Spatializing Religious Freedom
| DOI | 10.1177/0964663913487094 |
| Date | 01 March 2014 |
| Published date | 01 March 2014 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2014, Vol. 23(1) 31–53
Spatializing Religious
ª The Author(s) 2013
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DOI: 10.1177/0964663913487094
the Legal Frontier
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Between Ethnic and
National Rights
Diana Bocarejo
Universidad del Rosario, Colombia
Abstract
This article addresses the complex legal endeavour to shape the frontiers between two
of the most fundamental liberal rights in multicultural nation states: the right to cultural
difference and the right to religious freedom in Colombia. I follow one dispute,
between members of the indigenous Arhuaco group who are Evangelical Christians
and their indigenous local authorities. This example illuminates longstanding debates
surrounding the relationship between religion and politics within legally plural states. I
put together different scales of analysis for understanding: (i) the legal definition of the
right to religious freedom and the right to ethnic cultural difference as private or public
and individual or collective; (ii) the debate about the political meaning of religious
practice by studying, for example, how it relates to claims over inequality and land
access; and (iii) the importance of understanding the meaning of conversion for
addressing the legal difficulty of creating a sustainable boundary between these two
rights.
Keywords
Colombia, multiculturalism and legal pluralism, politics, religion, space, spatialization of
difference
Corresponding author:
Diana Bocarejo, Escuela de Ciencias Humanas, Universidad del Rosario, Carrera 6A No. 14-13 Piso 5. Edificio
Santa Fe. Bogota´ 1, Colombia.
Email: dbocarejo@gmail.com
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Social & Legal Studies 23(1)
Figure 1. Indigenous Evangelical Christians in Agua Dulce. Photograph by Diana Bocarejo in 2006.
In spite of all the efforts of liberal democracies to separate the fields of politics and
religion, even if only in the political imagination, history has shown the complex
intricacies of such an endeavour and the overarching difficulty of its achievement. For
some authors, religion has always been embedded in the construction of political ideals
of modernity, individual agency and freedom (Bowen, 2003; Keane, 2007). Likewise, as
authors within political and legal anthropology have shown, the relationship between
politics and religion must be understood in the ongoing context of an ‘epoch of legal
theology’ in which ‘the two, rites and right, conjoin in parallel significance as never
before’ in democratic and non-democratic contexts and in political regimes ‘from A
to Z’, from America to Zimbabwe (Comaroff and Comaroff, 2010: 193). In spite of these
broad claims and generalities, there are various differences within and across countries,
which show a wide variety of conflicts and claims drawn from the liberal project of
separating religious freedom from politics.
One particular contemporary instance of the slippery frontiers between politics and
religion is the incorporation of minority rights and ethnic recognition in many nation
states. Now more than ever, nation states are willing to recognize different forms of
indigenous customary law in which they embrace, at least rhetorically, the coupling of
‘native’ religions and politics. This political recognition has been crucial for the legal
inclusion of what Tamanaha (2008) calls ‘customary normative systems’ and ‘religious
Bocarejo
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normative systems’, which in various contexts fundamentally constitute the legal plural-
ity of a nation state. Legal pluralism is considered to be everywhere (Tamanaha, 2008:
375) ‘as a situation in which two or more legal systems coexist in the same social field’
within colonized and non-colonized societies (Griffiths, 1986; Merry, 1988: 870; Moore,
1986). But more than an awareness of a general state of affairs, ‘a legal system is
pluralistic in the juristic sense when the sovereign commands different bodies of law for
different groups of the population varying by ethnicity, religion, nationality, or geogra-
phy, and when the parallel legal regimes are all dependent on the state legal system’
(Merry, 1988: 871). Hence, such an overlap of legal systems and rationales may generate
a wide variety of clashes and of social and political articulations that vary across time
and space.
This article addresses the complex legal endeavour to shape the frontiers between two
of the most fundamental liberal rights in the context of multiculturalism: the right to
cultural difference and the right to religious freedom in Colombia. I chose to follow one
dispute between members of the indigenous Arhuaco group, who are Evangelical
Christians and their indigenous local authorities. Indigenous Evangelical Christians filed
a lawsuit complaining about the ‘arbitrariness and abuse’ of Arhuaco traditional authori-
ties (denial of the right to worship, evictions, detentions and imprisonment of members of
the church), while indigenous authorities claimed that the rigidity of evangelical beliefs
was isolating Evangelical Christians from the traditional cultural practices of the group.
I seek in particular to understand the political implications of the dispute as it is lived
and conceived by the different actors involved (Arhuaco Evangelical Christians,
Arhuaco leaders and the Constitutional Court). The 1991 Constitution and the Constitu-
tional Court jurisprudence have been crucial for the consolidation of minority rights in
Colombia, especially by means of two legal tools: actio popularis (accio´n de inconsti-
tucionalidad) and tutelary action (accio´n de tutela).1 As Greenhouse has argued, what
is interesting and ‘theorizable of legal pluralism is neither law nor pluralism per se, but
the ways the conceptual and practical boundaries of legal recognition and legal jurisdic-
tions draw on and contribute to repertoires of signs by which cultural identity is recog-
nized and contested in the broader social landscape within and beyond the law’
(1998: 63). Some of the political issues at stake involve, for example, the extent to which
religious beliefs and spaces, such as churches or reservations, may be framed as public or
private; the manner in which religious conversion is addressed as a mechanism for resist-
ing social inequality and challenging strong hierarchies in place within the group and the
use of spatial frontiers as delimitations of access to the right of religious freedom.
Using archival and ethnographic analysis, I study both the Constitutional Court
judgment that attempted to solve the dispute legally as well as the manner in which indi-
genous peoples actually make sense of it and explain the different political meanings of
the ongoing conflict. The lawsuit was an accio´n de tutela filed by the legal representative
of the Iglesia Pentecostal Unida de Colombia (United Pentecostal Church of Colombia
and 31 indigenous Arhuacos ‘against various authorities of the indigenous Arhuaco
community for considering that they have violated their Fundamental Rights to life
(Colombian Constitution CC 11), their Personal Integrity (CC 12), the Free development
of their personality (CC 16), their Freedom of Conscience (CC 18), their Freedom of Cult
and Religion (CC 19), their Freedom of expression (CC 20), their Right to have their
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Social & Legal Studies 23(1)
Honor respected (honra) (CC 21) and to their Personal Freedom (CC 28)’) (Colombian
Constitutional Court (CCC), 1998: SU510/98).
Addressing the broad political implications of this dispute and the manner in which it
is lived by the persons involved is vital in order to understand both (i) the challenges that
religion (understood mainly as Western religions) may entail for the practice of minority
indigenous rights and (ii) the different ways in which contemporary multicultural legal
regimes may re-instantiate longstanding debates between religion and politics in Colom-
bia. These concerns are not unique to Colombia but are relevant to the broader debate on
multiculturalism, given that they are also present in many other countries that have
granted legal recognition to ethnic and religious minorities (for Australia, Me´xico or
Canada see, e.g. Marroquı´n, 1996; McIntyre, 2010; Rostas and Droogers, 1995).
The first section of the article addresses the manner in which religion appears as an
interference in the construction of an ethnic public and political domain that is granted
to recognized indigenous groups by the Constitution. In this context, the legal translation
of the dispute is addressed as a conflict between the individual right to religious freedom
and the collective right of indigenous communities to cultural ‘preservation’. This point
of contention is further complicated by contrasting interpretations of, and claims over,
the public/collective and the private/individual character of rights, political subjects,
religious practices and indigenous reservations. These debates are in part framed by
an obsolete notion of culture. As legal anthropologists have argued for decades, the
progressive acknowledgment in law, not only of individual but also of collective com-
munity rights, has been accompanied by a disappointing tendency to address culture
as a coherent, homogenous grid of meaning. Despite such a tendency, conflicts all over
the world have shown how ‘culture is neither a totalizing explanatory device for legal
institutions or legal conflicts, nor a unified singular thing agreed upon by all members
of any given society’ (Riles, 2008: 285). Critical legal pluralism as well as contemporary
anthropology...
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