Notes on Mayanthi L. Fernando, “Method and Theory in the Study of Religion” (2012) — Belief and the Law
Abstract
Examines how ‘belief’ has become the privileged site of religion in human rights law, making some ethical life unintelligible to secular-modern law and politics.
Outlines three moves:
Analyzing models of ethical personhood where actions like veiling or praying are not just signs of piety but are integral to achieving it.
Tracing how the 2004 French ban on headscarves in public schools was framed as a non-violation of religious liberty.
Exploring interiority vs exteriority, mind vs body, and belief vs practice that underlie such legal arguments, and showing how this distinction produces another distinction between conscience and its manifestation, institutionalized in secular law.
Concludes with the paradox of legislating the inviolability of the freedom to believe.
Introduction and central question
The French 2003–2004 public debate on Muslim headscarves culminated in a law banning conspicuous religious signs in public schools, effective in .
Fieldwork in Paris with the One School for All Collective included diverse Muslims, Sikhs, anti-racist militants, and secular feminists; jas—Sikhs like Jaswant Singh argued the headscarf ban targets more than clothing.
The article asks how the category of “belief” operates in law and politics, and how it enables a broader secular framework that renders certain ethical life forms unintelligible to law.
The focus is on how belief functions in the world beyond academe and how secularity constructs the relationship between religion, ethics, and politics across borders.
Fieldwork anecdote: Sikhs, turbans, and the ethics of practice
Jaswant Singh argued that the Five Ks of Sikhism, including kesh (uncut hair), are not optional—they are the faith: “ils sont la foi.”
He linked hair and turbans to a durable ethical self; cutting hair would destabilize one’s faith and lead to a loss of soul (l’âme).
Parallel drawn: Muslim women’s veiling as an authoritatively prescribed model of virtuous piety; veiling is a necessary disciplinary practice for cultivating modesty, not merely an outward sign.
Mahmood’s claim (Saba Mahmood, Politics of Piety) is cited: practices work in constituting the individual, not merely signaling pre-existing beliefs.
Implication: bodily comportment (veiling, praying, fasting) can be integral to achieving piety, not just representations of belief.
These models of ethical personhood exceed the secular model where practices mainly symbolize existing beliefs.
For veiled women, veiling is intelligible as a religious duty and essential to Muslim piety; in human rights law, it is often read as a sign or expression of belief rather than as a constitutive practice.
Belief, practice, and the structure of rights in law
In the headscarf debate, belief was deployed to argue that religious liberty is not violated by the ban: veiled girls can still believe “inside.”
Key voices cited:
Zaki Laïdi: “There are a thousand ways for a Muslim woman who aspires to wear the veil to wear it on the inside without wearing it on the outside.”
Gisèle Halimi: under laïcité, faith, thought, conscience can be expressed in public sphere; but behaviours, signatures, and practices must be banned.
This logic rests on a mind/action distinction: belief (conscience) is protected, while its outward manifestation (practice) can be restricted.
The law thus distinguishes between conscience and its manifestation, supported by a prior division between belief and practice.
The veil (and similar practices) is read as a sign of belief, not as a constitutive part of belief; the practice is removable without altering inner conscience.
The legal anatomy: Article 9 and the mind/action distinction
Article 9(1) ECHR guarantees freedom of thought, conscience, and religion, and freedom to manifest that religion or belief in worship, teaching, practice, and observance.
Article 9(2) ECHR places limitations on the freedom to manifest (in the interests of public safety, order, health or morals, or the rights and freedoms of others).
ICCPR Article 18(1) mirrors this structure: rights to freedom of thought, conscience, and religion; and freedom to manifest that religion or belief in worship, observance, teaching, and practice (Article 18(3) permits limitations by law for public safety, order, or morals, or others’ fundamental rights).
Key insight: Conscience and its manifestation are legally distinct; the forum internum (inner mind/conscience) is inviolable, while the manifestation (practice) is alienable.
Danchin’s mind/action distinction (cited in the article): law treats “thought and conscience” separately from actions related to belief; the inner life is protected, but outward expressions can be regulated.
The distinction is underwritten by a secular, often Protestant, genealogy that privileges belief as the authentic site of religion and treats bodily practices as secondary or symbolic.
The Protestant legacy and the secularization of belief and practice
The Protestant Reformation and subsequent secularization promoted belief as the authentic core of religion, relegating disciplinary bodily practices to secondary status.
Protestant emphasis on textual/linguistic expressions (e.g., Creed) contributes to making embodied ritual less legible as “religion” in law.
As a result, even central religious practices (veiling, turbans, prayer) may be perceived as secondary expressions, not constitutive of religiosity.
This logic makes penalizing a practice (e.g., the headscarf) compatible with respecting belief, since belief is protected while practices may be restricted.
Keane’s analysis (referenced in the article) suggests that even when practices remain important to religiosity, they can become invisible as embodied rituals under modern secular semiotics.
The net effect: “Religion” becomes what is inside the mind—belief—while outward acts are separate, potentially non-protected manifestations.
Locke’s liberal toleration paradigm (1689) is cited as foundational: true religion resides in inward conviction; penalties cannot change inward beliefs because outward force has no efficacy on the mind.
This interior/exterior split underwrites the right to conscience vs the right to manifest, shaping modern liberal legal frameworks.
The paradox and the broader implications for secularism
If legal protection is granted to the inviolability of belief, then the law acknowledges (or relies on) a realm that cannot be violated
Yet, in practice, manifestations of belief (like wearing the veil) are regulated or prohibited in certain contexts.
The paradox: legislating protection for the inviolability of belief assumes belief as a stable, unobtrusive inner life, but the very act of legislating belief has material, political consequences for how religious subjects are constituted.
The article argues for a capacious, cross-border approach to studying belief’s work in law and politics, rather than treating belief as mere private conviction.
It also invites critique of secularism as a universal, revealing that secular frameworks have national genealogies and tensions, yet share a global project that normalizes certain sensibilities, socialities, and legal practices around belief.
Comparative and global horizons
The convergence between French/laïcité and American cases demonstrates a shared tendency to protect belief while regulating its expressions, albeit through different constitutional histories.
American discussions (Sandel; Sullivan) show similar mind/conscience vs manifestation tensions in the interpretation of religious liberty.
Sandel (1998) discusses freedom of conscience in the American legal tradition, tracing a shift from freedom to adhere to religious duties to freedom to choose beliefs.
Sullivan (2007) analyzes a Florida cemetery case, highlighting how belief/practice distinctions operate in U.S. law, with protection focused on inner belief rather than outward expression.
The author argues for analyzing the category of ‘belief’ across national contexts, while recognizing diverse genealogies of secularity and its universalizing effects.
Talal Asad’s framework is invoked to emphasize that secularisms, though diverse, constitute a global project—particular forms of secular life create shared configurations of belief and its legal treatment.
Conclusions and stakes for study and practice
The privileging of belief in defining religion has concrete legal and political effects that render certain ethical lives intelligible or unintelligible to secular law.
The headscarf case illustrates how liberal rights discourses can be used to defend or authorize restrictions on embodied religious practices by situating them as mere manifestations of belief rather than constitutive elements of religiosity.
The mind/body split and the belief vs practice distinction are deeply rooted in historical developments (Renaissance, Protestantism) and continue to shape contemporary legal regimes.
There is a need to rethink secularism and the study of religion beyond national cases, considering secularism as a global project with diverse manifestations and internal tensions.
The chapter calls for a broader, more capacious anthropology of belief—one that interrogates how belief works in law and politics and how it interacts with bodily practices, social identities, and state power.
Key concepts and terms
Belief as the privileged site of religion in law
Conscience vs manifestation (mind vs action) in international law
Belief vs practice as a two-tier structure underwriting rights frameworks
Forum internum: inner realm of belief/conscience protected from state interference
The work of practices: how bodily acts (veiling, prayer, fasting) can constitute or produce ethical dispositions, not merely symbolize.
Sign vs signification: acts read as signs of belief rather than constitutive elements of belief itself
Laïcité: French secularism; the state’s regulation of religious signs in public spaces
The Five Ks of Sikhism: kesh, kangha, kara, kirpan, kacha; kesh = uncut hair (central to Jaswant Singh’s argument)
The “mind/action” distinction in rights frameworks (Danchin)
Protestant/secular semiotics: belief as authentic religion; bodily discipline as secondary expression
Global secularisms: plural, contingent, and interconnected forms of secular life across borders
The “forum internum” vs external manifestations in rights discourse
Asad’s secular critique: secularism as a global project with diverse genealogies
Locke’s Letter Concerning Toleration: inward persuasion as basis of true religion; outward penalties are ineffective
Notable examples and quotations (from the transcript)
Jaswant Singh on the turbans and the Five Ks: “are not optional—they are the faith [ils sont la foi].”
“When a Sikh cuts his hair, his beard, soon, he begins to eat meat, to drink alcohol … He loses his soul [il perd son âme].”
Irène’s reflection on modesty and veiling: wearing the veil helps cultivate modesty as a path toward God.
Zaki Laïdi (2004): “There are a thousand ways for a Muslim woman who aspires to wear the veil to wear it on the inside without wearing it on the outside.”
Gisèle Halimi (2003): “Faith, thought, conscience … can be expressed [in the public sphere]. Behaviors, religious ‘prescriptions,’ basically signs and insignia, practice, in other words … must be banned.”
European Convention on Human Rights Articles:
Article : freedom of thought, conscience, and religion; to manifest in worship, teaching, practice, observance.
Article : restrictions for public safety, order, health, morals, or rights of others.
ICCPR Articles:
Article : freedom to have or to adopt a religion or belief; freedom to manifest in worship, observance, practice, and teaching.
Article : restrictions to manifest only as prescribed by law and necessary to protect public safety, order, morals, or the rights and freedoms of others.
Locke, A Letter Concerning Toleration (1689): inward belief cannot be coerced by outward penalties; true religion resides in inward persuasion.
Saba Mahmood (2005, 2009): practices shape the sujeito (subject) and are not merely signaling beliefs.
Keane (2007) on Christian Moderns and the secular semiotic regime.
Appendix: suggested connections for further study
Anidjar (2009): The idea of an anthropology of Christianity
Asad (1993, 2003): Genealogies of Religion; Formations of the Secular
Bynum (1987): Holy Feast and Holy Fast
Danchin (2008): Of prophets and proselytes: Freedom of religion and the conflict of rights in international law
Fernando (2010): Reconfiguring freedom: Muslim piety and the limits of secular law in France
Halimi (2003): Légiférer, pour que gagne le droit
Jakobsen & Pellegrini (2008): Secularisms
Keane (2007): Christian Moderns
Laïdi (2004): Laïcité: Le bon choix de Chirac
Locke (2003): A Letter Concerning Toleration (in Shapiro, ed.)
Mahmood (2005, 2009): Politics of Piety; Religious reason and secular affect
Masuzawa (2005): The Invention of World Religions
McCutcheon (2003): Manufacturing Religion
Sandel (2008): Religious liberty: Freedom of choice or freedom of conscience?
Sullivan (2007): The Impossibility of Religious Freedom
Taylor (2007): A Secular Age
Summary takeaway
The article challenges the assumption that religious liberty is secured simply by protecting belief; it shows that modern rights regimes distinguish belief (forum internum) from its manifestations (practice), a split grounded in a Protestant-secular genealogy.
It argues for a capacious, cross-national study of belief’s role in law and politics, and it critiques secularism’s universal claims by highlighting how similar logics operate in different contexts.
In practice, protecting the inviolability of belief while regulating bodily religious practices has profound ethical, political, and practical implications for religious subjects and for how pluralism is managed in liberal democracies.
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