A Juridical Voyage of “Essential Practices of Religion” From India to Malaysia and Pakistan

Abstract

The article follows the voyage of the concept of “essential practices of religion,” which was created in India and later borrowed by judges in Pakistan and Malaysia. It explores whether concepts and the way they are used by judges transnationally, can be identified systematically to illluminate types of contestations over the nature of constitutional identities. It uses a tool of conceptual history, onomasiology, which refers to the tracing of all names and terms for the concept of “essential practices” in these judgments, to identify the network of concepts in the constitution within which “essential practices” is situated by each judgment to create a particular meaning and outcome for religious freedom in that country. State, religion, and rights are the three pivots for the debates. It demonstrates that it is possible to transcend the problem of translatability, by asking not whether “essential practices” (or any other concept) has the same meaning in all contexts (it does not), but whether a judge who wants to privilege a particular constitutional identity uses essential practices in a particular way within a network of concepts. This approach treats judges as interpreters who are embedded within specific social, historical, and political contexts, and who strategically use foreign case-law to impose their vision of the nation’s constitutional identity. The article’s conclusions problematize the transferability of concepts such as democracy, religious freedom, authority, and so on to Iraq, Afghanistan, and Syria, among others.