Is the Rule of Law an Antidote for Religious Tension? The Promise and Peril of Judicializing Religious Freedom (SWP 40)

Does the ‘rule of law’ act as a force of moderation and, in matters of religion, serve as a key tool for mollifying or resolving disputes? Drawing on experiences from Sri Lanka, India, Malaysia, and Pakistan, we provide an alternative account of the link between legal processes and religious tensions, one that considers closely the roles played by constitutional law and legal procedure in perpetuating, deepening, or sustaining conflict. These case studies highlight four mechanisms that facilitate polarization: the procedural requirements and choreography of litigation (Sri Lanka), the language and decisions of courts (India), mobilization activities around litigation (Malaysia), and violent protest against legal defense of rights (Pakistan). In offering these re-evaluations and alternative narrations of polarization we seek to introduce a new spirit of creativity, modesty and humility among scholars about the ameliorative powers of law.