Appealing, as it is, to sources beyond easy human understanding and verification and having the capacity to evoke intense conviction that can overcome even the fear of death, religionFootnote ¹ has always been a difficult—and often passionate—subject matter for law. Driven by the bloody lessons of past and present religious conflicts and compelled by the reality of continuing and increasing religious diversity, the dominant legal discourse in law and religion, especially under E.U. and U.S. jurisprudence, is premised on two related normative principles.

First, the state should be neutral between religions (or, for some, between religion and non-religion).Footnote ² This neutrality does not necessitate strict separation of church and state, and it may involve a commitment to multiculturalism and even weak forms of religious establishment on account of the polity’s cultural and historical heritage.Footnote ³ Nonetheless, this requirement has often found manifestations in the common constitutional prescription of religious equality such that explicit and substantial promotion or discrimination of selected religions by the state would often attract criticisms of religious bias and legal challenges.Footnote ⁴

Second, connected with normative and legal concerns underpinning the neutrality requirement, there is an aversion to consciously shaping religious practices and doctrines via state instruments.Footnote ⁵ The state is not precluded from imposing restrictions on religious practices; however, those restrictions should be kept to a minimum and applied only when they are sufficiently justified by public interests.Footnote ⁶ Notably, overt theological/doctrinal concerns and/or religious animosity are considered undesirable and often unconstitutional justifications for restrictions of religious practices.Footnote ⁷

These two principles are underpinned by the laudable recognition of the limitation of states’ capabilities in assessing the spiritual realm and the potential harm to both state and religions arising from state entanglement with religion.Footnote ⁸ Yet, such simultaneous aversion to state interference and adherence to state neutrality is unheard of in other areas of laws. Regulations abound for all aspects of commercial and social activities on the grounds of internalizing externalities or outright redistribution for a “fairer” marketplace.Footnote ⁹ The unimpeded expression and exchange of ideas under even the most stringent constitutional safeguard of free speech requires only the absence of censorship without limiting state advocacy of a particular position or ideology.Footnote ¹⁰ Even in the realm of sex, marriage and family, where paternalistic state regulations have substantially rescinded since the sexual revolution beginning in the second half of the twentieth century, ostensible state intervention remains common even among purportedly liberal societies, usually in the form of active advocacy, subsidy and/or legal support for the particular family arrangement consisting of marriage with children.Footnote ¹¹

But, is religion really so different from other forms of human activities to warrant this unique approach to law? Or, to put it another way, can a person’s decision to join a religion and participate in its religious activities be analogized to a consumer’s consumption decision, with the consequential implication that a successful religious organization is—like a successful business—one that is simply better able to attract and retain adherents relative to competing religious organizations? And, if so, what will the legal implications be?

This book presents the Law and Religious Market Theory as an original perspective from which to examine critically the normative considerations associated with laws/policies that affect religion. The theory draws on the religious economic model, an interdisciplinary approach of sociology and economics to religion that provides a resounding “yes” to the first question of whether religious choices can be analogized to decisions in other realms of human activities. Rather than viewing religion as a somewhat elusive and mystifying phenomenon or treating it as an irrational cultural relic in decline in the face of rampant secularization,Footnote ¹² the model treats religious adherents as individual actors who make decisions about their choice of religion and level of religious participation in a manner akin to other decisions, namely, to maximize their utility.Footnote ¹³ The choices of religious adherents in turn account for the success or failure of a religion—a religion will grow and prosper if it is more successful in attracting and retaining adherents than other religions or belief systems (including non-belief), whether owing to superior theological teaching, compelling religious experiences, or more pragmatic considerations.Footnote ¹⁴

If the religious economic model is accurate—and this book argues that a proper understanding of its various assumptions will produce a persuasive factual account that is compatible with the possibility of divine intervention—the key question becomes how laws related to religion should be designed. The Law and Religious Market Theory recognizes the profound effects that law and other state instruments exert on the contours of religious competition and the consequential winners and losers in the religious market. Thus, instead of providing a dichotomous assessment of whether religious liberty is violated, the theory focuses on identifying the pressures and incentives created by law (or, often as importantly, the absence of law) on different religions to appreciate fully the nature of religious competition that would be produced under the legal regime. This approach can generate new and surprising insights, such as the finding that religious competition that is conducive to the emergence of religions associated with normatively desirable characteristics may actually be fostered by restrictions on religious practices that otherwise attract instinctive criticisms.Footnote ¹⁵ More fundamentally, the theory reorients the discourse from the prevailing emphasis of state neutrality and state minimalism in the realm of religion to confront head-on the difficult but inevitable question of the nature of religious competition—and the consequential religious winner—that the law should foster.

To illustrate the novel factual and normative contributions that can be derived from the Law and Religious Market Theory, this book engages in comparative case studies of China, Taiwan and Hong Kong.Footnote ¹⁶ These three jurisdictions are selected given that the dominant religious worldview of the population in all three was largely identical just a century ago, but that they are now subjected to ostensibly different legal and political circumstances (i.e., Nationalist followed by Communist rule in China; British colonization of Hong Kong followed by handover to China; Nationalist martial law followed by democratization in Taiwan). By analyzing the religious competition sanctioned by the underlying legal regimes with the resulting religious landscape, this book advances the understanding of the factual dynamic between law and the religious market. In this regard, this book presents the precise nature of religious competition as envisaged by the current legal regimes in the three jurisdictions. Instead of providing a typical mere identification of how religious practices are restricted—and there are undoubtedly many restrictions, especially for China—this novel factual account engages in the holistic assessment of the treatment of religion across the entire spectrum of laws and regulation beyond those national laws and regulations that specifically address religion.

In terms of actual mechanics, this assessment examines all references to “religion” and related terms (e.g., church, temple, worship, faith, cult) in the laws, national regulations and policy documents by using keyword searches via the widely used online database of primary legal materials. These laws are then categorized—with the aid of academic literature from law and other social science disciplines and also secondary sources such as newspapers—according to the impact on each of the different aspects of religious competition, particularly the baseline of competition and the dimensions of religious competition. This analysis reveals a more nuanced regulatory landscape, which not only identifies the winners and losers explicitly envisaged by the various deferential treatments of religions in all three jurisdictions, but also fleshes out the role that money, political power, and foreign connection should play in religious competition.

Normatively, the case studies demonstrate that apparent restrictions on religious practices can sometime foster religious competition that promotes normatively desirable characteristics among religions, while at other times, they are useful for moderating religious competition during transitions in the religious market. This is of particular relevance for China. As the most populous nation under authoritarian rule by an ostensibly atheistic regime, China unsurprisingly has received copious scholarly attention with regard to its status of religious liberty. The first category of literature focuses on persecutions, typically of Tibetan Buddhists, Uighur Muslims, Christians, and the Chinese religious sect Falun Gong, and decries religious liberty violations in China.Footnote ¹⁷ The second category of literature examines the domineering state control over religious affairs and the risks that this state interference poses to religious freedom, typically without an outright condemnation of the deprivation of religious freedom,Footnote ¹⁸ and at times with reflection on a positive outlook moving forward.Footnote ¹⁹ Notwithstanding their differing assessment of the current stage of religious liberty in China, both categories of literature retain the conventional premise of the dominant legal discourse in law and religion, namely, neutrality and non-interference. Indeed, the general consensus regarding legal form in China is the desirability of reducing state control and religion regulation.Footnote ²⁰

This widespread critique of China can be contrasted with that of Taiwan and Hong Kong. Despite inevitable flaws in their regime on law and religion (whether from the conventional viewpoint or under the Law and Religious Market Theory), the small size of the jurisdictions coupled with the relatively liberal environment compared with more egregious violations around the world has engendered many fewer mentions—let alone critiques—in the literature.

The Law and Religious Market Theory challenges this prevailing view in the literature and argues that the existing conscious differentiation of religions under the Chinese regulatory regime, which is primarily based on the practical impact on society rather than theological content, is actually the proper inquiry that should be preserved in any legal reform. The fact that the current normative assessment by the Chinese government of what constitutes a “desirable” or “acceptable” practical impact is admittedly clouded by compulsive concerns over the maintenance of political control should not distract from the necessity and desirability of recognizing that law will shape the characteristics of religions, whether intentionally or unintentionally and whether actively or in absentia. On the other hand, the collective overlooking of actual preference for, and discrimination against, specific religions in Hong Kong amidst the official adherence to liberal notions of religious freedom is more problematic as a matter of principle given the underlying hypocrisy and disingenuousness.

Furthermore, several of the current restrictions on religious activities, such as those that limit the impact of economic, political and foreign advantages on religious competition, are normatively useful to moderate religious competition in the context of China. This remains true even if the religious free market—however it is definedFootnote ²¹—is the normative benchmark for reform. The transitional nature of China’s religious market, which is still recovering from the wanton destruction of all things religious during the decade-long Cultural Revolution,Footnote ²² necessitates a carefully calibrated pace of market liberalization. On the other hand, the lack of such restrictions in Taiwan and Hong Kong—while purportedly consistent with liberal notions of minimal state interference in religion—is not only promoting religious competition of more temporal dimensions but also perpetuating a disparity of normatively suspect legacy.

This book is organized into nine chapters (this Introduction being Chapter 1).

Chapter 2 presents the Law and Religious Market Theory by examining the sociological concept of the religious economic model and the dynamics between laws and religious competition, highlighting the redistributive and behavior-changing pressure created through both the presence and absence of law, consciously intended or otherwise. The chapter proceeds to critique the religious free market as a normative constitutional principle by deconstructing the ambiguity and bias imbedded in the concept. This chapter then lays out the factual inquiry that should be undertaken under the Law and Religious Market Theory, an inquiry that can broadly be categorized into two components: first, the baseline of competition vis-à-vis the various competitors—whether between religions and secular beliefs or among the different religions—stipulated in the law; second, how the law regulates the different aspects of religious competition, namely, direct, economic, political and foreign. This inquiry will form the basis of the subsequent three chapters on each of China, Taiwan and Hong Kong.

Chapter 3 investigates the religious market envisaged by the current legal regime in China by utilizing the inquiry framework of the Law & Religious Market. This investigation finds that beneath the infamous persecution of certain religious minorities and sects and the domineering presence of the state which strives to impose the socialist ideology on the whole society, there is a more nuanced regulatory landscape in which harmonious, apolitical, and indigenized religious competition is permitted and indeed promoted.

Chapter 4 turns the attention to Taiwan. The survey shows that the Taiwanese religious market has been substantially liberalized in all dimensions since the advent of the democratization process in the 1980s. Nonetheless, some vestiges of the previous regime linger, particularly the state identification of certain characteristics associated with “good” religion and the corresponding nudging by the state to counsel/promote those characteristics among religions.

Chapter 5 considers the case of Hong Kong, where the limited constraints of religious competition reflect the lassiez-faire approach toward its economic market. Still, this chapter makes surprising findings regarding the continued existence of an overt preference for Christianity and hostility toward Chinese religions, noting how this differential treatment dates back to British colonial rule, but is largely overlooked or perceived as unproblematic by the polity despite obvious constitutional deficiencies.

Having set out the factual account of how the religious market is regulated in the three jurisdictions, Chapter 6 kicks off the normative analysis with the core theoretical prescription from the Law and Religious Market Theory, namely the need to articulate the benchmark for a desirable religion that should inform the regulation of religious competition. This chapter argues that the much-criticized Chinese requirement that religion should be compatible with socialism is correct in so far as it is explicit and upfront about the characteristics of religions that the state seeks to foster. Indeed, the Taiwan experience demonstrates the manifestation of this approach with a less draconian level of state intervention and less-contested benchmarks. On the other hand, the case study of Hong Kong reveals the greater danger of how official adherence to liberal notions of religious freedom can insidiously obscure those actual preferences and discriminations of specific religions, and argues that the differential treatment is normatively flawed for its undemocratic origin and hypocritical oblivion.

Chapter 7 goes on to discuss the specific considerations that should be taken into account when formulating appropriate regulations by separately scrutinizing the direct, economic and foreign dimensions of religious competition. Three considerations may be teased out. Echoing the discussion in the previous chapter, the first consideration is to confront and resolve the issue as to the proper role that each dimension should play in determining the winner in the religious market. The second consideration is the issue of externality—both positive and negative—that is associated with regulated activities. The third consideration concerns the initial allocation of resources, especially where the allocation is due to normatively suspect factors, such as colonial imposition. As applied to the case studies of the three jurisdictions, this chapter explains how restrictions on religious activities, such as the much-criticized prohibition in China of religious propagation in the provision of social services by religious organizations, can be normatively justified on the grounds of either facilitating religious competition that is more geared toward the spiritual/theological dimension or providing an interim measure in a transitional religious market where there is massive disparity among the different religions vis-à-vis their capacity to compete in certain secular dimensions.

Chapter 8 analyzes the unique dilemma posed by any attempt to reform the political aspect of religious competition. Political competition among religions is the most harmful where there is significant religious plurality in the polity and where the prevailing worldview of major religions is exclusive and comprehensive. However, these are the same circumstances in which restrictions are less forthcoming, given the difficulty of forming consensus among diverse competing religions and the desire by the major religions to co-opt the state in ensuring both the compatibility of laws and policies with their religious teachings and their continued dominance over rival religions. Thus, this chapter notes that the successful democratization of Taiwan, which avoids major religiously inspired culture wars and societal divisions despite an increase in religious participation in politics, indicates that the liberalization of political participation by religion in China is arguably desirable given how the current religious landscape in China is similar to that in Taiwan. However, this chapter also forewarns that there are no available legal remedies to tackle the harms of religious participation in politics if the actual democratization process occurs in—or just as likely, because of—an intensively competitive religious landscape dominated by religions of exclusive and comprehensive outlook.

Chapter 9 concludes with observations as to the implications of the Law and Religious Market Theory for the economic analysis of more conventional markets. The successful application of economic principles, particularly the assumption of rationality, to religious activities dispels the perceived mystical shroud that has obscured the role that is and can be played by the state and law in affecting the outcome of religious competition. At the same time, that religious activities—with all their deep emotional, ethical and spiritual motivations—can be analogized to more mundane consumer decisions is a timely reminder that the latter decisions are by no means driven by straightforward materialistic factors and are as similarly complex and nuanced as religious decisions. Proper understanding and application of economic principles must consciously avoid the assumption that the rationale actor is one simply trying to maximize one’s monetary profit, even in the realm of commercial activities.