1. CONTEXT

The first and perhaps foundational point made by the essays is the importance of context. Each study makes it abundantly clear that we must understand and appreciate the contextual factors in the individual environments. That this is the case is, perhaps, not at all surprising.

In his 2017 book, A Realistic Theory of Law, Brian Tamanaha begins by stating:

Tamanaha’s assertions here are not unique – the whole ‘law in context’ movement is based around the importance of understanding the law in its social and political environment and has generated publication series as well as academic journals.Footnote ²

The first point to be made here, then, and at least implicitly apparent in the different articles in this Special Issue and the papers presented at the conference, is that the law and constitutional practices that are being discussed must always be seen and understood in their context(s).

This leads to a second observation about context, namely, to appreciate what the context of law consists of. Broadly, we can say that legal contexts consist of the whole range of social, political, economic, and cultural forces that exist in a society. As Jaakko Husa has said: ‘Law is part and parcel of society’s cultural entirety – law is the law of the human communities …’.Footnote ³ Context is the weight of the past and exigencies of the present; ideational and practical. Context is also not entirely endogenous but is influenced by outside forces, so it is dynamic and developing.

Third, and more particularly, when considering religion and constitutional practices, we have seen in the papers and articles that, indeed, context is much shaped by the religious environment and culture that is present, and by the types of education, and religious education, offered in the jurisdictions. As Dian Shah’s paper says directly about her case study of Malaysia: ‘What all this illustrates is that religion (or more specifically, the majority religion, Islam) has become a significant force in shaping the laws, policies, and politics in Malaysia.’Footnote ⁴ In fact, we might say that the religious environment is, for better or worse, having a larger social impact in the present time than it had in the past. Thus, along with a heightened sense and the enhanced visibility of religious diversity in so many environments, including those in Asia, is also presently coming to a heightened sense of religious cleavage and tension. This is unfortunate, but it highlights how significant the forces of religious identity, religious diversity, and perhaps most challenging of all, religious definition are in Asia (and beyond). As we have seen in the papers, in some jurisdictions (especially in South Asia and in Malaysia) this is generating more case law of the ‘hard cases’ variety that can be, simultaneously, a boon and a blight.

II. COMPLEXITY

The second ‘C’ I raise is complexity. This follows, perhaps inevitably, from what we have said above about context. But I want to draw out a related aspect to the analysis.

When thinking about context, and context as a dynamic, we need to both appreciate as well as – if one can put it this way – embrace complexity. That is to say, we need to understand that the contexts which we are interested in are evolving as a result of endogenous and exogenous forces in complex ways. Complexity, then, is and will be ever-present. This means that we need to see narratives presented as windows into the complexity of the contexts, and contingent rather than final explanations of the contexts. Change will come and settled truths can quickly become unsettled. Consider for a moment the ‘political earthquake’ of the most recent general election in Malaysia (‘GE14’ as it is known) that took place on 9 May 2018, and where the Barisan Nasional coalition that had governed Malaysia (and its predecessor of Malaya) since 1957 was dramatically swept out of office by the Pakatan Harapan coalition. The political result was dramatic and recast the ‘old truths’ of Malaysian politics. It evidenced, in its aftermath, that there was a rumbling complexity to the (political) context of Malaysia that even the most seasoned observer would have been hesitant to predict before the election – an evolving, ever-present complexity.

III. CONTESTATION

The third ‘C’ is contestation. The articles in this Special Issue and the papers presented at the conference have highlighted that the contexts they discussed are full of contestation on fundamental and perhaps even less fundamental issues. This ongoing contestation is linked to the contextual complexity I have just mentioned. Thus, when we consider the overwhelming Muslim-identifying majority in Afghanistan, the Malay-Muslim majority in Malaysia, or the shared ‘subcontinental’ identity in India, Pakistan and Bangladesh, we see that all these large, shared identities are replete with contestation of values and identifications.

To illustrate from the case studies, consider the (Sunni) Hanafi majority in Afghanistan. As Shamshad Pasarlay’s study of Afghanistan makes clear, there is not a unique ‘Hanafi view’ that pertains in Afghanistan. Some of this is because of the structure of authority and opinions within Hanafi Islam: ‘different Hanafi Sunni claims might look to different Hanafi scholars for guidance.’Footnote ⁵ This is not because, for the vast majority, there is a rejection of the label or identity as Sunni Hanafis; rather, it is because this identity does not engender uniformity. Nor, of course, does ‘South Asian(ess)’ or ‘Malay(ness)’. So, to take another example, India and Pakistan, due to a common history, share a great deal of legal architecture. For instance, as Matthew Nelson’s article points out, both jurisdictions have the concept of a ‘basic structure’ in their constitutional law.Footnote ⁶ However, as Nelson explains, this does not mean that these two jurisdictions address the ‘basic structure’ concept in the same way.

Most importantly, the meaning, values, claims, and positions of these identities are subject to inevitable contestation coming from a variety of perspectives and influenced by a variety of sources. For instance, as Shah says with respect to Islam in the Malay-Muslim context in Malaysia: ‘…there are deeply rooted legal, political, and social conditions that define (and will continue to define) disputes on religion and their outcomes’.Footnote ⁷

In short what the above tell us is that the forms of law and understandings of justice that emerge from the different environments discussed – or from almost all environments – are forged through dialectical and discursive processes.

IV. COMPARATIVE LAW

The next ‘C’ is the potential of comparative law.

In his recent book entitled Sociological Jurisprudence,Footnote ⁸ Roger Cotterrell asserts that jurisprudence needs to be cognizant of the social and political contexts within which legal issues arise if it is to provide effective responses to these issues. Thus, sociological jurisprudence ‘should indicate jurisprudence consciously oriented to address the need for sociological awareness in all its inquiries’.Footnote ⁹ Cotterrell’s perspective is targeted particularly at the dominant outlook of contemporary Anglo-American jurisprudence, which he characterizes as being captured by professional philosophy and disconnected from sociological context, especially but not only in its positivist core. His concern is that the characteristics of this form of jurisprudence – to be accurate, what he calls ‘legal philosophy’ – ‘disable it for standing in for the jurisprudence as the prudentia of jurists and have made it largely unconcerned to try to do so’.Footnote ¹⁰ It is in contrast to this that Cotterrell advances his sociological jurisprudence that he characterizes later in the book, as well as in an earlier article, as ‘bricolage jurisprudence’. Cotterrell argues that bricolage jurisprudence that collects insights from a range of different sources and is socially, empirically and politically engaged, aids in developing the prudentia of jurists.Footnote ¹¹ Prudentia is found around ‘acquaintance, knowledge, sagacity, prudence, discretion and foresight’.Footnote ¹² Thus, Cotterrell’s proposition is for jurisprudence to be informed, engaged and – resonant with Tamanaha – grounded in the social realties and contexts of society. In multicultural environments especially, he speaks about the need for a ‘communitas’ orientation seeing the law as expressing cultural conditions and adjusted for the diversity of legal and interpretive communities.Footnote ¹³

Cotterrell’s jurisprudential outlook (and indeed that of Tamanaha) conforms, I believe, with the work of Catherine Valcke in providing a perspective on comparative law. Valcke (with inspiration from William Ewald), advances the proposition of comparative law as comparative jurisprudence. Law as jurisprudence (and comparative law as comparative jurisprudence) here means:

Valcke’s standpoint suggests a mutually constitutive dynamic between comparative law and legal theory that has bearing for the intellectual output of the conference from which this Special Issue arises.

The jurisprudential perspective provides a theoretical raison d’être which explains the work of comparative law. In this perspective, comparative law is seen as not just an instrumental or information sharing exercise, but rather an effort that can be harnessed to plumb the social and intellectual complexity of the nature of law in different environments. Simultaneously, the materials unearthed by comparative jurisprudence – the ‘comparative law in the minds’ – can provide the contextual richness and theoretical grounding to understand law as situated in a social and cultural location. In short, there is a complementarity to the jurisprudential frameworks and the comparative means – particularly by way of a ‘comparative law as jurisprudence approach’ – of comparative law’s emphasis on context which, as we have seen, is a central idea that emerges from the articles in this Special Issue.

Indeed, there are more specific insights from comparative law that can be harnessed towards the larger understanding of context. One such insight is the idea of the dynamic and mixed/mixing nature of legal systems. As Esin Orucu has said:

This viewpoint affirms what we have gleaned about the evolving and ever-changing nature – the complexity of context – that the papers in the conference and the articles in this Special Issue have presented.

Comparative law also reminds us, with its idea of ‘transposition’, that when legal ideas, doctrines or structures move from one environment to another, or even when we have a similar structure, doctrine or idea in different environments (eg, the presence of religion, ‘basic structure’ doctrine etc), we should not expect them to generate entirely similar results. Again, this is because of the impact of context or culture, which conditions how the doctrine or idea is received, interpreted, and applied.

The emphasis on pluralism – legal and otherwise – has been another idea of comparative law. Werner Menski’s work emphasizes the presence of pluralism and he highlights the impact of hybridization that occurs in legal systems due to the influence of culture-specific locality and of legal traditions as ‘fuzzy’.Footnote ¹⁶ As a further elaboration of this perspective, Menski develops a graphical kite with religion/ethic/morality at one corner of the kite, society at another corner of the kite, the state at the third corner, and international law at the ‘tail-end’ corner of the kite – hence, laws are created by the state, by society, and through values and ethics and with international influences.Footnote ¹⁷ Menski’s analysis, coming out of his approach to comparative law, also helps us to articulate the contextual richness that emerges from the case studies discussed in the articles.

Finally, we can turn to H Patrick Glenn’s idea that we need to consider legal traditions (versus legal families or legal systems). Glenn has characterized tradition as having ‘pastness’, as described by TS Eliot.Footnote ¹⁸ Accordingly, he says that ‘[t]radition thus appears to involve the extension of the past to the present, though we must be cautious in thinking about time’.Footnote ¹⁹ He adds that there is another aspect of tradition, found ‘in the necessity of tradition having been continuously transmitted in a particular social context, in order for it to be of current relevance’.Footnote ²⁰ In another work, Glenn quotes AWB Simpson for the proposition that ‘law is essentially a tradition, that is to say something that has come down to us from the past’, which Glenn says common lawyers (at least) would agree with.Footnote ²¹ Fundamental to Glenn’s understanding of law as legal tradition, therefore, is the impact of history which transmits normative information from the past into the law of the present. This perspective is relevant to the discussion in the articles, and to the earlier mentioned idea of evolution, because of the weight of history emphasized by Glenn’s tradition and its evident, as well as unending, impact on how religion and constitutional practices unfold in Asia.

V. CONSTITUTIONAL LAW

The final ‘C’ I offer is for Constitutional Law – a necessary focus for the articles of course, given the brief for the conference. More particularly, I consider what the articles enable us to see about constitutional law with respect to religion. Put simply, I believe that the lesson from the discussions is this: constitutional provisions with respect religion do not, in fact, settle the question of what role religion (or some specific religion(s)) have in the legal orders of any specific jurisdiction. Indeed, such provisions can profoundly beg the question. This is not at all surprising. Constitutional provisions are almost always much debated. Thus, what a provision means is a perennial zone of contestation. Law libraries stock many annotated constitutions – filled with small text and many footnotes – which outline the various interpretations that have been given to constitutional language, even to language that one might think at first blush is clear on its face (this before the lawyers get their hands on it!). Why should it be any different for constitutional provisions dealing with religion?

So, indeed, we should only expect the interpretative debates and contestations to be brought about by the articles in this Special Issue. That is fair enough. However, what I would like to suggest is that there is also a lesson for constitutional law here: constitutional law must not over valorize its texts, and constitutional scholars must not over valorize only the consideration of these texts. Rather, they should, as the articles in this Special Issue have done, see the text in its context(s). Of course, this does not mean the legal constitutional discourses are that they should be dismissed, merely that they should be consumed with a measure of modesty. The result of constitutional cases with respect to religion might furnish legal ‘decisional resting points’ which can, and almost certainly will be, revisited as circumstances change.Footnote ²²