“The Judicialization of Religion” Law & Society Review, vol. 52 (2018) 685-708.

Throughout the second half of the twentieth century, one Muslim-majority country after another adopted constitutional provisions meant to incorporate Islam into the legal order. In what is now a familiar pattern, leaders sought to harness the legitimating power of Islamic symbolism. But rather than shore up state legitimacy, these provisions opened new avenues of contestation. In countries where judicial institutions are robust, religion of the state clauses have helped to catalyze a “judicialization of religion,” wherein courts were made to authorize an “official” religion and/or render judgment on the appropriate place for religion in the political order. This study theorizes one aspect of the judicialization of religion through the illustrative case study of Malaysia. The study examines how shifting political context provided opportunities for activist lawyers to advance sweeping new interpretations of Malaysia’s Religion of the Federation clause and, with it, a new vision for state and society. 

“Is the Rule of Law an Antidote for Religious Tension? The Promise and Peril of Judicializing Religious Freedom” American Behavioral Scientist, vol. 60 (2016) 966-986 (with Benjamin Schonthal, Matthew Nelson, and Shylashri Shankar).

Although “rule of law” is often regarded as a solution for religious conflict, this article analyzes the role of legal processes and institutions in hardening boundaries and sharpening antagonisms among religious communities. Using case studies from Sri Lanka, India, Malaysia, and Pakistan, we highlight four specific mechanisms through which legal procedures, structures, and instruments can further polarize already existing religious conflicts. These mechanisms include the procedural requirements and choreography of litigation (Sri Lanka), the strategic use of legal language and court judgments by political and socioreligious groups (India), the activities of partisan activists who mobilize around litigation (Malaysia), and the exploitation of “public order” laws in contexts framed by antagonism targeting religious minorities (Pakistan).

“Law and Courts in Authoritarian Regimes” Annual Review of Law and Social Science, vol. 10 (2014) 281-299. 

Once regarded as pawns of their regimes, courts in authoritarian states are now the subject of considerable attention within the field of comparative judicial politics. New research examines the ways in which law and courts are deployed as instruments of governance, how they structure state-society contention, and the circumstances in which courts are transformed into sites of active resistance. This new body of research constitutes an emergent field of inquiry, while simultaneously contributing to a number of related research agendas, including authoritarian durability and regime transition, human rights, transitional justice, law and development, and rule-of-law promotion. Moreover, this research offers important insights into the erosion of rights and liberties in “consolidated democracies.”

“Judging in God’s Name: State Power, Secularism, and the Politics of Islamic Law in Malaysia” Oxford Journal of Law and Religion, vol. 3 (2014) 152-167. 

Malaysia ranks sixth out of 175 countries worldwide in the degree of state regulation of religion. The Malaysian state enforces myriad rules and regulations in the name of Islam and claims a monopoly on the interpretation of Islamic law. However, this should not be understood as the implementation of an ‘Islamic’ system of governance or the realization of an ‘Islamic state’. Rather, the Malaysian case provides a textbook example of how government efforts to monopolize Islamic law necessarily subvert core epistemological principles in the Islamic legal tradition. As such, Malaysia provides an important opportunity to rethink the relationship between the state, secularism and the politics of Islamic law.

“The Politics of Religious Freedom in Malaysia” Maryland Journal of International Law, vol. 29 (2014) 468-491. 

Courts are widely understood by scholars, practitioners, and the public at large as institutions that resolve conflict and safeguard fundamental rights such as freedom of religion. But this functional understanding precludes deeper insight into how and why religious liberty cases continually crop up in the Malaysian courts. I suggest that far from resolving conflict, the judicial system is itself a primary source of tension. Instead of resolving legal questions, the judicial system is hard-wired to produce legal controversies anew. Rather than simply arbitrating between contending parties, courts exacerbated ideological cleavages. And instead of assuaging uncertainties, courts in Malaysia repeatedly instill a tremendous degree of uncertainty, indeterminacy, and anxiety around the meaning and content of “religious freedom.” Ironically, law and courts—the very instruments charged with resolving conflict and safeguarding rights—repeatedly deliver precisely the opposite result.

“Liberal Rights versus Islamic Law? The Construction of a Binary in Malaysian Politics” Law & Society Review, vol. 47 (2013) 771-802.

Why are liberal rights and Islamic law understood in binary and exclusivist terms at some moments, but not others? In this study, I trace when, why, and how an Islamic law versus liberal rights binary emerged in Malaysian political discourse and popular legal consciousness. I find that Malaysian legal institutions were hardwired to produce vexing legal questions, which competing groups of activists transformed into compelling narratives of injustice. By tracing the development of this spectacle in the courtroom and beyond, I show how the dueling binaries of liberal rights versus Islamic law, individual rights versus collective rights, and secularism versus religion were contingent on institutional design and political agency, rather than irreconcilable tensions between liberal rights and the Islamic legal tradition in some intrinsic sense. More broadly, the research contributes to our understanding of how popular legal consciousness is shaped by legal mobilization and countermobilization beyond the court of law.

“Islamic Law, Women’s Rights, and Popular Legal Consciousness in Malaysia,” Law & Social Inquiry, vol. 38 (2013) 168-188.

Best Journal Article, Law & Courts Section, American Political Science Association

Drawing on original survey research, this study examines how lay Muslims in Malaysia understand foundational concepts in Islamic law. The survey finds a substantial disjuncture between popular legal consciousness and core epistemological commitments in Islamic legal theory. In its classic form, Islamic legal theory was marked by its commitment to pluralism and the centrality of human agency in Islamic jurisprudence. Yet in contemporary Malaysia, lay Muslims tend to understand Islamic law as being purely divine, with a single “correct” answer to any given question. The practical implications of these findings are demonstrated through examples of efforts by women’s rights activists to reform family law provisions in Malaysia. The examples illustrate how popular misconceptions of Islamic law hinder the efforts of those working to reform family law codes while strengthening the hand of conservative actors wishing to maintain the status quo.

“Law in the Egyptian Revolt,” Middle East Law and Governance, vol. 3 (2011) 181-191.

Among the protest movements sweeping the region in the Arab awakening of 2011, the Egyptian revolt is the movement that is perhaps most defined by a struggle over the Constitution and the rule of law more generally. I argue that this intense focus on law and legal institutions is a legacy of the prominent role that law played in maintaining authoritarian rule in Mubarak’s Egypt. Just as law and legal institutions were the principal mechanisms undergirding authoritarian rule, opposition activists know that democracy can only emerge through comprehensive legal reform. This article examines the struggle for constitutional power in three periods – before, during, and after the Egyptian revolt of 2011.

 “The Islamist Trend in Egyptian Law” Politics and Religion, vol. 3 (2010) 610-630.

The past four decades have witnessed profound transformations in the Egyptian legal system and legal profession. Article 2 of the Egyptian Constitution now enshrines Islamic jurisprudence as the principle source of law, establishing an important symbolic marker at the heart of the state and opening avenues for Islamist activists to press litigation campaigns in the courts. Additionally, the Islamist trend gained prominence within the legal profession, a development that is particularly striking given the long and illustrious history of the Lawyer’s Syndicate as a bastion of liberalism. Despite these significant shifts, however, Islamist litigation has achieved only limited legal victories. This article traces the political and socio-economic variables that underlie the Islamist trend in Egyptian law, and examines the impact of Islamist litigation in the Egyptian courts.

“Law versus the State: The Judicialization of Politics in Egypt” in Law & Social Inquiry, vol. 28 (2003), 883-930.

Honorable Mention, Best Journal Article, Law & Courts Section, American Political Science Association 

This study seeks to explain the paradoxical expansion of constitutional power in Egypt over the past two decades, despite that country’s authoritarian political system. I find that the Egyptian regime established an independent constitutional court, capable of providing institutional guarantees on the security of property rights, in order to attract desperately needed private investment after the failure of its socialist-oriented development strategy. The court continued to expand its authority, fundamentally transforming the mode of interaction between state and society by supporting regime efforts to liberalize the economy while simultaneously providing new avenues for opposition activists and human rights groups to challenge the state. The Egyptian case challenges some of our basic assumptions about the conditions under which we are likely to see a judicialization of politics, and it invites scholars to explore the dynamics of judicial politics in other authoritarian political systems.

“Conflict and Cooperation between the State and Religious Institutions in Contemporary Egypt” International Journal of Middle East Studies, vol. 32 (2000), 3-22.

This article traces evolving relations between the Egyptian state and al-Azhar, one of the most influential centers for Islamic learning historically. Over the past century, and particularly since the 1952 Free Officers’ coup, the Egyptian government virtually incorporated al-Azhar as an arm of the state through financial control, purges, and appoints to key leadership positions. Presidents Nasser, Sadat, and Mubarak all benefited from this dominance by securing fatwas legitimating state policies. Yet, at key moments, such as through the mid-1990s, al-Azhar openly defied state policy on a variety of sensitive issues, including population control, the practice of female genital cutting, and censorship rights. Given the state’s overwhelming control, what can explain al-Azhar’s opposition and leverage over the state itself? This article examines the tripartite struggle between the state, al-Azhar, and radical Islamists with attention to religious legitimacy, shifting institutional interests, and loose ideological affinities between select state and non-state actors.