of the
Tisa Wenger, Religious Freedom: The Contested History of an American Ideal (University of
North Carolina Press, 2017).
Tisa Wenger. “ Why Religious Freedom Won’t Protect Native American Sacred Lands”. 2018.
Berkley Center. Retrieved 18 Feb. 2020, https://berkleycenter.georgetown.edu/responses/
why-religious-freedom-won-t-protect-native-american-sacred-lands.
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rst political question; on the other, even if one is reconciled to abandoning
the moralist search for pre-political moral principles for guiding state agency,
one may still be disappointed with the limitations imposed by the ontology of
states. Thus, the issue of sacred places may become a gateway to the radical
conclusion that the very existence of states is normatively problematic: per-
haps there are commitments and social practices (such as religion, whatever
that may be) which we have reason to value more than we value the goods
provided by states.
That is not to say that if one is unhappy with statism one can retreat into
moralistic pre-political commitments. One must still reckon with the need for
political institutions, at least as long as humans have no choice but to coexist
in non-optional associations, as seems to be inevitable for creatures such as
ourselves. This is one more reason why prospects for a pre-political morality
of religious freedom seem dim. The question for radically minded realists,
then, is whether there are non-state frameworks and institutions that can en-
act more satisfactory ways of making sense of the politics of religion.
Acknowledgments
This paper was presented at the Conference on Sacred Places at Bar-Ilan University. We
are grateful for the insightful comments of the audience. Special thanks go to Karen
Barkey, Jocelyn Cesari, Ruth Gavison, Nahshon Perez, Gideon Sapir, Danny Statman,
and Jonathan Seglow. Enzo Rossi’s research for this essay was supported by the Dutch
National Science Organisation’s (NWO) Vidi project “Legitimacy Beyond Consent”
(grant n. 016.164.351). Ja nosch Prinz would like to thank the Leverhulme Trust for sup-
porting his research with an Early Career Fellowship (ECF-2016-227).
On the compatibility between realism and anti-statism, see Paul Raekstad, “Realism, Uto-
pianism, and Radical Values”, 26 European Journal of Philosophy (2018), 145.
Yet, if the state has shaped the category of religion, then making such a choice against the
state order may be practically dicult because it would require rst unearthing some al-
ternative form of religion unafected by state inuence. After centuries of state rule, such
a form of religion may be dicult to unearth.
In forthcoming work, Enzo Rossi defends a form of realist political naturalism that sub-
stantiates this claim.
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