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Law and Religion in a Secular World: A European Perspective

  • Silvio Ferrari (a1)
Abstract

This article examines two interpretations of the process of secularisation that can be traced back through European legal and political thought, and a more recent trend that challenges both of them. It does this through the prism of the public sphere, because in today's Europe one of the most debated issues is the place and role of religion in this sphere, understood as the space where decisions concerning questions of general interest are discussed. The article concludes, first, that the paradigm through which relations between the secular and the religious have been interpreted is shifting and, second, that this change is going to have an impact on the notion of religious freedom and, consequently, on the recognised position of religions in the public sphere.1

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1 This is the revised text of a lecture delivered at Emmanuel College, Cambridge, on 3 March 2012, at a conference to celebrate the 25th anniversary of the foundation of the Ecclesiastical Law Society.

2 Taylor, C, A Secular Age (Cambridge, MA, 2007), p 1.

3 On this topic, see Ferrari, S and Pastorelli, S (eds), Religion in Public Spaces: a European perspective, (Farnham, Surrey, forthcoming 2012).

4 For an overview of this debate, see the essays collected in Hosen, N and Mohr, R, Law and Religion in Public Life (London, 2011).

5 On this debate, see Rambaud, T (ed.), Société, droit et religion: l'étude des signes religieux dans l'espace public (Paris, 2011), pp 982.

6 On this case, see the contributions collected in Religion and Human Rights (2011) 6 207–290; and Temperman, J (ed), The Lautsi Papers: multidisciplinary reflections on religious symbols in the public school classroom (Leiden and Boston, MA, forthcoming 2012). The display of religious symbols in the public sphere has been the subject of lively debates in the United States for a long time: for an ‘ante-litteram’ criticism of the position upheld by the Italian governments, see Sandel, M, ‘Religious liberty: freedom of conscience or freedom of choice?’, (1989) 3 Utah Law Review 597615.

7 See Weber, M, Economy and society: an outline of interpretive sociology (vol 2, Berkeley, CA, 1978), pp 641 ff.

8 Kelsen, H, ‘On the essence and value of democracy’, in Jacobson, A and Schlink, B (eds), Weimar: a jurisprudence of crisis (Berkeley, CA, 2000), p 107, emphasis in original.

9 Kelsen, H, ‘Foundations of democracy’, (1955) 66 Ethics 41.

10 More recently, Habermas partly modified his position. On the evolution of Habermas' thought, see Portier, P, ‘Religion and democracy in the thought of Jürgen Habermas’, (2011) 48 Society 426432.

11 Blumenberg, H, The Legitimacy of the Modern Age (Cambridge, 1983).

12 N Schneider, ‘Searching for the legitimate secular: Löwith, Blumenberg, Asad’, December 2006, <http://www.therowboat.com/papers/LegitimateSecular.pdf>, [p 5], accessed 31 May 2012.

13 Weber, M, The Protestant Ethic and the Spirit of Capitalism (New York, 2003, first published in German 1904), p 13.

14 Eisenstadt, S, ‘Multiple modernities’, (2000) 129 Daedalus 129.

15 For a crystal-clear formulation of this criticism, see Justice Stewart's argument in the case Abington School District v Schempp 374 US 203 (1963), quoted in Sandel, ‘Religious liberty’, p 603.

16 Madeley, J and Enyedi, Z (eds), Church and State in Contemporary Europe: the chimera of neutrality (London, 2003).

17 See Asad, T, Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA, 2003), p 14. Asad criticises ‘the attempt to construct categories of the secular and the religious in terms of which modern living is required to take place, and non modern people are invited to assess their adequacy’. More explicitly, Barghava opposes ‘the dominant self-understanding of western secularism’ as ‘a universal doctrine requiring the strict separation (exclusion) of church/religion and state for the sake of individualistically conceived moral or ethical values’: R Barghava, ‘Should Europe learn from Indian secularism?’, <http://www.india-seminar.com/2011/621/621_rajeev_bhargava.htm>, accessed 31 May 2012.

18 See Ferrari, A, ‘Religious freedom and the public–private divide: a broken promise for Europe?’, in Ferrari, and Pastorelli, , Religion in Public Spaces; Mirtaheri, S, ‘European Muslims, secularism and the legacy of colonialism’, (2010) 3 European Journal of Economic and Political Studies 82.

19 Asad, Formations of the Secular, p 209.

20 For a discussion of the Western and Christian roots of secularism, see Bhargava, R, ‘The distinctiveness of Indian secularism’ in Singh, A and Mohapatra, S (eds), Indian Political Thought: a reader (London, 2010), p 116.

21 See Asad, T, Genealogies of Religion: discipline and reasons of power in Christianity and Islam (Baltimore, MD, 1993), p 29.

22 Monod, J, La querelle de la secularisation: théologie politique et philosophies de l'historie de Hegel à Blumbenberg (Paris, 2002), p 22.

23 Ibid, p 23.

24 Löwith, K, Meaning in History (Chicago, 1949).

25 Schmitt, C, Political Theology: four chapters on the concept of sovereignty (Cambridge, 1985), p 36.

26 Böckenförde, E, Staat, Gesellschaft, Freiheit (Frankfurt, 1976), p 60. Böckenförde continues that, on the one hand, such a state ‘can subsist only if the freedom it consents to its citizens is regulated from within, inside the moral substance of individuals and of a homogeneous society. On the other hand, it is not able to guarantee these forces of inner regulation by itself without renouncing its liberalism’.

27 Outside Europe, these ideas are echoed in Brian Tierney's studies on the origins of natural rights in the canon lawyers' school of the twelfth century (see Tierney, B, The Idea of Natural Rights: studies on natural rights, natural law and church law 1150–1625 (Atlanta, 1997)) and also in Harold Berman's claim that ‘Western legal science is a secular theology, which often makes no sense because its theological presuppositions are no longer accepted’ (Berman, H, Law and Revolution: the formation of the Western legal tradition (Cambridge, 1983), p 165).

28 Bhargava, R, ‘Rehabilitating secularism’, in Calhoun, C, Jurgensmayer, M, and van Antwerpen, J (eds), Rethinking Secularism (Oxford, 2011), p 101.

29 For an application of these principles to religious freedom and the case law of the European Court, see Danchin, P, ‘Islam in the secular nomos of the European Court of Human Rights’, (2011) 32 Michigan Journal of International Law, 7071.

30 See, with specific reference to the European Court jurisprudence on Article 9 of the European Convention, Danchin, ‘Islam in the secular nomos’, p 46. See also Bhargava, ‘Should Europe learn from Indian secularism?’ The fact that secularisation, despite its roots in Christian teachings, also negatively affects the status of the Christian religion and Churches in the public space is not overlooked. However, this result is downgraded to a side-effect of a process, secularisation, that has its core in the transformation of Christian ideas in the general (although implicit) attitudinal framework of society.

31 de Roover, J and Balagangadhara, S, ‘John Locke, Christian liberty and the predicament of liberal toleration’, (2009) 36 Political Theory 524 and 545. See also Bhargava, ‘Should Europe learn from Indian secularism?’, who argues that ‘available mainstream conceptions of western secularism are likely to meet neither the challenge of the vibrant public presence of religion nor [that] of increasing religious diversity’.

32 Asad, Formations, p 184. In the same vein, see S Mahmood, ‘Comments on the Una's lecture “Religion and freedom of speech: cartoons and controversies” by Robert Post’, <http://townsendcenter.berkeley.edu/pubs/post_mahmood.pdf>, accessed 31 May 2012.

33 Interestingly, the problem of distinguishing between ‘good’ and ‘bad’ religions had already surfaced at another time of crisis in European history, when ‘any optimistic teleology of the progress of “civilization”’ and any ‘harmonistic understanding of world, God and man’ had collapsed in the trenches of the First World War. See Berman, N, ‘“The sacred conspiracy”: religion, nationalism, and the crisis of internationalism’, (2012) 25 Leiden Journal of International Law Formations 11.

34 This analysis is developed in much more detail in S Ferrari, ‘The Strasbourg Court and Article 9 of the European Convention of Human Rights: a quantitative analysis of the ECtHR case-law’, in Temperman, The Lautsi Papers (forthcoming). A more personal (and presidential) reflection on the Article 9 case law may be found in Bratza, N, ‘The “precious asset”: freedom of religion under the European Convention of Human Rights’ in Hill, M (ed), Religion and Discrimination Law in the European Union (Trier, 2012) and at (2012) 14 Ecc LJ 256271.

35 In this table, a country is defined as catholic, protestant, orthodox, etc when at least 50% of its population declare that they profess that religion; a ‘mixed’ country is a country where no religion reaches this threshold. Even though it is purely a numerical datum, incapable of revealing the effective vitality of a religion, the fact that over half of a population follows the same religion normally indicates that some cultural categories which may be traced to the religion of the majority have had (and can have) a significant importance in establishing the legal tradition of the country. The data on the religious belonging of the population have been taken from ARDA (Association of Religion Data Archives, <http://www.thearda.com>, accessed 30 August 2011). The analysis of the European Court case law covers the years 1959–2009.

36 The high number of European Court decisions stating the violation of Article 9 by orthodox countries has been noted by M Koenig, ‘Human rights, judicial politics and the secularisation of nation-states: contentions over religion at the European Court of Human Rights’, paper given at the Trudeau Center for Peace and Conflict Studies, University of Toronto, 16 March 2011, para 1.

37 For the indication of two different approaches (realist and institutionalist) to the analysis of the European Court case law, see ibid, para 1.

38 See Richardson, J and Garay, A, ‘The European Court of Human Rights and former communist states’, in Jerolimov, D, Zrinščak, S and Borowik, I (eds), Religion and Patterns of Social Transformation (Zagreb, 2004), pp 223234. According to these authors, the high number of violations ascribed to the former communist countries could signal a ‘double standard of justice’ applied by the European Court in judging Article 9 cases that involve these countries on the one hand and western European countries on the other. See also Richardson, J and Shoemaker, J, ‘The European Court of Human Rights, minority religions, and the social construction of religious freedom’, in Barker, E (ed), The Centrality of Religion in Social Life (Farnham, Surrey, 2008), pp 103116.

39 See Ferrari, ‘The Strasbourg Court’.

40 This also confirms that the ‘orthodox anomaly’ does not have a political justification: if the number of convictions that affected orthodox countries had a political foundation, this difference between catholic and orthodox post-communist countries could not be explained.

41 See Ferrari, ‘The Strasbourg Court’.

42 See Ferrari, S, ‘Proselytism and Human Rights’, in Witte, J and Alexander, F (eds), Christianity and Human Rights, (Cambridge 2010), pp 253266.

43 Greer, S, The European Convention on Human Rights: achievements, problems and prospects (Cambridge, 2006), p 97.

44 Evans, C, ‘Religious freedom in European human rights law: the search for a guiding conception’ in Janis, M and Evans, C (eds), Religion and International Law (The Hague, 1999), p 396; Ringelheim, J, ‘Rights, religion, and the public sphere: the European Court of Human Rights in search of a theory?’, in Zucca, L and Ungureanu, C (eds), Law, State and Religion in the New Europe: debates and dilemmas (Cambridge, 2012), p 293 (the quotation is taken from 97 members of the Gldani Congregation of Jehovah Witnesses v Georgia, Application no 71156/01 (ECtHR, 3 May 2007) (2007) 46 EHRR 613 at para 130).

45 See Meerschaut, K and Gutwirth, S, ‘Legal pluralism and Islam in the scales of the European Court of Human Rights: the limits of categorical balancing’, in Brems, E (ed), Conflicts between Fundamental Rights (Antwerp, 2008), pp 431465. Peter Cumper contends that the European Court is biased ‘against non traditional religions’ –new religious movements in the first place, but also Islam: Cumper, P, ‘The rights of religious minorities: the legal regulation of new religious movements’, in Cumper, P and Wheatley, S (eds), Minority Rights in the ‘New’ Europe (The Hague, 1999), p 174.

46 The expression ‘facets of religion’ is borrowed from Gunn, J, ‘The complexity of religion and the definition of “religion” in international law’, (2003) 16 Harvard Human Rights Journal 200, who makes a distinction between religion as belief, religion as identity and religion as a way of life. Among the scholars who distinguish these different profiles of religion, see Morris, P, ‘Community beyond tradition’, in Heelas, P, Lasch, S and Morris, P (eds), Detraditionalization (Oxford, 1996), pp 223249; Rosmarin, D, Pirutinsky, S, Pargament, K and Krumrei, E, ‘Are religious beliefs relevant to mental health among Jews?’, (2009) 1 Psychology of Religion and Spirituality 180–90; Willson, M, Technically Together: rethinking community within techno-society (New York, 2006).

47 Jakelic, S, Collectivistic religions: religions, choice, and identity in late modernity (Farnham, Surrey, 2010), pp 13 and 194, emphasis in original.

48 Sandel, ‘Religious liberty’, p 611.

49 Danchin, ‘Islam in the secular nomos’, p 53.

50 In my opinion, this is the case in the orthodox Churches in the European post-communist countries. See Ferrari, ‘The Strasbourg Court’.

51 R (E) v Governing Body of JFS [2009] UKSC 1.

52 See Sandel, ‘Religious liberty’, pp 614–615.

53 Danchin, ‘Islam in the secular nomos’, p 69, traces these approaches ‘to two rival liberal traditions: one deriving from a civil philosophy which views the right to religious liberty in jurisdictional terms and the public sphere in terms of social peace; the other from a metaphysical philosophy which views the right to religious liberty in terms of freedom of conscience and the public sphere in terms of a comprehensive moral theory of justice’.

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Ecclesiastical Law Journal
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