Freedom of Religion [1 ed.] 9789004193635, 9789004158078

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Freedom of Religion

Studies in Reformed Theology Editor-in-chief

Eddy van der Borght, Vrije Universiteit Amsterdam Editorial Board

Abraham van de Beek, Vrije Universiteit Amsterdam Martien Brinkman, Vrije Universiteit Amsterdam Alasdair Heron, University of Erlangen-Nürnberg Dirk van Keulen, Protestant Theological University, Leiden Daniel Migliore, Princeton Theological Seminary Richard Mouw, Fuller Theological Seminary, Pasadena Gerrit Singgih, Duta Wacana Christian University, Yogjakarta Conrad Wethmar, University of Pretoria

VOLUME 19

Freedom of Religion Edited by

A. van de Beek, E.A.J.G. Van der Borght, and B.P. Vermeulen

LEIDEN • BOSTON 2010

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication-Data Freedom of religion / edited by A. van de Beek, E.A.J.G. Van der Borght, and B.P. Vermeulen. p. cm. — (Studies in reformed theology, ISSN 1571-4799 ; v. 19) Includes index. ISBN 978-90-04-15807-8 (hardback : alk. paper) 1. Freedom of religion. 2. Religious pluralism. 3. Human rights. I. Beek, A. van de. II. Borght, Ed. A.J.G. van der, 1956– III. Vermeulen, B.P. IV. Title. V. Series. BV741.F793 2010 323.44’209—dc22 2009050328

ISSN 1571-4799 ISBN 978-90-04-15807-8 Copyright 2010 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

CONTENTS

Introduction ........................................................................................ A. van de Beek, E.A.J.G. Van der Borght, B.P. Vermeulen

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PART ONE

THE DEVELOPMENT OF THE CONCEPT The Freedom of Religion in Article 9 of the European Convention on Human Rights: Historical Roots and Today’s Dilemma’s ........................................................................ B.P. Vermeulen Autonomous Communities as a Solution for Ethnic and Religious Freedom in Hungary and Transylvania: Historical and Systematic Reflections ........................................ T. Juhász

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PART TWO

CASE STUDIES Some Reflections on Religion and Multiculturalism in Romania: Towards a Reappraisal of the Grammar of Traditions ....................................................................................... S.E. Rogobete

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Religious Freedom and State Neutrality. The South African Experiment in Religious Rights .................................................. N. Vorster

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‘Freedom of Religion’ in Indonesia—Some Thoughts from an International Perspective ............................................................. H. Lems

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contents PART THREE

TOPICS Marriage and Religious Freedom .................................................... H. Warnink

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Freedom of Religion and Civil Law ............................................... T.J. van der Ploeg

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Contractual Religious Freedom ....................................................... R. Torfs

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PART FOUR

PERSPECTIVES Current Options for the Constitutional Implementation of Religious Freedom ......................................................................... J.M. Vorster

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Being Church and Freedom of Religion—the Function and Ambit of Religious Freedom ....................................................... P. Coertzen

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State, Church, and Civil Society. An Analysis of Two Recent Ecclesial Documents ..................................................................... E.A.J.G. Van der Borght

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To Be Free, Religion Should Keep Herself Free ........................... A. van de Beek

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Religion and Violence ....................................................................... P.B. Cliteur

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Challenges and Dilemmas ................................................................ A. van de Beek, E.A.J.G. Van der Borght, B.P. Vermeulen

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List of Contributors ...........................................................................

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Index ....................................................................................................

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INTRODUCTION A. van de Beek, E.A.J.G. Van der Borght, B.P. Vermeulen

The status of religion in society is presently a matter of worldwide debate. Opinions differ very much, and are hardly compatible. It is not a mere theoretical discussion but—sometimes literally—a matter of life and death. People’s deepest convictions, the structure of society, and the possibility of peaceful coexistence of nations and communities are at stake. Therefore, there was a major reason to bring experts in this field together and to analyze with academic distance (in the middle of often heated societal and political debates) what is occurring, and what freedom of religion implies. A careful analysis cannot restrict itself to only one aspect of the theme, e.g., the legal status and its interpretation, or the societal meaning of peaceful coexistence. Even the very concept ‘freedom of religion’ is not univocal. Both governments and religious leaders use various interpretations. Next to that, religion has a deep impact on human beings—their social relations and their interactions with other people. It is necessary to bring the various factors together in order to clarify the complexity of the problem and to avoid easy, and thus insufficient, solutions. Therefore law experts, historians, philosophers, theologians, and social scholars joined their respective expertises in an interrelated discourse.

Development The idea of freedom of religion has developed in Europe since the sixteenth century. The conflicts in the church and the subsequent religious wars raised the question of how to avoid these horrible consequences of religious diversity. There had been earlier wars with a clear religious aspect. They were, however, wars against other people with other religions, especially Muslims. But in the religious wars of the sixteenth and seventeenth century, the conflicts arose within the Christian-dominated European society. That required a modus vivendi so that the European world and the upcoming national states would not

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be destroyed in endless conflicts. To this question, different solutions were developed. In Transsylvania they chose very early for coexistence of different religions with equal rights, expressed in the Treaty of Turda (1548). In France they initially chose the same direction in line with the writings of Beza (De Iure Magistratum), Hotman (In Franco Gallico), and Du Plessis Mornay (Vindiciae contra Tyrannos) that resulted in the Edict of Nantes (1598). This development was interrupted by the abolition of the edict in 1685. In the German countries they opted for the primacy of the religion of the principal (cuius regio eius religio; Treaty of Augsburg, 1555) that was later complemented with individual freedom of conscience (Treaty of Westphalia, 1648). In the Netherlands the Union of Utrecht (1579) guaranteed freedom of conscience and freedom of devotio domestica simplex, private devotion and worship next to the dominant public religion. In England they chose for an established national church (Church of England) with room for other religious traditions. The common ground in all these solutions is that they dealt with religion in such a way that conflicts were avoided, either by tolerating people of different religion or by rearranging people geographically. In those countries that did not accept freedom of religion, this was finally forced by their own populations (France, Austria, Spain, and Italy). These revolutions were not exclusively directed towards freedom of religion. Freedom of religion was only attained because it was related to other fundamental freedoms. People in the West finally not only accepted these freedoms, but they made them an ultimate ideal. Western society cannot be thought of without these freedoms. Therefore, it reacts as though allergic to political systems or movements that bring these freedoms into debate or restrict them. Thus the original ratio of the idea of freedom is to avoid that only one religion is decisive for society with exclusion of other people; its aim is peaceful coexistence of different religions. That is only possible if the state takes on a neutral stance in religion. Freedom of religion and separation of church and state (or preferably: of religion and state because ‘church’ only means Christian communities) belong intrinsically together. The state does not interfere in religious affairs. It seems to be a small step to the idea that anything that has to do with religion must be kept out of public institutions. However, the separation of church and state can be implemented in different ways. In some countries the model that was developed in Transsylvania in

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the Turda treaty (different worldviews and religions in a multicolored palette with equal rights) was accepted, e.g., in the Netherlands after 1848. Until recently other countries formally have or had a state religion with a privileged position, but left full freedom for other convictions in practice (the Scandinavian countries and Great Britain). It seems, however, that the model of France after the revolution, with a strictly a-religious state in all its institutions, levels, and aspects, currently becomes more influential (e.g., in the Netherlands). This interpretation of freedom of religion as a state ideology brings, however, new conflicts. Adherents of religions feel limited in their fundamental rights, in this case not by another religion that dominates the state, but by the principle of neutrality that precisely should guarantee freedom of religion. Conflicts about religious symbols and dress in public life (schools and offices of the government), about financial funding of religious education, and about acceptance of secular values imposed by the government evoke a new debate on religious freedom. This issue reaches further than the institutions of government. Precisely because freedom, as it is anchored in fundamental human rights, is basic for modern Western states (and due to Western supremacy for dominant global culture), it touches the whole of society. This is even more the case now that in this global society other fundamental principles (e.g., patriarchal relationships, religious laws, and inviolability of religious traditions and customs) which do not grant such a predominant place to rights of human freedom enter the debate. Until recently these convictions could be neglected due to their minimal impact on Western society, but immigration changed this society so much that the question of how different convictions can coexist peacefully must be elaborated once again. Earlier solutions that were framed by the European model might no longer be viable. They themselves are often considered as one of the many worldviews that must be brought into the debate about how a stable society can be attained. Religion is an important factor in that debate, just like it was in sixteenth and seventeenth century Europe. Now, however, it is not about different Christian denominations, but about different religions. The European solution is insufficient for this new debate—be it for the mere reason that the other religions were not involved in its development. From the debates on the European constitution or about the status of Islam in Europe, it is clear that there is no agreement about the relation between religion and state, and that the dispute on this issue is not finally solved. In Europe there is a renewed competition between

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different models. Elsewhere—for example, in South Africa, where the separation of church and state was not previously clear—similar questions arise; while in other countries the opposite claim of religious influence on societal and political institutions increases. The present, complex situation requires fundamental reflection. Western scholars do not have an advantage in this. They are just one of the participants parties. They have to redo their homework. This must be done with the aim of developing socially and politically stable models in the perspective of nationally and globally increasing tensions. European history can teach us that the clash will be intensified if we wait longer to find viable solutions.

Different Models The theme of freedom of religion is broad and far reaching. In order to not get lost in this field, and thus to lack the required clarity of analysis, this volume will especially focus on the relation of church and state and its impact for freedom of religion. From this focus we will clarify the underlying problems in contextual situations. In many countries there is no freedom of religion, either because one religion is dominant and defines law making and court decisions or because the state is based on an anti-religious ideology. But also in those countries where a formal constitution of freedom of religion exists, the relations of state and religion are very different. This relation is shifting or in debate in many countries at the moment. In South Africa a dominant church sustained the structures of the state for a long time. A renewed reflection on the role of religion is needed for the state, while the church and other religious communities have to redefine their relation to the state. Historical privileges of churches by the government are no longer undisputed in many countries. After breaking ‘the silver cord’ between state and churches in the Netherlands, the Kirchensteuer in Germany is under debate, just like the close relations of the Church of England and the government. On the other hand, strict neutrality as executed in France evokes other and new conflicts. In America there is a battle between adherents of the French model and the traditional American civil religion, while theocratic voices are raised there as well. In Turkey the influence of parties that propagate an increasing influence of Islam in the state is accepted, which causes tensions in the political structures that were developed since 1924.

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Aim The main goal of this volume is to attain clarification: 1. by displaying historical developments. Hermeneutical dealing with freedom of religion and the separation of church and state is a weapon against a-historical and uncritical use. Freedom of religion and the separation of church and state are not static data, and they cannot be implemented uniformly in all circumstances. One must consider the history of their origins and development in different contexts in order to recognize the true meaning and impact of rules and law given by the government. For instance, freedom of religion in the USA is influenced by concepts from France and the Netherlands, but the circumstances wherein they were applied were very different in these three countries. Similarly the separation of church and state in modern Turkey is rooted in the French model, but the contexts are very different in France and Turkey. 2. by analyzing the present context in different countries with religious conflicts and tensions between governments and adherents of religions. What is at stake here? What is precisely the role of religion? How does the call on freedom of religion function? Can freedom of religion be brought in competition with other fundamental rights? Or do they belong intrinsically together? Especially in West-European countries (e.g. Germany, Switzerland, France, and the Netherlands) with growing immigrant communities, these questions force themselves into the debate. How can freedom of religion function in a country where the vast majority of people belong to one religion and long for a religious state as in Indonesia? Is the guarantee of freedom to a minority not the limitation of religious freedom for the majority in such a situation? 3. by proposing possible models and solutions. We will do so related to concrete situations in different countries, because freedom of religion cannot be conceived in isolation from concrete societal and political contexts. The renewal of the relation of church and state in South Africa can at least serve as such a concrete example and also the questions about religious symbols, dress, and convictions in public institutions or schools in France, the Netherlands, Turkey, and the USA. 4. Finally, the basic question about how far the Western model of human rights, separation of church and state, and freedom of

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a. van de beek, e.a.j.g. van der borght, b.p. vermeulen religion can be conceived as universal. Does this model have a character on a meta-level that exceeds the conflicting parties, and religious and ideological differences? Is a neutral state, based on the separation of religion and government, really neutral? Or is this model just one of the specific worldviews and value systems competing with the others? And is thus the so called neutral state in fact biased, privileging a specific anthropology and worldview? The present situation at least shows that a ‘universal status’ of the neutral state as the sole adequate model is not above any discussion. Especially in Asian countries, many criticize the Western concept of Human Rights, and reject the separation of church and state. A universal acceptation of both views may finally be the result of a global debate, but not an axiom that defines the discussion.

PART ONE

THE DEVELOPMENT OF THE CONCEPT

This part deals with the historical roots of the concept of freedom of religion. Ben Vermeulen displays the development in Western Europe with its stress on individual freedom. In contrast Tamás Juhász shows a different way of dealing with basic human freedom in the Hungarian sphere, where freedom is not so much conceived as individual freedom but as the freedom of communities to organize their own life, culture, and religion. In the Western context, freedom of religion developed to a larger set of freedoms that finally can come in competition. Therefore, the relation of the basic freedoms is in the debate. In the classic Hungarian model, this discussion will not arise because the communities were in themselves a cultural and religious unity. When the community is free to organize its own life, all aspects such as language, customs, and religion are included. Juhász’ contribution shows that today’s dilemmas that arise from the dominant Western model of freedom are the consequence of a specific shape that freedom has taken in the human rights debate, and that alternatives might be possible.

THE FREEDOM OF RELIGION IN ARTICLE 9 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS: HISTORICAL ROOTS AND TODAY’S DILEMMA’S B.P. Vermeulen

In this article, I give a short, historical sketch of the development of legal guarantees of religious freedom in Europe—finally culminating in Article 9 of the European Convention on Human Rights. Then I deal with two fundamental questions involved in the application of this provision: how to define freedom of religion, and how to determine what restrictions of religious freedom are justified. Finally, the question will be raised whether independent guarantees of religious freedom should be maintained.

Religious Wars and Peace Treaties The origin of the legal guarantees of the freedom of religion must be located in the civil wars of the sixteenth and seventeenth century. Then Western-Europe was torn apart by religious strife, caused by the Reformation that disrupted the medieval unity of the Corpus Christianum. It should be stressed that the impact of these civil wars—raging in France, England, the Netherlands, and the German empire—was enormous. Not only did these wars end all claims to a universal religious and political unity that was headed by pope and emperor; they also caused the death of a staggering number of people. For instance, the Thirty Years War in Germany (1618–1648)—fought between Catholic, Lutheran, and Calvinist princes—took the life of millions. The German empire had ten million inhabitants in 1618; in 1648 there were only six million left. At least a partial solution that helped to end these horrible wars was provided by the emergence of sovereign territorial states, which were able to secure religious peace within their borders. In peace treaties and constitutional guarantees, the state declared itself—at least to a certain extent—neutral, and guaranteed a minimum of religious freedom

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to every citizen. These peace treaties and constitutional arrangements—such as the Union of Utrecht of 1579 (the Netherlands), the Edict of Nantes of 1598 (France), and the Treaty of Westphalia of 1648 (Germany)—may be regarded as early codifications of the freedom of conscience and religion, and as such may be seen as the first human rights declarations.

Historical Arguments in Favor of Religious Freedom These peace treaties and constitutional guarantees were not concluded for purely moral reasons. The most convincing pragmatic-political argument was based on the correct empirical observation that the only way to end a civil war fought for religious motives between (more or less) equally strong parties was to establish a superior power that was able to keep these parties apart, and to establish and maintain peace by guaranteeing and enforcing a minimum level of reciprocal tolerance. It is here that theories of religious tolerance and enlightened absolutism merge. According to these theories, only a strong state is able to guarantee religious freedom in a society torn apart by religious dissensus. The major political philosophers in this period (Jean Bodin, Hugo Grotius, Thomas Hobbes and Baruch de Spinoza) all shared this point of view. Of course, there were also moral-theological arguments in favor of the freedom of religion. These arguments were drawn from a combination of (a) epistemological skepticism, (b) the ideal of religious authenticity, and (c) a theo-logical concept of conscience. (a) Whereas there is no objective test with regard to religious truth, it must be left to each individual to determine his road to salvation (Dirk Coornhert). (b) This is the more so because religious belief is only worth while when it is adhered to voluntarily. Therefore, a religious belief should not be forced upon individuals: compulsory belief is in fact a contradiction in terms (John Locke). (c) Furthermore, in conscience man partakes in a divine reality; he grasps something of a transcendent truth in that conscience (partially) manifests the orders of God. Therefore freedom of conscience is the freedom to obey these orders, especially in the religious sphere. By intruding into this sphere the state would suppress conscience and would in fact intrude in the sphere of God (Pierre Bayle).

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The Legal Protection of Religious Freedom It took centuries to establish the institutions and mechanisms necessary to realize full religious freedom and tolerance. Only in the eighteenth century—after the final elimination of feudalism—did it become evident that the state should be the only institution endowed with public power. And only then it became evident to the legal mind that the state has but a limited task: the task of the authorities should not be to defend and guarantee a transcendent religious truth, but only to realize secular goals such as the maintenance of peace and order and the advancement of prosperity. It took even more time to fully implement this point of view in effective legal institutions and principles. Only in the twentieth century was separation of church and state fully instituted, equality of the various religions effectively put into practice, and non-religious convictions placed on a par with religious beliefs. Religious freedom as a fundamental individual right was established somewhat earlier. Since the peace treaties and constitutional documents of the sixteenth, seventeenth and eighteenth century, some basic elements of this freedom—often referred to as ‘freedom of conscience’—were generally protected. These documents forbade inquisition and other means of invasion of the forum internum (inner freedom); they also guaranteed the right to worship God in one’s own house (the devotio domestica simplex). Full freedom of religion—not only enjoyed by the majority but also by religious minorities, comprising not merely the freedom to practice one’s religion in private but also in public (devotio publica)—was realized in the 19th and 20th century. However, the horrors of the Nazi regime made it clear that national constitutions could be easily put aside by a totalitarian state. So after World War II the international community has endeavored to protect human rights through international treaties and supranational bodies monitoring the observance of these treaties. Particularly relevant are the (UN) International Covenant on Civil and Political Rights (1966) that in Article 18 protects the freedom of religion, as well as a—more or less similar—(regional) guarantee, Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). In Europe Article 9 of the Convention is of far greater importance than Article 18 of the Covenant, especially

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because of the case law of the European Court of Human Rights—a supranational court giving a binding interpretation of the Convention. Therefore, I will only discuss Article 9, and in particular the case law of the European Court.

Article 9 of the European Convention Article 9 of the Convention reads as follows: 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. Article 9 of the Convention reflects the historical developments just sketched. The first part of section 1—protecting the right to freedom of thought, conscience, and religion, as well as the right to change one’s religion or belief—guarantees without qualification the inviolability of the forum internum—the inner freedom. It is the modern version of the prohibition of inquisitory measures. Restrictions are possible only with respect to the external expressions of thought, conscience, and religion, viz. in pursuance of the second paragraph of Article 9 with respect to the (outward) manifestation of religious and other beliefs.1 This absolute freedom to entertain any thought, moral conviction, or religious view is not entirely without practical importance. It is true that thoughts and views, as long as they have not been expressed, are intangible and that convictions are especially valuable for the person

1 Judgment of 25 May 1993, Kokkinakis, para. 33: “The fundamental nature of the rights guaranteed in Article 9 § 1 is also reflected in the wording of the paragraphs providing for limitations on them. Unlike the second paragraphs of Article 8, 10 and 11, which cover all the rights mentioned in the first paragraphs of those Articles, that of Article 9 refers only to “freedom to manifest one’s religion or belief.”

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concerned only if he can express them. But that does not render the (inner) freedom of thought, conscience, and religion useless. This guarantee implies that one cannot be subjected to current variants of the inquisition. It, for instance, forbids a treatment intended to change the process of thinking (‘brain-washing’); prohibits any form of compulsion to express thoughts, to change an opinion, or to divulge a religious conviction;2 and clarifies that no sanction may be imposed either on the holding of a view or on the change of a religion or conviction: it protects against indoctrination by the state.3 The second part of Article 9(1) protects the freedom to manifest a religion or belief in foro externo, and also reflects its historical roots. The freedom to manifest one’s religion in the private sphere is related to the concept of the right to devotio domestica simplex. Furthermore, the right to manifest a religion or belief in community with others in public is surely linked to what constitutional theory had called the right to devotio publica. Finally, the restriction of the right to religious manifestation in (acts of ) worship, teaching, practice, and observance seems to presuppose a traditional understanding of what ‘counts’ as religion and religious manifestation; it suggests identifiable cults, rites, and dogmas, and is based on the model of the Christian churches. This restrictive concept of (manifestation of ) religion may explain the narrow scope of the limitation clause in section 2 of Article 9. According to this section, the freedom to manifest one’s religion or belief can only be restricted by such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health, or morals, or for the protection of the rights and freedoms of others. Comparing this clause with

2 One can gather from the Teitgen-report—containing the first proposed text—that the fathers of the Convention intended the freedom of thought, etc. to protect the individual against “ces abominables moyens d’enquète policière ou d’instruction judiciaire qui privent le suspect ou l’inculpé du contrôle de ses facultées intellectuelles et de sa conscience” (these abominable methods of police investigation or judicial examination that deprive the suspect of his intellectual faculties and his conscience) (Recueil des “Travaux Préparatoires,” Vol. I, The Hague: Martinus Nijhoff, 1975, 223). 3 As decided by the European Commission of Human Rights: Appl. 23380/94, C.J., J.J. and E.J. v. Poland, D & R 84–A (1996), p. 46 (56). [This Commission, until 1999, decided on the admissibility of complaints; the Court only decided on the merits of admissible complaints. The Commission does not exist any more; it is now up to the Court to (also) decide on the (in)admissibility.]

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Article 8(2), 10(2), and 11(2),4 it is evident that Article 9(2) comprises a relatively small list of interests as grounds for restriction. Furthermore, Article 9(2) refers to “the protection of public order,” whereas the other provisions use the term “the prevention of disorder.” In its judgment in the Engel case, the court decided that “disorder” refers not only to “public order” but “also covers the order that must prevail within the confines of a special social group.”5 From this it seems to follow a contrario that “public order” in Article 9(2) only refers to the notion of “order in places accessible to everyone.” Such a limited restriction clause is only viable if the scope of the right to be restricted is limited to traditional acts of worship, observance, etc. When the European Convention entered into force in 1953, the recognition of religious pluralism—long protected by the freedom of religion—was not very problematic, while this plurality and freedom was still embedded in a system based on a predominantly Christian outlook and traditional religious values. However, secularization, individualization, and multiculturalism have transformed this established pattern of limited plurality into a radical diversity of belief systems. To a certain extent, this plurality has made the freedom of religion as protected in Article 9 of the Convention a problematic and vulnerable right. In the next paragraphs I will raise a few questions to demonstrate this.

How to Define (Freedom of ) Religion? One of the problems raised by the current religious and cultural diversity is that the concepts of ‘religion,’ ‘manifestation of religion,’ ‘belief,’ and the like have lost their—historical—precision and predictability in that their ambit has become unclear. As a consequence, it is currently much more difficult to determine what—in law—‘counts’ as ‘religion,’ ‘religious acts,’ etc., and thus to decide whether the freedom of religion is applicable. Is Satanism a religion? Is the Scientology Church a church? Can the use of drugs in a cultural ritual be regarded as a manifestation of a belief? Is wearing a veil an act of (Muslim) faith?

4 These are the restriction clauses concerning the right to respect for private and family life, the freedom of expression and the freedom of assembly. 5 Judgment of 8 June 1976, Engel, para. 98.

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Does female circumcision fall within the ambit of the freedom of religion? Until now, Article 9 of the Convention and other constitutional and international provisions guaranteeing religious freedom in general are still interpreted in line with their historical roots. So this freedom is regarded as a guarantee of the inviolability of the forum internum, the (inner) freedom of thought, conscience, and religion—just as the peace treaties and the constitutions did in earlier centuries. Furthermore, Article 9 protects the freedom to manifest one’s religion or belief in worship, teaching, practice, and observance. This enumeration suggests that Article 9 primarily concerns the ‘traditional’ manifestations in religious cult and rites and in the observance of regulations concerning clothing and food, etc.6 It may be assumed, however, that the enumeration of protected manifestations in Article 9 is not intended to be exhaustive. Furthermore, the term ‘practice’ leaves room for a broader scope outside the sphere of traditional religious manifestations. This ‘openness’ is called for, especially in order to give minority religions the same amount of freedom as is allowed to traditional majority religions. The case law of the Court and the Commission, however, has followed a rather restrictive interpretation, explicitly formulated for the first time in the Arrowsmith case. Arrowsmith had claimed that she was entitled to distribute leaflets (to troops in a British army camp) in which she advocated the view that they should not serve in Northern Ireland, as Article 9 gave her the right to express her pacifist belief in this practice. The Commission, however, argued that a strictly subjective criterion would not do: “the term ‘practice’ as employed in Article 9.1 does not cover each act which is motivated or influenced by a religion or belief,” and applied an objective standard: “when the actions of individuals do not actually express the belief concerned they cannot be considered to be as such protected by Article 9.1, even when they are motivated by it.” The Commission concluded that since the pamphlets from the outsider’s perspective “did not express pacifist views,”

6 For instance, propagation of religious beliefs (Judgment of 25 May 1993, Kokkinakis, para. 31); keeping the fast of Ramadan and attending Friday prayers at the mosque (Judgment of 1 July 1997, Kalaç, para. 29); ritual slaughter (Judgment of 27 June 2000, Cha’are Shalom ve Tsedek, para. 74); wearing of the Islamic headscarf (Judgment of 29 June 2004, Leyla Sahin, para. 71).

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the applicant did not manifest her belief in the sense of Article 9 and therefore could not invoke this provision.7 This line of argument has been consistently followed in later decisions of the Commission and the Court. The terms ‘manifestation’ and ‘practice’ do not cover each act which is motivated by a religion or belief;8 actions which do not actually express a belief are not protected by Article 9.9 So the Court, although not doubting the firmness of the applicant’s views concerning assisted suicide, reflecting her commitment to the principle of personal autonomy, nevertheless found that her seeking the assistance of her husband to commit suicide did not involve a form of manifestation of a religion or belief.10 Likewise, the Court ruled that the refusal of pharmacists to sell contraceptive pills because of their religious convictions could not be regarded as a practice of a religion or belief.11 In summary, Article 9 does not protect all actions that are motivated by personal convictions and religious beliefs, but only acts “forming part of the practice of a religion or a belief in a generally accepted form.”12 Generally formulated, neutral legislation therefore, in principle, cannot be regarded as restricting the freedom of religion and belief.13 For instance, with regard to the obligation to pay taxes, the Commission argued that “Article 9 does not confer on the applicant the right to refuse, on the basis of his convictions, to abide by legislation, the operation of which is provided for by the Convention, and which applies neutrally and generally in the public sphere, without

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Report of 12 October 1978, Arrowsmith, D & R 19 (1980) p. 5 (19–20). Judgment of 1 July 1997, Kalaç, para. 27; Judgment of 26 October 2000, Hasan and Chaush, para. 60; Decision of 2 October 2001, Pichon and Sajous; Judgment of 29 April 2002, Pretty, para. 82; Appl. 10358/83, C. v. United Kingdom, D & R 37 (1984), p. 142 (147); Appl. 16278/90, Karaduman, D & R 74 (1993), p. 93 (108); Appl. 22838/93, Van den Dungen, D & R 80–A (1995), p. 147 (150). 9 Appl. 19898/92, B.C. v. Switzerland, D & R 75 (1993), p. 223 (230). 10 Judgment of 29 April 2002, Pretty, para. 82. 11 Decision of 2 October 2001, Pichon and Sajous. 12 Decision of 2 October 2001, Pichon and Sajous. The Commission used similar terms: only acts “which are aspects of the practice of a religion or belief in a generally recognised form” are protected by Article 9: Appl. no. 10358/83, C. v. United Kingdom, D & R 37 (1984), p. 142 (147); Appl. 10678/83, V. v. the Netherlands, D & R 39 (1984), p. 267 (268); Appl. 11308/84, Vereniging Rechtswinkels Utrecht, D & R 46 (1986), p. 200 (202). 13 Judgment of 18 december 1996, Valsamis, paras. 36–37; Judgment of 18 december 1996, Efstratiou, paras. 37–38. 8

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impinging on the freedoms guaranteed by that Article.”14 In the same way, it was argued that the duty to participate in a pension scheme does not restrict the freedom to manifest one’s (anthroposophic) belief: “the obligation to participate in a pension fund applies to all general practitioners on a purely neutral basis, and cannot be said to have any close link with their religion or beliefs.”15 This restrictive interpretation cannot be avoided. A legal system consisting of generally binding rules should not leave the answer to the question—whether a person’s actions are expressing a religion or belief that fall within the scope of Article 9—to the subjective interpretation of the person concerned. The legal system itself should provide the answers—based on objective criteria and primarily related to the outward appearance of the expression—to these questions. However, for less known minorities that are not to a certain extent linked up with one of the world religions or ideologies, this position holds the danger that their actions will only be considered the expression of a belief when a sufficient resemblance can be found with known patterns of more familiar spiritual movements. This creates the danger that acts which minorities regard as essential elements of their religion nevertheless do not fall within the scope of the provisions on religious freedom—simply because they do not fit in the traditional concepts of religion and belief. To a certain extent, this problem may be mitigated by giving an applicant, who claims that a certain type of behavior is an expression of his religion or belief, the benefit of the doubt.16 But, of course, there is a limit to such a ‘mild’ (broad) interpretation. It will quite often be impossible to accept the subjective interpretation of the participants as a decisive criterion. A restrictive, historical interpretation seems to be necessary in the majority of cases. A legal system consisting of general rules cannot afford to leave the determination whether a person manifests his religion or belief—and thus can appeal to the freedom of religion—to (the subjective convictions of )

14 E.g. Appl. 10358/83, C. v. United Kingdom, D & R 37 (1984), p. 142 (147); Appl. 17522/90, Ortega Moratilla, D & R 72 (1992), p. 256 (262). The Court has held that the fact that a citizen had to pay a special tax to the Church of Sweden although he is not a member of that church did not violate his right to freedom of religion because this tax was proportionate to the costs of the church’s purely civil responsibilities: Decision of 28 August 2001, Bruno, and Decision of 21 August 2001, Lundberg. 15 Appl. 10678/83, V. v. the Netherlands, D & R 39 (1984), p. 267 (268). 16 Cf. Judgment of 29 June 2004, Leyla Sahin, para. 71; Judgment of 10 November 2005 (Grand Chamber), Leyla Sahin, para. 78.

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this person. Furthermore, the principle of equality forbids taking the subjective interpretation of a minority group or an individual into account to such an extent that this group or individual is favored out of proportion. Therefore, the legal system is often forced to answer this question on the basis of objective criteria that is related to the recognizable appearance of the expression. But once again, it must be stressed that this outsider perspective creates the risk of ignoring bona fide claims of religious minorities and must sometimes be ‘softened’ by taking into account the person’s definitions—the insider’s perspective. So the Court’s objective viewpoint sometimes is too strict. Take, for instance, a recent Macedonian case in which a man was fined for absence from work on a Muslim holiday, which is recognized as such under national law. The Court considered that “while it may be that this absence from work was motivated by the applicant’s intention of celebrating a Muslim festival it is not persuaded that this was a manifestation of his beliefs in the sense protected by Article 9,”17 thereby defining the scope of the freedom of religion too narrowly. Even when a particular act or practice is as such regarded as a religious manifestation, it is not always so that a specific modality of this act/practice is protected by the freedom of religion. The freedom of religion does not guarantee the right to manifest a religion at every place or time—in whatever context. This means that neutral legislation, contractual rules, etc. that accidently hinder the expression of a religion generally should not be regarded as a restriction of religious freedom. For instance, the mere fact that the freedom of religion protects the right to religious worship does not imply that one should be allowed to hold a service at work or at school. The right to choose one’s own religious teacher does not imply that the refusal to allow the chosen priest or imam to enter the country because he has no working permit is, in general, an interference with the freedom of religion. And planning legislation—limiting the use of buildings to particular purposes—normally does not interfere with the exercise of the right to freedom of religion, even though it may restrict the possibility to employ a building for religious activities. But we must be careful. It may be that it is plausible in abstracto that the freedom of religion is not at stake, but that the application in

17

Judgment of 13 April 2006, Kosteski, para. 38.

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concreto of neutral legislation or contractual obligations may nevertheless infringe upon this freedom. Take, for instance, the Cha’are case, in which the Court held that although religious slaughter is as such protected under Article 9, the refusal to grant a slaughter license to an orthodox Jewish association in France that wanted to provide glatt meat did not interfere with its freedom of religion because it could obtain such meat in Belgium.18 It is submitted here that this alternative is so cumbersome and costly that the Court should have concluded that the refusal amounted to a restriction of religious freedom. Furthermore, it seems that the Commission and the Court generally accept that inherent limitiations, not amounting to restrictions of the freedom of religion, flow from the fact that one is working within an organization. So, the compulsory retirement of a judge whose conduct and attitude revealed fundamentalist opinions incompatible with the principles of the secular Turkish state did not amount to an interference with Article 9.19 And a Muslim teacher who regularly neglected his duties in order to participate in the prayer on Friday afternoon in the mosque near his school should have made a choice between fulfilling his religious duties and his position as a teacher.20 I do think that the outcome of these procedures is correct, and that these measures were justified restrictions of the freedom of religion; but at least the Court and the Commission should have acknowledged that they were restrictions of this freedom.

When May the Freedom of Religion Be Limited? The current religious plurality not only has complicated the legal delimitation of what counts as (freedom of ) religion; it also has complicated the question of its restrictions. Of course, freedom of religion is an important value that can only be restricted when other important values and interests are at stake. However, today it is less evident what the result of the test—balancing the freedom of religion and contrary interests—will have to be. In a relatively stable society there will, in general, be consensus with regard to the legitimate restrictions of

18 19 20

Judgment of 27 June 2000, Cha’are Shalom ve Tsedek, paras. 80–83. Judgment of 1 July 1997, Kalaç, para. 30. Appl. 8160/78, X. v. United Kingdom, D & R 22 (1981), p. 27 (33–37).

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religious manifestations. But the religious differentiation and multiculturalization of recent decades has eroded this consensus; in particular, in the sphere of family values. For instance, until recently polygamy did not pose a legal problem in Western-European countries: it simply was forbidden. Today, however, the question is raised whether Muslims—because of their faith—should not only have the right to marry more than one woman, but also to be allowed to have all their spouses come to Europe. In 1992 the Commission had to consider UK immigration legislation “intended to prevent the formation of polygamous households, the practice of polygamy being deemed unacceptable of the majority of people who live there. The aim of the provision would appear, therefore, to be the preservation of the Christian based monogamous culture dominant in that country.” The Commission concluded that “the family circumstances in the present case do not outweigh the legitimate considerations of an immigration policy which rejects polygamy and is designed to maintain the United Kingdom’s cultural identity in this respect.”21 I accept that the restriction as such might be legitimate; but surely, a justification grounded in the UK’s Christian based monogamous culture and cultural identity—maybe still acceptable in 1992—today is very problematic. The question as to what restrictions of religious freedom are legitimate is particularly complex when this freedom may collide with the fundamental rights of other individuals, or with the basic principles of state and society. To what extent should fundamentalist Christians or Muslims have the right to offend others on account of their religious opinions? To what extent should non-believers have the right to offend religious orthodoxy? Do strict believers have the right to offer their children a one-sided education in private religious schools, excluding many generally accepted points of view—for instance, the evolution theory—that may conflict with their beliefs? To what extent does the government have to tolerate illiberal or even potentially dangerous religious minorities? Some of these questions can be easily answered. For instance, the freedom to manifest one’s religion or belief does not imply a right to

21

Appl. 19628/92, RB v. the United Kingdom, not published.

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be protected against criticism or ridicule by others22 because that cannot generally be regarded as an interference with this freedom. Only in extreme cases, when the effect of particular methods of opposing or denying religious or other beliefs can be such as to inhibit those who hold those beliefs from exercising their freedom to hold and express them, the state may be obliged to repress certain forms of conduct in order to guarantee the right under Article 9 to the holders of these beliefs. Regrettably, in the Otto-Preminger-Institut case the Court went much further. The Court ruled that the right to respect for the religious feelings of believers as guaranteed by Article 9 could legitimately thought to have been violated by Das Liebeskonzil, a film supposedly blasphemic in the eyes of the Roman Catholic majority. For this reason, it decided that the seizure and forfeiture of the film was justified under Article 10(2)—being necessary for the protection of the right of this majority to respect for their freedom of religion as protected by Article 9.23 I submit that this decision is wrong. The screening of this film in no way would have limited or inhibited Roman Catholics in manifesting their religion, and therefore did not restrict their rights under Article 9. The Court, however, has extended one’s right to be protected against vicious attacks by fellow citizens on one’s religion or belief, which could endanger the actual enjoyment of the freedom to manifest this religion or belief—particularly relevant for minorities—to a general right—even of dominant majorities—not to be insulted in one’s religious or non-religious views. But surely, such a right, relied upon “to sanction improper attacks on objects of religious veneration” and “to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner,”24 is not included in Article 9, but on the contrary, is inconsistent with the “pluralism indissociable from a democratic society” that depends on Article 9.25 This implies also that—at least from the legal point of view—the Danish cartoon question should not be defined in terms of restrictions of the freedom of religion of Muslims. These cartoons 22

Appl. 17439/90, Choudhury, not published, concerning the refusal of the authorities to bring criminal proceedings against the author (Rushdie) and the publisher of the book, Satanic Verses. 23 Judgment of 20 September 1994, Otto-Preminger-Institut, para. 47. In the same vein: Judgment of 25 November 1996, Wingrove, para. 48. 24 Judgment of 20 September 1994, Otto-Preminger-Institut, paras. 49 and 56. 25 Judgment of 25 May 1993, Kokkinakis, para. 31.

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may have offended Muslims, but in no way limited their freedom to manifest their religion. Other cases are more difficult to solve. Take, for instance, the much debated question of whether it is allowed for a neutral state (Turkey or France) to prohibit the headscarf in educational institutions, thereby restricting the religious freedom of many Muslim girls and women. The Court has ‘solved’ such questions through a broad interpretation of the restriction clause, and by allowing the states a large margin of appreciation. As discussed earlier, the freedom to manifest one’s religion or belief can only be restricted by such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety; for the protection of public order, health, or morals; or for the protection of the rights and freedoms of others: Article 9(2) of the Convention. When comparing this clause with the restriction clauses of Article 8(2), 10(2), and 11(2), it is clear that Article 9(2) comprises a relatively small list of interests as grounds for restriction. Furthermore, Article 9(2) refers to “the protection of public order,” whereas the other provisions use the term “the prevention of disorder.” In its judgment in the Engel case, the Court decided that “disorder” refers not only to “public order” but “also covers the order that must prevail within the confines of a special social group.”26 From this it seems to follow that “public order” in Article 9(2) only refers to the notion of “order in places accessible to everyone.” However, such a narrow competence to restrict the freedom of religion—of which the ambit is currently so (potentially) wide—seems to be unworkable. The scope of a freedom and its restriction clause are interrelated, in that a broadly-defined freedom has to be accompanied by a large measure of discretion on behalf of the authorities to restrict this freedom. So what has happened is that, on the one hand, the Court has—with certain reservations—accepted a wider scope of the freedom of religion, not restricted to the original understanding of framers of the Convention, but has also allowed a broader interpretation of the restriction clause. For instance, in some cases the Court gives an applicant, who claims that a certain type of behavior is an

26

Judgment of 8 June 1976, Engel, para. 98.

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expression of his religion or belief, the benefit of the doubt.27 But the consequences of this broadening of the scope of Article 9(1) have been limited through a correspondingly wider interpretation of the restriction clause (Article 9(2)), and through leaving the national states a wide margin of appreciation. So, in more recent cases the Court interprets the concept of ‘public order’ more extensively, in that it also comprises the order within a specific group or organization28 and the maintenance of a peaceful order between rival religious factions.29 For instance, in the Leyla Sahin case concerning the ban on the Islamic headscarf in Turkish universities, the Court accepted that this prohibition may be justified in order to maintain the internal order within the university. However, there was no proof of disorder brought about by students wearing the headscarf, or by others reacting aggressively. It seems to me that the Court, in fact, accepted the argument of the Turkish government that ‘public order’ not only refers to the order in the street and to the order within and between social groups, but even encompasses the constitutional principles—such as Turkey’s secularism—on which a state is grounded. Therefore, in most cases today, it is hardly relevant whether the law or the measure restricting religious freedom is aimed at a specific goal mentioned in Article 9(2). The essential test generally is whether the law or measure is necessary and proportional. And here we see a second ‘widening’ of the application of the restriction clause. When applying the necessity test, the Court quite often leaves the contracting states a certain margin of appreciation in assessing the existence and extent of the necessity of an interference. The Court acknowledges that “by reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them.” Because of its ‘distance’ from the national legal and cultural order, the Court leaves the state a certain margin—a certain autonomy—to determine whether a

27 Cf. Judgment of 29 June 2004, Leyla Sahin, para. 71; Judgment of 10 November 2005 (Grand Chamber), Leyla Sahin, para. 78. 28 Judgment of 29 June 2004, Leyla Sahin, para. 99. 29 Judgment of 14 December 1999, Serif, para. 45; Judgment of 16 December 2004, Supreme Holy Council of the Muslim Community, para. 92.

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restriction is necessary. As can be gathered from the Leyla Sahin judgments, this margin is particularly broad when fundamental principles of the national system are involved—especially when the historical role of religion and the constitutional regulation of church and state relations are at stake. Both developments seem to be unavoidable. When the concept of freedom of religion in Article 9(1) is widened in order to include manifestations that originally were not included, it is logical that the courts also give a broader interpretation of the limitation grounds in Article 9(2). And when these manifestations are not restricted to the limited sphere of traditional religious expressions, but have an impact on society and politics, it is understandable that the European Court leaves the national state a large margin to decide through the democratic process how to deal with these matters. But once more, it should be stressed that this may lead to an oversight of the vulnerable position of religious minorities, in that the international supervision by the Court leaves much discretion to the state.

Why Should the Freedom of Religion Be Protected Independently, Apart From Other Freedoms? A final topic I would like to address is the question whether an autonomous right to religious freedom is justified. The freedom of religion is, of course, safeguarded in Article 9 of the Convention, as well as in constitutional guarantees. Nevertheless, the ethical question as to its legitimacy—its causa finalis—is a relevant one: why should the freedom of religion, as such, still be protected? Secularization and individualization have weakened its moral status. At least in the secularized countries in Western Europe, freedom of religion has lost its theological foundation in that the majority no longer regards it as a sacred sphere that is devoted to the worship of God, but merely as a freedom to express subjective-personal feelings. There is a tendency to trivialize religion, to see it as just another view, as just one more expression among many others. This tendency necessarily weakens the status of the freedom of religion, and leads to the conclusion that it has become a superfluous freedom that no longer has a relevant role to fulfill—or even, that is has such anti-social consequences that it should be abolished.

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There has indeed been a strong historical precedent for such a conclusion: it has been the fate of the freedom of conscience. From the legal perspective, conscience has become a purely subjective phenomenon and, as such, has lost much of its legal relevance; for instance, the freedom of conscience in Article 9(1) of the Convention only protects the forum internum.30 According to the traditional concept—a product of Graeco-Roman philosophy, and further developed in Christian theology—conscience literally was con-scientia. In this view, conscience is a form of scientia: knowledge. Conscience grasps aspects of a transcendent truth. Although its knowledge is partial, it is considered to partake in a divine reality. For instance, Thomas Aquinas defines the synderesis, the higher part of conscience, as “the law of our reason, insofar as it is the ‘habitus’ containing the precepts of natural law, that are the first principles of human conduct.”31 Conscience is also con-scientia: shared knowledge. Conscience reveals the basic moral precepts that are innate in every man. So Paul says of the Gentiles that “their conduct shows that what the Law commands is written in their hearts. Their consciences also show that it is true, since their thoughts sometimes accuse them and sometimes defend them.”32 Finally, conscience is conscientia: its knowledge is conscious. Cf., the French word ‘conscience’ that still signifies conscience as well as consciousness. These three characteristics have gradually lost their plausibility. Because of the subjectivization and secularization of morals, conscience can no longer be regarded as a privileged source of objective ethical knowledge. Through the individualization and fragmentation of society, conscience has lost its connection with a body of shared values and norms. Conscience has become a purely individual phenomenon. And finally, due to the Ideologiekritik of Freud and Nietzsche, conscience can no longer be regarded as a conscious partaking in a divine truth. On the contrary, it is often described as a dark, sub-conscious force (the harsh Über-Ich, or a mental illness or weakness). While conscience has lost its inherent connection with transcendence, rationality, and sociability, and has become purely subjective, 30 B.P. Vermeulen, De vrijheid van geweten, een fundamenteel rechtsprobleem, (Arnhem: Gouda Quint, 1989). 31 Summa Theologica I/II, q. 94, art. 1 ad 2. 32 Rom. 2:15.

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the reason for the inclusion of the (external) freedom of conscience in a bill of rights has become less and less obvious. Moreover, on grounds of legal logic, it should be ruled out that such freedom might be protected by a general provision in a human rights treaty. While every type of action may have conscience as its motivational base, every legal obligation may function as a restriction of the (external) freedom of conscience. It is clear that such freedom cannot be unlimited. However, the ‘boundlessness’ of conscience excludes that the limitations of this freedom are laid down in a general, strictly formulated, restriction clause. Other human rights such as the freedom of speech or religion (still) are concerned with certain specific areas of action, are connected with social institutions, and have to do with foreseeable patterns of behavior; this makes it possible to define their restriction clauses in general terms. While the external freedom of conscience lacks such an identifiable object and scope, it is not possible to frame a satisfactory and workable provision containing the necessary restrictions. Therefore, it must be assumed on logical grounds that Article 9 does not guarantee the external freedom of conscience. [A systematic argument, derived from Article 9 itself, supports such a narrow interpretation. It must be stressed that the freedom of conscience in Article 9(1) cannot be subjected to limitations: Article 9(2) only allows restrictions of the freedom to manifest one’s religion or belief(s).33 If the freedom of conscience would comprise the right to act in accordance with the dictates of conscience, this freedom would be unlimited in the sense that every legal obligation would have to yield to (an appeal to) conscientious objections and convictions. But such unrestricted freedom of conscience in foro externo implies the abolition of the legal order as a binding system of general rules. So it must be concluded that the freedom of conscience in Article 9 does not cover the “external manifestations” but only the “inner world” (the forum internum).] It is clear that the freedom of religion runs a similar risk. There is a tendency to regard religion as just a personal-subjective point of view, which has no claim to rationality. While it is purely subjective—so the argument continues—religion can be the source of any action. And while—just like conscience—it can be the source of any action (even

33

Judgment of 25 May 1993, Kokkinakis, para. 33.

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the most horrific ones), just like conscience it cannot be the object of a generally formulated right. This argument is strengthened by growing fears concerning ‘new’ and ‘old’ religions. New movements are depicted as dangerous sects; fundamentalist Islam is associated with terrorism; and Orthodox Christianity is regarded as bigotry. Indeed, there is a general trend to regard religion as an irrational phenomenon from the past that does not fit in modern society, and should be relegated to the private sphere. This argument necessarily culminates in questioning specific freedoms, rights, privileges for religion, and religious organizations. For instance, although the restriction clause of Article 9(2) of the Convention has been interpreted broadly, it nevertheless seems to be the case that the freedom of religion still somehow occupies a special place. For instance, the autonomy of religious organizations is still probably better secured than that of secular-neutral organizations.34 Furthermore, religious activities and organizations—for instance, denominational schools—often are fully or partially funded by the government. There is a strong tendency amongst secular-liberal policy makers to question such specific provisions and facilities protecting the freedom of religion. If religious views are but personal opinions, and if religious acts are but manifestations of one’s subjective conviction, why then should they be protected more strongly than other, non-religious views and acts? Why should those ‘secular’ views and acts not deserve an equal protection? Should the secular state therefore put religious and non-religious manifestations and organizations entirely on a par? And if so, what is the use of the freedom of religion as an autonomous right? Should it not be abolished because it unjustifiably favors religious motives, rituals, and organizations above secular ones? Can we not suffice with the freedom of expression, the freedom of assembly, and the right to private life, which protect religious as well as nonreligious spheres, manifestations, and organizations? This line of thought is often combined with an appeal to the separation of church and state. The neutral state, just while it is neutral, is—at least in the current situation of multicuralism, subjectivization, and pluriformity—not able to determine what ‘counts’ as a religion, a church, etc., and therefore must not negatively or positively interfere in matters because of their purported religious character.

34

Judgment of 26 October 2000, Hassan and Chaush, para. 62.

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In my opinion, however, there are still sufficient grounds to maintain a separate right to freedom of religion. It should be stressed, once again, that this freedom is the first human right that has found a legal basis in constitutions and treaties in Western Europe. As such, the object of this right still has a clearly identifiable and objective core— cults, rites, organizational structures, etc.—of which it is clear, even for the outsider, that it has a religious character. Of course, aside from this traditional core, the freedom of religion also encompasses other aspects where the subjective interpretation of the person or collectivity appealing to this freedom may play a role in delimiting its scope. And it is true that by allowing this, the scope of the freedom of religion currently is less clear than it was before. But that does not mean that this freedom has become ‘unmanageable,’ such as the freedom of conscience: it is not corroded by individualization to the same extent. Once again, it is true that in the sphere of religion individuality, personal experience, and subjective interpretation have a larger role to play than in the stable society of the fifties or even the sixties. But that does not imply that the concept of religion has become purely personal and can be called upon at will. To put it in Hegelian terms: a tradition or pattern of behavior in general will only earn the title of religion if it has a certain amount of objectivity. Not every manifestation or view ‘counts’ as religion, although one describes it as such. For instance, often criteria can be used that do not concern the substance of the views expounded, but their form and structure. A view must have a certain coherence and cogency, and a certain consistency and communicability in order to be regarded as a religion: a purely individual conviction will not qualify as a religion. By concentrating on formal-structural aspects, and not on substantive-dogmatic aspects, the modern state, at least to a certain extent, is able to stay outside theological debates, and thus to remain neutral. Furthermore, a purely secular approach to religion—which neglects essential aspects of religious manifestations and organizational life by only taking them into account as expressions that may fall within the scope of the right to privacy and freedom of expression, and as organizations which may be protected by the freedom of assembly—can lead to a one-sided, non-neutral position. One of its consequences is that this position neglects aspects of behavior and organization that the participants themselves regard as their vital motivation. We must also be aware of the fact that most minorities in Western-Europe primarily define their minority status and their claims to freedom and facilities

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through their religion. Not taking this element into account will surely be detrimental to their legal position. Another consequence of a ‘neutral’ approach may be that many manifestations that traditionally were protected by the freedom of religion are not protected anymore because they do not fall within the ambit of other fundamental rights. Can wearing of the headscarf be seen as a manifestation protected by the freedom of expression, or the right to privacy? And is the performance of a collective ritual protected by the freedom of assembly? But does not a positive answer to these questions leads to similar demarcation problems that the freedom of religion has evoked? The appeal to neutrality, nevertheless, is a laudable one—to the extent that it is an expression of a modest state, not pretending to be able to proscribe what the good life is. And indeed, the state should not be a teacher or inculcator of virtue. However, the democratic neutral state cannot function adequately without at least a minimum of consensus concerning basic values and purposes (what might be called a civil religion). This state is based upon presuppositions it cannot enforce itself through legal means—just because it is a state devoted to neutrality and the rule of law that has to respect the fundamental freedoms. What a neutral state may and can do, however, is to facilitate—on an equal basis—organizations and groups that stimulate spiritual and moral cultivation, whether they are secular or denominational. There is no inherent characteristic that makes religious organizations and persons less capable to perform such a job. Of course, fundamentalism and terrorism, whether motivated by religion or not, must be fought. But what we should avoid is to regard every religious expression, initiative, or organization—because of the possibility to lead astray—as suspect, irrelevant, or harmful. Such a position, often implicit in the plea for strict neutrality and secularity, neglects the fact that religion still fulfills a very useful function for society by realizing a sense of community and common purpose, and by instilling basic norms, etc. The abolition of the freedom of religion would legalize such negligence.

AUTONOMOUS COMMUNITIES AS A SOLUTION FOR ETHNIC AND RELIGIOUS FREEDOM IN HUNGARY AND TRANSYLVANIAHISTORICAL AND SYSTEMATIC REFLECTIONS Tamás Juhász

The editor of the recently published book, The coexistence of nationalities in Transylvania in View of the Decrees of the Transylvanian Parliament 1790–1848,1 recommends that this book should be read by all Transylvanians and possibly even by other citizens of Europe. I am going to listen to Mr. Péter Takács and take this opportunity to acquaint a few citizens of Europe, and even citizens from across the ocean, with the land of national and religious freedom—Transylvania. My presentation has three parts. First, I will present the historical background of the socio-political situation in which the religious freedom of Torda had evolved. Second, I will talk about the Reformation in Transylvania, as the direct cause of religious freedom. Third, I will present the difference between the religious freedom in Transylvania and the interpretation of religious tolerance in the era of Enlightenment.

Introduction Transylvania, my native land, had been a part of the Hungarian Kingdom for a thousand years, and for two hundred years (in the sixteenth and seventeenth century) an independent principality. Since the Trianon Treaty (1920) after the First World War, Transylvania has been a part of Romania. There are two reasons why this political story belongs to my theme.

1

Ádám Csiszár, Nemzetek együttélése Erdélyben, az erdélyi országgyűlés határozatainak tükrében 1790–1848, (ed.) Péter Takács (Coexistence of Nationalities in Transylvania in View of the Decrets of the Transsylvanian Parliament 1790–1848) (Debrecen: Erdély-történeti Alapítvány, 2005), 6.

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The first reason is that Romania is a part of the Balkans. Because of this Transylvania is also viewed as the Balkans, but in reality it is part of Middle-Europe. In the past one thousand years, Western Christianity has formed the Transylvanian culture. The word ‘Balkans’ has a negative connotation. ‘To balkanize’ means to divide into small antagonistic states. “Today the Balkan nations have again increased their reputation for explosiveness along with their ambiguity. The key to understanding the Balkans lies in the recognition of the diverse nationalistic aspirations of the people in this south-eastern region of the European continent. The forces of Balkan nationalism looked upon religion as one significant means of establishing their pluralism. Nationalism in turn had significant influence upon the formation of nationally oriented ecclesiastical institutions in the Balkans.”2 This opinion expressed by Calian is not true for Transylvania. Since then there was a second, third, and even fourth Balkan war! But in Transylvania—where Hungarians, Germans, Romanians, Gypsies and newly Jews have been living together for hundreds of years—there was no war, even though there would be enough reason for ethnic conflict. The second reason why this political story belongs to my theme is that Transylvania, formerly a part of Hungary, is a larger territory than the mangled Hungary. After the First World War in the Trianon Treaty, Hungary lost two-thirds of its territory to neighboring countries. Therefore, every third Hungarian became a citizen overnight of either Romania, Yugoslavia, Czechoslovakia, or the Ukraine (Soviet Union). A British politician expressed the opinion that the Treaty of Trianon was not conceived in a spirit of anger or vengeance, and said he hoped and believed the new Hungary had every prospect of a splendid and prosperous future. In 1921 Lord Newton delivered a speech in the House of Lords and responded to the opinion of this politician: “It seems to me that to congratulate the Hungarians, and wish them a happy and prosperous future, is, in the present circumstances, as if you were to congratulate and wish a prosperous future to a man with whom you had been engaged in a desperate struggle, whose leg you cut off, whose arm you cut off, whom you made bankrupt, and to whom you announced, in spite of that, that you intended in the future

2 C. Samuel Calian, Theology Without Boundaries (Louisville: Westminster John Knox Press, 1992), 67.

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to take from him further money if possible.”3 This is the reason why a historical examination can be useful. In order to understand the promulgation of religious freedom in Torda, we first need to know about the two forms of state organization that existed in the Hungarian kingdom: The first such practice originated from medieval Europe. The custom since the Carolingian period was that the European rulers, and previously the barbarian princes as well, were crowned by the pope. The state was given authority from the Christian church, while the king reigned by the grace of God (Dei gratia). This concept further developed during the reign of the first Hungarian king, Stephen the First. “The kingdom is not a merely civilian authority existing next to the Church, nor a power over the Church, but a function within the Church.”4 For this reason, the Hungarian king is king and priest (rex and sacerdos) in one person. The kingdom and the priesthood is brought together to fulfill its role in one body—the Corpus Christi. In this body the king is God’s servant and official, minister Dei.5 Those Transylvanian princes who supported the laws of religious freedom (the members of the Szapolyai dynasty in the first place) “didn’t do else but what their duty was as the legal successors of the sacred medieval kings” . . . Their laws “simply accepted as fact the Christianity of their people. The Christianity of people was that all people were born through the will of God, or became Christian through the will of God.”6 For this reason, it is a duty not only to belong to the church, but to follow the rituals of the one, true, and universal church that their ancestors or parents had chosen. The original alternative of four different rituals later increased to eight denominations during the Hungarian legal development: Roman Catholic, Lutheran, Reformed Helvetian, Unitarian, and later Greek Orthodox, Greek Catholic, Jewish, and Baptist.7

3

Márton Schmidt, English Reader (Budapest: Franklin, 1924), 90–96. Jenő Szűcs, István Király Intelmei (Admonitions of King Stephen) in Nemzet és történelem (Nation and History) (Budapest: Gondolat, 1984), 367. Quoted by Sándor Békési, Sztephanosz khrisztianosz. István király teológiai etikája Intelmei alapján (Stephanos Christianos. The Theological Ethics of King Stephen in His Admonitions) (Budapest: Published by the Author, 2001), 10. 5 Békési, Sztephanosz khrisztianosz, 14. 6 István Dobai, Tűnődések a történelemről I–II. (Reflexions about History) (Budapest: Püski, 2004), I. 580. 7 Dobai, Tűnődések, I. 580. 4

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The second custom that helps us understand the promulgation of religious freedom in Torda is a practice specific to Hungarian and Transylvanian state leadership. Multiconfessional religious freedom is related to the fact that in Transylvania the parliament was not selected through popular representation; instead, it was a feudal parliament based on the legal representation of different autonomous social, ecclesiastical, and ethnic bodies. This connection between the law of religious freedom and the feudal nature of the parliament derives from a specifically Transylvanian, Hungarian, and Protestant view, which was described by lawyer István Dobai as follows: “I am interested in the types of creative work that was prompted by the convictions believers had formed based on different religious teachings. In other words, what type of soil did people create to socially ingrain their religious creeds in, and what kind of social order has developed from this soil through the care, attendance and educational activity of religious communities.”8 As opposed to this, in Western Christianity people professed a mainly mono-confessional principle of state religion. There, after the schism of the church in 1054, and even after the Reformation, the principle of Corpus Christiana prevailed. Facing autocracy, religious freedom was only a question of patience and tolerance. The German Protestant cities, for instance, were satisfied with their autonomy and tolerance, which constituted exceptions from the ruling power. The Protestant Reformation that was satisfied with tolerance did not solve the religious conflicts in the West, but instead perpetuated them. “We shouldn’t wonder why the multi-confessional Christianity was born and strengthened in East-Hungary, but why this didn’t happen in the other parts of Europe.”9

Historical Background Many works have been written about Transylvania’s freedom of religion,10 but it is still not well-known. Most people consider it an interesting historical example. The historical particularity is most 8

Dobai, Tűnődések, I. 578. Dobai, Tűnődések a történelemről I–II, 580. 10 For example, Ludwig Binder, Grundlagen und Formen der Toleranz in Siebenbürgen bis zur Mitte des 17. Jahrhunderts (Köln–Wien: Böhlau Verlag, 1976). 9

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important: Transylvanian tolerance may serve as a paradigm for the understanding and mastering of today’s ethnic conflicts. However, the law of Transylvanian freedom of religion that was proclaimed in 1568 has an ecclesiological importance as well. I would like to deal with these two aspects of the question as follows: According to historical documents, the Hungarian conquest of Transylvania under the Árpád dynasty in the tenth and eleventh century did not take place by military means. Hungarian domination spread in this territory through the fact that the kings made treaties and alliances with ethnic groups who settled there after European emigration, as well as with those whom they brought to that land in order to populate uninhabited areas and to protect the borders (Latin: hospites—guests; today we would say ‘migrant workers’). These groups who differed in religious-cultural and ethnic points of view were called the estates (nationes). The Latin term nationes does not have the meaning of nation or nationality as it has today; it represents a social category. Hungarian kings led positive social-politics, both economically and strategically. We find the application of this principle of contractually binding various ethnic groups into a state reflected in the earliest ‘King’s admonition’ in Hungarian history. King Stephen I warns his successor: Foreign people bring other languages, different customs and new weapons into your land. All these decorate the royal court, and a kingdom with only one language and one custom (egy nyelvű és egy szokású nép) is poor and weak. Respect foreigners settling in your land, so that they should rather live in your land than anywhere else.11

According to this concept, every ethnic group lived within its own contractually guaranteed bounds. These legally defined boundaries were called either libertates or privilegia. These liberties and rights granted the group a constitutionally guaranteed living space for the community, supporting their local and collective autonomy, but at the same time assured that they were integrated into the state as a whole. Besides the Hungarian nobility, Szeklers, Saxons, Romanians, Cumanians, Petchenegs, later Jews and Gypsies coexisted there. A few treaties have been preserved from the 14th century in which the above mentioned communities hold such libertates and privilegia. The medieval

11 István király Intelmei (The Admonitions of King Stephen), (Budapest: Magvető, 1982), 17–18.

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documents prove that these liberties and rights were repeatedly reinforced by the kings. By these they wanted to avoid the interference of the other groups of people, or of the landlords, bishops, or even of the head of the Hungarian church—the archbishop of Esztergom—in their autonomy. This attitude was based on King Stephen the First’s Christian diplomacy. He succeeded in strengthening Christianity as Western Christianity. This means that he joined Rome instead of joining Constantinople. The libertas Transylvana (or privilegium medievale) was thus a system of rights and obligations within which the various smaller communities in the land—besides the Hungarians—accommodated themselves and lived their community life. At the same time, they maintained totally different social structures, in accordance with their different languages, cultures, and religions. This pluralism was also reflected in the realm of politics. The leading class of each ethnic group would take part in representing the entire land politically; that is, they could obtain the quality of a social status (natio). They formed a council around the king’s governor, and later during the principality—the Parliament of the Land. Thus, in the time when Reformation broke across the land, social and political pluralism was already a long practiced reality in Transylvania.

Reformation in Transylvania In the fourth and fifth decades of the sixteenth century, Reformation was accomplished very quickly. Beginning from 1540 the Turkish occupation spread over Hungary. The Reformation, coming from the West, and the Turks coming from the East arrived in Hungary at the same time. The Ottoman Empire expanded north along the Danube. Turkish conquests on the Danube meant that the old Hungarian kingdom was split into Middle Hungary that was controlled by the Turks, West Hungary that was dependent on the Habsburgs, and East Hungary. East Hungary (Transylvania) became an independent principality. In 1540, the Hungarian king, who had lost the western half of his kingdom, was elected prince of Transylvania. This was the origin of the Transylvanian principality—an autonomous country which existed de jure until 1848 and in practice until 1867.

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The young, energetic, humanist prince supported the introduction of new reforms. “The word of God began to thunder and lighten in Transylvania in the 1520’s”12—wrote a contemporary describing the effects of the Reformation. The independent towns—the Hungarian and Szekler estates—followed the Reformed and Unitarian religion, while the Saxons became Lutherans. Part of the Szeklers preserved their Roman Catholic religion and the Romanians under Valachian jurisdiction preserved their orthodox religion. This denominational distinction had already been delineated in 1560. The prince accepted the Protestant refugees and anti-Trinitarians as well. During his rule, more diets dealt with the problem of religion. The problem of religio started to increasingly preoccupy the Transylvanian parliaments. The memory of libertas Transylvana was a determining factor in this situation. In a land which had to resist both the Turks and the Habsburgs, freedom and unity could only be preserved through maintaining a pluralism which began to conquer every area. On a land where, through the system of privilegia and libertates, people naturally accepted the indirect rule of three communities (tres nationes), it was also easier to imagine that religious rule could also be exercised by two, three, or even four confessions. The divided former Hungarian kingdom was subjugated by the two ‘heathen powers’ as a leading Roman Catholic political figure in Transylvania called the two arch-enemies—the Habsburg court and the Sublime Porte of Constantinople. It was not merely a clever strategic decision when, under these circumstances, Transylvanian parliaments voted for confessional tolerance, as well as an acceptance of the tradition of freedom. The diet in Torda in 1568 in its 14th paragraph decreed the existence of the 4 recepta religiones and the tolerated orthodox religion: the ministers should preach the gospel freely. No one should be obliged to convert to another religion than the one practiced in his/her own congregation. Preachers should not be persecuted by the superintendents or the landowners. Nobody should be disturbed or removed from professional duties because of his/her religion, since “Faith is a gift of God.”

12 Heltai Gáspár, A háló (The springe), quotated by Juhász István, Az erdélyi reformáció (The Reformation in Transylvania). In: Juhász István, Hitvallás és türelem (Confession and Tolerance), 5–28. (Kolozsvár: Published by the Protestant Theological Institute, 1996) 6.

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As far as the Reformation in Transylvania is concerned, we have to say that the Swiss (Helvetical) Reformation had increasingly more influence. A 20th century church historian declared—with confessional pride—that Calvin had been involved at that decisive synod at Enyed where the Helvetical (Swiss) understanding of church renewal earned its equal rights.13 I think that the Holy Spirit was also involved because in that time the Reformation was not yet finished; confessional church structures appear only in the seventeenth century. On the other hand, several orthodox Reformed theologians emphasized the influence of Calvin’s ecclesiology: “Calvin laid great emphasis on the authority and indispensability of the visible, earthly church. For everything he has to say about the church presupposes this high evaluation of the church.”14 The main paragraph in Book IV of the Institutes (“The external Means or Aid by which God invites us into the society of Christ and holds us in therein”) begins with “The true church, the mother of all godly with which we must keep unity:” “There is no other way to enter into life unless this mother conceive us in her womb, give us birth, nourish us at her breast, and lastly, unless she keep us under her care and guidance until, putting off mortal flesh, we become like the angels. Our weakness does not allow us to be dismissed from her school, until we have been pupils all our lives.”15 The choice of the Swiss form of church reformation in 1564 in the town Enyed was in any case a historical decision: Calvin’s concept of freedom and understanding of the church played a decisive role in both the religious and social development of Transylvanian culture.

13 Imre Révész, Kálvin az 1564-es Enyedi Zsinaton (Calvin’s Presence on the EnyedSynod 1564) (Cluj: Published by the Theological Faculty of the Reformed Church in Transylvania, 1934). 14 I. John Hesselink, Calvins First Catechism, (Louisville: Westminster John Knox Press, 1997), 155–166. See in the same line Sándor Tavaszy, Egyházunk igazsága (The Truth of Our Church), In: A tordai református nagyhét emlékkönyve (Records of the Reformed Week) (Kolozsvár: Published by the Reformed Church in Transylvania, 1929), 30–41 and István Török, Dogmatika, (Amsterdam: Free University Press, 1985). 15 John Calvin, Institutes, IV,1,4.

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Distinction between the Transylvanian Perception of the Freedom of Religion and the Later Understanding of It in the Age of Enlightenment The Lutheran faith was the first to gain its freedom, followed within a few years by the adherents of the Swiss Reformation and finally, in 1568, by Unitarians. It would seem that the fathers of the Hungarian churches and the Transylvanian politicians anticipated a later European development: the eighteenth century concept of tolerance. But this is just the way in which sixteenth century freedom of religion was interpreted by nineteenth century thinking. In reality, it was different: on one hand, it was less than the religious tolerance of the Enlightenment era, but at the same time, from another point of view, it was more than that later tolerance. Transylvanian freedom of religion was less than Enlightenment’s religious tolerance. Enlightenment thinkers in France or Prussia emphasized the autonomy of the human spirit and individual freedom. In this autonomous freedom, human beings had the ability to decide upon matters of conscience and to decide for or against a religious faith. That is why the concept of tolerance led quickly to scepticism and agnosticism. The Christian parishes and ethnic communities of sixteenth century Transylvania did not think in terms of such individual freedom. They knew of course the traditional libertas, by which they had the right to elect their own pastors and preachers. In their religious struggles, they wished to—and did—defend this collective freedom to vote. This was repeatedly affirmed by the parliaments in the 16th century. It was not freedom of confession or individual choice of one’s religious orientation which were realized there, but the freedom (libertas) to make decisions in religious matters within their own communities (towns and districts). “The provincial communities (Oppida) have the right to choose their own minister, to decide for themselves upon the religion they follow, as faith is a gift of God.”16 At the same time, Transylvanian freedom of religion was more than the Enlightenment’s religious tolerance. Tolerance is an ethically neutral behavior, and not a specifically Christian act. Christian action nurtures and supports. The collective freedom of religion in Transylvania

16 Zsilinszky Mihály, A magyar országgyűlések vallásügyi tárgyalásai (Decisions about Religion in the Hungarian Parliament) (Budapest: Franklin 1881), 140.

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did not leave men alone in matters of faith, but gathered them into a protective community. This communal character of the libertas Transylvana gave an additional advantage over the Enlightenment’s concept of freedom. Freedom of religion exercised by a whole community—the political and religious communities being identical—prevented the Transylvanian ethnic communities from giving up their Christian freedom in favor of a superior state or the whims of a ‘democratic’ majority. Enlightenment tried to liberate society and people from the paternalism of the church. In the seventeenth and eighteenth century political scientists taught the theory of “contrat social.”17 Everyone has to give up some of his own freedom in favor of the common good (volonté générale). The state as administrator of this volonté générale has to give social security and welfare to every citizen. Some of the Enlightenment’s writers referred to Calvin by interpreting his theory of Christian freedom in that direction.18 According to Calvin, this interpretation seems to be true. In his famous Institutio Religionis Christianae, Book II, Chapter 19, Calvin specifies three consequences of “freedom in Christ.” The third consequence is freedom in the adiaphora. Because the form of the state or government is an adiaphoron, the Christian may allow the polis (publicité)—that is, the state—to bear part of his public duties. Thus the danger arises—though surely far from Calvin in the Institutio III, 19—that the emperor is not only given what belongs to him, but he also takes what belongs to God. The forefathers of Transylvanian reformation escaped this danger by holding fast to the libertas Transylvana and to the libertas Christiana! And thus they held on to Calvin.

Conclusion In summary, three points should be stated: 1. The different cultural, religious, and linguistic communities under the medieval Hungarian kings had learned and practiced local autonomy. The free practice of religion was, in fact, the freedom 17 A hint at the title of the famous book of Jean Jaques Rousseau Du contrat social (Amsterdam: 1762). 18 Cf. G.W. Locher, “Die evangelische Stellung der Reformatoren zum öffenlichen Leben,” in Kirchliche Zeitfragen 26 (Zürich: Zwingli Verlag, 1950), 22–25.

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of communities to elect their minister. The individual decision by conscience did not matter as much. Thus, Transylvanian religious tolerance was not the religious freedom of the Enlightenment. That came two hundred years later. The religious law of Torda proclaimed the free practice of religion as a community liberty and a community law. 2. Multicultural Transylvanian religious practice is also a result of the Reformation. In the 1550s the Hungarians especially knew and followed the teachings of Melanchthon, Bullinger, and later of Calvin. Hungarian church historians have clearly shown the influence of Calvin’s communion and religious teachings, which caused the Helvetical Reformation to become predominant in Transylvania.19 In my introduction, I mentioned that it would be nice for the citizens of Europe to know the book entitled The coexistence of nationalities in Transylvania’s parliaments. By repeating this recommendation, I will end my presentation using the closing words of this recommended literature: “Lifted from feudal order, under the circumstances of modern legal development, this model can speak to the inhabitants of a Europe built on national and regional autonomies about tolerable life, mutual protection of each-others interests, about the continuous broadening and deepening of human rights. About the everyday life necessary and worth living.”20

19 20

Révész, Kálvin az 1564-es Enyedi Zsinaton, 118. Csiszár, Nemzetek együttélése Erdélyben, 6.

PART TWO

CASE STUDIES

The case studies in this part show that freedom of religion in the concrete situation of society and politics is not as easy as the concept seems to proclaim. The article of Huub Lems deals with the role of Islam. Lems displays the struggle of the Indonesian government to guarantee freedom of religion for the relatively small religious minorities in this country with its vast majority of Muslims. The government resists claims for an Islamic state. Is this, however, not limitation of religious freedom in the opposite manner? Is the consequence not oppression by the state in order to keep things under control? Silviu Rogobete and Nico Vorster live in contexts where freedom was regained after a time of oppression. They show that regaining freedom is not an easy road. That is not only the case where political leaders of the present often have connections with the past—as in East Europe, as Rogobete displays. Also in the new rainbow society of South Africa, society and politics have to solve problems—especially if it is about conflicting interests in the field of freedom.

SOME REFLECTIONS ON RELIGION AND MULTICULTURALISM IN ROMANIA: TOWARDS A REAPPRAISAL OF THE GRAMMAR OF TRADITIONS1 Silviu E. Rogobete

Preliminary Clarifications The thesis I would like to discuss in this article is that, as one of the strongest identity markers in Romania, the Christian tradition has great potential to offer a constructive answer to the contemporary dilemmas of multiculturalism. However, for this to happen there is a significant need for a fresh re-reading of this tradition. The starting point of my work will be an overview of the data on the question of religion and ethnicity in post-communist Romania. This will be followed by an assessment of the predominant trends involved in the building of the societal texture of Romanian contemporary society, with special emphasis on attitudes towards authority, otherness, and dialogue. The ambiguous potential of traditions, both for destruction and for the healing of societal relations, will be singled out as an important characteristic of traditions. Following a Foucauldian critique of the knowledge-power relationship predominant in the current state of affairs regarding traditions in Romania, the present work will argue for a reappraisal of the Christian tradition and its potential role. The plea will be for a fresh re-reading of its complex and pluriform grammar. Thus emphasis will be placed on seeing Christianity—and its implicit traditions—as a religion of neighborliness and a religion of love that is oriented towards the future rather than the past, towards the other rather than the self, and inspired by eschatological hope rather than blind allegiance to fixed dogma. Seeing traditions in this way would be a safe warrant for the building and acceptance of a multicultural, diverse democracy. 1

Earlier versions published in the proceedings of the 1st ECPM Congress, 30 November–2 December 2005, S. Rogobete, A. Otchie, (Eds.), Ethnic and religious Diversity in Europe, 2005, ECPM, 18–33 and in Romanian Journal of Political Science, 6/2, (2006), 35–55.

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Methodologically, my article will fall in the area of conceptual analysis, partially informed by quantitative analysis and the data available from auxiliary sources.

Religion in Eastern Europe: Against the Prophecies The twentieth century, for at least its first seven or eight decades, was undoubtedly marked by a strong sense of suspicion and scepticism towards religion. The ‘prophets of suspicion’—Marx, Freud, and Nietzsche—who in some ways marked our modern age in undeletable ways, have not only predicted, but also prophesised the final end of the age of religion. For all three, in one way or another, with the process of the ‘emancipation’ of man, one thing was certain: the inevitable and complete fading away of religion from our lives.2 However, with the passing of time, our current context seems to prove such prediction dramatically wrong. It was wrong at local and global levels, in the West and in the East, and in the northern and in the southern hemispheres. 9/11 is a proof of the global magnitude as well as of the potentially violent reality of what Anthony Giddens, a more astute interpreter of our times, predicted. Using Freudian language, he announced the return of religion as “the return of the repressed.”3 That religion is alive and here to stay is identifiable not only in the overall and diffuse ‘spirit’ of the postmodern age, but also in more precise terms that are quantified and reflected in current data offered by various opinion pools. What can be surprisingly noted from such data are the high levels of religiosity scored in areas where, for more than half a century (and even in some places for almost an entire century), the population was under fierce and overt atheist indoctrination. Eastern Europe, particularly Romania, is singled out in the report of the latest findings of the GfK4 survey on religious attitudes in Europe

2 See their ‘prophecies’ regarding the future of religion in brief in my article, “Between Fundamentalism and Secularization: the Place and the Role of Religion in Post-communist Orthodox Romania,” in S. Devetak, O. Sirbu, S. Rogobete, (Eds.), Religion and Democracy in Moldova (Maribor-Chisinau-Timisoara: ISCOMET, 2005), 103–134 and 104–5. 3 A. Giddens, Modernity and Self-Identity: Self and Society in the Late Modern Age, (Cambridge: Polity Press, 1997), 202. 4 GfK Custom Research Worldwide on behalf of The Wall Street Journal Europe, Nuremberg/Frankfurt, 10 December 2004.

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and the USA (2004). Such data shows that an average of three in four people indicated that they belonged to a religion. At 80 per cent, the number of believers is above average in the countries of Central and Eastern Europe. In Western Europe, two in three people identified with a specific religion, irrespectively of whether they live in rural or urban areas. The same survey reports that “the percentage of religious people is particularly high in Romania (97 per cent), Turkey (95 per cent) and Greece (89 per cent). While the majority in Greece (98 per cent) and Romania (88 per cent) belong to the Orthodox Church, almost all people in Turkey stated that they were Muslims.”5 At a national level, as a relevant example, Romania provides us with some unexpected and particularly high levels of religiosity—given the fact that it has been under one of the most inhumane and repressive regimes during its fifty years of ‘cohabitation’ with communist-atheistic ideology. Let us briefly present some of the findings. According to the National Census in Romania (2002), religiosity shows that a shocking figure of 99.96 % of the population claim to belong to an officially recognized religious denomination, while only 0.03 % declare themselves as atheists and 0.01 % claim no religious affiliation. In terms of denominational distribution, the Romanian Orthodox Church has 86.8% of the Romanian population.6 In terms of the trust placed in religion and religious institutions, the church ranks at the top of the Romanians’ list, with 88% compared to other institutions, followed by the army with 80%. At the bottom of the list are political parties (11%), the parliament (16%) and the judiciary (27%).7 In terms of the daily practice of religion, scores are also very high by any European standards and are comparable only with Catholic Poland. Here is the information relevant to Romania using the same source as above. Answering the question ‘Besides Attending Funerals and Baptismal Services, How Often Do You Go To Church?’ shows that 23% of the Romanian population goes to church once a week, 4% several times a week and 1% daily. 81% of the Romanian population considers that the Church provides the right answers to daily spiritual

5

GfK Custom Research Worldwide. For a detailed presentation of the distribution see Rogobete, Religion and Democracy in Moldova, 106. 7 All following statistics are according to Barometrul de opinie publica, Fundatia pentru o societate deschisa, Bucuresti, Nov. 2005. 6

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and moral problems of our society, 96% believe in God. 96% of these subjects see God’s role in their individual lives as important and very important (scoring above 6 on an ascending scale of 1 to 10) while 66% scoring 10 out 10 and thus seeing God as very important in their lives. In terms of the content of their faith, 81% believe in the existence of sin, 61% believe in Heaven and 57% in Hell, while 51% believe in eternal life.8 What are the implications of such high levels of religiosity? Is there any potential in the high figures? Moreover, if there is any, is it for good or bad? What conclusions can we trace from such data showing highest levels of trust in the church and army and lowest in some of the most important institutions related to modern democracy? To answer such questions, let us reflect a little longer on the contemporary situation of the Romanian society and, subsequently, the place of religion and its afferent tradition.

Between Feudalism and (Post)Modernity Predominance of National/Majority Religion What constantly came out in the data of various opinion pools for the last fifteen years since the anti-communist revolution was a striking and significant contrast between, on the one hand, lack of trust in democratic institutions (political parties, justice, government), while on the other, high levels of trust in pre-modern entities (church, army). Some commentators have rightly seen in this a lack of development, a ‘deficit of modernity,’ and thus a form of feudal approach to politics. Characteristics of such politics are an uncritical submission to and longing for strong leadership, lack of individual initiative, and resting on other higher institutions to provide identity and vision for the future.9 Within such context, religion and its implied tradition became one of the highest markers of identity—collective and individual alike. To 8

Ibid. See “Raport de analiză politică. Aşteptările românilor de la statutul de membru al Uniunii Europene,” Institutul Ovidiu Şincai, Bucuresti (Political Analysis Report. The Romanian’s Expectations from the EU Membership Status; Ovidiu Sincai Institute, Bucharest) www.fisd.ro: “the high levels of trust given to the church and the army over against trust in the democratic institutions of the state show a deficit of modernity doubled by an estrangement of society from the political class.” 9

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this we shall return later. For the time being, we should note that such attitudes are easily seen in reflexes that require or uncritically accept, at mass level, high and unjustified state intrusion in and control of the internal affairs of the individual, particularly at the level of his or her religious life. Moreover, Orthodoxy—the majority religion—is in a continuous, albeit un-assumed, attempt to monopolize the support offered by the state and to limit the presence of other potential rivals to the notion of defining Romanian identity. State Control and Manipulation of Religious/Ethnic Groups; Legal Issues A relevant example is what elsewhere I called the “unfinished odyssey of a new Law of religion.”10 It is a well-known and somehow symptomatic fact that the ‘hottest potato’ in terms of legislation after the fall of the communist regime in 1989 was the disputed new law of religion (Rom. Legea Cultelor Religioase, Egl. ‘The Law of Religious Cults’).11 The various proposals for new legislation issued by various governments in the last fifteen years—regardless of the political ‘color’ of the legal initiators—represented significant violations of religious freedom and major attempts to discriminate others while favoring the majority group. Since this is relevant within the newer context of the European Union and its implied multiculturalism of which Romania intends to be a part, such issues are worth our extended attention. In this regard, I shall exemplify information related to the latest version of the Project of Law which in the mean time became Law.12 Here are some comments resulted from the review of the above mentioned, latest Project of Law that was offered by the Venice Commission of the Council of Europe.13 Despite its overall polite tone, the Commission

10 See S. Rogobete, “The Unfinished Odyssey of a New ‘Law for the General Regime of Religion’ in a South European Country: The Romanian Case,” in S. Devetak, (Eds.), Legal Position of Churches and Religious Communities in South-East Europe, (Ljubljana-Maribor-Vienna: ISCOMET, 2004), 129–143. 11 See also E. A. Pope, “Ecumenism, Religious Freedom and the ‘National Church’ Controversy in Romania,” Journal of Ecumenical Studies, vol. 36 (1999), 184–201. 12 Legea nr. 489/2006 privind libertatea religioasă şi regimul cultelor in Romania (Engl. Law nr. 489/2006 regarding religious freedom and the regime of religious cults in Romania). 13 ‘OPINION ON THE DRAFT LAW REGARDING THE RELIGIOUS FREEDOM AND THE GENERAL REGIME OF RELIGIONS IN ROMANIA’, EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION),

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identifies “certain excessive interferences with the autonomy of the religious communities” which include “too many imprecise references to other laws.” Expressions such as “in the conditions of the law” or “according to the law” are frequently used, and—without more precise indications—the law becomes subjective and leaves far too much space for abuses.14 Also, the procedures required for the registration of new religious groups include both excessively high levels of quantitative threshold requirements and potentially abusive substantialist interference with the content of the faith/doctrines/ teachings of the newly established religious communities. Some examples will follow: 1. Membership of at least 300 Romanian citizens or citizens residing in Romania is needed in order for a religious association to be registered, according to Article 40.1 of the Law. This poses two problems: first, it may be difficult to fulfill for believers who belong to great religions of the world—such as Hinduism or Buddhism— which may not have a great number of followers with Romanian citizenship residing in Romania. 2. Second, the citizenship requirement seems at variance with the prohibition of discrimination on the basis of inter alia citizenship and national origin—a principle enshrined in a number of international instruments ratified by Romania. 3. The membership requirement for religious cults according to Article 18 lit. b of the law is at least 0,1 % of the population of Romania according to the latest census. With a population of 22.3 million this provision means the presence of at least 22.300 members, all of which have to be Romanian citizens residing in Romania. 4. The stability requirements are described in Article 18 lit. a of the law: any religious association which applies for the status of cult has to provide documentary evidence that it is constituted legally and has been functioning uninterruptedly on the territory of Romania for at least twelve years. 5. In terms of what I would call substantialist interferences, the commission’s comments are: “certain provisions of the (draft) law can

Opinion no. 354/2005 adopted by the Commission at its 64th plenary session (Venice, 21–22 October 2005) on the basis of the comments by Giorgio MALINVERNI, (Member, Switzerland) Hans-Heinrich VOGEL (Member, Sweden). 14 OPINION, sect. III.11.

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be viewed as questionable state interferences, whose necessity in a democratic society is not established.” For example, according to Article 18 lit. c of the law, documentation has to be provided by religious associations seeking state recognition concerning the applicant’s “own confession of faith and the organisation and functioning statute [. . .]; its structure of central and local organisation; the mode of rule, administration and control; [. . .] the statute of their own personnel [. . .]; the main activities which the cult cares to undertake with a view to reaching its spiritual goals.” In turn, according to Article 41.2.b, the same information is required in order for a religious association to be registered. There is, however, no indication in the law of why and for which purpose this information has to be provided by the applicant, how detailed the information has to be, and for what use it could be for the government in reaching a positive or negative decision on the recognition’s application. The same holds true for Article 41, paragraph 2 lit. b. and Article 23 of the law, which deals with staff members recruited by cults, which also seems too far-reaching in this context.15 Some of the conclusions of the commission are directly relevant for our argument. Hence, the commission notes: “These high and rigidly written membership and stability requirements combined can make it very difficult for religious associations to acquire the status of cult.”16 Moreover, “When dealing with the legal status of religious communities, it is of the utmost importance that the State takes particular care to respect their autonomous existence. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 [of the ECHR] affords.”17

15

OPINION, IV.21, emphasis is mine. OPINION, IV.16. 17 OPINION, IV.20. No surprise that the adoption of the present Law 489/2006 prompted twenty non-governmental organizations to take the Romanian government to court, threatening that the case will brought to the European Court of Human Rights (http://www.hotnews.ro/stiri-arhiva-1131073-art-13-din-legea-cultelor-motivdisputa-cedo.htm) 16

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silviu e. rogobete Data on Questions of Neighboring EU and the Changing Face of Neighboring

Before providing our own conclusions, let us add some data on Romanians’ approach to others and otherness reflected in answers to questions on neighborliness. We must bear in mind that the majority religion is Christianity—a religion expected to have a high and positive view on such issues. Here is some data related to co-habitation with different categories of people according to the 2002 Barometer of Opinion: 17% of the population would be bothered having Muslim neighbours, 27% having Jehovah’s Witness (seen as an ‘alien Cult/sectarian religion’), 5% having Catholics and 6% having Greek-Catholics as their neighbours. In terms of other nationalities, 47% of the population would be bothered having Roma neighbours, 17% having Hungarians and 8% having Jewish neighbours.18 In terms of breaking religious rules, the more recent Barometer of Opinion (2005) shows that 78% of the Romanian population considers suicide as never justified, 66% see homosexuality as never justified, 64% consider prostitution and 45% abortion as never justified.19 Where does such information place us in relation to the declared openness to and desire for joining the multicultural, multi-religious European Union? It is also known from opinion polls that Romania is one of the most pro-European countries of Europe.20 How can we interpret such contradictory information and what is the role religion plays in this? First of all, one may suspect a significant lack of proper information about the European Union. Second, considering that recent opinion polls place the European Union membership between the church and the army in terms of the Romanian’s trust in various institutions, we can conclude that all three are somehow seen as having

18 Cf. Barometrul de opinie publica, Fundatia pentru o societate deschisa, Bucuresti, 2002. 19 Cf. Barometrul de opinie publica, Fundatia pentru o societate deschisa, Bucuresti, Nov. 2005. 20 According to the INSOMAR opinion poll conducted between 16–21 Feb. 2006, 64% of the Romanian people are very interested or interested in EU integration. Thirty-six percent are not so interested or not interested at all. At the same time, though, 46% think that, following EU integration, the situation in the country will be much worse or worse, while 19% think it will be the same, and 34% think it will be better or much better.

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a salvific character as well as being strong identity markers.21 However, what is very likely to present us with significant difficulties is the new multicultural and multireligious context in which Romania will have to find its place. It will be a context requiring the art of cohabitation with people, groups, and individuals who are different. The European construct, a postmodern idea, is a new challenge that Romania cannot afford to ignore.22 We shall turn to an assessment of this claim next.

European Union: Challenges and the Limits of Multiculturalism in Romania One of the challenges that the countries from Central and Eastern Europe have to constantly face after the fall of communism in the 1990s is the internal and external diversity of the populations. The regrettable example of the ex-Yugoslavia area has shown that any attempt at questioning one’s (ethnic, religious) belonging in the name of a presumed ‘national’ homogeneity is a steady source of violence and open conflict. At the same time, the populations from this area of the world are remarkably mixed—due to the heritages of a controversial history. The Romanian example is most revelatory in this respect: apart from the Romanians, Hungarians, Germans, Roma, and Jews—to name the most well-known nationalities from a list of over twenty—also live in Romania. One possible way of dealing with the diversity is the multicultural solution, which has been embraced in many forms by states as different as the USA, Canada, Australia, and so on. Multiculturalism as a politics of cohabitation represents a challenging way of managing not only the ethnic diversity, but also the other forms of diversity (the religious, the sexual, etc.). Yet, multiculturalism is by no means a unique way of responding to the identity solicitations of someone: the various types in which it comes—“multiculturalism of rights” (Kymlicka), “multiculturalism of recognition” (Ch. Taylor), and “multiculturalism of fear” (Shklar) speak for many different ways of articulating the

21 Barometrul de opinie publica, Fundatia pentru o societate deschisa, Bucuresti, Nov. 2005. 22 On the postmodern character of the European construct, see R. Cooper, The Postmodern State and the World Order (London: Demos, 1996).

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questions and the formulation of solutions. Some even speak of other labels—‘interculturalism’ or ‘trans-culturalism’—as being more or less appropriate to the same issues. Is it therefore possible to ‘export’ multiculturalism in the Eastern European states? Or perhaps to ‘adapt’ it? Are there, on the other hand, internal resources to redefine the concept using the specifically given context of high levels of religiosity and trust in religious, traditional institutions? It is this latter question that we will concentrate on in our present work, and we will only acknowledge the other possible answers prompted by the first set of question raised above in passing. Thus referring specifically to Romania, the new European context in which Romania wants to find a home is a sociologically, ethnologically, and religiously fluid context with unprecedented levels of change. The national state metanarrative with its national religion, territorial, and juridical autonomy are being challenged and are in need of re-evaluation. Regions will play an increasingly higher role; the European Court of Human Rights already has a stronger legal say than the Romanian Constitution, and the European Constitution will reduce its influence even more. Postmodernity, with its fragmentation and lack of coherence, will be experienced as an undeniable reality. In order to enter such a new context, as I will argue here, there is need for significant changes in mentalities—the way Romanians perceive their identity and the role the various identity markers play. Hence, the questions to which we shall turn now are related to the role religion—particularly Orthodoxy and its afferent discourse on tradition—plays in the new game of multicultural cohabitation— the essential mark of the new European construct to which Romania intends to be a part. As announced earlier, my argument is that there certainly is positive and encouraging potential in religion and traditions, but only if we are first able to project a lucid and realistic view on their ambiguous potentiality. To such an assessment we shall turn next.

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Traditions: Pitfalls or Potentialities? Traditions as Strong Identity Markers As Alasdair MacIntyre, among others, so amply argued, traditions are crucial to the core definition of our identity.23 However, history— ancient and recent alike—has proved that traditions, regardless of what their dogma says, are not necessarily guarantees for ethical behavior.24 They seem to be rather ambivalent or perhaps neutral from an axiological perspective. Traditions are strong and undeniable realities and as such they seem to have an inbuilt potential both for good and for evil, for construction and demolition, and for integration and disintegration. Consciously or unconsciously, assumed or un-assumed, the decisive forces that can turn traditions one way or the other are complex, and their detailed assessment falls beyond the scope of this paper.25 It is sufficient for us to understand that such issues require answers to questions of how traditions are transmitted, perceived, manipulated, explained, or instrumentalized. This is important in the assessment of the role that a predominant religion such as Orthodox Christianity can play in defining identities in countries such as Romania—particularly within the rapidly changing context of postmodernity and European integration. Thus what seems to be the prevalent view regarding the Orthodox Church and its relation with Romanian identity is what can be labelled a substantialist, essentialist view. It is an interpretation whereby the church with its ‘holy tradition’ is seen as some ‘essence,’ a ‘substance’ which constitutes the main ingredient required for being ‘Romanian,’

23

A. MacIntyre, After Virtue, (Indiana: Notre Dame University Press, 1985). At this point, one major implication of MacIntyre’s thesis, i.e., that Aristotelian ethics are in themselves a guarantee for ethical behavior, seems to be problematic. Our history is filled with examples of traditions being used in justifying, generating, or maintaining conflicts, war, and disintegration. The more recent ones are from the former Yugoslavia, the 9/11 attacks on the US, and Northern Ireland, etc. For a bibliography on Religion and Violence see: C. Candland, The Spirit of Violence: An Interdisciplinary Biography of Religion and Violence, (New York: HF Guggenheim Foundation, 1992); also B. Lincoln, Holy terrors: Thinking about Religion after September 11, (Chicago: Chicago University Press, 2003). 25 For an excellent study of the link between religion and violence, see Francisco Diez de Velasco, “Theoretical Reflections on Violence and Religion: Identity, Power, Privilege and Difference” in Numen, 25, (2005), 87–115. 24

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for ‘Romanianness.’26 The holy tradition, it is claimed, was and it is still being passed down over the centuries under the form of the ‘Legea Stramoseasca,’ the ‘Ancient Law,’ the ‘Law of the Forefathers.’ It is an unwritten law which combines the folk customs, language, and the sobelieved unchanged or unaltered religious tradition which was always ‘the Orthodox’, the ‘original and the right faith’ proclaimed by the church fathers of the first centuries of the Christian era. In fact, having roots in the second half of the nineteenth century— the era of the birth of the nation-state—such ideas reached their height in 1885 when the Romanian Orthodox Church gained its autocephalous status. That is, when it moved away from the authority of the ecumenical patriarchate (Constantinople), and it became its ‘own head’—building its strong identity around the idea of the Romanian nation-state, an idea to which it contributed in major ways indeed. However, such ideological construct—which overlapped ethnicity with the Orthodox faith—was perceived as dangerous by the church itself, which labelled it as filetism and condemned it as heresy by a Constantinopolitan Synod as early as 1870. Yet however again, although correctly foreseeing the dangers inherent to such positioning towards the question of identity, all Orthodox national-state churches—without exception—could not, after all, resist the temptation of power, on the one hand, and of the protection secured from the all powerful sovereign state, on the other.27 And such temptations proved hard to beat—and this regardless of the prevailing ideology of the state. At this point of the argument, the communist-atheist experiment, as well as the newly established freedom, are very revealing. The church was and still is in a continuous ‘game’ of ‘harmonizing’ with the secular power, while at the same time searching for a hiding place under its still very powerful, all-protective umbrella. As Olivier Gillet observed,

26 See a more detailed analysis of the theology and history behind such view in the chapter entitled “Orthodox Reflections on Tradition and National Identity: Nationalism as an Ecclesiological Foundation” in S.E. Rogobete, “Morality and Tradition in Postcommunist Orthodox Lands: on the Universality of Human Rights, with Special Reference to Romania,” Religion, State and Society, 33, (2004), 275–299; 284. 27 For a very interesting assessment of the complex (and often radical) implications of the Orthodox Church’s tendency to connect national and religious identity in a substantialist manner, see the conflict between the Macedonian Orthodox Church and the Archbishop of the Serbian Orthodox Church living on Macedonian land presented by Peter Moree in his “Identity, religion and human rights in the Balkans. The Macedonian case of Archbishop Jovan in its broader context” in Helsinki Monitor, 4, (2005), 4287–296.

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“Contemporary [Romanian] ecclesiology structures in itself the principles of submission and cooperation with the state,” concluding: Thus, contemporary Orthodox nationalism is structured and closely connected with the concept of the Church. Through defining the equation: state-nation-confession, Orthodox ecclesiology determines the configuration of the national unitary and ethnic state, leaving no room for any concept of a multinational or federal state.28

Such a conclusion becomes more and more realistic to an increasing number of contemporary commentators.29 Within the new context offered by the prospect of the European Union, sooner or later such a church-state relationship will run the risk to be a ‘straight jacket’ making the life of both parties involved rather uncomfortable. In a strongly critical way, despite using a journalistic tone rather than academic argumentation, Petru Guran has recently written the following in his article rather wittedly entitled The Romanian Nation will be History and the Romanian Orthodox Church will be a Provincial Sect: “If 127 years ago the Romanian people were ready to pay with their blood on the battle fields for their political sovereignty, today, the same people, in its great majority, is ready and prepared to put an end to such sovereignty in the name of a new historical adventure. . . . The Romanian people will be part of the greatest European people which will empower, in a near future, the European institutions with the prerogatives of sovereignty collected from each national state in part.”30 Within this context, the relevance of such substantialist, essentialist views on religion, tradition, and identity are going to be remote. Hence, Guran quite acidly albeit exaggeratingly predicts: “in less than two years [2007] the Romanian political nation will be history, in less than ten, Bucharest will be the headquarter of a consular authority and

28 O. Gillet, Religie şi naţionalism. Ideologia Bisericii Ortodoxe Române sub regimul communist (Religion and Nationalism. The Ideology of the Romanian Orthodox Church under the Communist Regime) (Bucharest: Compania, 2001), 272. 29 There are more and more voices from within the Orthodox lay intellectual circles warning along these same lines, albeit often in a much softer key. See authors and editorialists such as H.R. Patapievici, Teodor Baconsky, Mihail Neamtu, Petre Guran. For a relevant example, see M. Neamtu, Bufnita din darimaturi. Insomnii teologice (The Owl on the Ruins. Theological Insomnia) (Bucharest: Anastasia, 2005). 30 P. Guran, “The Romanian Nation will be History and the Romanian Orthodox Church will be a Provincial Sect,” in Ziua (7th of March 2005). The article was prompted by the sumptuous celebrations of 120 years of autocephaly and 80 years of the patriarchate of the Romanian Orthodox Church.

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in less than thirty, the Romanian Orthodox Church an obscure sect in a province as vaguely identified on the map as it is today.”31 Talking about the possible implications for multicultural cohabitation, but this time with a more elaborate academic argumentation and in a more elegant tone, Earl Pope comments on the work of an influential Romanian contemporary theologian, asserting: He [Bria] finds it very difficult to articulate a significant role that the minorities can have within the Romanian society, given the prevailing Orthodox view of the unity of their faith with the soul of the Romanian people. For example, he has charged the Lutheran and Reformed churches as being prompted by ‘confessionalism and ethnocentrism’ because of their opposition to the legal recognition of the Orthodox Church as the ‘national church.’ This they would unquestionably deny. He has failed to recognize that it was the hope of these and the other minority religious communities that there would be a new understanding of the churches and their freedom in a democratic Romania. This would enable all of them (majority and minorities alike) to make their maximum contributions to the ‘soul’ of a pluralistic Romania so that they could fully cooperate as equals before the law and the state to bring about the creation of a just, civil, and transfigured society.32

Despite at times talking about the dangers of ‘nationalistic captivity’ for the Romanian Orthodox Church and also unmasking, as we shall see below, the profound crisis in which his church finds herself in our modern times, Bria did not point us to a clear way ahead; he did not leave a policy that would create real space for otherness, acceptance of differences, or a sacrificial attitude towards those who are or can be our neighbors even if they do not share our traditions. What are the consequences of such positioning towards the Christian tradition passed down to us over the centuries? Emphasizing the unity between Orthodoxy and the ‘soul of the nation,’ the insecurity of the present leadership of the Orthodox Church in a pluralistic world, and the urgent—indeed, desperate—need for additional and extensive state funds and support are obvious symptoms of a significant and farreaching religious as well as civic crisis. Referring to Bria again, Earl Pope correctly notes: “Bria unquestionably believes that the Orthodox Church finds itself in the midst of a profound identity crisis. There are 31

Guran, “The Romanian Nation.” E. Pope, “Ecumenism . . .,” Journal of Ecumenical Studies, 36, (1999), 184–201, 196. Note should be taken that Fr. Bria was an experienced ecumenist representing the Romanian Orthodox Church at the WCC for over two decades. 32

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moments when he has even suggested that his church may be at the point of self-destruction. . . . It is clear that there is an ecumenical crisis in Romania that has posed serious problems not only for the churches but also for the society for which they had hoped to become positive models of tolerance and ecumenism.”33 Olivier Gillet is even more pessimistic in regard to the potential role of the Orthodox Church, if the Church still sees its main call to be the preservation of the ‘essence of Romanianess.’ His final conclusion is that: such confessionalisation of the state leads to the exclusion of anyone who is not a “true Romanian” and any attempt to give rights to minorities remains an illusion, since the nationalist ideology of the Church and the state would automatically exclude any element which is alien from such historicity and such nationalist historic determinism.34

Therefore, together with Gillet we are right to say that unless some major changes will happen, the chances that the Romanian society will be a true democracy are rather small.35 Hence, the natural questions coming to mind, particularly to someone who still wants to take the Christian faith and its tradition seriously, are: do such attitudes reflect, in fact, a proper understanding of the Orthodox Christian faith and its tradition? Is tradition really being preserved in this way, or is it rather misrepresented or misleading? In other words, is ‘preserving tradition’ more important than finding and living out the essence of the tradition? What is at the core of the Christian tradition? Is such use of tradition which sets one apart and against the other, the only one interpretation available to us? In other words, 33

Pope, “Ecumenism . . .,” 184–201. Gillet, O., Religie, 276. 35 Despite a number of correct assertions, I found Năstase’s arguments against Gillet’s work rather unconvincing. Her article seems to ignore the contradictory realities reflected in the data on religion, corruption, abortion, human rights, etc in this part of the world (partially presented in this article above) and attempts at the same time to justify the Romanian’s negative image in the West and its lack of performance on the basis of an derogatory attempt to separate Western from Eastern Europe with deep historical roots coming from the ‘time of the Enlightenment.’ In doing so, she can be accused of trying indirectly to suggest that ‘others’ are guilty for our own major shortcomings. See D. Năstase, “Secularizare şi religie în integrarea europeană. Bisericile majoritare est-europene împotriva statului laic vest-european?” (Secularization and Religion in European Integration. The Eastern-European Majority Churches against the Western Laic-State?), in Carp, R., (ed.), Un suflet pentru Europa. Dimensiunea religioasă a unui proiect politic (A Soul for Europe. The Religious Dimension of a Political Project), (Sibiu: Anastasia, 2005), 235–251, particularly 239. 34

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are there alternative ways of interpreting the teachings and the legacy of the Orthodox—and for that matter of the Christian—tradition in our rapidly changing world? And to return to the concrete situation of Romanian religiosity described in the first part of this work, can religion and the high levels of trust placed in its institutions at popular level in Romania play a positive role in the new context which forces us to face diversity, differences, and otherness? Let us address such questions in the final part of this work.

For A Reappraisal of the Christian Tradition in Multicultural Contexts From the Day We Speak ‘Conservatively’ of Tradition, We No Longer Have It! 36 As mentioned from the beginning of this paper, I would like to argue that Christianity still has a major place and a major role to play in Romania within the new context of European integration with all its challenges discussed above. However, as it is obvious from our arguments so far, for this to happen there is need for significant change. What can be some alternative interpretations to the ways described above in which the Christian tradition is approached? What is the potential inherent in its teachings and practices? Can we approach religion and the Christian traditions afresh without changing its core teachings and thus remaining within the boundaries of what can still be called the ‘right faith’—the orthodox faith? I am aware that this is a sensitive issue for many, but I am more and more inclined to think that unless we are willing to address such questions, leaving behind any politically biased views, Guran would be proved right when he said that in a few years, within the new context of the European family, the Orthodox faith will be a ‘small sect’ or a ‘historical curiosity of an archaeological type.’ In my attempt to address this final part of my work, I am significantly indebted to Jürgen Moltmann and his theology of hope. Discussing the role and the place of the Christian tradition for the modern man and woman, Moltmann identifies the profound crisis as well as the need for a fresh reading of the “pluriform grammar of the Chris36

J. Moltmann, Theology of Hope (London: SCM Press, 1967), 292.

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tian faith:” the Christian’s mission is to “seek in practice the relevance of Christian life for the world, for others, and solidarity with man in his threatened and betrayed humanity. A church which cannot change in order to exist for the humanity of man in changed circumstances becomes ossified and dies.”37 Highly relevant for us today in Romania, one main presupposition identifiable in Moltmann’s work is that the Christian faith and its complex traditions are not the equivalent of a singular ‘text’ requiring one rigid interpretation, often almost of a Gnostic type, expected to be performed solely by those who are institutionally initiated into it. ‘Institutionalizing’ the process of the preservation and interpretation of the Christian traditions has too often ended in controlling and manipulating its content under the driving force of the will to power. The Christian tradition is a complex reality that speaks of something both past and future, which is somehow beyond our capacity to capture entirely into a codified, literary, or rigidly understood ritualistic system. It is a rather complex reality that speaks of past events which, however, have at the core of their message predications about the things to come in and through the crucified and the resurrected Christ. Therefore, the main emphasis should be placed on its present and future oriented message rather than its past-time forms, its self-sacrificing ethos rather than its rigid dogma, and its core eternal values rather than its temporary form.38 Opposing the usual types of perceiving and approaching religion with new and fresh perspectives, Moltmann is concerned with not changing the content of the Christian faith, and yet he is able to offer us tools to reach towards the core of its message and thus to make it relevant for today. Let us look at some proposals inspired from Moltmann’s thought that I found relevant for the Romanian Christian churches today.

Future vs. Past Orientation of Tradition—Preservation vs. Proclamation of Tradition Moltmann correctly observes that contemporary readings and interpretations of the Christian faith and its traditions are often very

37

J. Moltmann, The Crucified God (London: SCM Press, 1974), 12. See, for example, Moltmann’s relevant discussion of the meaning of tradition and history in Theology of Hope, the chapter on “Eschatology and History.” 38

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similar with the ways in which traditions were perceived and interpreted by the classics in ancient times.39 This is a way in which the past is being venerated and it is seen as the only source of regeneration: the passing ages are regenerated in the times of sacred festivals. Each festival and each liturgical season brings once more the time of the beginning, the time of the origin, in principio. . . . History here means falling away from the origin and degenerating from the holiness of the beginning. Tradition means the bringing back of fallen life to the primaeval age and the first origin. For this conception of the tradition ‘truth’ is always bound with ‘the old’. The prerogative of tradition is expressed in the phrase ‘form of old’.40

Anyone familiar with the dominant ways in which the Christian faith, its practice, and traditions are perceived at the grass root level in Romania today would recognize such an approach as described by Moltmann here. The main events of which the tradition speaks as well as the best ways to put in practice such events are things of the past. The past is venerated as an unaltered, pure, and holy reality—the holy tradition which needs to be preserved this way. Thus the past needs to be protected from modern influences and passed on to future generations unchanged. The further we move from the events of the past, the more prone we are to make mistakes. Thus the language, practices, and rituals given to us ‘from old’ need to be kept unchanged. This leads, as we mentioned above, to the need for the existence of a group of ‘initiated’ people who have the tools to access the past and to pass it on to us ‘as it was given from old.’ Particularly when such an approach is combined with politics of nationalism, the relevance of the tradition’s teachings is endangered and the temptation to dominate is real. Foucault lucidly proved that knowledge is power and those who control the systems of signs are the ones most tempted to dominate the others.41 However, joining Moltmann we can ask if ‘the risen Christ’ can be ‘proclaimed’ in such terms. To answer, he warns us, we need to be aware that “what tradition is, and how it comes about, all depends

39 Moltmann acknowledges the influence of Mircea Eliade’s studies of the history of the sacred at this point of his argument. 40 Moltmann, Theology of Hope, 295. 41 M. Foucault, Power/Knowledge: Selected Interviews and Other Writings, 1972– 1977, edited by Colin Gordon (London: Harvester, 1980).

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on the matter to be transmitted.”42 The core of the Christian faith, although connected with the past, surpasses the past and charges both the past and the present with the power and the vision of the future. Due to its very ‘matter’ that forms its essence, Christianity has an intrinsic, inbuilt capacity to point us to the future and to make us see the present as well as the past in the light of what it can and what it should become in Christ and through the power of the Holy Spirit. And here lies the great potential of the Christian tradition, if properly appropriated in our modern times, but only if a new reading of the complex grammar is put in place. It is centered on the many facets of the claim of the Resurrection and the Return of Christ, which informs and changes the present by its potential future. In Moltmann’s words, This tradition of promise turns our eyes not towards some primaeval, original event, but towards the future and finally towards and eschaton of fulfilment. (p. 298) . . . Christian tradition is not a tradition of wisdom and truth in doctrinal principles. It is the announcing, revealing and publishing of an eschatological event. It reveals the risen Christ’s lordship over the world, and sets men free for the coming salvation in faith and hope.43

Thus the interpretation of the Christian tradition needs to move away from a rigid reading of past events often instrumentalized to justify national identity over against other identities. It should instead reflect the power of love which can change the present in the light of the announced new life which is to come. It should alleviate pain, individual and social fractures, inequalities, and injustices of all kinds here and now. For, as Moltmann puts it: “Theological concepts do not run leaping behind reality, looking at it with the night eyes of Minerva’s owl; they illuminate reality by displaying its future. Their knowledge is founded not on the will to dominate but on the love for the possible future of things. . . . Engaged in a process of movement, they call for change and for practical action. . . . A new horizon is formed.”44 However, for this to become the norm in the daily reading and interpretation of the holy tradition, it often requires divine intervention and a new understanding on the part of those who ‘control’ the grammar of

42 43 44

Moltman, Theology of Hope, 297. Moltman, Theology of Hope, 299. Moltman, Theology of Hope, 298.

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faith in Romania, and this goes beyond denominational boundaries. It is only enlightened by the Holy Spirit that one who has power and loves power can ever turn and be transformed into one who is willing to renounce it and to turn it into a genuine expression of the power of love—which is the true mark of an orthodox reading of the Christian tradition. The Christian tradition, founded on sacrificial love rather than the love of power, should therefore lead to a new understanding of ‘otherness,’ which leads us to another crucial point regarding the positive role and the excellent potential of the Christian religion in our increasingly complicated multicultural world. It is the question of how we relate to those who are different and with whom we are expected to live side by side.

Religion, the Politics of Identity, and the Question of the Other Christianity is a religion of promise and love, thus leading to new hope, to a new goal, even as far as the resurrection leading to a new identity. However, as a contemporary scholar commenting on Paul Ricoeur’s, Oneself as Another, noted: it is a new identity, a self “never without or against the other.”45 Christianity and its tradition is not merely a religion of good neighborliness, but also of conscious efforts to self-sacrifice for the sake of the other. The question “Who is my neighbor?” is fundamental for people who claim to have their identity rooted in the Christian tradition, and the answer was already given by Jesus himself. One’s neighbor, we are taught,46 is not the one who shares the same views on life, coming from within the same religious tradition; not the one sharing one’s national identity, nor the one able to reward good deeds, nor the one with a high social status. It is rather the one who has compassion towards anyone who is in need. It is the one who goes where the needy are and who is ready to self-sacrifice without expecting any reward. Luke’s record of the Good Samaritan

45 A. Thiselton, Interpreting God and the Post-modern Self: On Meaning, Manipulation and Promise (Grand Rapids: Eerdmans, 1995). 46 Luke 10:29–37.

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story shows how Jesus contrasted mere religious dogma with true love and compassion. The priest in the story saw a robbery victim in a halfdead condition, but passed by in order to avoid breaking a religious law that would have made him unclean by touching a dead body—and thus making him unfit to perform the ritual.47 The Levite, another religious character, also decided to stay away. Jesus’ audience might have been expecting the third character to be a Jewish layperson. But Jesus added a twist by making the one who showed love—‘a Samaritan,’ a racial minority despised in Israel. In this way, not only did he contrast mere religious beliefs with true love, but he also redefined social relationships. New foundations for social cohesion and cohabitation between minorities and majorities were put in place. Such foundations are based on love and self-sacrifice rather than co-nationality or coreligiosity. Christianity seen in this way is expected to be a religion of love that is based on the power of love rather than the love of power. Although in human terms it may seem idealistic and thus utopian, self-vulnerability is expected to be the true mark of the Christian tradition rather than political power of any sort. The Will-to-Power, which was so often the temptation to which the church as an institution succumbed, should be de-centralized, transformed, and re-centralized in promise and love. By way of conclusion, I shall only suggest that such an understanding of the power of the Christian tradition may lead to new definitions of, or approaches to, the question of contemporary multiculturalism. Living with difference should force us, here in the predominantly Orthodox Eastern Europe, to rethink our own identity. It may mean willingness to give up the privileged protections secured by the always risky positioning under the shadows of the powers of the state. It may even mean preparing ourselves to be vulnerable and ready to meet the others and to see in them the object of our love and compassion. Meeting those who have a ‘different face,’ different roots, and different religious beliefs, right were they are should not only prompt us to give space to be themselves, but it should also motivate us to be there for them. Beyond offering mere freedom and protection, a good Christian community should also offer love, compassion, understanding, and acceptance. Not only at a declarative level, but also transformed

47

Lev. 21: 1–4.

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in active social, economic, and political policies. Through this present work I intended to suggest that maybe a fresh reading of the much valued Christian tradition can offer us some hints into the question of multicultural cohabitation in Eastern Europe and, why not, even beyond.

RELIGIOUS FREEDOM AND STATE NEUTRALITY. THE SOUTH AFRICAN EXPERIMENT IN RELIGIOUS RIGHTS Nico Vorster

Introduction The right to religious freedom is protected in most of the world’s constitutions and enjoys protection in several international conventions such as the European Convention for the Protection of Human Rights and Freedoms, the American Convention on Human Rights, the International Covenant on Civil and Political Rights, and the 1981 Declaration on the Elimination of All Forms of Discrimination based on Religion or Belief. Yet, religious rights have tended to take a backseat to concern for more tangible encroachments on rights such as human dignity.1 Developments since 9/11 have, however, again focused attention on religious intolerance. Globalization, the increasingly free movement of labor, and refugee movements from third world countries to first world countries are leading to greater religious pluralism in many parts of the world.2 Countries with growing plural religious communities such as France, Spain, Britain, and Australia experienced increasing religious inspired unrest during the past few years.3 A clash of civilizations is an enduring threat in plural societies and can only be prevented by the legal protection of religious liberty. The separation of state and religion is important in plural societies for a variety of reasons: 1. It creates a culture of persuasion instead of persecution. A culture of persecution originates when people adhering to exclusive beliefs are under the impression that they should persecute those that have

1 W.C. Durham, “Perspectives on religious liberty: A comparative framework,” in J.D. Van der Vyver & J. Witte, (eds.) Religious Human Rights in Global Perspective, Legal Perspectives (Boston: Marthinus Nijhoff, 1996), 1. 2 Durham, “Perspectives,” 11. 3 J.M. Vorster, “Christian attitude and other religions” (Christelike gesindheid en ander godsdienste). Unpublished article (In possession of author, 2006), 2.

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different persuasions. Such exclusivist convictions have been the cause of problems in the religious realm since early times. Religious freedom, in contrast, recognizes freedom of conscience that entails that people cannot be forced by law or other coercive measures to believe in something they do not believe in. Instead, people can only be proselytized by way of peaceful persuasion and are free to change their beliefs if they wish to do so. 2. It frees religion from state control. State policies that deny the right of faiths to exist exemplify severe religious intolerance. Religious freedom aims to set all religions free within the confines of the law. This entails freedom in an individual and institutional sense from improper intrusions by the state or groups other than the state on religious beliefs, freedom to engage in religious conduct and manifest beliefs, and the freedom of religious institutions to conduct their own internal affairs and institutional arrangements.4 3. It frees the state from control by the church. For religion to be authentic, it must be a voluntary, personal, and free act.5 Religion has been a particularly potent force of intolerance when it became enforced by societies, especially in the form of theocracies.6 Theocracies that acknowledge religious organizations as holders of public power and religious law as the law of the state have proven to be intolerant societies. Van der Vyver rightly states that the identification of law and religion has startling implications because the belief that the laws of a country is sanctioned by God Himself means that such laws cannot be reformulated or revised.7 It is indeed very difficult to implement homogenous theocratic ideals in the modern world because most societies are plural and diverse in nature. Even in Muslim countries, there is no uniformity as far as the practical manifestations of the Islamic perception of religion and law are concerned.8

4

J. Witte, “Introduction,” in Van der Vyver & Witte, Religious Human Rights, xxvii. J.E. Wood, “An Apologia for Religious Human Rights,” in Van der Vyver & Witte, Religious Human Rights, 466. 6 G. Van der Schyff, “The historical development of the right to freedom of religion,” Tydskrif van Suid-Afrikaanse Reg, 2004, (2), 259. 7 J.D. Van der Vyver, “Introduction,” in Van der Vyver, J.D. & Witte, J. (eds), Religious Human Rights, xxx. 8 J.D. Van der Vyver, “Leuven lectures on religious institutions, religious communities and rights,” Canon law monograph series 5 (Leuven: Peeters, 2004), 22. 5

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4. It manages religious diversity within pluralist societies. Plural societies can only be peacefully managed when tolerance and respect for human dignity are shown towards different groups of people. The separation of church and state makes multi-faith societies possible because the state is constituted in such a way that all religious communities are treated alike. The freedom of all religious groups is protected within the confines of the law—while the state ensures the individual’s religious liberty, which includes the right not to profess any religion.9 Although the separation of state and religion is important to manage diversity in plural societies, the concept of state neutrality creates problems of its own within a rapidly pluralizing world. The debate on freedom of religion can not be isolated from the general human rights discourse. Human rights in most secular, Western societies are founded upon liberal Enlightenment morality that operates with the concept of a neutral state and the self-determination of the autonomous selfdetermining individual. However, the enlightenment cultural force is anything but neutral and is viewed by various religious groups as profoundly threatening because it enforces secularism on society, overemphasizes individual rights at the expense of social responsibilities, and deforms social institutions and traditions. Durham correctly states: To the extent that the ideal of religious freedom is viewed as a mere emanation of enlightenment secularism, it will grow increasingly suspect within traditional cultures bent on maintaining their own hegemony . . . . . What is needed is a notion of religious freedom that can be shown to be grounded as a shared value within both religious and secular traditions.10

In this paper I will discuss the South African experiment in religious rights. I will seek to explain how the secular humanistic understanding of the human rights discourse by the Constitutional Court and the concept of the neutral state in South Africa has contributed to the secularization of South African society, even though the South African Constitution can be characterized as highly accommodative towards religions. I will conclude with some comments on redefining state neutrality.

9 J. Moltmann, God for a Secular Society, The Public Relevance of Theology (Mineapolis: Fortress Press, 1999), 231. 10 Durham, “Perspectives,” 7.

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The South African state can be characterized as a neutral state that does not impose any system of religion on its citizens. The Constitution does not preclude state involvement in religion, but requires that this occurs in conformity with the egalitarian basis of the South African Constitutional system.11 This stands in contrast to the previous political dispensation that contained certain Christian theocratic elements. The South African Constitution does not give an explicit definition of religious freedom. However, in Lawrence v. State the Constitutional Court adopted the Canadian definition in the Big M drug Mart case: The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance and reprisal and the right to manifest religious belief by worship and practise or by teaching and dissemination.12

The 1996 South African Constitution protects religious freedom in a variety of ways. Religious freedom is indirectly protected in coherence with other rights such as the right to dignity,13 freedom of expression,14 freedom of assembly,15 and freedom of association.16 Several articles protect religious rights directly. The equality provision of section 9(3) provides that the state may not discriminate unfairly against any person on the ground of religion. Section 15(1) protects the freedom of conscience, religion, thought, belief, and opinion of everyone. According to Malherbe, this section protects a sphere of individual and institutional freedom that neither the state nor individuals may intrude on.17 It entails that a person has the freedom to choose his religious views and religious denomination, to manifest his/her beliefs openly, or to choose not to believe in a religion. It furthermore obliges the

11

Van der Vyver, “Leuven lectures,” 50. Lawrence v. State, par 92. 13 Constitution of the Republic of South Africa as adopted by the Constitutional Assembly on 8 May 1996 and as amended on 11 October 1996, (B34–B96.), section 10. 14 Constitution of the Republic of South Africa, section 16. 15 Constitution of the Republic of South Africa, section 17. 16 Constitution of the Republic of South Africa, section 18. 17 E.F.J. Malherbe, “Some Critical Questions about the Constitutional Protection of Freedom of Religion” (Enkele kwelvrae oor die grondwetlike beskerming van die reg op godsdiensvryheid), paper presented at a conference on Church and State organized by the Faculty of Theology at the Universtiy of Stellenbosch, 25–27 October 2005, 4. 12

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state not to intrude in religious matters, or to impose any religious views on its subjects, and to act impartially with regard to different religions. Furthermore, section 15(2) provides that religious observances may be conducted at state or state-aided institutions, provided that: a. those observances follow rules made by appropriate authorities, b. they are conducted on a equitable basis, and c. attendance at them is free and voluntary. Section 15(2) must be read together with section 29(3,4) which makes provision for independent educational institutions, as well as the possibility that such institutions may receive funding from the state, although the state cannot be forced to provide funding to such institutions. It is clear from section 15(2) that the South African Constitution does not erect a strict wall of separation between church and state. According to Van der Vyver, section 15 of the Constitution does not entail an establishment clause.18 The section is couched in free exercise language, and in subsequent subsections actually makes provision for instances of establishment. Instances of establishment are also sanctioned in other sections of the Constitution. However, the Constitutional Court has decided that endorsement of a religion or religious belief by the state could contravene the free exercise clause guarantee if the state should coerce people—directly or indirectly—to observe the practices of a particular religion.19 The Constitution also protects the communal and public aspects of the free practice of religion.20 It does so indirectly in section 18 when it guarantees the right of association to everyone and directly in section 31(1) where it protects the right of persons belonging to a cultural, religious, or linguistic community: a) to enjoy their culture, practice their religion, and use their language: and, b) to form, join, and maintain cultural, religious, and linguistic associations and other organs of civil society. Section 15(3) furthermore recognizes the right

18 J.D. Van der Vyver, “Constitutional perspective of church-state relations in South Africa,” Brighham Young University Law Review, 2, (1999), 653. 19 Cf. Van der Vyver, “Leuven lectures,” 9 and Lawrence v. State, par 104. 20 L.W.H. Ackermann, “Some reflections on the Constitutional Court’s freedom of religion jurisprudence,” Nederduitse Gereformeerde Teologiese Tydskrif, 43/1&2, (2002), 178.

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of religious communities to enforce their own religious, familial, and personal judicial systems. These systems are, however, subordinate to the Constitution. Section 6(5b) protects religious languages, and section 181(1) and 185 provides for a Commission that must promote and protect the rights of, among others, religious groups. Section 8(4) states that the Bill of Rights is not only applicable to natural persons, but also to judical persons. This implies that the freedom of religious institutions is protected and that such institutions can act with a degree of autonomy in religious matters.21 As with most other rights, religious freedom can be limited in certain instances when a limitation is deemed reasonable and justifiable in an open and democratic society that is based on human dignity, equality, and freedom. Though the South African Constitution can, in theory, be characterized as highly accommodative towards religions, the concept of a neutral constitutional state has, in practice, lead to the imposition of secular values on South African society. Two factors are mainly responsible for this. First, the South African Constitutional Court did not develop an inclusive framework of jurisprudence that contextualizes the Bill of Rights in a South African context so that its values can be shared by all members of society. Instead, the Constitutional Court opted to use the secular, Western understanding of human rights that emphasize the self-determination of the autonomous human subject as its philosophical frame of reference to interpret the Bill of Rights. Second, the South African government exhibited a wrong understanding of what state neutrality and the concept of non-preferential treatment of different religions mean in its formulation of religious education policy.

The South African Constitutional Court and Human Rights Discourse in South Africa The traditional approach in South African constitutional jurisprudence has been one of textual interpretation. The demise of parliamentary sovereignty and the acceptance of a Constitution that contain

21

Malherbe, “Some Critical Questions,” 3, 6.

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a Bill of Rights necessitated a new approach.22 Section 39 (1a) of the Constitution provides that when a court interprets the Bill of Rights it must promote the values that underlie an open and democratic society based on human dignity, equality, and freedom. The supremacy of the textual interpretation has thus been replaced by a value driven approach which means that laws are scrutinized in the light of a system of supreme values. The South African Constitutional Court repeatedly emphasized the value driven nature of modern constitutional interpretation in State v. Makwanyane, as opposed to a literal textual approach. This means, according to Judge O’ Regan, that the Constitution is interpreted in terms of the foundational values of the Constitution, and, in addition, that the Court is seeking to promote values that can create an open and democratic society in contrast to South Africa’s repressive past.23 Judge Kriegler stated that the judicial process cannot operate in an ethical vacuum.24 Judicial concepts such as ‘good faith’ or ‘reasonable’ are founded upon value judgments. According to Judge Mokgoro, constitutional interpretation frequently involves making constitutional choices by balancing competing fundamental rights and freedoms.25 This can often only be done by reference to a system of values extraneous to the constitutional text itself. The Constitution makes it, according to Mokgoro, imperative for courts to develop the entrenched fundamental rights in terms of a cohesive set of values, ideal to an open and democratic society. In doing this, courts must seek guidance in international norms and foreign jurisprudence. However, indigeneous South African values are neither irrelevant nor unrelated to this task. Mokgoro then states: “I am of the view that our own indigeneous value systems are a premise from which we need to proceed and are not wholly unrelated to our goal of a society based on freedom and equality.”26 Judge Sachs supported the view of Mokgoro by saying that the Court needs to take into account the traditions, beliefs, and values of all sectors of South African society in developing jurisprudence.27

22

G. Van der Schyff, “The Right to Freedom of Religion in South Africa,” (Johannesburg: Rand Afrikaans University, LL.M, 2001), 28. 23 State v. Makwanyane, par 31. 24 State v. Makwanyane, par 207. 25 State v. Makwanyane, par 302. 26 State v. Makwanyane, par 304. 27 State v. Makwanyane, par 361.

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Although the Court theoretically recognized the importance of a value laden and contextual approach to constitutional interpretation, the Court never succeeded in developing a cohesive set of ideals indigenous to South Africa that can give content to constitutional rights and help to create an open and democratic society. Despite the finding of the 1991 census that 70% of the South African population professed to have religious affiliations, 94.5 percent of whom are Christian, and that only 1.2% of the population stated that they have no religious inclination, the Court opted for the secular, Western understanding of constitutional rights.28 Although the African concept of ubuntu29 was introduced into South African constitutional law by the post-amble to the interim-Constitution and was discussed in the Makwanyane case, it was not developed further in subsequent cases, nor included in the final Constitution.30 South African constitutionalism is, instead, overwhelmingly influenced by liberal Enlightenment morality. The constitutional principles contained in the interim Constitution stated that the new Constitutional text must contain universally accepted fundamental rights.31 In accordance with this norm, the Court defined rights as being the “inalienable entitlements of all people.”32 In State v. Makwanyane, Judge Sachs stated that constitutionalism is a product of the age of Enlightenment.33 It bases itself on the twin propositions that all persons have certain inherent rights that came with their humanity, and that no one has a God-given right to rule over others. In a similar vein, Judge Ackermann remarked in State v. Dodo that “human beings are creatures with inherent and infinite worth, they ought to be treated as ends in themselves, never merely as means to an end.”34 In State v. Makwanyane there was general agreement among the judges that the death penalty should be abolished because the right to life is inalien-

28 L.M. Du Plessis, “Religious human rights in South Africa,” in Van der Vyver & Witte, Religious Human Rights, 442. 29 Ubuntu recognizes a person’s status as a human being, entitled to unconditional respect, dignity, value, and acceptance from the members of the community. It also stresses the corresponding duty that a person has to respect the dignity of each other member in the community. 30 I.J. Kroeze, “Doing things with values ii: the case of ubuntu,” Stellenbosch Law Review, 2, (2002), 252. 31 Certification of the Constitution of the Republic of South Africa, par. 49. 32 Certification of the Constitution of the Republic of South Africa, par. 50. 33 State v. Makwanyane, par. 389. 34 State v. Dodo, par. 3.

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able. No person, not even a criminal, can be devoid of all rights vested in him.35 Although the abolition of the death penalty should be welcomed for a variety of reasons, it is clear that the Court adopted the Enlightenment notion of rights as the inherent inalienable entitlements of the human being that is grounded in the rational nature of man. This notion of the origin of rights and their inalienability played a decisive role in the abolition of the death penalty. In Christian Lawyers Association of South Africa v. Minister of Health and others, the constitutionality of the Choice on Termination of Pregnancy Act 72 of 1996 came under scrutiny in the Transvaal High Court. The plaintiffs claimed that the Act was in conflict with section 11 of the Constitution that provides that everyone has the right to life. Judge McGreath stated that the issue is a purely legal one, and that it cannot be decided on any religious or philosophical grounds.36 Thereby, he not only denounced religion as an irrational social force that should be relegated to the private sphere of life, but also denied that all laws are based upon philosophical convictions. Judge McGreath came to the conclusion that the concerned Act is not unconstitutional because the term everyone in section 11 could not include the unborn child.37 There is no express provision that affords the fetus legal protection.38 The question is not whether the fetus is human, but whether he/she has a legal personality.39 Section 12(2) furthermore provides that everyone has the right to make decisions concerning reproduction and to security in and control over the body. Nowhere in the Constitution are these rights qualified.40 Finally, Judge McGreath stated that in many foreign jurisdictions the fetus could not have any right of its own at least until it had been born and had achieved a separate existence from the mother.41 Yet again, enlightenment morality that grounds rights in the rational nature of humanity played a significant role in the final decision of the Court. The fetus may be human, but he/she has no legal rights since he/she is not a rational entity. The Court referred to internationally accepted norms, but discarded the religious and philosophical 35 36 37 38 39 40 41

State v. Dodo, par. 26, 137. State v. Dodo, par. 1438, D. State v. Dodo, par. 1438, A. State v. Dodo, par. 1441, G. State v. Dodo, par. 1441, J. State v. Dodo, par. 1442, A. State v. Dodo, par. 1444, 1445.

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objections that sectors of the South African society might have against abortion, and also discarded the fact that South Africa is a highly religious society that, in general, is strongly opposed to abortion. While many religious people in South Africa might not agree with the abolition of the death penalty, they also will not find it totally unacceptable. Abortion, in contrast, is totally unacceptable to most religious people. The Court’s understanding of human dignity as an inherent characteristic of humanity that is the origin of all other rights also had a profound influence on equality jurisprudence in South Africa. Unfair discrimination is defined in Prinsloo v. Van der Linde as “treating human beings in a way which impairs their fundamental human dignity as human beings, who are inherent equal in dignity.”42 Unfair discrimination, according to Judges O’ Regan, Ackermann, and Sachs, takes place when a person is discriminated against on the basis of any inherent personal or physical attribute that is unchangeable and over which the individual has no control.43 In President of the Republic of South Africa v. Hugo the Court mentioned that unchangeable attributes are not the only criteria for unfair discrimination.44 Characteristics that belong to the core of an individual’s identity—such as gender and sexual orientation, which are not necessarily biologically determined but can be social constructs—are also decisive factors in determining whether a form of discrimination is unfair. In accordance with this definition of unfair discrimination the Court found in Minister of Home Affairs and another v. Fourie and another that the common law definition of marriage is inconsistent with the constitutional provisions on equality and human dignity and invalid to the extent that it does not allow same-sex couples to enjoy marital status.45 According to Judge Sachs, courts would be placed in an intolerable position if they were called upon to construe religious texts. The religious sentiments of some cannot be employed as a guide to the constitutional rights of others.46 The Court ordered that the legislature must redefine the institution of marriage so as to include same-sex

42 43 44 45 46

Prinsloo v. Van der Linde, par. 31. Prinsloo v. Van der Linde, par. 31. President of the Republic of South Africa v. Hugo, par. 80. Minister of Home Affairs and another v. Fourie and another, par. 114. Minister of Home Affairs and another v. Fourie and another, par. 92.

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couples.47 Judge Sachs stated that it is the task of the legislature to promote equality by creating a greater degree of public acceptance for same-sex marriages.48 The result of the Court’s decision is that an institution that is very important to religious groups is redefined without taking the values of religious groups adequately into account. The legal redefinition of marriage has far reaching moral implications for the South African society since it pertains to matters such as adoption of children and family life in general. The content that the Constitutional Court gave to the foundational value of freedom was also strongly influenced by Enlightenment morality. According to the Constitutional Court, freedom is closely related to human dignity. In Ferreira v. Levin, Judge Ackermann stated, “Human dignity has little value without freedom, for without freedom personal development and fulfillment are not possible. Without freedom human dignity is little more than abstraction. Freedom and dignity are inseperably linked.”49 Since human dignity is an inherent, inalienable entitlement of every human being, freedom is intrinsically part of being human. Judge Ackermann quoted Immanuel Kant in this regard: “Freedom (independence from the constraint of another’s will), insofar as it is compatible with the freedom of everyone else in accordance with universal law, is the one sole and original right that belongs to every human being by virtue of his humanity.”50 Inherent dignity implies that every person has an inherent individual autonomy and freedom to self realization.51 Individual autonomy is closely related to the right of self determination. Judge Ackermann defined individual autonomy as “freedom of the constraint of another’s will.”52 She furthermore stated that freedom must be defined negatively as the right of “individuals not to have obstacles to possible choices and activities placed in their way.”53 Freedom and individual autonomy must be limited when freedom and individual autonomy becomes self-destructive and endangers the common good.54 Certain

47 48 49 50 51 52 53 54

Minister of Home Affairs and another v. Fourie and another, par. 102. Minister of Home Affairs and another v. Fourie and another, par. 139. Ferreira v. Levin, par. 49. Ferreira v. Levin, par. 52. Ferreira v. Levin, par. 50, 51. Ferreira v. Levin, par. 52. Ferreira v. Levin, par. 54. Bernstein v. Bester, par. 150.

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spheres of individual autonomy are inalienable, such as the right to physical security. However, when the individual enters the public sphere the scope of personal freedom shrinks accordingly.55 The right to self realization entails, according to the Court, that every individual has the right to develop his own identity. Individuals must be free to pursue broadly their own personal development and fulfillment and their own conception of the good life.56 In Ferreira v Levin, Judge Ackermann relates self-realization to the inherent dignity of every person: “An individual’s human dignity cannot be full respected or valued unless the individual is permitted to develop his or unique talents optimally.”57 It is clear from the abovementioned that the Constitutional Court’s definition of freedom is strongly influenced by the liberal Enlightenment. Freedom is defined as the inherent right of the autonomous individual to self determination. It is also negatively defined as ‘freedom of the constraint of other,’ as opposed to the positive religious concepts of freedom as a ‘freedom for others.’ The implications of this negative definition of freedom are clearly illustrated in Curtis v. Minister of Safety and Security and others. In this case, the constitutionality of Act 37 of 1967 that prohibited the possession of indecent photographic matter was scrutinized. The Court found that no person can be prohibited from possessing sexually explicit or pornographic material, although the right to possess pornographic material could be limited in certain instances. According to Judge Mokgoro, the prohibition of the possession of pornographic material would jeopardize the right to free speech that is a sine qua non for every person’s right to realize her or his full potential as a human being, free of the imposition of heteronomous power.58 Judge Didcott also stated: “What erotic material I may choose to keep within the privacy of my home, and only for private use there, is nobody’s business but mine.”59 Once again the Court took a decision that contributed to the secularization of South African society using the negative Enlightenment concept of freedom without taking the general values of South African

55 56 57 58 59

Bernstein v. Bester, par. 67. Ferreira v. Levin, par. 50. Ferreira v. Levin, par. 49. Curtis v. Minister of Safety and Security and others, par. 26. Curtis v. Minister of Safety and Security and others, par. 91.

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society adequately into account. Since 1994 the sex industry has considerably grown in South Africa; pornography is widely available, and is even shown on state television. This occurred despite the HIV crisis in South Africa. The HIV pandemic has shown that the distinction between public and private morality is artificial. Private sexual mores have implications for public health and public morality. The negative freedom concept of liberal morality leads to a culture of individualism and detachment from families, traditions, and institutions of society because the responsibilities of the individual towards the community are underemphasized. Moltmann correctly states: Wherever the modern world spreads, people lose their individual identity and with it their culture and morality. The social ties shaped by their tradition, such as the family, are dissolving. The freedom of the individual and his or her free associations are taking their place. But can a multiplicity of options where ‘anything goes,’ take the place of binding community and binding norms? Pluralism without community is undoubtedly anarchy, and a culture of narcissism in which everyone thinks of himself destroys life.60

Religious Education A second factor that inhibits true religious freedom in South Africa and imposes secular values on society is the government’s policy on religious education. The religious education policy is not only applicable to public schools, but—according to paragraph 16 of the policy—also to private schools. It is presented as an example of state neutrality in religious matters. Yet this neutral policy is based on certain secular propositions and has clear political motives.61 The policy states that religious education is driven by the dual mandate of celebrating diversity and building national unity. Religious education must contribute to the creation of an integrated educational community that affirms unity in diversity. It must create common values, enable learners to discover their common humanity, and encourage pupils to think in terms of a new national unity. It ought to create a civic understanding of religion and promote core values of a

60 61

Moltmann, God for a secular society, 218. Malherbe, “Some Critical Questions,” 16.

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democratic society.62 The policy expects learners to critically assess different religions, evaluate the way in which each religion can contribute to nation building, and to internalize common values.63 The implication is that learners will have to compare religions from a neutral point of departure, and not a religious perspective. This approach to religious education is problematic for various reasons. First, religion is approached from the humanistic perspective that religion is a human endeavor and that the value of religions is measured in terms of their contribution to human society. Second, the aim of the policy is clearly political. Religion must be a servant of the new national identity and new political dispensation. It must promote values that are determined by the state. Third, it enforces a form of civil religion on learners that contradicts the constitutional principle of religious freedom. The state has no constitutional right to prescribe to its citizens how religion should be evaluated. By doing this, the state relativizes the religious beliefs of its citizens and subjects their beliefs to a state determined secular ideology.64 Coertzen correctly remarks that the constitutional principle of religious freedom will be meaningless if it is not transcribed to all applicable fields of law and specifically to the area of religious education.65 Summary Although the South Africa Constitution protects religious freedom and does not erect a strict wall of separation between church and state, the South African society has experienced a rapid process of secularization since 1994. This is partly due to the fact that the Constitutional Court did not develop an inclusive framework of jurisprudence that articulates the values of all sectors of society. Instead, constitutional jurisprudence has been founded upon secular enlightenment morality, leading to the marginalization and privatization of religious values. Religion is more than a creed or cult. It entails a worldview that is inextricably part of every facet of the religious person’s life. When religion is

62 National Policy on Religion and Education, 2003: par. 8, 14, 10, 21, 25, 26 28, 68, 70. 63 National Policy on Religion and Education, 2003: par. 8, 17, 25, 31. 64 Malherbe, “Enkele kwelvrae,” 20. 65 P. Coertzen, “Freedom of religion and religious education in a pluralist society,” in Nederduitse Gereformeerde Teologiese Tydskrif, 2002, 43(1–2), 195.

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privatized, it loses its distinctive features. This illustrates the important point that the debate on religious freedom cannot be separated from the debate on the morality that underlies constitutionalism. Second, the state infringed on the constitutional right to religious freedom by enforcing a state determined ideology on learners through religious education. This emphasizes the necessity of transcribing the constitutional principle of religious freedom to all areas of applicable law.

Responding to the Problem In response to the problem, the following principles can be helpful in protecting religious freedom in a pluralist society: 1. Accommodating religion in the public realm. Because religion is an important source of values, it must be an indispensable ally in the struggle for human rights. An exclusive form of neutrality that leads to the privatization and marginalization of religion will effect the dignity of religious people negatively and will enhance social discord. The rise of religious fundamentalism, as a reaction against the essence and values of the modern era and the world of Western civilization, is a stark reminder of this.66 An inclusive approach that utilizes the unique resources of religion is vital for the enhancement of human rights.67 According to Durham, religious liberty is maximized the most in countries where governments retain a posture of accommodation towards religions.68 This entails recognition of the importance of religion and active public co-operation with religions in a non-preferential way. In a religious country, such as South Africa, more recognition should be given to the importance of religion as part of national culture in constitutional jurisprudence. A certain symbiosis between law and religion is unavoidable. 2. Balancing individualism and communalism. Witte correctly states that the individualist orientation of human rights norms that are grounded in the Enlightenment and post-enlightenment reasoning

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Moltmann, God for a secular society, 209. Witte, “Introduction,” xix. Durham, “Perspectives,” 24.

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must be balanced by the communal definitions of human rights that are recognized by all three of the major book religions.69 The freedom of human persons cannot be safeguarded by increasing individualism because a free society is not a collection of private individuals, but is a community in solidarity.70 This is also true for religious rights. Religious freedom should not only protect the individual’s right to worship, profess, or change his religion, but it should also include the rights of religious associations to organize, assemble, worship, and enforce certain religious laws, of parents to rear and educate their children according to their religious beliefs, and religious schools to educate children according to the basic norms of their religious traditions.71 3. Relating rights and responsibilities. Witte remarks that religious rights have been deprecated over the past three decades in favor of other more important rights.72 This deprecation has impoverished the general theory of human rights by cutting rights from their roots and abstracting rights from responsibilities. Although it is difficult to codify duties and responsibilities in judicial documents, it is important that a culture of responsibilities that coincide with the exercise of rights should be nurtured in societies. Religions can play an important role in this regard. Stackhouse and Healey correctly state that the freedom and vitality of religion depends on human rights, while the viability of human rights depend on the extent of certain kinds of religious influence.73 4. Contextualizing human rights. The concept of human rights stands in the modern world as a set of universalistic ethical norms that state ideals for all human societies. They identify first principles and goals by which the community of nations may legitimate various legal systems and limit the use of state power.74 However, it is important that modern constitutionalism should guard against the imposition of alien values on society in the name of universal

69

Witte, “Introduction,” xxvi. Moltmann, God for a secular society, 156. 71 Witte, “Introduction,” xxvi. 72 Witte, “Introduction,” xxxii. 73 Stackhouse, M. & Healey, S.E. “Religion and human rights: A theological apologetic,” in Van der Vyver, J.D. & Witte, J. (Eds.), Religious human rights in global perspective, Religious perspectives, (Boston: Marthinus Nijhoff, 1996), 485. 74 Stackhouse, M. & Healey, S.E. “Religion and human rights: A theological apologetic,” 485. 70

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values. There exist no such things as absolute universal values based on political expediency alone, without any philosophical or theological basis. Human rights norms cannot remain abstract ideals. Communities and institutions need to give them content, coherence, and concrete manifestation.75 Allowance should be made for particularities that attend to cultural, ethnic, or religious varieties.76 The codification of one or two interpretations of rights within a pluralist environment can be very harmful.77 Some form of inclusive minimum ethical consensus is, therefore, needed in society. Witte correctly states: Legal scholars cannot continue to discuss religious rights statutes and cases in isolation from the profound theological implications of their enquiries; theologians cannot continue to propound abstract theological statements and confessions on rights without attention to their practical implementation and effect.78

In the last section of this chapter, I will attempt to respond to Witte’s remark by discussing certain Christian concepts that could be helpful in human rights discourse and constitutional jurisprudence.

Christianity and the Human Rights Discourse It is important to note that not all Christian concepts of rights are judicially or universally applicable. Although constitutional jurisprudence must articulate the common values of a country, it also has the task to protect minority sentiments and the right of people to be different. Homosexual behavior, for instance, cannot be criminalized simply because the majority of a country opposes such behavior. The test whether the majority or minority position ought to be upheld depends, in the South African case, on whether the measure under scrutiny promotes an open and democratic society based on human dignity, equality, and freedom.79 Some Christian human rights theories might not survive such scrutiny. Yet there are certain Christian human rights concepts that can enrich the human rights discourse and can be 75 76 77 78 79

Witte, “Introduction,” xviii. Van der Vyver, “Introduction,” xiv. Witte, “Introduction,” xxix. Witte, “Introduction,” xxxiv. Constitution of the Republic of South Africa, section 39 (1.a.).

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translated to the public realm by constitutional jurisprudence, without imposing metaphysical notions on society. Although Christianity in South Africa is diverse in nature with regard to doctrinal confessions, there is general agreement among Christians about the core values of Christianity and the ethical values that need to be protected in the public sphere. This is illustrated by the high levels of ecumenical dialogue and co-operation between churches in South Africa. The following Christian concepts of rights might enrich the human rights discourse: 1. Rights are human relationships that are institutionally defined. In the Christian faith rights are generally founded upon man’s image of God. The term image of God is a relational concept that denotes the structural possibilities of human beings. It entails that God has created man to stand in a relationship with himself, his fellow human beings, and the earth.80 Because all human beings are created in the image of God, the universal dignity of all people should be respected.81 Rights are not based on the cognitive capacities of the autonomous individual, but are relationships that are institutionally defined in order to promote justice and serve the common good. A right indicates a claim that a person has to the common good, justice, love, and a dignified and peaceful existence. If a right undermines the common good, it cannot be seen as a valid right claim. For a right claim to be valid, it must necessitate a corresponding duty that can be exercised in correlation with the right claim. The implication is that individual and social rights are closely related. The classic liberal approach leads to strain between individual and social rights because not all individual rights are necessarily good for the community. Pornography, for example, is legalized in the Western society for the sake of freedom of expression—although it undermines public morality. The result of the underemphasis of responsibility is moral deformation. 2. Emphasis on life. Humanity’s image of God supposes a fundamental right to life. Only God has the right to take life. Without life humans cannot reflect God’s image. Genesis 9:6 prohibits manslaughter because it destroys the likeness of humans to God. When

80 81

Gen. 1:26–28. Gen. 9:5; Ps. 8.

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one human takes the life of another, he/she plays god, and he/she destroys God’s property. Life is also an important theme in the New Testament. Christ came to earth to bring new life to humanity.82 He conquered the powers of sin and death and restores humanity’s image of God through his Holy Spirit. The Christian concept of rights will not allow for practices such as abortion on demand or euthanasia. The judicial implication of this is that legal personhood will apply to a person from the moment of conception and not from the moment of birth. 3. Love and justice regulate the exercise of rights. Respect for the image of God in fellow human beings coincides with the principles of love and justice. Love binds individuals into a community. According to Jesus, love entails that you treat your neighbor as you would like yourself to be treated.83 True love extends to all people, even your enemy.84 It does not only pertain to close relationships, but coincides with a general humanity towards all people.85 However, love must always be complemented with justice. God’s kingdom is described in the New Testament as a kingdom of justice.86 The search for the justice of God’s kingdom takes place within the cadre of love. Since God is love, love is the most important instrument in God’s acts of justice. Without love there can be no justice, while true love will always be an instrument of justice.87 Love is the fundamental motive on the basis of which power must be exercised.88 In the Old Testament social justice is specifically the task of the king that acts as go-between between God and his covenant people. He is the go-between between God’s ‫ קּדּצּ‬and ‫טּפּשּׁמּ‬, on the one hand, and man’s ‫ קּדּצּ‬and ‫טּפּשּׁמּ‬, on the other hand.89 Social justice is closely related in the Bible to the rights of the weak. In the Pentateuch, various laws are found that protect the rights of the weak members of society. Jurisprudence had to maintain human dignity 82

Jn. 10:10. Lk. 6:31. 84 Matt. 5:44. 85 See Eph. 5:2; Rom. 12:1; Phil. 2:1–2. 86 Rom. 14:17; Matt. 5:10. 87 D. Du Toit, “A Christian View on Human Rights” (‘n Christelike beskouing van mensregte), In die Skriflig, 25/4, (1991), 446. 88 H. Thielicke, Theological ethics, vol. 2, “Politics,” (Philadelphia: Fortress Press, 1969), 242. 89 W.J. Wessels, “Social Justice: A Perspective from the Book of Jeremiah” (Sosiale geregtigheid: ’n Perspektief uit die Jeremiaboek), in Skrif en Kerk, 13/1, (1992), 83. 83

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by protecting the rights of the vulnerable and maintaining justice in jurisprudence, economy, taxes, and in general government. In the New Testament, the kingdom of God focuses on the poor, the sick, and the weaker members of any given society. It publicly brings to light the people whom society pushes into the underground or into private life.90 The Christian concept of rights will place particular emphasis on the rights of the weak members of society. Love and justice can be important regulative principles in jurisprudence. 4. A positive concept of freedom. Humanity’s likeness to God means that they can live in a humanitarian manner. In Genesis 1:27 it is specifically mentioned that God created humans as male and female. This expression indicates that humans are social beings that live in communion.91 Interhuman interaction and humanitarian relationships form an essential part of being human. Just as male and female can live in a relationship with each other, humans can enter other social relationships as well.92 When a person is prohibited from having part in interhuman interaction—communicating freely, associating freely, expressing him or herself, procreating, having family relations, or loving—his/her dignity is impaired.93 Humanity’s creation as social beings presupposes a right to freedom and equality. One can only realize him or herself within social relationships when he/she has a certain freedom, which includes the right to self-realization, association, and expression. At the same time, one has the responsibility to respect another fellow human beings’ God-given right to freedom and self-realization. Freedom is never an end in itself, but is always co-determined by the will of God and the interests of the fellow human being—so that free responsibility and responsible freedom always go together.94 The Christian concept of freedom can help provide a more positive content to the foundational constitutional value of freedom. The Christian idea 90

Moltmann, God for a secular society, 253. See: Luke 4:18–19, 6:20. Y. Dreyer, “The Female as Image of God. Part 1: A Historical Perspective” (Vrou as beeld van God Deel 1: ’n Historiese ondersoek), in Hervormde Teologiese Studies, 56/2–3, (2000), 675. 92 G.C. Berkouwer, The Human as Image of God (De mens het beeld Gods), (Kampen: Kok, 1957) 195, and K. Barth, Church Dogmatics III/2, (Edinburgh: T&T Clark, 1960), 228. 93 N. Vorster, “Church and human rights within a Constitutional State” (Kerk en menseregte binne ’n regstaat) (Potchefstroom: PSP, 2003), 288. 94 J.A. Van Wyk, “Ethics and Human Rights” (Etiek en menseregte), In die Skriflig, 21/81, (1987), 36. 91

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of freedom is not ‘freedom from others,’ but ‘freedom for others.’ The freedom of the individual must always serve the freedom of the community. One of the weaknesses in Enlightenment morality is the illusion that the individual will necessarily make choices that serve the common good, since he/she has a rational capacity. 5. Emphasis on ecological rights. In Genesis 1:28 the description of man’s creation in the image of God is followed by the calling to be fruitful and rule over creation. Rule does is not imply that humans can exploit creation; but rather, that humans stands in a relationship with creation and as God’s representative should maintain, rule, and look after it. By calling humanity as stewards, God grants the human a certain freedom to realize him or herself. The right to work is, therefore, an integral part of humanity’s dignity. Inhuman work circumstances, poverty, the denial of basic economic rights, economic exploitation, restraint of access to natural resources, etc. is an essential impairment of humanity’s likeness to God.95 At the same time, these rights should correlate with respect for God’s creation. Environmental conservation should, therefore, have a central position in any Christian ethic.

Conclusion Religion is one of the principal sources of the values and practices of civilized society. Unfortunately, in modern constitutionalism religion is often considered as an irrational and regressive social force that must be confined strictly to private life—in order to avoid social division, violence, and anarchy. Public life is seen as the realm of objective secular discourse, protected from the irrationality and subjectivity of faith.96 Such an approach is becoming increasingly unsustainable because the notion of neutrality is itself an ideological concept that is determined by a humanistic philosophical worldview. Tierney correctly states that it would be dangerous to inflate Western concepts into universal values, and then assume without question that such

95 J. Moltmann, On human dignity, Political theology and ethics, trans. from the German by M.D. Meeks, (London: SCM Press, 1984), 27. 96 P. Fourie, “The South African Constitution and religious freedom: Perverter or preserver of religion’s contribution to the public debate on morality,” in Scriptura, 82, (2003), 98.

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value are valid for all societies—regardless of their histories and cultures.97 Human rights will only become a truly universal concept, and religious freedom will only be truly realized when the importance of religion as a source of morality is recognized and incorporated in the human rights discourse.

97 B. Tierney, “Religious rights: an historical perspective,” in Van der Vyver & Witte, Religious Human Rights, 105.

‘FREEDOM OF RELIGION’ IN INDONESIA: SOME THOUGHTS FROM AN INTERNATIONAL PERSPECTIVE Huub Lems

Introduction Indonesia, with an estimated current population of 245 million, is not only a highly populated country but also the country with the largest Muslim community in the world. Demographers count almost ninety percent of Indonesians as Muslims, although precise figures are lacking. While Indonesia’s vast majority do adhere to Islam, the country is not an Islamic state. This is not to say that freedom of religion has not been on the agenda in Indonesia. It certainly has been, and it increasingly is and will be. But the national debate on the issue has varied in its intensity. The Jakarta Charter debate at the start of Indonesia’s independence, as a first example of this national conversation, settled on the choice of Pancasila as the state philosophy instead of positioning the country as an Islamic state. However, the regulations from the Ministry of Religious Affairs in the 1970s and the Law on Civil Organisations in the 1980s; the response or lack of response when religion was used as instrument for violence in Ambon, Halmahera, and Poso in the 1990s; and the closing of church buildings during recent years all reflect the way ‘freedom of religion’ has been considered in Indonesia. The present article provides input on several aspects of this extremely complex human right. This complexity contains elements of law (both national and international ), political science, social and cultural aspects, and of course religion—in general, but mission studies in particular. Part I elaborates on freedom of religion as it developed and has been understood as a human right in international law. Western and Islamic interpretations of human rights differ, with consequences for Indonesian interpretation. Part II focuses on the special case of Indonesia. I will examine the ongoing discussion as to whether or not the country should be an Islamic state, starting with the Jakarta Charter debate at the time of the country’s independence. Part III offers some

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reflections on the current situation and the possible roads to take with respect to this recurring issue in connection with the state’s chosen ideology and principles of philosophy.

International Law The atrocities during the Second World War gave impetus to human rights as a matter of international law.1 This concern was heralded by the ‘four freedoms’ (freedom of speech and expression, freedom of religion, freedom from economic want, freedom from fear of aggression) listed as the foreign policy goals of the United States in a message to Congress by President Roosevelt in 1941, and which were included in the Atlantic Charter.2 The goals of the United Nations listed in Article 1 of the UN Charter were based on the Atlantic Charter, and therefore include the promotion and encouragement of respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.3 The concept of human (or fundamental ) rights is certainly a dynamic one and has been subject to change and expansion—as can be seen from the constitutional history of Western states. But it is important to retain the essence of the concept, which is that every individual has certain inalienable and legally enforceable rights protecting him or her against state interference and the abuse of power by governments. Among these civil rights and fundamental freedoms are freedom of speech and freedom of religion. These civil rights in the sense of individual freedoms from state interference form what is now called the first generation of human rights.4 The Universal Declaration of Human Rights was adopted in 1948.5 Article 18 of this Declaration reads: “Everyone has the right to free1 Peter Malanczuk, Akehurst’s Modern Introduction to International Law, 7th revised edition (London: Routledge, 1999). 2 Samuel Rosenman, (ed.), Public Papers and Addresses of Franklin D. Roosevelt, vol. 10, (New York: Random House, 1950), 314. 3 UN Charter (San Francisco 26-06-1945)—see also Article 55 under c where the UN is explicitly given the task to promote this respect. 4 As civil rights form the first generation, social rights (for instance, the right to education) form the second generation, whereas the third generation, according to some advocates, is formed by rights to clean environment, development, etc. 5 Universal Declaration of Human Rights, (New York: United Nations), adopted and proclaimed by General Assembly UN resolution 217 A (III) of 10 December 1948

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dom of thought, conscience and religion; this right includes freedom to change his religion or belief. And freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” Indonesia has become party to both the UN and the Universal Declaration of Human Rights. The 1966 International Covenant on Civil and Political Rights6 has recently been signed by the Republic of Indonesia.7 This Covenant, together with its counterpart the International Covenant on Economic, Social and Cultural Rights, is seen as the best international treaty on first- and second-generation human rights. For international political reasons Indonesia has decided to underwrite it. This 1966 Covenant certainly has furnished some mechanisms to review the actual human rights position of Indonesia. Article 18 reads: (1) everyone shall have the right of freedom, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. (2) No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. (3) Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. (4) the States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

From what has been quoted here, it will be apparent that in fact there are two roles for a government to ensure religious freedom. The one is to ensure freedom of religion; the other being the protection from discrimination based on religious grounds. The Covenant’s phrasing also permits law to restrict religious freedom. However, such restriction is sustained on certain legal grounds only: it must be necessary to protect public safety, order, health, or

with 48 votes in favour and 8 abstentions (the Communist countries, Saudi Arabia, and South Africa). 6 International Covenant on Civil and Political Rights,(New York: United Nations, 19 December 1966). 7 Law no. 12/2005 (Republic of Indonesia) on the ratification of ICCPR.

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morals, or the fundamental rights and freedoms of others. One of the key questions therefore is how to understand the aspect of freedom to adopt a religion or belief of his choice. In Western thinking it will not only mean to change from irreligion to religion, but also to convert and change from one religion to another. In other words, is mission allowed or not for propagating religions like Islam and Christianity? This issue, among others, is at the center of the national debate in Indonesia, as will be shown in the following pages.

The Understanding of Freedom of Religion in International Law in Different Cultures Roland Minnerath, a member of the Catholic Theological Faculty of Strasbourg, has important remarks concerning the international law approach to—among other issues—freedom of religion. I quote a substantial part of his paper: When the modern juridical instruments on human rights began to be elaborated, it was obvious that freedom of religion would be included and solemnly upheld. Was religious freedom not a basic right, inherent to the dignity of the human being, finding its roots in the depth of conscience and growing through its social dimension into the public sphere? This approach, perfectly coherent with Western history marked by Christianity and the Enlightenment, may not have been the point of view of other cultures. But this raises the question of the effectiveness of international standards in matters of religious freedom. When the Universal Declaration of Human Rights was proclaimed in 1948, there were only 60 states to sign it. Nearly 20 years later, when the International Covenant on Civil and Political Rights was adopted (1966), the number of states had nearly doubled. For the first time, African and Asian nations emerging from colonization could have their voices heard; and a change could be discerned in the apprehension of what freedom of religion is about. While article 18 of the Declaration of 1948 combined two streams of Western thought—the Christian tradition and the Enlightenment tradition—both clearly considered the right to change one’s religion in the social and legal sphere as a part of religious freedom. The clause specifying that religious freedom “includes freedom to change [one’s] religion or belief ” was adopted in spite of the attempts by Yemen, Saudi Arabia and Afghanistan to have it suppressed because Islamic law strongly forbids changing religion. For many cultures in which religion is indistinctly mingled with ethnic, national and other social bonds, changing one’s religion did not seem obvious, but rather threatening. As a result, what international law says

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is not always internationally accepted. This is evident from the discussions within the UN in 1966 and 1981. In 1966, when the International Covenant was under discussion, Saudi Arabia and Pakistan opposed the inclusion of the phrase “freedom to change one’s religion or belief ”. After a long negotiation the general assembly adopted the proposal of Britain and Brazil that the reference be made to the “freedom to have or to adopt a religion or belief of [one’s] choice”. Thus conversion from no religion to a religion was allowed, while abandoning the former religion was not mentioned. In 1981, the general assembly promulgated the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief after long hesitations—which highlighted the rift between Western states, on the one hand, and Islamic and communist states, on the other. In particular, the 40 Islamic states demanded suppression of the wording of 1966 and of the reference to the “right to change one’s religion” in the preamble. The latter had to be definitively cancelled, while the formula “to adopt a religion’ ” was also suppressed. Thus article I,1 reads: “This right shall include freedom to have a religion or whatever belief of [one’s] choice.” Religion appears as something static: one has a native religion, just as one has a nationality. Abandoning one’s own religion or adopting another is not mentioned. As a compensation, the Western countries obtained agreement that the final article (8) of the Declaration would specify that “nothing in the present Declaration shall be construed as restricting or derogating” from any right defined in the instruments of 1948 and 1966! After the adoption of the Declaration by general consensus, Iraq protested against it in the name of the Organization of the Islamic Conference and reported that it would only be implemented if it would not contradict the shari’ah or Islamic religious law. We might thus observe that there is no consensus at an international level about what is really meant by religious freedom; therefore, national legislation can continue to treat proselytism as either a right or a crime.8

A very recent example of this lack of consensus is the case of Mister Abdul Rahman in Afghanistan. Rahman received a death sentence due to the fact that he had changed his faith from Islam to Christianity. The Western countries protested. For instance, the Protestant Church in the Netherlands together with two Dutch Muslim organizations (Islam Liaison Group and Muslims and Government Liaison Committee) wrote a letter of protest to the Consul General of Afghanistan in the Netherlands, urging the Afghan Government to end the prosecution

8 Roland Minnerath, “Church/State Relations. Religious Freedom and Proselytism,” The Ecumenical Review 50/4 (1998), 435–436 World Council of Churches, Geneva.

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and prevent Rahman’s execution. I quote: “We define freedom of religion as the right of each individual to choose a religion according to his or her own conviction.”9

An Indonesian View of Human Rights In 1998 Ali Alatas, then Indonesia’s Minister of Foreign Affairs, stated an Indonesian view of human rights, which raises some interesting points regarding our subject.10 Alatas refers to what has become known as the Bangkok Declaration on Human Rights, which contains the aspirations and commitments of the Asian region in this field.11 He denies the clash of values between the developed countries and advocates a concept of human rights that gives prominence to political rights and the developing countries, mostly of East Asia. He propounds a purportedly ‘dissident’ view that emphasizes both the need to take into account the diversity of socio-economic, cultural and political realities in each country and the indivisibility of all categories of human rights. He defends the Bangkok Declaration by stressing the fact that Indonesia confirms its seriousness to act in line with the UN Charter and the Universal Declaration on Human Rights as well as the Vienna Declaration and Programme of Action adopted in 1993.12 Based on these commitments, the observance and promotion of human rights “should be encouraged by cooperation and consensus, and not through confrontation and the imposition of incompatible values.”13 In what follows, he sketches the conflicting views as well as his own opinion on overcoming these differences. He continues: And while it may be true that the theoretical basis for the concept of human rights as embodied in the UN Charter and the Universal 9 Letter by the Protestant Church in the Netherlands, Islam Liaison Group and Muslim and Government Liaison Committee dated March 24, 2006 directed to Consulate General of Afghanistan in the Netherlands. 10 Ali Alatas, An Indonesian View on Human Rights: Ali Alatas, Reflections on the Universal Declaration on Human Rights—Fiftieth Anniversary Anthology (1998), edited by Barend van de Heyden and Bahia Tahzib-Lie, Netherlands, Ministry of Foreign Affairs, The Hague. See also www.indonesia.nl articles. 11 The Asian Intergovernmental Meeting, Bangkok, 29 March to 2 April 1993, adopting the Bangkok Declaration. 12 General Assembly of the United Nations, World Conference on Human Rights, Vienna Declaration and Programme of Action, Vienna, 14–25 June 1993. 13 Alatas, An Indonesian View on Human Rights.

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Declaration of Human Rights was first conceived in the West, it is neither unknown nor unappreciated in the countries of Asia and Africa. We in Indonesia are well aware that this concept sprang from the libertarian writings of such European political and legal thinkers as Thomas Hobbes, John Locke, Montesquieu, Jean Jacques Rousseau, Cesare Beccaria, and John Stuart Mill—and from their idea of a ‘social contract’ and of the inherent, natural rights of individuals vis-à-vis the powers of the state and the attendant civil and political rights of the citizen. And these were among the ideas that inspired the struggle of many new nations in Asia and Africa to cast off the yoke of colonialism, just as they helped ignite, in all earlier age, the French and American revolutions. Thus, if today there still appears to be a debate on the concept of human rights, it derives not so much from any dispute between East and West or between North and South, but from the lingering echo of an earlier clash between two Western traditions—between the principle of individual liberty that was passionately espoused by Thomas Jefferson and the principle of strong, lawful authority just as passionately advocated by Alexander Hamilton. Since the time of Jefferson and Hamilton, however, many political thinkers have been able to resolve the conflict between these two traditions and principles by combining them. It has rightly been pointed out that neither of them can be salutary without the other: by itself and unrestrained, freedom leads through anarchy to tyranny; alone and unlimited, authority leads through tyranny to rebellion and anarchy. But with these two principles balanced together, freedom supports the enactment of strong law, and strong law endures because it preserves freedom.14

Regarding Western countries’ view of human rights at the international level, critics from Indonesia have always pointed to: 1. The indivisibility and interdependence of human rights. Civil, political, economic, and social as well as cultural rights should be balanced. Critics from abroad should never single out only one or two of these—for example, basic rights of the first generation—to the neglect of other human rights, especially in the sphere of social or second generation rights. 2. The balance between individual rights and the obligations of individuals to their community, their society, or nation. Here is the relevance of the Jefferson-Hamilton dispute. It is therefore believed that the rights of individuals must be balanced by those of the community, by the obligation to display respect for the rights of

14

Alatas, An Indonesian View on Human Rights.

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others, the rights of society and the rights of the nation, Indonesian culture, as well as our ancient customary laws; and a high priority is placed on the rights and interests of society or the nation without, however, in any way ignoring or minimizing the rights of individuals and groups. Indeed, the interests of the latter are fully taken into account in the traditional practice of musyawarah mufakat (deliberations to obtain consensus), which is firmly embedded in Indonesia’s national socio-political system and its political institutions. 3. Emphasis on the principle of respect for national sovereignty and territorial integrity as well as non-interference in the internal affairs of states, and the non-use of human rights as an instrument of political pressure.15 4. Recognition that while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds.16

The Indonesian Case In 2005 the Republic of Indonesia (RI) celebrated the 60th anniversary of its independence. It calls itself a Pancasila state, meaning that the state philosophy is based on five pillars to be adhered to by all. The five principles being: (1) Belief in the one and only God; (2) Just and civilized humanity; (3) The unity of Indonesia; (4) Democracy guided by the inner wisdom in the unanimity arising out of deliberations amongst representatives; and (5) Social Justice for the whole of the people of Indonesia. This basis was not understood immediately by all when the RI was established. It took some five years (1945–1949) to overcome the colonial power of the Netherlands. And during that period at the same decisive time, it had to reflect all aspirations of the then-independent forces of several backgrounds—whether ideological, religious, ethnic, or racial. To bridge these many factors and diverging

15 16

Bangkok Declaration number 5. Bangkok Declaration number 8.

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aspirations, Soekarno-Hatta created this Pancasila as the ideology of the new state.17 The discussion known as the Jakarta Charter (Indonesian: Piagam Jakarta) led to the later-removed wording keTuhanan, dengan kewajiban menjalankan syriat Islam bagi pemeluk-pemeluknya. (“Believe in God with the obligation for adherents [of Islam] to carry out the Islamic law.”) Dr. Luthfi Assyaukanie states that the history of Indonesian Islam since then has been the struggle to get the Jakarta Charter back into the Constitution.18 The Muslims point at the Christians as opponents of the Jakarta Charter, whereas the Christians fault the Muslims for striving to establish an Islamic state in the country. Aloi Shihab, from a more neutral point of view, summarizes the Piagam Jakarta issue, which created controversy in the ranks of the Indonesian leaders in the early days of independence, as forming the first tension in Christian-Muslim relationships in Indonesia in the post-colonial era— a problem nearly threatening the unity and union of the state.19 Nurcholis Madjid points out that the Sanskrit term panca sila is taken from the classic Arab discussion on justice and social contract.20 The same expressions can be found in the contemporary discussions on Arabic hadith texts.21 In fact, Pancasila is in line with traditional Javanese understanding of the relationship between the king and his people. This remark is actually very important. The legitimacy of a political power to govern a state, if not dictated by force (military or police),

17

The next paragraph includes some of the contents of a recent paper of mine: Huub Lems, Keseimbangang yang bertanggung jawab. Pengalaman Mesir (Zuidland, 2006). 18 Luthfi Assyaukanie, „Spannung im interreligiösen Dialog“ in Das andere Muslimische Land. Zum Verhältnis der Religionen in Indonesien, (EMS-dokumentationsbrief I/2008). Dr. Luthfi Assyaukanie is Islam Scholar at the Paramedina University in Jakarta and is co-founder of the Liberal Islam Network (JIL). 19 Aloi Shihab, Membendung Arus, 167, quoted by Jan S. Aritonang in The History of Christian and Muslim Encounter in Indonesia (BPK Jakarta 2004). 20 Nurcholis Madjid,“In Search of Islamic Roots for Modern Pluralism: The Indonesian Experience,” in Toward a New Paradigm: Recent Developments in Indonesian Islamic Thought, Mark R. Woodward (ed), (Tempe: Program for Southeast Asian Studies, 1996), 89–116. 21 Hadith forms the traditions of the acts and words of Nabi Muhammed. Mark R. Woodward, “Textual Exegesis as Social Commentary: Religious, Social and Political Meanings of Indonesian Translations of Arabic Hadith Texts,” in The Journal of Asian Studies, 52, no 3 (1993): 565–583.

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can only last if the social contract is honored and the people can taste its fruits. In his book, Le Contrat Social, Rousseau offers his opinion that each well and justly governed state is governed by the will of the people.22 In the European and Western context via the French Revolution and the Enlightenment, this understanding of the meaning of the state resulted in the modern model of parliamentary democracy. The division of powers results in the situation that, in the end, it is not the king who has absolute power, but the highest power is entrusted to the people through the system of elections and parliament. Prof. dr. Dieter Becker highlights that the differing views on the place of the shari’ah law in the principles governing the country are not only to be understood as a discussion between Muslims and nonMuslims.23 He points to the classical analyses of Indonesian Islam by Clifford Geertz to explain that Islam in Indonesia is not monolithic.24 He uses Santri versus Abangan, and modernist versus traditionalist, as labels for these differences. Although theologically almost all Indonesian Muslims are Sunnis—following the Imam Syafi Islamic law school—that is not to say that there are no differences. The Santris are oriented towards Sunna and Hadith, the works of those teachers living at the same time of the Prophet Mohammed, as well as the newer interpretations of Qur’an and Sunna. In Indonesia some twenty or thirty million Muslims are believed to follow this stream mainly connected to the pesantrens—the Qur’an schools. A larger part of Indonesian Islam adheres to the Abangan—the Javanese culture standing for a mixture of Islam and traditional values from Hindu-Javanese background. Among the Santri a discussion among traditionalists and modernists is taking place. The pesantrens are the strongholds of the traditionalists, who orientate themselves according to older interpretations of Islam. The modernists are found in the urban middle class, and they follow the thinking and teaching of Muhammed ‘Abduh and Raahid Rida—more modern interpretations of Islam. The respective political wings of these streams are the Nahdatul Ulama (NU, ‘Ren-

22

Jean Jacques Rousseau Le Contrat Social, (Amsterdam: Marc Michel Rey, 1762). Dieter Becker, „Indonesisches Christentum—Indonesischer Islam,“ in Das andere Muslimische Land. Zum Verhältnis der Religionen in Indonesien (EMS-dokumentationsbrief I/2008). 24 Clifford Geertz, The Religion of Java, (Chicago: University of Chicago, 1976). 23

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aissance of Law Scholars’) and the Muhammadiyah.25 It is only in the latter, and even there only to a certain extent, that the Sharia’ah law is made into a political issue, to be included in the state principles. In Indonesia, it seems as if the post-colonial context resulted in two kinds of social contract put together and implemented at the same time—the social contract of the Pancasila as well as the social contract of Western democracy. And in general more weight was put on the Pancasila, which was felt to be more in line with the history of the Indonesian people—which has been rooted for ages in the context of adat (or traditional ) law all over the Indonesian islands. Indonesia is not unique in combining more than one state ideology as a social contract between those ruling and those who are ruled. But this feature is essential in understanding the ongoing debate concerning freedom of religion.

The Indonesian State and Islam Let us consider the present case of Indonesia from another perspective, which is the Islamic perspective, following the analysis given in the mid-1990s by Martin van Bruinessen.26 In sheer numbers of Muslim inhabitants, Indonesia is the largest Muslim country in the world (followed by India and Pakistan). Muslims constitute 88% of its total population. Muslims and Islam play a much less prominent role in the country’s public life, politics and economy than their numbers would lead one to expect. Whereas in neighbouring Malaysia—which has only just over 50% Muslims—Islam is the official religion of the state, it does not enjoy the same status in Indonesia, which gives equal recognition to Islam and four minority religions (Christianity in its Catholic and Protestant variants, Hinduism, and Buddhism). Instead of a state religion, there is the state ideology of Pancasila. Strictly speaking, Pancasila is not a secular ideology; the first pillar is the belief in one God, and the other four principles also reflect values that are quite important to Islam as well as other religions. The state, then, claims

25 Becker mentions 40 million and 30 million members for NU and Muhammadiyah, respectively. 26 Martin van Bruinessen, “Islamic state or State Islam? Fifty Years of State-Islam relations in Indonesia,” in Ingrid Wessel (ed), Indonesien am Ende des 20. Jahrhunderts (Hamburg: Abera-Verlag, 1996).

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to be based on religious and moral values that are not alien to Islam, but not specifically Islamic either. Many Muslims perceive in this official, generalized, and shari’ah-less religiosity a reflection of syncretic Javanese mysticism. Some also fear that it functions as a cover for perceived Christian attempts to subvert Indonesian Islam.27 Pancasila philosophy, in its present formulation, attributes equal validity to all five officially recognised religions and enjoins religious tolerance. The emphasis on tolerance has good grounds. Because of the great ethnic and religious variety of Indonesia’s population and the unequal distribution of resources and assets among the various groups, there is always potential for serious conflicts. The government is extremely wary of the danger of disruptive conflicts driven by Suku, Agama, Ras, Antar golongan (ethnic group, religion, race, and class—abbreviated as SARA). The imposition of Pancasila and ‘Pancasila values’ that the government carried through with special vigour in the 1980s clearly had the character of a campaign to stamp out all ideological alternatives and, in fact, all opposition to the regime, rather than that of an effort to maintain national unity and harmony. The indoctrination program, through Pedoman Penghayatan dan Pengamalan Pancasila28 and obligatory placement on the curricula of school programs, encountered opposition in the Parliament: Nahdatul Ulama29 members of the Partai Persatuan Pembangunan30 walked out demonstratively during the vote. Suharto then ordered the asas tunggal approach. Parties and organisations based on other ideologies than Pancasila would have no place in Indonesia. Laws to that effect were to become effective in 1985 and non-complying organisations would then be illegal. Only the intervention of the late dr. T.B. Simatupang31 with Suharto allowed the Persekutuan Gereja-Gereja di Indonesia (Communion of Churches in Indonesia—abbreviated PGI) to phrase its articles in such a way that 27

Among those expressing such apprehensions is Mohammed Natsir. An obligatory course for civil servants and community leaders on the comprehension and implementation of Indonesian state philosophy–abbreviated as P4. 29 The Nahdatul Ulama is the traditional, conservative, Sunnite Islam organization in Indonesia that was established in 1926. 30 The forced united party of Indonesian Islam. 31 Dr. Tahi Bonar Simatupang (1920–1990) a Christian from North Sumatra, was chief staff of the Indonesian Army during the first years of Indonesia’s Independence. After his retirement as Minster of Defence in 1959 he served as the chairman of the Indonesian Council of Churches until the Grand Assembly (Sidang Raya) of 1984 in Ambon. 28

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Pancasila for asas tunggal as a civil organisation and Christianity as its religious conviction could be in some way or another combined. Other Christian leaders like Soritua Nababan32 and Bert Supit,33 both members of the PGI leadership at the Assembly in Ambon where the issue was raised, even rejected that compromise. In the case of the shari’ah and the state, we have seen that the Jakarta Charter (Piagam Jakarta) was denied legitimization as the state ideology.34 In other words, there was no statement to the effect that Muslim citizens would be obliged to carry out their religious obligations, which would have given the shari’ah constitutional status. The debate on the Jakarta Charter, as the preamble to the 1945 Constitution was called, continued through the 1950s until the proponents of the language were finally outvoted in the Constituent Assembly in 1959.35 A majority of moderate Muslims were against this political variant of Islam. There were also more radical attempts to make shari’ah the basis of the Indonesian state. The Darul Islam movement of Kartosuwirjo had already started in the late 1940s in the fight for national independence. It grew into a full-blown rival of the Indonesian Republic with strongholds in West Java, Aceh and South Sulawesi. The Negara Islam Indonesia (Islamic State of Indonesia) had its own constitution that was explicitly based on the shari’ah and a judiciary where ulama delivered Islamic justice (as opposed to the Indonesian Republic, which had adopted a secular legal system). Darul Islam lasted until 1962 in West Java and 1965 in South Sulawesi. According to Van Bruinessen, these two events, the Darul Islam rebellion and the Piagam Jakarta debate, have marked relations between the state and Islam in Indonesia ever since. They lie at the

32 S.A.E. Nababan has been the general chairperson of the Indonesian Communion of Churches. Also, internationally he has been active in ecumenical organizations including presidency of the Council of Churches in Asia and vice-presidency of the World Council of Churches. He holds a doctorate in theology from Heidelberg University. 33 B.A. Supit has been at various times one of the chairpersons of the Communion of Churches in Indonesia. He is active in civil society and non-governmental organizations both nationally and internationally. He has been a member of the central committee of the World Council of Churches as well. 34 Jan S. Aritonang, Sejarah perjumpaan Kristen dan Islam di Indonesia (Jakarta: BPK, 2004), 241–251. 35 Boland, B.J. The struggle of Islam in Modern Indonesia (The Hague: Nijhoff, 1971).

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root of the lasting suspicion towards political Islam on the part of the military and political elite and the religious minorities (including Protestant Christians), and they explain much of the government’s policy towards Islam in later years. They are also the cause of feelings of oppression among many committed Muslims. After the New Order of Suharto ended in 1998, new attempts were made by certain Muslim groups, politicians, and fractions to again discuss the issue of the Jakarta Charter. Moreover, they entertained discussion about altering the basis of the Indonesian state to become an Islamic state or a state governed by shari’ah law. Although these attempts have failed so far,36 the same Muslim ICMI circles have started to use other, maybe even more effective, ways to Islamize Indonesian society.37 The first is the Regional Autonomy law that gave room for the regional governments to implement shari’ah law in their regions. They promptly did so in some predominantly Muslim areas, presenting setbacks to followers of other religions.38 The second was to influence a whole series of laws with overt Islamic features, including marriage law, the law on education, and the Bill of Religious Harmony as well. The weakening of the neutral legal structure based on Western and Pancasila state philosophy results in less legal protection for women, minority groups and even so called ‘dissident Muslim belief ’. The police are not responding (or offering any overt or covert involvement) when ‘the street’ takes action, based on what is perceived as shari’ah law thinking. Examples of such actions are women forced to wear veils, the attack on and forbidding of JAL (Indonesian Ahmadiyah Congregation), and prosecution of Yusman Roy propagating ‘bi-langual shalat’ and Sumardi propagating ‘whistling shalat’. Other examples include

36 Recently President S.B. Yudoyono stated once more that the discussion on Pancasila as the state ideology had been stopped, because of its potential to divide the country and threaten its unity. (June 1, 2006) 37 ICMI (Ikatan Cendekiawan Muslim Indonesia or Indonesian Muslim Intellectuals Network) was founded September 7, 1990 in Malang (Java). Dr. H.J. Habibie, later Indonesia’s third (interim) President, was the first ICMI chairman. It is a strong organization, backed by the government to improve the position of Muslims in society through higher education, etc. 38 See for instance Tempo (14 May 2006) listing 22 cities and regencies that already established ‘Perdas’ (local/regional laws) colored by shari’ah, mainly dealing with social ills like prostitution, narcotics, and drunkenness, but at the same time discriminating against women and minority groups.

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the attack on and arrest of Lia Eden and the closing of her community as well as the closing of hundreds churches all over the country, but mainly on Java, sometimes after being destroyed by ‘the street’.

The Ministry of Religion Before returning to shari’ah law, we first turn to the state’s relationship to the Islamic community (ummah). In 1946, as a concession to Muslim nationalists for their defeat in the first Jakarta Charter debate, the Ministry of Religion was established. The ministry supervises religious education, Muslim marriages, the Islamic courts (which deal with divorce and inheritance matters only), and the hajj. Although it has separate directorates for the other religions, these are insignificant; the ministry is a Muslim institution. It never had any significant influence on government policy (more so vice versa), but could dispense much patronage in the form of jobs, funds, and facilities, and it served as a powerful machine for cooptation. This is not to say that the Ministry of Religion has been harmless. For instance, the ministerial decrees concerning the control over foreign aid in funds and manpower engaged in mission were initiated in this ministry. Also, relevant to the subject at hand, the provision concerning the establishment of places of worship has long been established as a ministerial decree of the Ministry of Religion and the Ministry of the Interior.39 Although not much implemented in many places till recently, it now creates problems in the community, as Muslim hardliners take their chance to act against ‘illegally’ erected houses of worship.40

The Place and Role of Shari’ah Law Islamic courts had already existed under Dutch rule, but their judicial competence was very limited. They only dealt with matters of family law, and that only to the extent that the shari’ah had been accepted

39

Juli Hantoro, “On Faith Value,” in Tempo No. 12 (Nov/Dec 2003). As the West Java Chief of Police, Edi Darmadi, stated in Tempo (September 11, 2005), “No church buildings have been closed, only some places that have been used as places of worship.” 40

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into local custom (adat). Adat law courts could in practice overrule the shari’ah courts. After independence, the adat courts were abolished, and the Islamic courts were detached from the Ministry of Justice and placed under the Ministry of Religion, which left their status rather uncertain. For a long time, they led a marginal existence; only in the 1990s was their authority strengthened, and a new law gave it a more solid legal basis. These courts (which deal, as said, mainly with divorces and inheritance matters) were relatively marginal and their competences were not well-defined. Many conflicts over inheritances were, in fact, brought before civil courts. There have been numerous complaints of corruption and incompetence of the Muslim courts. One of the complaints from legal circles was that there was no written jurisprudence that could guarantee uniformity in the courts’ decisions. Therefore the High Court and the Ministry of Religion made a compilation of Islamic jurisprudence by asking the reactions of all Muslim organisations to a long questionnaire focussing on concrete problems. The compilation now serves as a guideline for the judges in Islamic courts. In 1990 a new law was passed, placing these Islamic courts on the same level as the civil and military courts, and—for the first time—implicitly making the shari’ah part of the formal Indonesian legal system. Although many sceptics suspected political reasons behind this move, it was widely applauded by Muslim circles—and criticised by Christians and secularists, who saw in it a step back from a uniform legal system for all Indonesians, and perceive that this time it is the government itself that is bringing back the Jakarta Charter. As noted earlier, the Regional Autonomy law even strengthened this line so that the regions may officially adopt shari’ah as their juridical basis to implement autonomy.

Pancasila at Its Return All in all, it seems that after a long period wherein the state used the Pancasila as its state ideology to offset other ideologies and religions (including communism and Islam), now the pendulum is swinging in the opposite direction. It may mean that the social contract between the ruler and the ruled will be more in line with Islam, instead of Western democracy or Pancasila. And in that case, it will not be Islam in its religious domain, but rather in its socio-political domain. Indo-

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nesia will thus become even less democratic, because it will prioritize one of the religions instead of acting neutrally with respect to different religions. The Bill on Religious Harmony is consistent with such a trend. It is heavily biased toward Islam and denies that Muslims can be converted and become Christians, leaving open the converse possibility. Because of the discord caused by this clear prejudice, it was mentioned in the opinion column of Tempo at the end of 2003.41 And the many inconsistencies and biases can be seen by going over its proposed texts. But in the present political context, the bill’s passage and implementation are uncertain. This brings us back to one of the most basic questions raised at the outset: the quite fundamental difference of opinion between the Western (mostly Christian) thinking on freedom of religion, which includes freedom to change his religion or belief (i.e. be converted), and the Islamic vision which excludes the possibility of changing Islam for another religion. Yet Islam itself is also a propagating and missionary religion. Isma’il al-Faruqi explains that da’wah is the fulfilment of the Qur’an’s commandment “to call men unto the path of Allah”.42 The commandment is to be found in Qur’an 16:125: “Call men unto the path of the Lord by wisdom and goodly council. Present the cause to them through argument yet more sound”. Calling is not coercing. Allah has commanded: “No coercion in religion.” (Sura 2: 256) If they are not convinced, they must be left alone. Certainly, the Muslim is to try again and never despair that Allah may guide his fellow-man to truth. The example of his own life, his commitment to the values he professes, and his engagement, all constitute his final argument. If the non-Muslim is still not convinced, the Muslim is to rest the case with Allah. The Prophet himself allowed those Christians who were not convinced by his own presentation of Islam to keep their faith and return home in dignity. This last aspect is also recently indicated by Dr. Luthfi Assyaukanie.43 He points at

41

“Opinion,” Tempo No. 12 (November-December 2003). Isma’il al-Faruqi “On the nature of Islamic Da’wah,” International Review of Mission Vol. LXV, No. 260 (October 1976) 391–409. 43 Luthfi Assyaukanie, „Spannung im interreligiösen Dialog,“ in Das andere Muslimische Land. Zum Verhältnis der Religionen in Indonesien, (Stuttgart: Evangelisches Missionswerk in Südwestdeutschland, 2008) 14. 42

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the fact that new research on the early days of emerging Islam have revealed that Khadijah, the first wife of the Prophet Mohammed, was a Christian and was recognized as such by the Prophet. She was given the name al-tahirah, meaning the Pure One, as a reference to the Holy Virgin Mary. From this reflection, it follows that the societal order desired by Islam is one where people are free to present and argue their religious causes with one another. This statement is remarkable. In a discussion on religious freedom that followed, a respondent observed: “But this raises an important point. I understand from Dr al-Faruqi’s paper that Islamic da’wah includes the right ’to convince and be convinced.’ The question now in my mind is: how does this work inside the framework of the Islamic state? Under the divine guidance which you say is the basis of the Islamic state, how do you define the limits in respect of religious freedom? How far, for example, are the non-Muslims free to practise their faith, and would this include mission? Would there be a freedom to marry whomsoever one wishes, whether one is a man or a woman? To what extent would religious authority impose limits on the exercise of individual freedom; would this deprive people of what I consider to be the legitimate right of changing religious affiliation according to conscience—to de-Christianize, to de-Judaize, even to de-Muslimize.”44 Al-Faruqi answered: “In an Islamic state tolerance would always be shown towards the non-Muslim; this is a fundamental principle of Islam laid down in the Qur’an. Within the Islamic state, the Islamic ummah as we call it in Arabic, there is a place for ummahs of nonMuslims who are allowed to live according to their law, with their own social and political institutions, with their own religion and their own language. They are fully accepted in the sense of being allowed to live within and alongside the Muslim ummah. This is known as the millet system, and it is what our Islamic constitution, established by the Prophet Muhammed had always insisted upon. . . . If a person converts and leaves the Muslim community, the law recognizes that he becomes the member of another community which has its own religious laws—and the competence of these laws is acknowledged by the shari’ah.” If al-Faruqi’s perception of conversion from Islam to

44 “Discussion on Religious Freedom” International Review of Mission, Vol. LXV, No. 260 (October 1976), 447–452—esp. 449/450 Fitzgerald / al-Faruqi.

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Christianity is right, in practice the fact is that many Islamic states will certainly differ from this de jure situation expressed in Qur’an. It is clear that the debate on the place and role of shari’ah law in Indonesia is the focus point of its functioning as the key value to define the social and political framework of the state. Freedom of religion is clearly not a theological question in the first place, but a socio-political question, because the boundaries set to mission activities to convert people from one religion to another are to be found in the legal structure and the way it is dealt with in daily life. Until recently the firm stand of the Indonesian government, as expressed in its constitution, has been that the Republic of Indonesia is a Pancasila state, granting equal rights to all people and followers of all (recognized) religions. This arrangement gave a fair measure of security to these religions that they could exercise their religious freedom to a reasonable extent. Of course there were limitations which also conflicted with ‘freedom of religion’ as it is normally understood in Western countries, such as the exclusion of all non-recognized religions or beliefs, the fact that every citizen needs to adhere to a formally recognized religion, the impossibility to voice a prophetic word to the government or rulers, the formal restrictions on church buildings, etc. But the recent tendency is, that the state is no longer assuring that needed neutrality the Pancasila state should guarantee, by allowing Islamically biased laws to be enacted and leaving room for regional laws to contradict the Pancasila state philosophy. In relation to the question of religious freedom, this change raises important questions for the Indonesian community. A paramount question would be what kind of social contract between state and people could best guarantee freedom of religion. Freedom of religion, in this respect, is understood as “to convince and be convinced,” the freedom to have and to adopt a religion, or to change from one religion to another—including from Muslim to Christian. Will it be the Western democratic system of a secular type— whereby strict neutrality toward any religion is advanced as the best option, because it will create a distance between state and religion? Will it be the Islamic state—overtly by inserting the Jakarta Charter in Indonesia’s constitution, or more subtly by allowing shari’ah law to influence society profoundly through regional autonomy and all kinds of ‘technical laws’? Or will it be the third option of reactivating the Pancasila to balance between the interests of all Indonesians whatever their background of ethnicity, race, religion or class?

PART THREE

TOPICS

In this part, specific topics are discussed. ‘Freedom’ is not an abstract concept. It works in concrete situations of concrete human beings. Hildegard Warnink analyzes the very concrete topic of marriage and religion. Because both marriage and religion have to do with profound feelings and fundamental decisions in human life, the way people deal with it is a good test case for human freedom. Tymen Van der Ploeg broadens the perspective to other topics in civil law. He raises the very problem that civil law and religion actually have few topics in common, at least in Dutch society. This is also an advantage in the Dutch solution to make a religious community a legal person, and thus bestow it with its own identity and consequent internal freedom. Rik Torfs focuses on the crisis of human rights in a multicultural society after 9/11 and by the so-called ‘war on terrorism.’ As he writes: “Religious freedom is no longer as successful as it used to be in the best days of human rights.” A provisional solution might be contractual religious freedom. Though it is just like the concept of a legal person, only a second level solution might be helpful in concrete cases and because life consists of concrete cases, such a provisional solution might be of more interest than idealistic overall declarations.

MARRIAGE AND RELIGIOUS FREEDOM Hildegard Warnink

Introduction The relationship between marriage and religious freedom is a longstanding one. This phenomenon is not hard to explain. Indeed, as people still say today, marriage is or at least was a cornerstone of our society. For that reason, it is quite understandable that both religious organizations (and certainly so the Roman Catholic Church) and the state were interested in regulating the legal dimension of marriage. Today, marriage is perceived as a much more private issue than it ever used to be in the past, yet even now questions are raised with regard to the freedom that people do enjoy concerning the choice and content of personal relationships. In this paper, three different chapters will deal with the evolution of the relationship between marriage and religious freedom. The first chapter will tackle the competition between religion and state concerning formal control over marriage as an institution. In the second chapter, more recent developments concerning the content of marriage shall be analyzed. To put it in yet another way, to what extent did recent developments in society color the content of the respected institution of marriage? In the third and last chapter, attention will be paid to alternative forms of living together that may endanger or at least influence the place of marriage in society.

Competition between State and Church Regarding Formal Control over Marriage In the nineteenth century, marriage really was a cornerstone of society; it gave structure to its organization. The control over marriage in those days can be compared with the control or possession of important databanks today. In that context, it can hardly be seen as surprising that both the state and the church tried to gain control over this

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important institution.1 During the elaboration of the Belgian Constitution in 1830–1831, much attention was given to the freedom of internal organization of religious groups. The cause for this interest was a letter written by the then Archbishop of Malines, Mgr. de Méan. The archbishop understood very well that true religious freedom does not only include individual and collective freedom, but also entails freedom of internal organization. This means that religious groups have the right to organize themselves the way they prefer, including the elaboration of internal norms, procedures, and communication channels with collaborators and members. In the current article 21 §1 of the Belgian Constitution, this principle has been worked out in significant detail.2 However, Mgr. de Méan and the Catholic Church also had to make a concession in exchange for the wide range of liberty he managed to obtain. The concession, codified in §2 of article 21, concerned the principle that any religious celebration of a marriage has to be preceded by a civil marriage. Indeed, §2 has to be seen in relationship to §1. The church was given the highest possible internal autonomy, yet not with regard to marriage where prededence had to be given to secular authorities and their civil registers.3 The regulation as described above is not particular for Belgium. As a matter of fact, it is also present in various other countries including the Netherlands, Germany, and France, although in various different ways. Indeed, in some countries the law does not foresee any sanction with regard to the non-application of the preference of secular law with regard to marriage. In Belgium, the penal code supports the constitutional principle by imposing penalties on the minister of religion who violates article 21 §2 of the constitution. A first breach of the

1 Hildegard Warnink, “Histoire du marriage religieux,” Tradition wallonne près de chez nous loin de chez eux. Mariage et tradition (1996), Publié avec l’aide du ministère de la culture et des affaires sociales de la communauté Francaise de Belgique, 119–125. 2 Belgian Constitution: Art. 21 “The State does not have the right to intervene either in the nomination or in the installation of ministers of any religion whatsoever, nor to forbid these ministers from corresponding with their superiors, from publishing their acts, except, in the latter case, taking into consideration normal responsibilities in matters of press and publication. A civil wedding should always precede nuptial benediction except in cases established by law, should this be necessary.” See: http:// www.fed-parl.be/gwuk0002.htm 3 Albert Kluyskens, Beginselen van het burgerlijk recht. Zevende deel. Personen- en familierecht (Principles of Civil Law. Volume Seven. Personal and Family Law)(Anvers/ Bruxelles/Gand/Louvain: Standaard, 1950) 217, nr. 202.

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law can lead to a fine for the religious minister. In a case where s/he repeats the offence, the minister can even be jailed.4 What can we say about this principle when we look at it from the angle of religious freedom? Although article 21 §2 of the Belgian Constitution can be historically understood in the framework of the rivalry between religious groups and the state, it is equally clear that the principle itself can be considered to be at odds with a keen understanding of religious freedom. Indeed, the fact that no secular law relevance is given to a religious marriage is perfectly compatible with the notion of religious freedom. Yet, in case of article 21 §2 of the Belgian Constitution, it is not just the legal relevance that finds itself in the center of the discussion. Religious marriage is not only legally irrelevant; it is also forbidden and can lead to penal sanctions. In my opinion, this situation is not in accordance with a healthy understanding of the notion of religious freedom. Especially today, there is no longer a convincing reason why religious freedom should be limited in this particular perspective. Whereas in the nineteenth century such an exception could be advocated given the fierce competition between religion and state with regard to the control over marriage, the current privatization of relationships between individuals can no longer motivate such an intrusion in the free internal working of a religious group. Moreover, given the ever-increasing religious pluralism in society, at times it will be difficult to recognize some of the forms of celebration of religious marriage and to identify it adequately as such. Indeed, article 21 §2 of the Belgian Constitution must be seen in the light of the discussion of those days. The real issue was not so much religious marriage versus state marriage; it was rather Catholic marriage versus state marriage. In other words, the exception to free internal organization of religious groups as it is constituted by article 21 §2 of the Belgian Constitution no longer makes sense and can be seen as a violation of the very principle of religious freedom.

Changing Content of Marriage Changes with regard to marriage did not only occur on the level of the formal framing of its celebration. Since the nineteenth century, we also

4

Art. 267 Belgian Code of Penal Law.

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recognize an ongoing change with regard to the content of marriage. One can easily argue that in the days of the elaboration of the Belgian Constitution Catholic marriage and state marriage were hardly different. Divorce could have been a difference because the Roman Catholic Church does not acknowledge it, yet in reality this difference was rather unimportant as the phenomenon seldom occurred. In other words, both Catholic and state marriage were meant to last until the death of one of the partners. Procreation used to be an obvious element of marriage. Love was not necessary, yet free consent was. Equality of the partners within marriage was absent, as both church and state were convinced of the supremacy of the husband over the wife. Finally, marriage in the nineteenth century was a true institution. One could enter it or not, yet its content was not open to negotiation. In the meantime, a creeping but very visible evolution with regard to the content of marriage took place in the civil field. Divorce became increasingly plausible and easier to obtain. No fault divorces became the rule rather than the exception. Divorces by mutual consent are the modern standard. Even divorces initiated by one party against the will of his/her partner can no longer be stopped. Equality between men and women gradually became the norm. Procreation is no longer an essential part of marriage, as many couples deliberately exclude it. Conversely, many partners try to have children by making use of modern techniques, in some cases without having sexual intercourse. The content of marriage is no longer completely static. For instance, in the United States, marriage by contract is not insignificant. The partners stipulate themselves how their marriage will be given shape, how it will be practically organized, and in which way emotional and sexual life will be worked out. Obviously, marriage is not so much an institution any more; it has increasingly become a common noun used for various underlying contractual relationships. In the meantime, the Roman Catholic Church also adapted its concept of marriage.5 In the C.I.C. 1917, marriage was primarily an institution that was entered into through a contract. In the late 1950s and the early 1960s, canon lawyers debated among themselves on the question whether marriage was a contract or an institution. Eventually 5 Hildegard Warnink, “Kerkjuridische visie op het huwelijk” (The Judicial Church Vision of Marriage), in Roger Burggraeve, Marcel Cloet, Karel Dobbelaere en Lambert Leijssen (ed.), Levensrituelen. Het huwelijk (Life Rituals. The Marriage), Kadoc-studies 24 (Leuven: Leuven Universitaire Pers, 2000), 219–238.

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this question was less interesting than it seemed to be at first glance. Indeed, there is no contradiction between both qualifications. The contract is the gateway to the institution. Yet, as a result of the Second Vatican Council, including its personalistic inspiration sources, the focus with regard to marriage changed. In the council and later in the C.I.C. 1983, marriage was perceived as both a contract and a covenant. The idea of a covenant entails some remarkable consequences as a covenant deals with the community of life and the commitment of the person as a person. If one takes the notion of marriage as a covenant seriously, this leads to the necessity of both personal involvement and even love as essential elements of what marriage truly is. It is clear that civil marriage and canonical marriage evolved in two different, at times even opposite, directions. In the civil sphere, marriage increasingly became a common noun for very different contractually-based relationships. Conversely, canonical marriage tended to become richer and richer. Whereas under the C.I.C. 1917, marriage was validly concluded as long as procreation, unity, and indissolubility were not excluded, the C.I.C. 1983 places more burdens on the shoulder of the spouses. Now they are required to engage into a community of life and even love is something they can no longer avoid as a part of their commitment. What are the consequences for this evolution on the level of religious freedom? They are certainly not absent. As a matter of fact, tension grows between the protection of marriage and the protection of religious freedom. The reason for this tension finds its basis in the widening gap between secular and religious marriage. Article 12 of the European Convention on Human Rights protects the right to marry. Of course, this marriage is a monogamous marriage, as polygamy is still perceived as opposed to international public order. However, secular marriages can be dissolved through divorce—liberating the spouses from their marital engagements. Hence, once divorced one regains his or her right to marry. But then again, a Catholic marriage is meant to be indissoluble. A secular divorce leaves the canonical marriage intact, which means that a new secular marriage should be considered as an attempt at bigamy. In cases where Catholic institutions or organizations remove collaborators because of a marriage after divorce, they exercise their religious freedom, yet at the same time they violate their collaborator’s right to marry. Which right will prevail? Probably religious freedom will increasingly have to give way to more individualistic concepts as to the right to marry and also the protection of privacy.

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The very specific situation in some countries including Germany may offer a solid basis for an exception. This evolution deserves some further reflection. Unlike the situation in the nineteenth century—where church and state shared a very similar concept of marriage but just competed on formal competencies— the recent debate shows two different views of the concept of marriage itself. The secular marriage is contractual and elusive. The canonical marriage is institutional and eternal. Of course, no one can prohibit the church from defining marriage in a way deviant from its secular legal significance. Yet what happens is that this church interpretation will be increasingly limited to the internal canonical playground. In other words, churches can say what they want about marriages, yet what they say cannot have consequences on the level of secular legislation and jurisprudence.

Marriage and Other Ways of Living Together In more recent years and decades, the evolution with regard to marriage and religious freedom evolved in other fields. Marriage gradually lost its monopoly position within modern society. Cohabitation, same sex unions, same sex marriages, and living apart/together-relationships are increasingly accepted by both younger and older generations. For the Roman Catholic Church, this new situation has been a surprise. The C.I.C. 1983 only recognizes marriage and concubinage and was unable to predict the growing formalization of previously informal, illegal, and immoral relationships. As to the reasons that underlie this evolution, differences in opinion remain possible. Pessimistic observers could see decadence, lack of commitment, and evaporation of norms and values as the main reason for the recently acquired pluralism on the level of relationships. Yet one can also argue that a growing desire for more privacy and a more deliberate personal choice underpin the current evolution. In any case, churches and religious groups suddenly felt the need, or were even asked, to formulate their ideas and opinion on delicate issues such as same sex unions or same sex marriages. This evolution is remarkable. First, the enemies of yesterday are the allies of today. For instance, the Belgian Cardinal, Danneels, appointed himself as advocate to protect secular marriage against more elusive forms of relationship and cohabitation. Is that not surprising? For a

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very long time the church did everything it could do in order to stop state aspirations with regard to the regulation of and the control over traditional heterosexual marriage. Yet, when a choice had to be made between secular marriage and cohabitation, the previous was able to be seen as a stronghold that could stop the latter. Second, the church also discussed the content of secular marriage. In the eyes of the Roman Catholic Church, including documents by the Congregation for the Doctrine of the Faith, secular marriage should remain exclusively heterosexual.6 In a way, this statement is rather surprising, not in se, but in connection with the Church’s opinion on secular marriages. Between Catholics, a secular marriage has no value at all and is not more than cohabitation. Consequently, it is not only legally irrelevant but also morally repulsive. Of course, permitting the practice of homosexuality is also incompatible with the teaching of the Church. A formal status given to homosexual relationships is strongly condemned by the Church. Yet, what can be the problem with opening secular marriage to homosexual couples as long as secular marriage itself has no other significance for Catholics than cohabitation? To put it in yet another way, why would the Catholic Church try to protect an institution, in this case secular marriage, that it does not recognize itself? In any case, the new evolution shows a Church that no longer is in a defensive position. In the two previous chapters the situation was different. After having lost the formal control over marriage, the Church also lost its position with regard to the definition of marital content. Yet today, in the current situation in society, the Church openly attacks the decadence of secular society and advocates an implicit view 6

“When legislation in favour of the recognition of homosexual unions is proposed for the first time in a legislative assembly, the Catholic law-maker has a moral duty to express his opposition clearly and publicly and to vote against it. To vote in favour of a law so harmful to the common good is gravely immoral. . . . The Church teaches that respect for homosexual persons cannot lead in any way to approval of homosexual behaviour or to legal recognition of homosexual unions. The common good requires that laws recognize, promote and protect marriage as the basis of the family, the primary unit of society. Legal recognition of homosexual unions or placing them on the same level as marriage would mean not only the approval of deviant behaviour, with the consequence of making it a model in present-day society, but would also obscure basic values which belong to the common inheritance of humanity. The Church cannot fail to defend these values, for the good of men and women and for the good of society itself.”: Joseph Ratzinger, Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons, (Rome: Congregation for the Doctrine of the Faith, 3 June 2003).

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of marriage that admits fewer church competencies and a different content, but that at the same time says no to the opening of marriage to same sex couples. In its opposition to same sex unions and marriages, the Church is in search of allies. Curiously enough, these allies may be found in the field of international law. Marriages as defined by article 12 of the European Convention are, at least implicitly, heterosexual marriages. And the protection of family life as organized by article 8 of the same European Convention also presupposes heterosexual relationships. The Church expresses its fear that states accepting homosexual unions or marriages may lead to difficulties and tensions on the level of international human rights documents and international private law. The Roman Catholic Church has always been an expert in atypical forms of ‘joint ventures’ with other organizations and groups. One may think here of cross connections with Muslim groups with regard to birth and procreation. This time, the Church rightly perceives the paradoxical phenomenon that, with regard to marriages, international law is a more conservative factor than an element of emancipation. This is, I assume, a fact, although it finds itself in discontinuity with international law traditions. Another question is raised with regard to the institutional protection that the Church offers to marriage, even secular marriage with its different content to the Catholic one. Could one not argue that the Church narrows its own scope of action and its own relevance by making an exclusive choice for the traditional heterosexual marriage as an institutional framework for human relationships? Indeed, for the Roman Catholic Church today, the ethical choice is at the same time an institutional one. Heterosexual marriage is good and so are, at least to an extent, those people who engage in it. All other relationships are rejected. At this stage, the involvement of the Church stops. People who choose a lifestyle at odds with the only type of marriage accepted by the Roman Catholic Church see themselves abandoned by the latter. In other words, the Roman Catholic Church does not offer structural or moral support to those people who make, with regard to the formalization of their relationship, the wrong choice. Here a question can be asked—is the Church too demanding?7 And is she, consequently, too merciless? Indeed, would it not be better to 7 See also: Rik Torfs, “Instruction or intrusion?” in Monsignor W. Onclin Chair 2006, (Leuven: Peeters, 2008), 13–23.

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support a legal framework for same sex unions or marriages instead of leaving homosexual couples alone in an atmosphere of elusiveness and promiscuity? Puritanism can lead to a structural omission of people who do not make the best choices. What is the relevance of this third chapter with regard to religious freedom? The key question here is: can the Church maintain a definition of marriage that discriminates against homosexual couples? The answer seems to be yes, at least when the church marriage does not prevent homosexual people from enjoying equal rights where they exist, on the level of secular law. In England, where the Church of England has an official role with regard to marriages, it has no official part to play with regard to the civil partnership of people of the same sex. Yet the latter can be sure that the state guarantees their rights in that respect.

Conclusion With regard to (Catholic) marriage and religious freedom, three eras in modern history can be distinguished. a. In the nineteenth century, church and state competed on the competency to gain formal control over marriage. That sometimes led to the legal or constitutional obligation that secular marriages have to precede religious celebrations. Today, such a stipulation could be seen as opposed to religious freedom. b. In the last half of the twentieth century, the contents of Catholic and secular marriage became increasingly different. With regard to religious freedom, this led to conflicts with the right to marry, including the right to remarry after a divorce. c. Recently, marriage lost its monopoly as a regulator of relationships. Today the church invests a lot of energy in the fight against legally framed, same sex unions and same sex marriages. The main question connected with religious freedom is whether and to what extent churches are entitled to stick to a concept of marriage that excludes homosexuals. The expectation is that churches will keep this position. The three chapters show that marriage and religious freedom have always had connections, and that the nature of those relationships

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shifts from an initially very formal level to a more challenging discussion on what marriage really means and on the position of other forms of living together in a society characterized by a growing concern for the individual and his or her privacy.

FREEDOM OF RELIGION AND CIVIL LAW Tymen J. van der Ploeg

Introduction It is not an easy thing for a civil law person to look for the connection points between the freedom of religion and civil law. A reason for that may be that civil law has secular roots and is, in principle, not interested in the religious part of life. Hereafter, I will give a rough sketch of developments that are important for the relation between the freedom of religion and civil law in order to introduce some concepts. In Western European society, there is already a long tradition of distinguishing between the person as a citizen and as a believer/church member. This began in medieval times, when the church more or less enforced a separation of power between the state (the worldly sovereign) and the church. The worldly sovereign reigns over his land and its inhabitants, but not over the souls of them, as Christ—or his representative, the Pope, and with him the church—reigns there.1 In this way, there were two bodies: the geographical body of the state and the moral (supernatural) body of the church. The (Roman Catholic) Church saw (and maybe still sees) itself as a complete society that is equal to the state.2 In retrospect, one can say that the church developed itself as a legal person in the modern sense; a non-material body with its own property and obligations and with the power to act legally.3 An important breach of this living together of church and state was caused by the French Revolution around 1800.4 The French built a legal

1 See Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition, (Boston: Harvard University Press, 1983), esp. Part 1, chapter 5, par. 3 “Corporate law as constitutional law of the church.” Comp. J.J. Hallebeek, “Kerkelijk Recht en Wereldlijk Recht” (Church Law and Worldly Law), in L.C. van Drimmelen and T.J. van der Ploeg (ed.), Kerk en Recht (Church and Law) (Utrecht: Lemma 2004), 36–37. 2 Comp. J.J. Hallebeek, “Kerkelijk Recht en Wereldlijk Recht,” 37–38. 3 Interestingly, private legal persons were called ‘moral bodies’ in Dutch legislation before 1976: Book 3 title 10 (artt. 1690 ff) Dutch C.C. of 1838. 4 I use the word ‘state’ for the geographical unity under a worldly authority.

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system on the basis of the principles of liberty, equality, and fraternity, with a division between public law—the law regarding matters of general (non-personal) interest (penal law, administrative law)—and civil law—the law regarding the personal interests of the citizens. In the civil code, a set of rules was given for the whole country that replaced the regional custom law and tried to select the most balanced rules. Conflicts between citizens should be solved by civil courts on the basis of the civil code. In this French system, religion and the church were, in fact, not taken into account. Also the existence of organizations outside the state and public bodies to further ‘public’ benefit /interests did not fit into it. After the occupation by the French, the Dutch retained the idea of a civil code; in 1838, the Dutch civil code came into force. In this civil code was a chapter on private legal persons.5 Regarding religion and churches, it is interesting that during the Batavian Revolution—before the occupation by the French—religion was already seen as a matter of public interest.6 After the occupation of the French, the first Dutch king (Willem I) also saw the church as a public law matter because he made church regulations for the Dutch Reformed Church, the Evangelical Lutheran Church in the Netherlands, and the Dutch Israeli (Jewish) Church. Later this close bond between church and state was loosened and, at last, ended. Since the new book 2 of the Dutch Civil Code (CC) of 1976, the church (“kerkgenootschap”) is a legal person form, mentioned in art. 2:2 CC, but not regulated by the law. The freedom of religion as an international duty for states towards their citizens and churches developed after the Second World War. For the Netherlands, the European Convention on Human Rights is most important because citizens of the parties of the Convention can sue their state in the European Court on Human Rights at Strasbourg. The freedom of religion is formulated in art. 9.7

5 In France the legal personality of religious congregations and associations was only laid down in the law of 1 July 1901 regarding the association contract. D.P. 1901.4.105 and the law of 9 December 1905 J.O. Dec. 11, 1905, P 7205 on the separation of church and state. 6 See J. de Bruijn, “Kerk en staat-historisch; de verhouding tussen kerk en staat in Nederland” (Church and State historically: the relation between Church and State in the Netherlands), in Van Drimmelen and Van der Ploeg, Kerk en Recht, 53ff. 7 Art. 18 of the Universal Declaration of Human Rights more explicitly formulates the content of the freedom of religion and has no restrictions. It also does not have sanctions such as the European Convention.

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From a civil law perspective, two points of art. 9 ECHR are important: a. The Convention places limits on the parties (countries) in restricting the freedom of religion. A restriction can be allowed inter alia “in the interest of rights and freedoms of others.” This also concerns civil law. In a civil law regulation, the freedom of religion may be restricted when it is in the interest of rights and freedoms of others. In this contribution, I will first try to discover how far the rules in the Dutch civil code restrict the freedom of religion, and if that is justified. b. The freedom also implies the freedom to confess individually—and with others—one’s religion and live according to its rules. It is especially interesting how far the collective freedom to live according to one’s own religion reaches. This part—also focusing on Dutch law—follows the part on the limits of individual freedom of religion in the civil law. Next to that the question of whether there is individual freedom of religion within the church is dealt with. The contribution finishes with some remarks on the desirability of replacing civil law with multicultural law.

The Civil Code and the Freedom of Religion In this part, the findings of civil law elements that are or may be connected with the freedom of religion are laid down. An evaluation is made about the question of whether the civil law rule is a restriction of the freedom of religion, and if so, if the restriction is justified, with reference, if possible, to the decisions of the European Court on Human Rights.8 This part follows the order of the Dutch civil code. The focus in this contribution is on the freedom of religion in the vertical relation between the citizen or (religious) organization and the state. The freedom of religion also has, however, its influence on

8 About human rights and civil law and persons- and family law, law of succession and labor law, see also S.C. den Dekker-Bijsterveld, “De verhouding tussen Kerk en staat in het licht van de grondrechten” (The Relation between Church and State in the Light of Fundamental Rights), Diss. KUB 1988, 186–192, with reference to Dutch case law.

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the horizontal relations between citizens and organizations and in— what I call—private, vertical relations within organizations. 9 In the execution of civil rights and duties in these private relations, the freedom of religion has to be taken into account. The theoretical aspects of the influence of the freedom of religion in these relations are not discussed here.10 From a civil law approach, it is important to notice that the freedom of religion is seen as a general principle of our legal system that has to be weighed against other principles. Persons and Family Law This category of law concerns the horizontal relations between individuals. The first topic in this field is the status of the religious marriage. According to Dutch law, the civil marriage is the only official marriage. A religious marriage or confirmation has to be held later.11 From the Catholic side, the fact that the church marriage may only be concluded after the civil marriage is seen as contrary to (or less in conformity with) the freedom of religion.12 One of the arguments is that a marriage is a matter of the internal organization of the church. The church has its own norms and rules relating to marriage, to which the church members are bound as such, but is the fact that according to civil law there must be first a ‘civil’ marriage and then a church marriage a restriction of the freedom of religion? In my opinion, it cannot be seen as a restriction as it does not prevent (in any way) the contracting of the church marriage. What is more important is that it prevents the marrying couple from considering that a church mar-

9 These relations are private because they concern relations between citizens and private legal persons and not government. They are vertical because the organization (church) and its members are not equal; the last have bound themselves to the rules of the first. 10 See A.K. Koekkoek, “De betekenis van grondrechten voor het privaatrecht,” (The Meaning of Fundamental Rights for Private Law) WPNR 5742–5744 and L.F.M. Verhey, “Horizontale werking van grondrechten,” (Horizontal Working of Fundamental Rights) T.v.O. 1989, 349 ff. 11 Art. 1:68 CC. 12 See A.J.M. van Overveld, “De dualiteit van kerkelijk en burgerlijk huwelijk,” (The Duality of Church and Civil Marriage) Diss. KUN, 1953, 205, and A.P.H. Meijers, Art. 1:68 BW en art. 449 Sr. dor hout, (Art. 1:68 Dutch CC and art. 449 Penal code dry wood) NJB 2002, 1897–8.

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riage is the official marriage. In that case, the church would stimulate the neglect of several rules of the law for the protection of the people concerned and of society. In order to keep the civil requirements and to recognize church marriage, a solution could be to give church officials the capacity of state officials regarding marriage. I do not favor this solution, as it mixes civil and religious matters, which can be confusing for the couple (is divorce possible?), and it is not suitable for church officials.13 May the church, for instance, refuse to marry couples of the same sex when the church officials function as state officials? That would be at least disputable. In relation to marriage, not only the freedom of religion of the church, but also the freedom of religion of the individuals is at stake. As a marriage, in the first place, has consequences for the individuals, it seems appropriate that the civil code offers a secular regulation that protects the individuals. Parental Authority According to the freedom of religion and the right on family life, parents may educate their children in conformity with their religion. It is clear that in communist countries this freedom for parents did not exist, as they had—according to the law—to educate their children in conformity with the socialist (communist) principles. The purpose of education is—wisely—not formulated in the Dutch CC. In the civil code the court can take measures to withdraw the authority of the parents in case the interest of the child makes this necessary. There have been several cases where parents refused a medical treatment of a child on religious grounds and where the court put the child under family supervision.14 The interest of the child may be a ground for this restriction of the freedom of religion (‘in the interest of rights and freedoms of others’). The European Court on Human Rights has decided that the fact that the parents have deviant religious visions is as such not enough reason to deprive them of parental authority.15 It is always a delicate matter for the state (court) to decide when it has the right to deprive parents of their authority in case their 13

Also Meijers, NJB 2002, 1898 is against this. See Asser-De Ruiter-De Boer, Personen- en familierecht (Persons and Family Law), 16th edition, 2002, nr. 845. 15 Hoffmann vs. Austria, 23 June 1993, 255 C ECHR. 14

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behavior is based on religious motives. There must be an urgent situation in which the health (life) or the morality of the child is seriously endangered. In several places the law rules that the court has to take the religion of the child and his family into account when transferring the authority over the child to an institution for guardianship and, in this way, respect the freedom of religion.16 Law of Succession The civil law of succession is individual and not family or clan based. Certain (religious) groups in society, such as Muslims and Jews, have older and different rules for succession. As succession law is mandatory law, these groups are urged to follow the civil rules. Can this be against their freedom of religion? One may state that the disposition of the goods of a deceased person can be an expression of someone’s religious belief. Direct application of this ‘different’ succession law will, in certain cases, be contrary to civil law. Mandatory civil law of succession can then be seen as a restriction of the freedom of religion. This restriction is, however, justified as in a multicultural, mixed, secular society it would have undesirable practical consequences with regards to others—creditor, heirs, tax authorities, etc.—when different sets of succession rules were applicable. Additionally, it will be generally possible to reach the same results by using the civil law rules. Property Law The strictest law in civil law is property law. It is important for individuals, corporations, trade, and government that there is a clear system of property law, especially the rules for transfer of property. One would not expect to find any connection with the freedom of religion. The Roman Catholic Church has, however, its own property law or law regarding temporal goods in its codex iuris canonicis. For instance, for estate or movables in ecclesiastical use, there are restrictions with regard to transfer. These do not conflict as such with the civil law rules. Recently there was, however, a property case in which the church and church law were involved, and the question was raised whether the

16

Art. 1:254 s. 3, 1:261 s. 5, 1:302 s. 2.

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freedom of religion was at stake. Some years ago, the administration of a Roman Catholic cemetery brought a case about the ownership of gravestones to the court, and it was continued to the Supreme Court.17 The Roman Catholic Church and other proprietors of cemeteries always assumed that these stones were movables and that, therefore, the relatives of the deceased were the owner of the stone. There was a decision by a district court some years earlier in which the owner of a cemetery was held liable for damage caused by a gravestone because this stone had not been maintained properly.18 Even the CIO19 wrote letters to the government about it but without result. In this new case, the Supreme Court of the Netherlands confirmed—on the basis of the new property law of 1992—that the stones were indeed immovable and belonged to the owner of the cemetery. Protests were raised that the state should keep its hands off from this sacred area and that the decision was contrary to the freedom of religion because it conflicted with the rule of the Roman Catholic Church regarding its members.20 In my opinion, there are two aspects. First, would it not be a good idea when cemeteries would indeed have a special status as sacred space. This is especially an important point for Jewish citizens. In the case that it is a sacred area, it is no longer important if a stone is movable or immovable. Second, the distinction between movables and immovables is of such importance for the legal security of legal transactions in the country that this cannot be a church matter; it should be a matter of the state. Therefore, an eventual religious rule can, for this reason, be restricted. Law of Obligations/Contracts Generally speaking, the law of obligations/contract is rather flexible. This area of the law does not endanger the freedom of religion. On the contrary, by contract people can make arrangements in which

17

HR 25 October 2002, NJ 2003, 241. Rb. Breda 31 August 1993, NJ 1995, 335. 19 Interdenominational committee for the relations with the government, in which some 25 Christian and Jewish churches are represented. 20 See M.L. Molenaar, Het grafmonumentenarrest (The Gravemonuments Case), ntkr 2007, 16–34, www.ntkr.nl, S.C.J.J. Kortmann, was not in favor of the decision in his annotation of it in A.Ae. 2003, 291 ff. because it stood too far from practice and societal reality (emotions of relatives); he did not refer to freedom of religion. 18

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they take their own religious concepts into account.21 The only limit national law poses is that the obligations may not be contrary to public order.22 As such a party may require a certain belief of the other party in, for instance, a rent or labor contract. What happens when the contract party has lost this belief? Contracts have to be performed according to reasonableness and fairness.23 That means that the court has to evaluate the interests of both parties. Dissolution of the contract because the party has lost the required belief is not necessarily contrary to the freedom of religion. It depends on the circumstances.24 The norm of fairness and reasonableness gives the court the space to take the religious background of the parties into account. In the area of obligations as well as in the following area (tort) the question is what the freedom of religion means in horizontal relations. Tort The tort action is a general means to receive compensation for damage caused by someone else—outside a contractual relation—and to prevent people from causing such damage. Not only the breach of explicit legal rules can be a tort, but also the breach of what—according to unwritten law—can be expected in societal relations.25 The tort action can play a role in relation to the freedom of religion in two ways. On one hand, the question arises if someone on the basis of his or her (freedom of) religion has more freedom to express himself or herself than someone else. Another question is if someone may claim damage because s/he is hurt in his or her religious feelings. Until now the higher courts in The Netherlands have been very restrictive in considering religious expressions against minority groups

21 See about this N.F. van Manen, “Interculturele conflicten en het recht,” (Intercultural Conflicts and the Law) with references in N.F. van Manen (ed.), De multiculturele samenleving en het recht (Multicultural Society and the Law) (Nijmegen: Ars Aequi Libri, 2002), 98–99. 22 Art. 3:40 CC. 23 Art. 6:2 and 6:248 CC. 24 See about human rights and obligation law: A.G. Maris and J.M. Polak, Handelingen der Nederlandse Juristen-Vereniging (Reports of the Dutch Lawyers Association) 1969, I, first part, 9 ff. and 71 ff. and H.A. Groen, Handelingen Nederlandse Juristen-Vereniging 1995–I, 131 ff. The authors are all reluctant in direct application of human rights in civil law. Human rights may work indirectly; civil law has its own system. 25 Art. 6:162 CC.

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such as homosexuals or women offensive, while lower courts found that easier. An important aspect is if the expression is a genuine sign of religion that does not have the intention and a form to hurt.26 Because of the growth of the Islamic population and the secularization of the former Christian society in the Netherlands, active Christians are afraid that they may no longer openly confess their faith because it may be offensive towards Muslims.27 When this actually would be the case, this would be contrary to the freedom of religion as this explicitly includes the confession of one’s faith. When religious groups would not accept the proclamation of the faith by members of another religious group, this is a very serious problem for a multicultural society.

Civil Law Rules Regarding Church/Religious Organizations and Their Freedom of Religion28 The organizational side of religion has a special place regarding civil law in relation to the freedom of religion. How much room do religious communities/churches have regarding their internal structure and regarding their relations to their members and functionaries? This part mainly refers to Dutch law. Legal Personality A very important aspect of the legal existence of religious communities and churches is that they have or may have legal personality, as this is the most efficient vehicle for an organization to be part of society. In certain countries, churches and religious communities have legal personality by nature; in others they may apply for legal personality. It is important that the ECHR has decided that a church has principally the right to obtain legal personality.29 In the Dutch CC church societies

26 F.T. Oldenhuis, “Schurende relaties tusschen recht en religie” (Grinding relations between law and religion) inaugural lecture RU Groningen, 2006 (Kluwer, Deventer 2008), makes the distinction between ‘exclusiveness’ and intolerance.’ 27 See Uitdaging, April 2006. 28 Religious organization is meant within this contribution as an organizational entity created by or on behalf of the church. It does not cover organizations according to civil law with a religious purpose. 29 Canea Catholic Church vs. Greece 16 December 1997, Rep. 1997 VIII fasc. 60 ECHR.

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(kerkgenootschappen) form a specific legal persons form. There are no formal requirements. In the following paragraphs, legal personality of the church is presupposed. Internal Structure As inherent to the freedom of religion, churches and religious organizations have the freedom to organize their internal structure according to their ecclesiastical vision. In this spirit, art. 2:2 Dutch CC states that churches are governed by their own statute. The only limit is that the statute may not be contrary to the law, which generally is interpreted that the stature of the church may not be against public order.30 Financial Duties of Members Without the contributions of its members, churches can generally not survive. As such a church may, in my opinion,31 legally claim the right to lay obligations on its members related to their community. Systematically, I see a ground for this in the fact that a church is a member organization—the existence of which is dependent from the financial contributions of the members. In the regulation of the legal person for member organizations, the association, in book 2 CC, the law32 provides for the competence for the association to lay (civil) obligations on its members according to its statutes. Analogous application of this by churches seems appropriate from a private law perspective. From a theological point of view the equalization of a church with an association is maybe more problematic. I found court cases before 1950 where churches have sued members in case of non-payment.33 In 1959 the Supreme Court considered the church contribution the fulfillment of a moral (natural) obligation.34

30 Compare Asser-Van der Grinten-Maeijer, De rechtspersoon II, nr. 220 and literature mentioned there. 31 Compare Asser-Van der Grinten-Maeijer, nr. 221. 32 Art. 2:27 s. 4 and 2:34a Dutch CC. 33 See I.A. Diepenhorst, De verhouding tusschen kerk en staat (The Relation between Church and State) (Utrecht: Kemink, 1946), 213–214. 34 HR 28 January 1959, NJ 1959, 170.

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In most churches, it is common to consider the financial contribution of its members as a voluntary contribution.35 From civil law perspective this can be seen as either a gift or—when the civil law rules for gift are not used—the fulfillment of a natural obligation. The situation in Germany, where the governmental tax authorities collect church contributions (Kirchensteuer) on behalf of the church is a special case. Church tax is applied in relation to churches with a public law character. This is, as such, not in line with a clear separation of state and church, and does not fit with churches with a private law character. Equal Treatment? In the Netherlands, churches are exempt from the rules of equal treatment of, for instance, persons of different religion, different sex, and homosexuals—as worked out in the general law on equal treatment on the basis of art. 1 of the Constitution36—in their internal organization. This exemption includes the requirements for clergy. By general law the human right of equal treatment is made applicable in horizontal relations. However, with regard to relations within churches, the freedom of religion apparently received higher status. According to European standards, the Netherlands should not give churches this exceptional position. According to the Dutch State Council, this means, in any case, that churches are only justified to discriminate when they are motivated by the character of the profession or of the context. Racial discrimination is not legitimate at all.37 It is surprising that in a secular society such as the Netherlands the freedom of religion still provides prerogatives,, while in a religious country such as South Africa, the church is or feels obliged to adhere to the equal treatment principle even within the church.38 Although the internal organization of the church is not infringed upon by governmental requirements, that does not mean that the decisions of the internal bodies of the church cannot be reviewed by the court. Church members who have been unfairly treated can ask the 35 The voluntary character is important for tax deductibility of the contribution regarding income tax. 36 See European Convention of Human Rights 4 May 1950 Trb. 1951, 154. art. 14, Dutch constitution art. 1, General law on equal treatment of 2 March 1994, in force 1 September 1994, last change S. 2004, 119. art. 3. See A.P.H. Meijers, NJB 1994, 710 ff. 37 B.P. Vermeulen, 221 in M.L.M. Hertogh, P.J.J. Zoontjen, Gelijke behandeling, principes en praktijken (Equal treatment, principles and practice) 2006. 38 See P. Coertzen’s contribution to this book.

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court for annihilation of the decision by the church39 or for damage compensation. The norm for the mutual behavior of the church and its members is that they should treat each other according to reasonableness and fairness.40 Religious organizations that are not churches also enjoy this freedom in the Netherlands. A famous example is the Dutch Protestant orthodox party, SGP, which states in its basic documents that women should not be eligible in representative bodies, like parliament and local council. As such this view is not considered to be contrary to public order.41 It would be against public order when a church or other organization has as its purpose to propagate discrimination.42 However in a procedure on request of feminist organisations against the state with regard to its approach of the SGP the Supreme Court has declared that the prohibition of discrimination has priority above the freedoms of religion and of association because according to the Supreme Court the state is bound to this by the U.N. Treaty against woman discrimination.43 The Legal Position of Ministers How far are churches free in structuring the relations with their ministers (priests, imams, reverends, etc)? Is the church bound to offer them labor contracts? Some lawyers suggest that religious activities such as worship, accepting confessions, and similar activities cannot be compared with other activities and therefore cannot be seen as labor.44

39

Art.2:2 and 2:15 CC. See art. 2:2 and 2:8 and 2:15 and 6:162 Dutch CC. Compare T.J. van der Ploeg, “Staan het recht en de geschilbeslechting in private organisaties en kerkgenootschappen onder of boven de wet?” (Are the Internal Law and Conflict Resolution in Private Organizations and Churches under or above the (National) Law) in G.R. Rutgers, R.J.C. Flach, (eds.) Amice, Rutgers-bundel: opstellen, op 26 april 2005 aangeboden aan Prof. Mr. G.R. Rutgers, ter gelegenheid van zijn afscheid van de Rijksuniversiteit Groningen, (Deventer: Kluwer, 2005), 266–267 and 270. 41 See about the SGP in a multicultural society: Ten Napel, “Een Nederlandse Talibaan?” in N.F. van Manen (ed.), De multiculturele samenleving en het recht (Nijmegen: Ars Aequi, 2002), 151. 42 See art 2:20 CC and Rechtspersonen (loose leaf ) art. 20 (C.W. de Monchy) nr. 4. 43 Supreme Court 9 April 2010, LJN BK4547) The motivation seems disputable. 44 Andrés-Corsino Cortina and Miguel Blanco, “Employment status and social security rights of ministers of religion in Spain,” Law & Justice nr. 153 (2004), 108–109. 40

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Another objection that is made against the idea of a labor contract for a priest is that his position cannot be compared with an employee because the employer is not the Church but the Almighty.45 It is interesting that as early as the 19th century the courts treated this relation as a contract of civil law. Diepenhorst reports a dispute in 1854 between a civil law professor and a district court judge about the question of whether the internal relations in churches have such a spiritual character that they should be withdrawn from civil law governance.46 In more recent case law, we see different decisions, but there is a tendency for (lower) courts to declare the clergy to be employees of the local parishes. Apparently the relation between a minister and his/her ‘church’ is not seen as a totally internal matter of the church but—as it deals with finances—as a relation that is also under the rule of civil law. Also when the relation is seen as a labor contract, the freedom of the church to use its own regulation concerning the continuation or finishing of the relation with the minister—at least with regard to his competences within the church—should be respected.47 Otherwise, this would be contrary to the freedom of religion. When it concerns ministers who are fully dependent on the income they receive from the church, I think it would not be fair towards them if the church did not provide for the same sort of supplies that employees receive from social security. Churches may base themselves on the freedom of religion with regard to the view on the legal position of their ministers, but this does not takes away their social responsibility towards them. The conflicts between ministers and churches about finances usually occur in churches where the church has not provided for social security for their ministers. It is embarrassing that the secular court then helps the minister by applying labor law. In, for instance, the Protestantse Kerk in Nederland (the Protestant Church in the Netherlands), where social provisions are made, these conflicts do not arise, although the church regulation explicitly states that the minister is not subordinate to the parish (council) and therefore is not an employee.48

45

See Diepenhorst, De verhouding tusschen kerk en staat, 213. Diepenhorst, De verhouding tusschen kerk en staat, 206–7. 47 Compare T.J. van der Ploeg, “De rechtspositie van priesters, predikanten en andere voorgangers” (The Legal Position of Priests, Preachers, and Other Pastors), in L.C. van Drimmelen en T.J. van der Ploeg, Kerk en recht, 168. 48 Ordinantie 3–5–2 PKN. 46

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Internal Conflict Resolution In principle, the church may also—based on its freedom of religion and association—regulate its own conflict resolution procedures.49 One should discern between conflicts in the church of ecclesiastical character and conflicts of financial character. When the conflict has a purely ecclesiastical character, its solution only has an internal effect in the church. In extreme circumstances a tort claim may be brought to court.50 When the conflict has a financial character, the church may also have its own procedure, but this is not exclusive. When one of the parties is not satisfied, he can always appeal to the civil court.51 The reason is that the rights and duties in such a conflict can be qualified as civil rights and duties, about which the European Convention states that the parties involved have always entrance to the civil court. In these cases the worldly courts also test and evaluate whether the internal church procedure has been in conformity with the general principles of fair trial.52 When the church has an arbitration procedure according to the rules of arbitration in the code of civil procedure,53 the civil court can only annihilate the arbitration verdict on very limited grounds.54 Dissolution of Churches Possible? A final civil law aspect of the church as a legal person is whether a church or religious organization can be dissolved because it acts contrary to public order. When looking at the formulation of the freedom of religion in the European Convention on Human rights (art. 9 s. 2), it seems clear that the freedom of the churches can be restricted when it is exercised contrary to public order. In the Dutch civil code book 2, the general rule is that the court dissolves a legal person for having

49 See A.H. Santing-Wubs, Kerken in geding: de burgerlijke rechter en kerkelijke geschillen (Churches in Court; the civil court and church conflicts) (Diss. Groningen: Boom, 2002), 214. and T.J. van der Ploeg, 267 in Amice (Rutgers-bundel) 2005. 50 See paragraph about “Tort” above. 51 Art. 6 ECHR. 52 Helle vs. Finland 19 December 1997, Reports 1997–VIII ECHR. See further A.H. Santing-Wubs, 2002. 53 Art. 1020 ff. Dutch Code of Civil Procedure. 54 Art. 1065. Dutch Code of Civil Procedure.

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a purpose or activities against public order.55 The church does not fall directly under this article. In my opinion, there is no objection against analogous use of this sanction for churches that have a purpose or act contrary to public order.56 The legal basis for this view is that in the last sentence of art. 2:2 CC, s. 2 it is stated that the articles of part 1 (general articles) of book 2 CC are not applicable, but that analogous application is allowed as far this can be combined with the statute of the church and the nature of the mutual relations. Of course, one should be reluctant in stating that the purpose or certain activities are contrary to public order, but when it is clear that the ‘church’ has as its purpose to violently disturb society, and/or church officials stimulate, organize, or commit criminal acts, it would be ridiculous when the church could not be dissolved because of the freedom of religion. This freedom can never be an argument or excuse for illegal, anti-societal acts.

The Freedom of Religion within the Church The question here is not if members of the church are free—in relation to the state or government—to exercise their religion in the church, but if they can claim religious freedom in relation to the church to which they belong. Earlier in this contribution, I have called this relation between the member and his or her church a ‘private vertical relation.’57 The Freedom of Religion of the Individual versus the Freedom of Religion of the Church The church is free to embrace certain confessions and regulate the requirements and conditions regarding religious rituals, services, functionaries, etc. as long as these are not contrary to law or public order. It binds its members with these. This collective freedom of religion 55

Art. 2:20 CC. A rather right-wing parliamentarian has initiated a private member’s bill (nr. 29757) to formulate an explicit right to dissolve churches when they act or have a purpose contrary to public order. This is in fact evoked by the Minister of Justice as he was rather hesitant of the possibility under the present law. 57 One could also call it an organizational relation, but this word can also be used for relations between equals within an organization. 56

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for a church presupposes that the members have joined the church voluntarily. The community of the church may also consist of others, such as children and non-confessing participants, but as long as they have not explicitly joined the church they are not legally bound by its rules. The member cannot avoid application of the internal rules of the church on the basis of his or her individual freedom of religion. The collective (associational) freedom of religion includes the right of the church to exclude (excommunicate) a member when s/he acts contrary to the regulations of the church or seriously damages the church. The individual freedom of religion (association) allows the member to leave the church without conditions. A member, and especially a priest or a reverend, may, although he or she does not fully agree with what the church says—in regard to the interpretation of the Bible, the personal conscience is mostly seen as a very serious criterion—not wish to leave the community of the church. The way the church approaches this situation should, in my mind, be dependent of the effect of the continuation or completion of the membership, or the function of the considered person. Does the continuation of the function cause damage to the church? Are there other sanctions than excommunication to deal with the conflict? Not only is the member submitted to the church regulation, but the church is submitted to the civil law rules of fairness and reasonableness.58 The Freedom of Religion of an Autonomous Part of the Church versus the Freedom of Religion of the Church In greater national churches, such as the Roman Catholic Church, the former Dutch Reformed Church, and the actual Protestant Church in the Netherlands (PKN), there are—according to their statutes on several levels—church units with legal personality. The Dutch CC art. 2 states that autonomous sub-divisions of a church also have legal personality. It is clear that it depends on the church order which organizational units receive this status of autonomous sub-division. Rather naturally, local parishes are considered to be autonomous subdivisions—as they are within the said church structures not indepen-

58 See under “Law of obligations” above. Compare F.T. Oldenhuis, 303 ff. in CJHB (Brunner-festschrift) 1994 and T.J. van der Ploeg, 266 ff. in Amice (Rutgers-bundel) 2005.

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dent churches themselves, but need legal personality for their proper functioning—and have as such legal personality. The question arises whether the local parishes as legal persons have their own freedom of religion in relation to the church to which they belong. This question was current in the PKN in relation to Dutch Reformed parishes that were against the merger of the Dutch Reformed Church, the Christian Reformed Church, and the Evangelical Lutheran Church into the PKN in 2003. On the basis of the fact that they wanted to stay with the old confessions of the Dutch Reformed Church—not mixed with other confessions—they claimed the right to remain outside the merger (which they claim is illegal). The separated Dutch Reformed parishes have formed a new church organization: the Hersteld Hervormde Kerk (the Restored Reformed Church). The question is if they still have the property rights regarding the church building and other church belongings that they had before the merger. Could they continue the legal personality they based on the regulation of the Dutch Reformed Church after the merger of this last church into the PKN and separate themselves from it. In the same year as the merger into the PKN, a lawyer, J.J.H. Post, defended his thesis on this subject.59 He stated that the local parish with legal personality enjoys, just as other legal persons, the freedom of association. The freedom of association includes the right to resign from the association, which, in this case, the church (church-union in Post’s words) was the Dutch Reformed Church.60 The separated churches used his arguments in court. What Post however neglected is that the relation of a church and its autonomous parts is not comparable with the relation between an association and its members.61 The legal personality is not given to an autonomous sub-division to make it totally independent. Art. 2:2 CC does not suggest so either; it apparently offers churches an extra capacity to make legal persons where they think fit. This means that only individuals can leave the church, not the parishes. They stay an autonomous sub-division of the church. When these individuals start their own religious services and form communities, they form—according to Dutch law— a new church (kerkgenootschap) (= legal person). This is, however,

59 J.J.H. Post, Een sikkel in een vreemde oogst? (A Sickle in a Strange Harvest), Diss. VU 2003, (Heerenveen: Groen, 2003). 60 Post, Een sikkel in een vreemde oogst?, 135–136. 61 It would be comparable when there is a body in which churches are united, like the Christian Reformed Church.

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another legal person than the parish that was—and still is—an autonomous sub-division of the church, as also has been decided in several cases by the courts.62

Civil Law, Church Law, and Multiculturalism In the paragraphs above, a picture is given about how civil law restricts, on certain points, the individual and collective freedom of religion, and how it sometimes gives opportunities to exercise this freedom. The use of the legal person ‘church’ (kerkgenootschap) has especially given a lot of space to create religious freedom. In relation to other citizens and organizations (horizontal relations) and in relation to the church to which the individual or church unit belongs, the freedom of religion is a basic principle. The restrictions that government may, with the help of civil law, place on the freedom of religion can be based on public order and the protection of the interests of others. As a function, civil law has to provide for equal—protective—norms between the members of society. It focuses on common norms and not on differences in norms. In a civil law system, cultural elements can also play a role when courts evaluate conflicts, taking the (religious) expectations and opinions of the parties into account. An alternative for civil law could be multicultural law,63 where different religious and/or cultural groups have their own norms. One could think that in such a system the freedom of religion is (still) more guaranteed. To connect law to (cultural) groups has, however, also clear disadvantages: a. It is not easy to exactly determine what distinguishes a culture or a group and who belong to it.

62 See, for instance, district court Utrecht 22 July 2004, LJN AQ 4470, district court The Hague 11 May 2004, NJF 2004, 449 etc. 63 Comp. A. Koekkoek, “Pluralisme en grondrechten van sociale organisaties” (Pluralism and Human Rights of Social Organizations), in H.R.B.M. Kummeling and S.C. van Bijsterveld (eds.), Grondrechten en zelfregulering (Human Rights and Self Regulation) (Deventer: Kluwer, 1997), 53. N. Huls and H. Stout (eds.), Recht in een multiculturele samenleving (Zwolle: W.E.J. Tjeenk Willink, 1993) and N.F. van Manen (ed.), De multiculturele samenleving en het recht (Nijmegen: Ars Aequi Libri, 2002).

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b. People are involuntarily subject to this ‘group’ law, without necessarily having the possibility to participate in the development of the law, as in a democracy. c. What happens to individuals when they leave the group and what happens when foreigners join with the group? The most important issue is, I think, the fact that an individual is subject to cultural or group law on an involuntary basis.64 Involuntary submission to law should legally only be a consequence of nationality—where it is combined with the right to participate in the national democratic process of law making. Also for the relations within the (religious) group, the civil law approach seems more favorable than a multicultural law approach. First of all, the civil law system recognizes the individual legal sphere of legal persons for their voluntary participants. The freedom of religion can, as such, flourish in this sphere. The members are, however, protected by the possibility to appeal to the civil court in case of unreasonable and unfair behavior by the church bodies. The court carries out a marginal test, not evaluating religious questions. In principle, the competences of the church bodies are recognized. When the continuation of the membership would be unreasonable, the membership can be ended. In a system of multicultural law, such provisions are not so easy to make. It is possible to implement multicultural elements in a civil law system through ‘associational law.’ During a large part of the 20th century, this was—in fact—the way in which different cultural, religious, and ideological groups—like pillars—lived together in Dutch society—which system more or less collapsed in the 1960s and 70s due to subsidizing by the government, merging, and secularization.65 But such a system is based on voluntariness.

64 W. Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights, (Oxford: Oxford University Press, 1996), 71, for instance, suggests, however, that rights of cultural minorities and individual freedom can go together. Critical about this is M. Galenkamp, “Speciale rechten voor minderheden?” Recht en kritiek 1996, (22), 202–224. 65 See, for instance, S.W. Couwenberg, “Besturen op afstand: particulier corporatisme als bestuursvorm” (Distant Monitoring; Private Corporatism as Form of Government) in J.G.A. van Mierlo and L.G. Gerrichhauzen (eds.), Het particulier initiatief in de nederlandse verzorgingsmaatschappij (Private Initiative in the Dutch Welfare Society), (Lochem: de Tijdstroom, 1988), 20.

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Multicultural law cannot be a solution in a country with frequent mobility between the groups and does not fit with the individualism of modern people. In a civil law system, one has—from time to time—to evaluate if civil rules are necessary or if the interests can be regulated better by the parties or the groups. If national legal rules disappear, contractual and group rules may replace them. These rules can bind on the voluntary basis of a contract or membership of an association or church. Without such a basis, ‘group norms’ may be taken into account by courts as circumstance.66 I am happy that in a recent report67 the Dutch government stresses the importance of common human rights and of tolerance, democracy, and the rule of law (rechtsstaat) as the basics for a multicultural society. In such a society, it is also a Christian duty to further good general (civil) law, exercise the freedoms of association and religion, and to organize activities according to one’s faith, together or separate with people from other views, instead of aiming at communities with separate group law.

66 See J.M. Smits, “Multiculturalisme en Europees privaatrecht: een pleidooi” (Multiculturalism and European Private Law; a Plea) NTBR 2000, (pro multicultural law), 289. And J.R. Sijmonsma, “Moet er een multiculturele rechtspraak komen?” (Should Jurisdiction become Multicultural?) NTBR 2001, (contra), 128. See also P.J.M. van der Berg, “Het vermogensrecht in de multiculturele samenleving” (Property and obligations law iin the multicultural society), (contra), in N.F. van Manen, De multiculturele samenleving en het recht, 139. 67 Nota Grondrechten in een pluriforme samenleving (Report Human rights in a pluriform society) Second Chamber 2003–2004, nr. 29614, nr. 2

CONTRACTUAL RELIGIOUS FREEDOM Rik Torfs

Evolution with Regard to Human Rights Human Rights as a Free Zone for Citizens Historically, human rights can be explained within a very precise framework underpinned by some basic ideas regarding the role of the state and the position of the individual.1 The ideas of Enlightenment, first, and of liberalism, later, are characterized by the idea of state sovereignty combined with a true respect for the freedom of the individual. This construction requires a very interesting equilibrium. On the one hand, those who govern the country are entitled to do so; on the other hand, the individual is not left alone in the hands of the government. This idea explains why human rights are badly needed. They create a free zone—a playing garden where the individual can follow his own aspirations—without being curtailed by any state power whatsoever. Freedom of expression, freedom of religion, freedom of association, and freedom of press all confirm this idea. The sovereignty of the state is, to some extent, counterbalanced by the citizens’ individual and group rights. In this configuration, human rights are an important part of a global political construction. Horizontal Human Rights Gradually, human rights managed to obtain a better position within both society and the political system. History is not unimportant in that regard. Scepticism vis-à-vis unlimited or uncontrolled state power became increasingly apparent—especially after the totalitarian adventures of the last century, including Nazism and communism. Human rights were increasingly seen as the pinnacle of Western democratic

1 See R. Torf, A Healthy Rivalry. Human Rights in the Church (Louvain/Grand Rapids: Peeters Press/W.B. Eerdmans, 1995), iv + 125.

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culture. They became a sign of hope. The difference to the previous vision on human rights is obvious. From then onwards, human rights are no longer an element of some global political construction. They are far more important than any political construction whatsoever. They are the conditio sine qua non without which no political system can be legitimate. Human rights are no longer an element or a footnote; they belong to the hard core, the very center of occidental democracy. This optimistic view, so characteristic of the years following World War II, also led to an extension of the field of application accorded to fundamental rights. Whereas originally fundamental rights were limited to the vertical relationship between citizens or individuals and their authorities, the horizontal dimension of fundamental rights became an important issue as well. Human rights turned out to be more than just a defensive mechanism in favor of the individual against the state; they can also be seen as a question raised about anti-discrimination norms that are also applicable in private relationships or freedom extended to a horizontal level. Crisis If one looks more closely at current developments with regard to the interpretation and application of fundamental rights, some form of crisis should be underscored. Human rights, of course, remain a cornerstone of Western democracy, but then again they are less absolute, less pure, and limpid than they used to be or than they were perceived to be just a few years ago. Two factors contributed to the relative decline of human rights in the Western value scale. First, the events of 11 September 2001 did not pass without lasting consequences.2 Advocates of fundamental rights were no longer automatically on the winning side. Their plea in favor of freedom, until then virtually unchallenged, was counterbalanced by security concerns.3 In cases where citizens had to make a choice between freedom of religion and security, they tended to opt

2 R. Torfs, “Nationalism as a Challenge for Religious Freedom,” Fides et Libertas, 2005, 92–97. 3 J. Jetkowitz, “Wie Osama Bin Laden das Deutsche Staatskirchenrecht verändert. Die Streichung des Religionprivilegs im Vereinsgesetz und die Folgen,” Spirita Online. Zeitschrift für Religionswissenschaft, January 2002, F1–F5.

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for security. It is probable they also would have done so before the terrorist attacks of 11 September. Yet, in the past, freedom of religion and security were seldom perceived as values in opposition to each other. Also after 11 September, experts on religious freedom tried to advocate the idea that any contradiction between freedom and security was just an illusion. Moreover, they argued, it is by protecting religious freedom that frustrations that eventually lead to violence can be prevented. Although this reasoning makes some sense, it does not offer a full and satisfactory explanation. Consequently, the limitations to religious freedom tend to be interpreted more broadly than in the past, showing both scepticism to almost limitless freedom and deep security concerns also in the legal field. Second, lasting problems concerning the elaboration of a solid, multicultural society in Western Europe had its consequences for the relationships between religion and state. For a very long time, many European countries were fairly monocultural. Even in the religious field, most countries had one large dominating church. One can think of Catholicism in Ireland, Italy, Austria, or Spain, and of Protestantism in Finland, Denmark, or Sweden. Even in a country like Germany, with an almost equal distribution of Protestants and Catholics, there used to be a clear majority on the more regional level—as one should not forget that the unification of Germany occurred only in the nineteenth century. Initially, immigration from North Africa or Turkey was seen as a social or human problem and disconnected from religious concerns. The mere fact that immigrants also had a religion did not always cross the mind of political decision makers. This can be explained by the fact that in their own country religion increasingly became a private issue without far reaching political consequences. For a long while immigration and integration were looked at with an optimistic eye. The enrichment generated by multiculturalism was perceived as more important than possible negative connotations and practical difficulties. Only during the last decade, the conviction grew that Western European integration policy was sometimes too easy going. Numerous examples of failed integration of second and even third generation immigrants stimulated a new and more audacious thinking with regard to the multicultural society. This new approach also includes more outspoken attention to religious issues. Indeed, it is very clear today that faith and belief are important elements of immigrants’ ideas and actions. In other words, religion is seen as both important and slightly dangerous

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for successful integration. Issues such as Imams coming directly from Arab countries or virgin brides found in the country of origin are religiously motivated. At the same time, however, these issues can slow down the integration of Muslim groups into a modern, Western, democratic society. Answers Given the evolution described above, two different techniques can be used to control religious freedom better than before—without, of course, abandoning the principle as such. The first solution consists in narrowing the concept of religion as described by art. 9.1 of the European Convention on Human Rights (ECHR).4 This article is formulated as follows: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion of belief, in worship, teaching, practice and observance.”5 Obviously, the interpretation given today to notions such as religion or belief widely differs from what was originally meant to be religion in 1950, when the European Convention was issued. However, the broadening of the notion religion can be explained by internationalization and later globalization.6 The world is able to integrate many different religious groups simultaneously present on one territory.7 It is clear that a wide definition of religion protects many acts and practices that, earlier, were not always perceived as religious activities. Maybe the notion religion gradually became too limitless. One can argue that it also includes practices that make use of the qualification as a religious group in order to protect and develop activities that would be less safe in case a religious umbrella had not been there. Yet, it remains difficult to exclude any particular practice from the definition ‘religious.’ As a matter of fact, one can argue that the mere definition of what a religion is already includes a violation of freedom of religion as such. 4

See the contribution by B. Vermeulen in this volume. European Convention on Human Rights (ECHR) art. 9.1. 6 T.J. Gunn, “The Complexity of Religion and the Definition of ‘Religion’ in International Law,” Harvard Human Rights Journal, 2003, 189–215. 7 See on this issue, B.C. Labuschagne, Godsdienstvrijheid en niet-gevestigde religies. Een grondrechtelijk-rechtsfilosofische studie naar de betekenis en de grenzen van religieuze tolerantie (Groningen: Wolters-noordhoff, 1994), 325. 5

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Indeed, all definitions in this field are inspired by underlying and often hidden presuppositions of the religious phenomenon and its content. Very often, the implicit idea about religion will be inspired by a Western context with Christianity as a tacit model for the concept of religion common to all religious groups. To sum up, defining the notion of religion too narrowly leads to an indirect violation of religious freedom. But then again, just leaving the question whether or not an activity falls under religious freedom to the people directly concerned is also highly hazardous. It is quite possible that those invoking religious freedom just try to use this instrument to obtain better protection for activities quite remote from traditional religion. In the end, some form of equilibrium has to be sought between a closed notion of religion, discriminating against atypical religious movements, and an entirely open concept leading to possible abuses and leaving the definition of religion to the people invoking religious freedom themselves. A second solution begins from an entirely other angle. This time limitations do not derive from a definition of religion, yet from the traditional limitation clause as formulated in article 9.2. This paragraph is formulated as follows: “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” It is generally known that limitations cannot easily be brought into practice. They have to be prescribed by law, and they must be necessary in a democratic society. The margin of appreciation left to the member states of the council of Europe remains considerable, yet it is far from being limitless. It is possible that notions such as ‘public order’ or ‘the protection of the rights and freedoms of others’ will develop in the future and will allow for more restrictions.8 Such an evolution will probably take place, yet it is clear that it never should lead to undermining civil liberties in order to protect democratic society. In that case, the good that the legislator wants to protect will be destroyed as a result of overprotection. So far, the description of two different methods limits, at least to some extent, religious freedom in order to protect—better than before—the security of the citizens. And yet, one can think of other

8 S. Ferrari, “Individual Religious Freedom and National Security in Europe after September 11,” Brigham Young University Law Review, 2004, 373.

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methods of protection. These methods are less defensive and more original than the two ways described above. Indeed, one could think of an entirely new method; namely, contractual religious freedom. Unlike the two strategies related to article 9 ECHR, the contractual method is not negative, but positive; not defensive, but offensive; not an element of public law, but an aspect of private law. In the next section, I shall try to analyze the context, principles, and application of these new strategies. .

Monitoring Religious Freedom by Contract European Framework with Two Levels Monitoring religious freedom by contract is not always easy in all countries of the world. Yet, it is workable in a European setting. The latter is characterized, whatever the situation in the different countries may be, by the existence of two different levels; namely, the level of religious freedom, which is the basic level, and the level of religion and state relationships, which can be seen as an upper level built upon the foundation offered by the religious freedom level. How can one truly understand this picture? The basic level of religious freedom is common to all religious groups and denominations as well as to all individuals. All enjoy freedom of conscience and belief, freedom of expression, religious manifestation, and religious organization. Article 9.2 makes it clear that this freedom is not unlimited; however, it needs to be very broad, and it should not distinguish among the religious groups themselves. For instance, this means that all religious groups should have the tools to participate in juridic life, to acquire goods, and to build churches or mosques. Similarly, individuals should not be excluded from tasks and functions in public life on the basis of their religious adherence. In that regard, the general evolution in Europe is positive, and the European Court in Strasbourg plays a very important role as a facilitator and as an eye opener. The top level, which is only acceptable in the case where the basic level brings equal religious freedom to all, develops specific relationships between the state and certain religious groups. One can speak here about ‘privileged’ relationships, although this notion sounds far from sympathetic in an era characterized by an increasing sensibility

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for equality, in general, and for equality among religious groups, in particular. The top level gives opportunity—again, once basic religious freedom is guaranteed to all—to offer certain advantages as well as support and sympathy to religious groups who are prominently and fruitfully present in a given society. Given the fact that, in line with the American model, Europeans also increasingly see equality as a factor of religious freedom, it is very important that secular authorities develop transparent criteria to distinguish among religious groups, and to elect some of them for closer relationships with the state and not others. Elusive criteria are no longer acceptable. Yet, statistical strength or compensation for errors of the past (for example, vis-à-vis the Jewish community) are perceived as highly acceptable. European Model: Why? The European model with two levels can be explained from two different perspectives.9 First of all, history played an important part in the genesis of the current model. As most countries had one majority religion, and as state and church were, for a long time, fierce competitors trying to gain control over society, some often privileged relationships between the state and the dominate religion can easily be explained. Later, when the position of minority religions improved, the advantages attributed to the dominating religion were often expanded to other groups. This is interesting, as the reverse phenomenon could have occurred as well; namely, a degradation of the dominating group to the inferior level of the others. Yet, that is not what happened. Apparently, European governments do believe in a social role of religion and are ready to support this role actively and financially. It is clear that the United States finds itself in an entirely different position. Religious majorities are only present in two states—Utah (Mormons) and Rhode Island (Roman Catholics). Moreover, many people left Europe for the States in order to avoid established religions and discrimination against minorities.10 State support for religious groups, in

9 See on this topic, R. Torfs, “European Nationalism. Coexistence in a Multi-ethnic and Multi-religious Society,” Derecho y Opinion, 1997, nr. 5, 433–448. 10 On the specific situation of minorities, see D. Little, “Religious Minorities and Religious Freedom,” in P. Danchin and E. Cole (ed.), Protecting the Human Rights of Religious Minorities in Eastern Europe (New York: Columbia University Press, 2002), 33–57.

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that context, was not emancipatory but the opposite; namely, a source of discrimination. A second reason why the European model exists—or, more correctly, survives—is the European concept of the welfare state. To be honest, the latter is non existent in the United States, yet it is more thoroughly developed in Europe. In the old continent, taxes are high, yet citizens receive something in exchange. Social security is well developed, medical care is accessible to all, and fairly good universities are not the privilege of the rich. In that context of generously financing various initiatives, non-support of religious groups is not neutral; but rather, discriminatory. Obviously, the latter is not true for the U.S., where taxes are lower, where state support—in general—is more restricted, and where, thus, the absence of material support to churches is more strictly neutral than it ever could be in Europe. Contracts: Not Related to Religious Freedom but Related to State and Church Relationships The concept of contractual religious freedom cannot be accepted on both level one and level two. Indeed, level one is the hard core of religious freedom and cannot be the subject of direct negotiation. People have the right to exercise their religious freedom, and the state cannot force them into some form of a contract in a case where they have no other wishes than just expressing their religious freedom.11 Yet, contractual religious freedom has a role to play on the second level—the level of religion and state relationships. Here, a do ut des mechanism can be worked out. The bottom line goes as follows: the state supports a religious group materially, and in exchange the latter agrees not to exercise all aspects of religious freedom. For instance, the price for support could be the acceptance by the religious group of both the democratic state and the rule of law as a general framework within which everybody, including religious groups, operates in society. One can call this method, less dramatically, also a method of conditional subsidies. This means that the state uses financial incentives to stimulate actors in society in the direction of a general accep11 On collective religious freedom, see recently J.P. Schouppe, “La dimension collective et institutionnelle de la liberté religieuse à la lumière de quelques arrêts récents de la Cour Européenne des Droits de l’Homme,” Revue trimestrielle des droits de l’homme, 2005, 611–633.

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tance of the liberal democratic state as the overall framework of their activities. Critics could be inclined to see in this method a limitation of religious freedom. This, however, is not true. In cases where religious groups stick to level one because they do not qualify for level two (for instance, because they are too small, or because they just do not want to limit their scope of action—not even in exchange for general support), religious freedom remains as large as it used to be. Only if the religious group concerned wants to make use of the offer made by the state to actively support its activities, a limitation concerning the exercise of religious freedom is possible. Clearly, no fundamental right is endangered by this method. The only thing one can say is that, slightly paradoxically, the smaller and more marginal religious groups will, in practice, have more rights than the larger ones who decide to accept the money offered by the state. Concrete Content of Contracts The next issue, after having examined the plausibility of contractual religious freedom, is its content. Is it possible to contract about virtually everything, or should certain matters be excluded from any contractual agreement as a result of their overwhelming importance for the very notion of religious freedom itself? At first glance, three types of topics can be identified, with sometimes different conclusions attached to each of them. The first category concerns practical and financial issues. Here, contractual relationships seem to be very helpful. At the same time, they do not constitute a considerable danger for the key values and main elements composing religious freedom. An example can illustrate this thesis. The state could ask that in exchange for the remuneration of Imams that their education occurs in an institution set up or recognized by the state. The reasoning behind this could go as follows: in the case where you want your Imam paid by the state, he should be educated by a recognized institution. Yet, in the case where you do not hope to obtain money, no restrictions with regard to education or training can be imposed. Clearly, this picture shows a link between payment and control. Moreover, the mere fact that the possibility of payment exists, offers an additional possibility with regard to control. A legal system in a position allowing financial support can fine tune its strategies with regard to the monitoring of religious groups.

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The second category deals with issues related to the theology of the religious groups concerned.12 This issue is much more delicate than the previous one. Even if certain topics are of utmost importance for the state, the price that the religious group has to pay is also considerable because its theological foundation is at stake. A good example here could be the ordination of woman priests. According to the theory established by the Roman Catholic Church in 1994, the fact that women cannot be ordained to the priesthood is part of the divine constitution of the Church.13 Could the state impose the opening of the priesthood to women as a condition for financial support? This would be a delicate move, given the theological importance the exclusion of women has in the eyes of the Roman Catholic magisterium. But then again, discrimination against women is a practice which is less and less accepted by society as a whole. Perhaps the day will come, although not today, that the financing of a religious group not allowing women in positions of authority will no longer be accepted by the secular state. The third category could include the relationship between religious groups and the horizontal functioning of fundamental rights. This would be a complete novelty. Today, some governments already actively stimulate inter-religious dialogue. They do so because religious groups can play an important part in the peaceful cohabitation of various religious and ethnic communities in society. Yet this dialogue is often very formal and finds itself restricted to mutual hugging and abstract love declarations. One could imagine a more active, concrete policy in this regard. A typical example could be common action with regard to proselytizing.14 The state could ask fair practice in that regard, which means—for instance—a reluctant attitude with regard to material advantages related to conversion. The idea would be that

12 Cfr. W.J. Everett, “Human Rights in the Church,” in Religious Human Rights in Global Perspective. Religious Perspectives, (The Hague/Boston/London: Martinus Nijhoff Publishers, 1996), by J. Witte, Jr. and J.D. van der Vyver, “The way human rights norms are implemented within churches is affected by their ecclesiologies and their relation to civil governments, by the degree to which they constitute an ethnic community and bear the traditions of that community, and by their internal degree of legalization,” 139. 13 John Paul II, Epistola Apostolica Ordinatio Sacerdotalis, 22 May 1994, Acta Apostolicae Sedis, 1994, 545–548. 14 G. Gonzales, “Nouvel éclairage européen sur le prosélytisme ou petite leçon de savoir-vivre sous l’uniforme”, Revue trimestrielle des droits de l’homme, 1999, 585–593.

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only religious groups ready to sign a code of conduct with regard to proselytising qualify for financial support granted by the state. What has proceeded demonstrates that a broad range of activities could be the object of a contractual relationship between the state and religious groups. The first category, including practical and financial issues, is the most obvious and the less delicate one. Yet nothing prohibits the state from also including other issues once the practice of contractual religious freedom becomes a more common one and gains plausibility.

Points of Concern From the Angle of the State What could be questions that emerge in the eyes of the state when the latter seriously considers engaging itself in a policy fostering contractual relationships with religious groups? One problem could be the equality issue.15 As mentioned above, equality increasingly becomes an aspect of religious freedom. Yet, distinguishing between religious groups remains plausible as long as strictly formulated and rigidly applied criteria are used. A necessary presupposition for any contractual policy by the state lies in deep reflection with regard to the basic criteria for establishing privileged relationships with some religious groups and not with others. A second issue deals with the pressure exercised by religious groups to protect the truth.16 Muslims claim that cartoons insulting their prophet Mohammed should be forbidden. At the same time, the Catholic Cardinal Arinze asks Catholics to insist in their respective countries that the movie, the Da Vinci Code, be banned. How should the state react? Certainly not by giving in. On the contrary, the idea could be advocated that the more certain that groups claim the truth, the more freedom should be given to other citizens to challenge this truth. Here, a parallel could be drawn with the famous Lingens case

15 See, on this issue, M. Heckel, Gleichheit oder Privilegien? Der Allgemeine und der Besondere Gleichheitssatz im Staatskirchenrecht (Tübingen: J.C.B. Mohr, 1993), 115. 16 Cf. on this topic, J.F. Flauss, “La diffamation religieuse,” in La protection internationale de la liberté religieuse, J.F. Flauss (ed.), (Brussels: Bruylant, 2002), 273–300.

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issued by the European Court in 1986.17 In this case, the Court decided that politicians and public people have to live with more criticism than other people quietly living a hidden existence. In other words, the more visibility and power that people have, the more criticism they should be prepared to cope with. A similar reasoning can be followed for religious groups: the more vigorously they claim to have the truth, the more they should be ready to hear the opposite story from others. A third point of concern is the moral supremacy that emotional arguments tend to have in times of globalization. Globalization is a fact. It spreads its mechanisms all over the world. People unable to cope with these high standards often try to find consolation in deeply rooted and emotionally colored values as religion can offer them better than any other instance. Even in rational political discussions, emotional argumentation as developed by religions seems to be more human and ethically better than rational ideas easily connected with merciless globalization. This is even true when those religious ideas are cruel, intolerant, or discriminatory against certain groups in society. In developing its policy, the state has to take into account this factual situation. The fourth and last point is a novelty. For the first time, international law, which played a very emancipatory role during the last decades,18 seems to be on the conservative side. Just two examples: the right to marry expressed by art. 12 ECHR seems to be limited to heterosexual marriages; the right to respect for private and family life starts from the traditional family based upon a relationship between a man and a woman. Will this new phenomenon lead to an unexpected alliance of transnational law and religious concerns? Probably not, yet religion and human rights are maybe less at odds than they used to be several years ago. From the Angle of the Churches The churches also have some reasons not to engage themselves without any further consideration into the dialogue regarding contractual religious freedom. 17 ECHR, Lingens v. Austria, 8 July 1986, Serie A, Vol. 103, §§ 41–44. See also, for example, ECHR, Colombani e.a. v. France, 25 June 2002, Recueil/Reports, 2002, §56. 18 On this influence, see C. Evans, Freedom of Religion under the European Convention on Human Rights, (Oxford: Oxford University Press, 2001), 222.

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A first point of concern could be the idea that ‘abandoning’ is both legally unacceptable and practically dangerous. Again, this fear can be counterbalanced by making use of the old thomistic distinction between ius and exercitium iuris. The idea behind this construction is that by making a contractual agreement the churches do not abandon their right, but just agree to not apply it as long as the contract lasts. This construction is less dramatic than a complete loss of the right itself. Moreover, it underlines the temporary and reversible character of the contractual relationship. A second element could be the fear that contractual relationships with the state include an acknowledgement of relativism as a cornerstone of state policy, and maybe even of human condition in general. This fear should not be exaggerated. Of course, concluding a contract presupposes the plausibility and the legitimate character of contracting as such. This is certainly a form of relativism. Yet, it is not ontological relativism vigorously denounced by Joseph Ratzinger,19 but practical relativism brilliantly advocated by Amos Oz.20 A third and last point of concern lies in the possibility offered to religious groups to pursue other strategies to gain influence and power in society. Religious leaders see as well as other observers that the pendulum in Western society swings in the direction of more conservatism. If this is true, why should religious groups try to conclude contracts with modern liberal society? Would it not be strategically better to establish a united front of conservative forces driven by their religious convictions?21 At first glance, this could be an attractive perspective: conservative religion versus the liberal state. And yet, when one looks further, questions do arise. First, why should religion necessarily be conservative? The behavior of, for instance, Jesus Christ cannot be qualified that way. A second question goes even deeper: is a conservative alliance—in the long run—a credible option? I think it is not. Certainly, conservative people from various religious denominations share a belief in the existence of the truth. Yet, the truth they believe in is a different one, and precisely because they believe in the truth, the differences with regard to the truth will become too large to be solved. Or in other words, true conservatives cannot enter into long 19 J. Ratzinger and M. Perra, Senza radice. Europa, Relativismo, Cristianesimo, Islam (Milan: Mondadori, 2004), 134, more specifically, 66. 20 A. Oz, Help Us to Divorce (London: Vintage, 2004), 81. 21 See on this issue, R. Torfs, “De staatssecretaris,” De Standaard, 29 June 2006, 19.

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lasting alliances since the truth that binds them is at the same time too important to them not to eventually divide them. In that regard, relativistic liberals have more chance to be successful than religiously inspired conservatives.

Conclusion In this stage, it is too early to draw definitive conclusions. What can be said, however, is that religious freedom is no longer as successful as it used to be in the best days of human rights. Security concerns and problems connected with the elaboration of multiculturalism means that restrictions to human rights have become a real issue. These restrictions can be the traditional ones, including a narrow definition of religion or an extension of limitations to religious freedom. Yet, another method can be used as well; namely, contractual religious freedom. This technique, not intervening on the first level of religious freedom but only on the second level of religion and state relationships, offers possibilities for monitoring religious activities in an offensive rather than a defensive way. There are no sanctions for those groups that do not behave, yet there are advantages for those who help the state in maintaining a healthy democratic environment. Probably, one day, the defensive and the offensive method will be used side by side. Yet, at this stage, the second method has been far less developed than the first one. Maybe the moment has come to give it a solid theoretical basis and to describe the many possibilities it can offer to a state motivated to conduct a modern and fruitful religious policy.

PART FOUR

PERSPECTIVES

In the previous parts of this volume, we saw that freedom of religion is embedded in concrete historical situations and has to do with specific topics of life and organizations of society. Therefore, we cannot deal with it in general terms. It is always related to concrete life so that dealing with freedom of religion is a hermeneutic enterprise. This is even more the case because nobody is neutral with respect to the issue. In this part of the book, we will deal with the fact that people enter the field of discussion with and from different perspectives. J.M. Vorster, with his long practice in the Committee of Human Rights of the United Nations, gives insight into the fact that freedom of religion and its implementation is again a matter of debate. He discusses five options and gives his own preference, although well aware that the best option depends on the context. It is clear that Vorster’s own context is defined by Christian heritage. Pieter Coertzen, well aware of the ambiguity of the concepts used in the field of debate, provides an example of one of the options from the viewpoint of the church in the South African context and sums up a long list of the items that are of importance for the church. Eduardus Van der Borght shows how even in the mainstream churches the role of religion is considered differently. In the contributions of Paul Cliteur and Abraham Van de Beek it is clear that the authors of this volume also have their own paradigm. Both deal with the relation of state and religion, and they do so from almost totally opposing viewpoints. Cliteur argues from the perspective of modern liberalism while Van de Beek approaches the theme in the paradigm of classic orthodox Christianity. All these different perspectives cause a conflict with regard to human rights: which right should be dominant? Religion or freedom of expression?

CURRENT OPTIONS FOR THE CONSTITUTIONAL IMPLEMENTATION OF RELIGIOUS FREEDOM J.M. Vorster

Introduction The manner in which a constitutional democracy should protect religious rights is once again under examination. The United Nations defines religious rights in its resolution 2004/36 of the Human Rights Commission as the right of all individuals to freedom of thought, conscience, religion and belief, the right to practice their religion freely, and the right to change their religious conviction. It is the task of governments to implement institutional and constitutional guarantees in order to protect these basic rights.1 Reconsideration of the implementation and promotion of these basic rights has become necessary due to new conflicts between communities of different religious convictions as found in various countries. The events of 11 September 2001 and the wars that followed these have given rise to the increase of tensions between some fundamentalist Muslim communities and Western communities. Since then religiously inspired unrest and armed resistance have been on the increase in countries in which religiously plural communities have been growing such as France, Germany, Spain, Israel, and Australia. Within Muslim countries such as Saudi Arabia, Pakistan, and Indonesia there has also been an increase in animosity towards Christian churches, while Islamic minority groups have been experiencing aggression and hostility in a number of other communities.2 Infringements upon religious rights fluctuates between open violence to the banning of religious reading material, damaging of places of worship, forced conversions,

1 United Nations, “Civil and political rights, including the question of religious intolerance,” Report submitted by Asma Jahangir, Special Rapporteur of freedom of religion or belief, Geneva, United Nations, Document E/CN.4/2005/61, 20 December 2004, 6, 20. 2 United Nations, “Civil and political rights, including the question of religious intolerance,” 11.

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and religious duties that are imposed upon women and children of a different religion. Evidence also exists that some governments expect religious bodies to register, and that this information is then used to discriminate against some religions.3 These events bring the right to religious freedom to the forefront again, especially since the infringement of freedom of religion also leads to the infringement of other fundamental rights.4 For this reason, the current human rights debate is reflecting on constitutional models that would promote and ensure tolerance between people of different religious conviction in order to establish peace on this terrain. The aim of this article is to examine the various possibilities of the effective implementation of religious rights from a Christian ethical perspective. The following questions will be discussed: What should the Christian’s attitude be towards other religions and the right of people of other religions to practice their religion unhindered? What should be expected of government in this respect? These questions are important for two reasons. In the first place, it has to be kept in mind that the Christian religion is a missionary religion. Preaching the gospel to everyone—also those of other religions—is the heart of Christian faith. Precisely this missionary nature of Christian faith has led, in history and at the present time, to great tension with those of other religions. Christianity has been seen in those circles as a dominating faith that poses a threat to an own religious identity. The notion has also been that this missionary nature of Christianity points at an unacceptable spiritual arrogance and Western elitism. How can the missionary nature of the Christian faith be maintained within the context of a model of religious freedom without this turning into a threat for another religion?

3 United Nations, “Civil and political rights, including the question of religious intolerance,” 17. 4 The Special Rapporteur reported as follows with regard to the freedom of religion and belief before the Human Rights Commission of the United Nations in 2005: “A Majority of the cases and situations that had been brought to the attention of the Special Rapporteur and that reveal a violation of the right to freedom of religion or belief also involve violations of other human rights, including violations of the right to life, the right not to be subjected to torture, cruel inhuman or degrading treatment or punishment, the right to liberty and security of person, the right to freedom of movement, residence, nationality, peaceful assembly and association, and the right to freedom of opinion or expression.” United Nations, “Civil and political rights, including the question of religious intolerance,” 14.

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Second, the history of Christian churches offers glimpses of serious religious persecutions that were conducted in the name of Christ. In the post-Constantinian period the church was politicized and missionary work went hand in hand with boundary expansions of the kingdoms. The Corpus Christianum of the Middle Ages politicized the state to such an extent that the pope’s will was imposed on everyone and a free choice of practicing one’s faith became impossible. The subsequent Crusades inaugurated a dark period of violence against Islam under the banner of the kingdom of God. In addition, one must keep in mind here the bloody ‘missionary work’ of the Roman Catholic church in Latin America, the religious wars in Europe between Roman Catholics and Protestants, and the cruel persecution of Anabaptists by both of these groups. Historical examples of how Christians acted against people of different religious convictions give rise to the question of whether the Christian faith is capable of respecting religious freedom, and how it can get rid of a deep-seated distrust. For this reason, it is essential to further examine the concept of religious freedom from a Christian ethical perspective. This examination begins with the exposition of biblical perspectives that are of importance when it comes to the matter of religious rights. Subsequently, various options for the implementation of religious rights will be tested ethically.

Biblical Perspectives In biblical revelation the following themes are important when one views religious rights from the perspective of Christian attitude: the idea of a theocracy in the Old and New Testaments, as well as the commands that believers receive with a view to their conduct to all people and stipulations provided about the government’s calling. Subsequently, the focus shifts to these aspects. Theocracy in the Old Testament The notion of theocracy in the Old Testament is very closely related to the revelation about the kingdom of God and the meaning that this has for the nation of God in the Old Testament. In order to discuss theocracy, one must first pay attention to the kingdom of God in the Old Testament.

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The notion of the kingdom of God is a central motif within the Old Testament—although this expression, as such, cannot be found there. Beasley-Murray correctly points out that the exegete should not only follow a purely linguistic approach, but that he must also search for the deeper issue.5 Although the expression ‘kingdom of God’ does not appear, the Old Testament reveals God to be the ‘accompanying God’ who was involved in a living relationship with his nation whom he ruled as their king. Vriezen further views the establishment of God’s kingship on earth and his kingdom among people as the aim of God’s revelation in the Old Testament.6 According to Du Toit, it is precisely the idea of the kingdom that binds the Old and New Testaments and gives unity to them.7 What does the Old Testament teach about the kingdom? Helberg succinctly summarizes the entire matter as it unfolds within the revelation of the Old Testament in the following conclusion: God reigns in a holy and life-creating manner over all things and he practises personal communion, in particular covenantal communion, with humankind. God does this despite the deadly fallen state of humankind in the world. This occurs through God’s revelation in his Word and the history (including the creation of nature). The kingdom involves that God builds a nation for him that will share in his reconciliatory grace, that believes in his life-creating power and that feels deeply dependent on him, that lives in gratitude and in a deep awareness of their calling to God and their neighbours as well as God’s creation, and that hopes upon God in this world.8

When it comes to the idea of God’s kingdom in the Old Testament, the focus is therefore on God who reigns—in this manner, building from a broken world a living covenantal community who lives in personal relationship with him. Beasley-Murray emphasizes the universality of God’s reign against this background (for example, in Is. 26:1–15; 28:5 et seq; 33:5 et seq; Ez. 11:17 et seq; 20:33 et seq; Hs. 2:16–17 and Zc. 5 G.R. Beasley-Murray, Jesus and the Kingdom of God (Grand Rapids: Eerdmans, 1987), 17. 6 T.C. Vriezen, Hoofdlijnen der theologie van het Oude Testament (Outlines of the Theology of the Old Testament) (Wageningen: Veenman en Zonen, 1966), 93. 7 S. du Toit, “Die koninkryk van God in die Ou Testament (The Kingdom of God in the Old Testament),” in S. du Toit, et al. Die koninkryk van God (The Kingdom of God) (Potchefstroom: Pro Rege, 1969), 11. 8 J.L. Helberg, Die Here regeer, openbaringslyne deur die Ou Testament (God rules. Outline of the revelation-historical lines of the Old Testament) (Pretoria: N.G. Kerkboekhandel, 1980), 4.

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8:1–8), the justness of the kingdom (for example, in Isaiah. 11:3–5; Jr. 23:5–6; 28:5–6; Ez. 36:25–26 and 37:23–24), and the peace of the kingdom (for example, in Is. 2:2–3; Mc 5:4; Zc. 9:9–10; Hs. 2:21–22 and Zph. 3:14–20).9 God’s reign, together with his communion with people, evokes response. People come to believe; they form a new covenantal communion; and they practice love and trust to God and their neighbor. The lives of his nation embody this kingship of God. But then it must be taken into consideration that all this centers on a life within the context of the state because God’s nation as a covenantal community coincided with the nation as a political entity. The nation in a religious sense is the same as the nation in a political sense, and praying to idols or any form of idolatry was not tolerated. God was angered by idolatry.10 The old Israeli state community tolerated no ‘religious freedom.’ God’s nation had to serve the Lord alone. Yet people of other religious convictions were not destroyed. To the contrary, God insists on the fair treatment of ‘foreigners.’ Israel did not know any religious freedom within its own circle, but other religions functioned in political contexts, and they lived peacefully with God’s nation. Theocracy in the New Testament The same basic idea about the concept of the kingdom of God is found in the New Testament. The New Testament contains a variety of descriptions and expressions such as the kingdom of heaven (for example, Mt 3:2; 4:17; 11:12; 16:19); the kingdom of God (for example, Mk 1:14; 10:24; Lk 6:20; Ac 1:3; Rm 14:17; 1. Cr 4:20; Cl. 4:11); the kingdom of Christ and of God (Ep. 5:5); Kingdom (Mt 4:23; 9:35 and 13:19), and kingdom of the Father (Mt. 13:43 and 26:29). Schmidt points out that all these concepts have the same core meaning. An analysis of the concepts within their own context proves that the kingdom is representative of an embracing point of view that cannot readily be restricted to merely a single denominator or forced into a specific scheme only.11 Van der Walt warns against exactly such simplification and onesidedness. Based on thorough exegetic and 9

Beasley-Murray, Jesus and the Kingdom of God, 20. Js. 23. 11 K.L. Schmidt, “Basileia,” in G. Kittel, ed. Theological Dictionary of the New Testament (Grand Rapids: Eerdmans, 1969), 582. 10

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revelation-historical evidence, he offers the following summary of the kingdom in the New Testament: The kingdom is something that comes (Mt 6:10 par; Lk 11:2, etc.) and it comes to people (Mt 12:28 par)—but it is also something to which people come and enter into (Mt 5:20; 7:21; 18:3; Mk 9:47, etc.) and at the same time also a place or a ‘sphere’ (Mt 5:10; 8:11; Lk 13:28, etc.). In the kingdom God is ever present, in grace and in sovereignty: firstly as deed, secondly as terrain and thirdly as that which manifests by omnipotent presence.12

The basic thread that runs throughout the Old Testament with regard to the kingdom continues in the New Testament. The total revelation of God in his Word unfolds the kingdom of God as the active (act filled and powerful), uninterrupted, and incessant (ever continuing) reign of God. In this way people come to faith and take up a new relationship with God and with others. Through the power of the Spirit, they exercise a reviving influence on the world, and they do so by proclaiming, acting out, and embodying peace, reconciliation, hope, and love. The question is: What are the perspectives that can be derived and gained from such insight, and that can apply to freedom of religion in a modern context? The New Testament tells about the kingship and authority of Christ as he reigns over everything (Mt 28:18; Cl 1:15–20).13 This kingship is a reality at present and remains so in the future.14 As future reality, the kingdom of God and Christ establishes and maintains the complete dispensation that will come to its fulfillment through the advent of Christ. Together with Christ, the believers will then reign over everything. It is, however, also a present time reality as can be witnessed everywhere as people bow their knees in worship The church and the testimony and life of the believers can be regarded as the most obvious present time sign of the kingdom. The theocracy of the New Testament that is embodied in the kingdom of God does not imply a political entity. In this sense, the line with the Old Testament is discontinued. Unlike the Old Testament, the kingdom is a spiritual sphere of authority that touches the church and the believers spiritually. It is sought by

12 T.Van der Walt, Die koninkryk van God—naby! (The Kingdom of God—Nearby!) (Kampen: Kok, 1962), 33. 13 H. Küng, The Church (Kent: Burns and Oates, 1992), 47. 14 H. Conzelmann, An Outline of the Theology of the Old Testament (London: S.C.M. Press, 1976), 114.

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preaching the Word and being obedient to it. In the case of the Old Testament, others were forbidden to have their own religion by the ‘state’ of Israel, but in the time of the New Testament, other religions were forbidden in the church. That it would be expected of authorities to establish and defend the Christian faith by means of the sword is not mentioned at all in the New Testament.15 It is also not expected that the state will persecute those of other religions. In actual fact, Christ acknowledges the authority and command of the Roman emperor, and both Paul and Peter expect the believer to obey the powers that be and to pray for the leaders—i.e., the non-Christians included. According to the development of the concept of theocracy within the revelation of God, the following ethical principles—with regard to freedom of religion—can be derived: The believer may not worship other gods, and idolatry may not be allowed in church. This principle is, however, not forced on the state by the New Testament dispensation. The state fulfills another function. How, then, should the believer approach believers of other religions in a state-related way? To be able to obtain an answer to this question, it would be necessary to take note of still a wider spectrum of scripture based information. The Believer’s Duties Towards ‘All People’ Throughout the Bible, believers are reminded not to become estranged from the Lord and not to cause alienation. To serve other gods and to follow strange doctrines, as well as a non-Christian way of life, are strongly rejected. Believers are warned against false prophets and teachers, destructive doctrines, and deceptive words by which the way of truth will be blasphemed (2 Pt 2:1–22). In doctrine and in way of living, the believer must worship the Lord alone. Together with this, believers must be prepared and willing to make disciples of other nations (Mt. 28:19–20) and to witness to all about “the hope that is within them” (1 Pt. 3:15). By no means does this commitment to the Lord and obedience to his will mean that those of other convictions should be persecuted, suppressed, or humiliated. The Christian attitude of love, service, and

15 J.M. Vorster, Ethical Perspectives on Human Rights (Potchefstroom: Potchefstroom Theological Publications, 2004), 218.

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self-rendering to others, as well as the demanded obedience to God, must also manifest in the treatment of those outside the circle of believers. The love that is expected of the believer must reach out to all people, regardless of the society to which they belong. The following passages from scripture illustrate and confirm such inclusive love: Mt 5:43–48—“Love your enemies”; Lk 6:31—“And just as you want men to do to you, you also do to them likewise”; I Ts. 5:15—“. . . but always try to be kind to each other and to everyone else”; Gl. 6:9–10—“And let us not grow weary in doing good . . . Therefore, as we have opportunity, let us do good to all people, especially to those who belong to the family of believers.” Fedler describes the range of Christian love in following Christ, and in illustration of the attitude of Christ, as love that takes up the cross, sacrifices, and serves.16 This is the character of the believer’s existence in the world. Christian love is universal because: Jesus demonstrates love not only for his family and friends, and not only for the powerful, beautiful, or righteous, but for the sinner, the outcast, and the stranger. Jesus’ love knows no borders, and like the Father who sent him, Jesus had a special concern for those people who too often fall outside the scope of most people’s love and concern.17

The believer must, therefore, share the interests of others and even enhance such interests. To profess, live according to, and share religious beliefs freely should be regarded as one of the most fundamental rights because the human’s deepest feelings and convictions are involved. When this right is violated, it touches the very essence of human existence. Love for all people, service, and sacrifice—as core elements of a Christian attitude—cannot but force the Christian to allow liberty of religion to all people. This certainly does not mean that the gospel may not be shared with others. To spread the gospel is part of the Christian’s own religious rights, but this is done by the church and not by the power of the sword of authorities, which is followed by great negative results—as had, unfortunately, been the case at times in earlier history. The calling of Christians to see to it that other people’s religious rights are protected has been well articulated in the Testimony on

16 K.D. Fedler, Exploring Christian Ethics, Biblical Foundations for Morality (Louisville: Westminster John knox Press, 2006), 176. 17 Fedler, Exploring Christian Ethics, Biblical Foundations for Morality, 180.

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Human Rights of the Reformed Ecumenical Council. About the Christian task of realizing religious rights, this document points out the following: The right to freedom and worship—challenging us to intervene on behalf of persecuted worshipping communities, Christians and others, assuring them of the opportunity to gather in their places of worship without molestation, discrimination or reprisal; the rights to religious liberty—challenging us in a religious pluralist world to plead the cause of all persons and communities to freely choose and change their religions, to live out their beliefs freely, both privately and publicly, within the various structures of society, without infringing upon the similar rights of others . . .18

The section on biblical perspectives—with regard to the Christian attitude towards other religions—is concluded with a short description of the Reformed vision on the calling of the authorities. The Calling of the Authorities According to Romans 13:1, there is no authority except from God, and that includes the state-related authority that is exercised.19 God instituted authority as a result of the reality of sin. Authority is authorized to rule in such a way “that we lead a quiet and peaceful life in all godliness and reverence” (1 Tm 2:2). The believers are called upon to pray for the authorities so that this task can be justly and loyally performed. Romans 13 contains the explanation that the authorities have the right to punish, and that authorities rule to the good of people. Within the framework of these principles, the following criteria can be identified as far as the authorities’ mission or calling with regard to freedom of religion is concerned: 1. The ruling power must be responsible to God. In concrete terms, this responsibility means to rule in such a way that the principles of the kingdom are adhered to. These principles are concerned with issues such as freedom, human dignity and equality, and general morality. Freedom implies freedom of conviction, statement of points of

18 Reformed Ecumenical Council, RES Testimony on Human Rights (Grand Rapids: Reformed Ecumenical Council, 1983), 151. 19 J. Douma, The Ten Commandments, Manual for Christian Life (Phillipsburg: P & R Publishing, 1996), 179.

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view, and religious beliefs. As soon as authority restricts religious practices, freedom is denied. Human dignity means to allow people to be human and implies the right to give expression to their deepest emotions—as embraced by religious practices. Equality implies equal treatment of all religions according to jurisdiction. The authority must maintain order. Subjects must be protected against those who violate law and order, and against aggression and exploitation of others in the community. The authority must stand in service of justice and righteousness. People must be treated fairly and justly. Everybody must be equal before the law and must have the opportunity to establish or change the state effectively.20 Everybody must also have the right to serve in any authority related office or capacity. For this reason, the authority may not discriminate unfairly against any member of society. Justness implies the acknowledgement of all religious rights, and the equal treatment of all religions. The authority must afford the subject the opportunity to develop on both material as well as spiritual level. It must be possible for subjects to exploit and use their talents and gifts, to become wealthier, and to reap and enjoy the fruit of their honest labor in a responsible fashion within the framework of the law. The authority must ensure peace. Whenever conflicts emerge among those of different religious convictions, the authority must create an atmosphere and the space for the variety of religions to co-exist and co-function peacefully. If the authorities neglect their duty to establish and sustain peace—for example, by oppressing religions—they renounce one of their fundamental tasks.

Ethical Perspectives As far as the implementation of the fundamental right of freedom of religion is concerned, Hildegard Warnink, in her recent evaluation of options for implementing religious rights, distinguishes between the active neutral option and the active plural option.21 According to my 20

J. Rawls, Collected Papers (London: Harvard University Press, 2001), 392. H. Warnink, “Religious freedom. Current issues in Belgium,” Paper delivered at the conference on Church/State relations in South Africa on 27 October in Stellenbosch, (Copy in possession of author), 2005, 1. 21

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opinion, further ponderance over this issue opens doors for identifying another three options that function within the debates surrounding human rights. These three options can be referred to as the following: the active state-religion option, the active universalistic option, and the active theocratic option. These five options will be discussed here, while placing the focus on the meaning of each, accompanying examples, and how each would function in a state of law—as well as a critical evaluation of each. Following this evaluation a choice is made. The Active Theocratic Option The term ‘active theocratic option’ includes a political entity that is defined on the basis of a theocratic lifeview. In practice, this option means that a specific religion controls a country’s rulers, and that the community at large is arranged according to the principles and criteria applying to that specific religion. Other religions are accordingly either declared illegal or are, at most, tolerated as long as they do not interfere or clash with the ruling religion. History contains many examples of such ruling. The great classic example quoted in history was that of the Roman Empire and its cult of the emperors. The emperor was allocated the status of a son of the gods, and everybody had to honor him accordingly. It is for this reason that Christians were persecuted during the first century after Christ when they desired to serve another God. Christiandom, however, later on exercised the same option. During the Middle Ages, the idea of Corpus Christianum, controlled by the pope, was applied. In terms of those times, this expression indicated a worldwide political entity. No other religions were allowed to function. Even Christian movements such as the Cartharians and the Waldenes were prohibited. This option resulted in much bloodshed and was, to a certain extent, responsible for many religious conflicts during the Crusades. The idea continued to exist among both the Anabaptists and the Reformation. The Anabaptists wanted to establish the kingdom of God on earth by force.22 Calvin furnished the city-state of Geneva as a theocracy in which all other religions, as well as dissentions, from

22

D. Bonhoeffer, Ethics (London: Simon & Schuster, 1995), 305.

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the Reformed doctrine were prohibited.23 The theocratic option has also been applied in Muslim states in the past where the state was organized according to the Shari’a, i.e., the right of Islam as it developed through the ages.24 There is, at present, a revival of this option in various Muslim countries, and it proves to be the cause of many religious conflicts as well as the mutilation of other rights—such as those of women, strangers, or foreigners. In some of these countries, it has been prescribed that it is compulsory for the head of state to be a Muslim.25 This prerequisite is further evidence of the implications following in the wake of the active theocratic option. Another example of the active theocratic option can be traced to the Japanese constitution as implemented prior to the Second World War. The first article of this constitution prescribed that the population should acknowledge the godly origin of the emperor from the sungod, and that the emperor should be obeyed as such. As a result of this option’s failure to allow for or grant freedom of religion, speech, and conscience, it has led to extensive persecution, bloodshed, and violence in the past.26 The religious wars that took place after the time of the Reformation could serve as an example of this. Similar religious persecutions can be presently noticed, especially in countries where the theocratic option is actively implemented.27 Although the theocratic option has long been part of the Reformed line of thought and propagated in the articles of faith, its essential and fundamental legitimacy and soundness should be questioned.28 To follow are some remarks in evaluation of this:

23 J.M. Vorster, “Godsdiensvryheid in die lig van artikel 36 van die Nederlandse Geloofsbelydenis” (“Religious Freedom in the light of article 36 of the Belgic Confession” ), In die Skriflig, 27, 3, 1993, p. 307; J. Witte, “Moderate Religious Liberty in the Theology of John Calvin,” in N.B. Reynolds & W.C. Durham, Religious Liberty in Western Thought” (Atlanta: Scholars Press, 1996), 106.); B. Tierney, “Religious Rights, A Historical Perspective,” in Reynolds & Durham, 46. 24 K. Blei, “Freedom of Religion and Belief, Europe’s story,” Assen, Van Gorcum, 1992, p. 31. 25 S. Hashmi, “Cultivating a liberal Islamic Ethos, Building an Islamic Civil Society,” Presentation at the Society of Christian Ethics, Phoenix, Arizona, 6 January 2006, 1. 26 Vorster, Ethical Perspectives on Human Rights,” 205. 27 United Nations, “Civil and political rights, including the question of religious intolerance,” 11. 28 In the meantime, confessions have been altered in almost all of the mainstream churches of the Reformed tradition—to such an extent that theocracies, as discussed above, can no longer be deducted from them (see Vorster, “Godsdiensvryheid in die lig van artikel 36 van die Nederlandse Geloofsbelydenis,” 307).

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1. The Reformed tradition of the theocratic option causes the kingdom of God to become de facto an immanent political entity as Israel had been in times of the Old Testament. The Bible contains no justification for it. The application of this option in this tradition devaluates the spreading and sharing of the gospel through churches because society is directed externally by so-called Christian legislation and no longer from within by means of the influence of the gospel on the convictions of people. It would, in other words, mean that efforts are being made to shape people’s moral values by way of legislation instead of relying on primary, innermost conviction. In this way, a Christiandom society—that cannot necessarily be characterized as a Christian society—is formed.29 Some signs of this could be detected during the apartheid regime in South Africa. Government, for example, prescribed Christian education, protected Christian moral criteria by way of regulations of censure, and refused other religions the opportunity to use the state controlled media. Such legislation promotes the image of Christianity, but does not actually promote or contribute towards the kingdom of God. It needs to be pointed out that the kingdom becomes visible when people internalize the kingdom of Christ in their lives and profess and live up to the principles of the kingdom through inner conviction. Laws do not make Christians—but the gospel indeed does. 2. The part of ‘to others’ in the mission of the Christian does not feature rightfully in the active implementation of this option. Religion is a deeply situated, emotional issue that deeply touches people’s feelings and sense of dignity. If people are inhibited in the areas of religion, feelings of aggression and pain are awakened. Love for the fellow being must be considerate when it comes to these deepest feelings of others. In this sense, to really ‘love your neighbor’ is rendered impossible by the theocratic option. Christians should allow all others to lead their lives according to their religious principles, while at the same time communicating the gospel to all others in a worthy manner. The theocratic option deprives authority of its God-given mission to maintain order and peace and rule in 29 The term ‘Christendom society’ here indicates a society that broadly lives according to Christian norms and that upholds Christian festive days, but which is not necessarily a society of convinced Christians. A Christian society is a society of people who uphold certain principals and norms out of inner persuasion.

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such a way that everybody will have the choice to live in dignity. By restricting other religions, room for aggression and violence is created—as has been repeatedly proven in history. It would mean that the authority, which should act as peacemaker, turns into the aggressor. The Active State-Religion Option Closely related to the active theocratic option, but yet also different, is the active state-religion model. This option allows for contemporary rulers to single out and favor a specific religion, and to contribute to the advantage of its interests, while neglecting the others. This model differs from the active theocratic option in that it acknowledges and protects other religions in its rule and operates without using a fundamental text as basis. Even though authority does not base its state government on the ethical principles and criteria of the favored religion, the freedom of religion in the sense of equal exposure is hampered. These models existed mainly in the European nation states. The United Kingdom could serve as an appropriate example. The motto attached to external politics was “God, King and Country.” Although this option no longer exists in a de jure manner, it still actually exists in a de facto manner. The queen still remains the head of the Anglican Church. This option can also be traced in the national anthem, “God save the Queen.” Certain critical remarks can also be made about this option: 1. As is the case with the active theocratic option, certain criteria and symbols are also forced on people belonging to other religions. Would it really be an expression of freedom of conscience if children of other convictions and religions sing “God save the Queen”? According to the theology of religions, it would be possible to reason that each individual can read his/her own god image into this song.30 Such an interpretation, though, is not correct. The origin and historic course of expressions clearly indicate that the Christian view of God is valid in this case.

30 J.M. Vorster, “Tendense in die teologie van die Wêreldraad van Kerke sedert 1948” (“Trends in the Theology of the World Council of Churches since 1948”), Studia Historiae Ecclesiasticae, 20, 2, 1994, p. 249.

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2. Agnostic and minority religions experience this option in the United Kingdom as excluding and discriminating by nature. Christians are forced by the ‘to others’ commands of the Bible to take a serious look at the possibilities of exclusion. A system that impairs proper respect and consideration for freedom of conscience and conviction cannot be regarded as ethically acceptable. Apart from this, the Christian religion is wrongly projected as a political entity, and this is contradictory to the dynamic character of the kingdom as a growing reality in the lives of people and which is directed at innermost conviction and apparent from the witness offered by Christian people. To shape the kingdom ceremoniously into a mold of deism would be to darken and obscure the concrete reality of the Christian reign over everything. 3. This option also does not answer to the demands and requirements that the Word sets for the leaders of the day. Authority must exercise justice and must protect and preserve peace. To inhibit people’s freedom of conscience, even if by means of symbolism only, cannot be viewed as justice in the fullest sense of the word. In times of the Old Testament, it was expected of even the theocratic government of the nation of God to protect the rights of strangers or ‘foreigners’—i.e., those who worshipped other gods.31 This option also poses a threat to peace as could clearly be seen from the public protest recently arising from among religious minorities in the United Kingdom and Australia. The Active Neutral Option The neutral option currently functions in many constitutional democracies and the most well known of these are the USA and France. According to this model, church and state are completely divided. Freedom of religion is moved from the public sphere to the private domain. The government makes no religious or ideological choice and guarantees the freedom of all religions that conform to the norms of the constitution and the norms of general order and peace within the community. The government protects religions against discrimination within the limits that the law permits. This option emanated from the

31 See R. De Vaux, Ancient Israel, Its Life and Institutions (London: Darton, Longman & Todd, 1988), 930, and Vorster, “Ethical perspectives on human rights,” 232.

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USA, and it is based on the so-called “free exercise clause” as opposed to the “establishment clause” that serves as the foundation for an active state religious option.32 The American Pledge of Allegiance still harbors the expression, “One nation under God,” and the applicability of retaining this is being widely debated between legal experts and ethicists within the USA.33 On the monetary units of the USA, the expression also appears that reads “In God we trust.” Judiciary circles view these expressions not as a movement away from the neutral option, but as “ceremonial deism.”34 This means that these expressions no longer hold a contemporary religious meaning, and that they have no influence on interpreting the constitution.35 The reference to God is little more than a symbol of the nation’s history. The most extreme employment of the neutral option is found in the French law (Law nr. 2004–228 of 15 March 2004) in which school children are prohibited from wearing any religious symbols. Christian children are not allowed to wear necklaces with a cross, and Muslim children are not allowed to wear the veil (hijab). This law led to uprisings within cities of France in 2005, especially since Muslims are of the opinion that the flag of neutrality actually hides discrimination against them. The following critical remarks can be made about this option: 1. Ceremonial deism does not satisfy belief because it is likely that all theistic religions view the degradation of references to God and other images of belief as blasphemous.36 For this reason, this option contains the potential of conflict. 2. The Muslim’s experience in France reveals another problem. The question is whether neutrality is possible. Can a government be

32 See Vorster, “Ethical perspectives on human rights,” 209; Blei, “Freedom of Religion and Belief, Europe’s story,” 112, and G. Chaskalson, “State vs Solberg, 1997(10) BCLR 1348 (CC) Par 100. 33 G.Y. Kao, “‘One Nation under God’ or Taking the Lord’s Name in vain? Christian Reflections on the Pledge of Allegiance,” Paper delivered at the Society of Christian Ethics, Phoenix, Arizona, 6 January 2006, 1. 34 G.Y. Kao, “‘One Nation under God’ or Taking the Lord’s Name in vain? Christian Reflections on the Pledge of Allegiance,” 6. 35 J.D. Van der Vyver, “Constitutional Perspective of Church-State Relations in South Africa,” Brigham Young University Law Review, 1999, 2, p. 651. 36 Van der Vyver, “Constitutional Perspective of Church-State Relations in South Africa,” 651.

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ideologically neutral? Is it not so that a constitution and laws are written from within a given paradigm and life- and worldview? To my mind, neutrality when it comes to one’s outlook on life is impossible. What Kuhn and other scientists who followed him have to say about the paradigm drivenness of science also goes for the household of the state.37 In conjunction with Capetz, it is therefore reasonable to argue that neutrality (or secularism) embodies an ideological point of departure that influences constitutional drafting and the formulation of laws as much as does any other religion, ideology, or philosophy.38 3. For this reason, neutrality cannot adequately guarantee religious freedom. The government must approach belief systems with a paradigm driven perception of what will be good for religions in general. According to Rawls, such a perception must lead to the abuse of power. He says, “A public and workable agreement on a single and general comprehensive conception [of what is good] could be maintained only by the oppressive use of power.”39 Indeed, this is what occurs when it comes to the concrete employment of this option. 4. The promotion of neutrality in the public sphere cannot avoid limiting the role of religions—for instance, in the educational sphere. To free public education from religion opens the door for the promotion of secularism with all the consequences that this entails. Under the flag of neutrality, a value system (that can never actually be neutral) is developed that will determine the life norms of pupils. How can matters like sexual education, the teaching of history, and moral education be treated neutrally? As in the case of an active state religion, pupils are also ideologically influenced in the case of this option. The option therefore fails to guarantee religious freedom because it replaces religion in the public sphere with an ideology that the government of the day holds dear. What is it but a violation of the fundamental right to religious freedom when the ideology of the governing party replaces a child’s right to receive 37

T.S. Kuhn, The Structure of Scientific Revolutions (Chicago: The University of Chicago Press, 1970), VII. 38 P.E. Capetz, “The First Commandment as a Theological and Ethical Principle,” in W.P. Brown, ed., The Ten Commandments. The Reciprocity of Faithfulness (Louisville: Westminster John Knox, 2004), 180. 39 J. Rawls, “The idea of Overlapping Concensus,” Oxford Journal of Legal Studies, 1987, 4.

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religious education of his choice in a state school? The same problem surfaces in the belief practices of people in correctional facilities and military units. The limitation has bearing when religious actions are against the law. An example of this is the announcement by the constitutional court in South Africa that Rastafarians do not have the right to use cannabis as part of the practicing of their religious rituals since the use of this narcotic goes against the law that controls the use of damaging drugs. In the same manner, pacifists that claim religious grounds for their pacifism—for example, Jehovah’s Witnesses—cannot necessarily refuse to do military service for the reason that the latter goes against the grain of their religious convictions. The government may determine that this kind of refusal is not in the interest of the country, and they may therefore not view the refusal as a religious right. As a consequence, Jehovah’s Witnesses will not be able to claim religious freedom in order to avoid military service. In the same way, religions that practice polygamy will not be able to claim religious freedom when it comes to the practicing of polygamy if the law defines a marriage as a monogamous heterosexual commitment. Neutrality, therefore, has limitations. The Active Universalist Option With the development of the theology of religions, the idea is propagated that the good of all religions should be sought—as well as what different religions have in common—and that this should be offered as a type of universal value system to all religious people. This religion is especially expressed on the level of spirituality and inter-religious worship gatherings, and on the level of the ethical. As option within the recognition of the fundamental right to freedom of religion, this option implies that a universally accepted view of God is developed through means of an inter-religious education. People should then understand that the god mentioned in the constitution is the god of all religions and faiths. In schools, in so-called religious education, the acceptability and applicability of each religion are investigated and weaved into a value system that steals the heart of all and is acceptable to people of different religious persuasions. This option can be found in the constitutional thought of India and Namibia. Under the guidance of the former minister of educa-

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tion in South Africa, Asmal, the foundations of the option has been imported into South Africa. It especially features in learning programs of so-called Life Orientation as a compulsory subject for all children. Chidester encourages children’s participation in multi-faith religious practices at school because: Through such participation, pupils can explore the diversity of religious life in South Africa, through sacred times and places, through stories and rituals, and through the different ways of imagining what it means to be human.40

With this statement he envisions the aim of the universalist option in South Africa. The following critical remarks can be made concerning this idea: 1. To gain knowledge of the history and values of different religions is acceptable. Such knowledge can even contribute to understanding and respect and can counter negative stereotyping of religions in the volatile, religious conflicts of today. However, the universalist religious option goes further than that. It presents a modern active state religion option, or in its extreme form, an active theocratic option. A new religion is forced on everyone, and the same criticism goes for this than for the two above-mentioned options. 2. With such an option, the government does not fulfill its God-given calling. Because this new religion is forced on everyone, the potential for religious conflict is large. People lose the space to enact their right to be instructed in the religion of their own choice and to build a value system that flows from their own religion. History teaches that such limitations contain the potential for social unrest, and there is no guarantee that history will not repeat itself in the application of this option. The Active Plural Option This option is the opposite of the active neutral option. Where the active neutral option departs from the point of view that all religions

40 D. Chidester, “Multiple Voices: Challenges posed for Religious Education in South Africa,” in International Association of Religious Freedom, Religious Education in Schools, Ideas and Experiences from around the World (Oxford: International Association of Religious Freedom, 2001), 31.

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should be moved from the public to the private sphere, this option wants all religions to function in the public sphere. Research does not indicate whether this option functions fully in any constitutional democracy, but it is valid to claim that elements of it are visible and possible in South Africa at the moment.41 In more detail, it can be said that this option provides all religious people with the opportunity to confess the religion of their choice, to experience it in public worship, and to profess it in the public sphere as long as noone else is placed under any obligation. In his evaluation of the situation in the USA where the ‘establishment clause’ and the ‘free exercise clause’ provides support for the active neutral option, Hollenbach comes to the conclusion that this option leads to the total secularization of the society and a dilapidation of the moral order. He pleads for more involvement of religions in the public sphere because: There are significant groups of religious believers who are in fact corporately involved in public life and who contribute to the common good in peaceful and freedom-supporting ways.42

Although he does not spell out his choice, his argumentation also moves in the direction of the active plural option. The implication of this option in the public sphere is the following: Public gatherings and the parliament, as well as opening ceremonies, begin with devotions. This can take place in two ways. People of different religions can gather individually, and each group can hold a devotional meeting within the practices and traditions of that religion. For instance, in schools, the parliament, and other public gatherings, Christians can gather for a Christian meeting with scripture, preaching of the Word, and prayer within the framework of Christian traditions. The same right is offered to other people of other religious persuasions. Agnostics are not forced to attend any of these opportunities, and nobody is forced to take part in a different religious meeting. Where such separate gatherings are not possible due to practical reasons, a single gathering can be held where spokespersons of the different religions get the opportunity to do a prayer on behalf of each

41 Van der Vyver, “Constitutional Perspective of Church-State Relations in South Africa,” 635. 42 D. Hollenbach, The Common Good and Christian Ethic (Cambridge: Cambridge University Press, 2003) 88.

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religion. Each person is allowed to do it within the traditions and practices of his own religion, and nobody is expected to apply his practices in reduced form to prevent possible offence. Each religion receives the opportunity to function fully, based on its own principal foundations. This was used at Codesa and is currently the practice at several government events. The following critical remarks can be offered in this regard: 1. Hollenbach refers to Smith who warns against a further polarization of society when these options are applied. He says that religions have a “fissiparous quality,” which means that religions tend to draw boundaries between people and define in-group and outgroup parties. Hollenbach is of the opinion that this danger only exists when people are confronted with religious extremism.43 2. The question can also be asked whether the option is always practically attainable. Is it possible to give public schools, prisons, the Police Service and protection units the opportunity to function fully on equal basis? 3. Agnostics may feel that they are ‘engulfed’ by religions, and that there is no space for non-religiosity. 4. Furthermore, critics could ask whether this option does not have an element of universalism and will ultimately harm minority religions.

Conclusion The five options discussed above all functioned to some degree in the past or are functioning at present, although the last option is still relatively new in the human rights debate. However, it seems that the active plural option is the best, and can especially be considered in plural societies. The following arguments can be offered in support of this choice: 1. Such an option serves justice to all. Argued from a Christian-ethical perspective, it complies with the biblical perspectives on the realization of the principles of the kingdom of God. Believers are able

43

Hollenbach, “The common good and Christian ethic,” 92.

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to actively practice their calling as witnesses to the gospel and to actively be involved in the building of society. The same rights are given to missionary religions. This option also provides all religions with the opportunity to function within the confines of their own principles without disturbance. Where the universalist option wants to reduce religions and let them flow into one universal ‘scrambled-egg-religion,’ this option allows all religions to move in their own orbits. Its application in certain areas in South Africa shows that the option is practically attainable. Public schools can offer churches and other religious institutions the opportunity to draw up learning programs of their own for their religious group and to teach children at times and in places that the schools make available. In this way, the Roman Catholic Church community can teach Catholic children according to their own learning program, while other religions do the same. However, teaching must meet the standards for orderly governing and must not undermine the public order of a peaceful and responsible democracy. When this option is applied like this, it cannot move into universalism. Universalism only threatens when minorities do not receive the opportunity to practice or profess their own religion. In this option nobody must be forced to attend a certain religious observance of teaching. Agnostics should be free to remove themselves from religious practices. The active functioning of religions in the public sphere can contribute greatly to nation building because everyone claims moral principles and norms that are forming and constructive to the people of that religion. For believers, this option offers the best space to express ‘love to all people’ because it creates room for people to express their emotions within the spirituality of their religious persuasions. Consequently, the authorities can rest assured with the knowledge that everyone is provided with the space to function. Extremism, against which Hollenbach warns, remains a threat, but religious groups must calm extremist and fanatic groups themselves.44 The government can only be expected to act against such groups if they transgress the law.

44

Hollenbach, “The common good and Christian ethic,” 90.

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The attitude of the Christian towards other religions can be served best where room is created for all to be fully human in the public and private spheres. To be fully human means to cradle the spirituality of one’s religion and to build one’s life on the foundations that the religion offers. The space also provides the opportunity to proclaim one’s faith as witness and in practice. A Christian attitude seeks peace and not persecution, one’s own identity and not an identityless whole, freedom and not state totalitarianism, and rights without constraints.

BEING CHURCH AND FREEDOM OF RELIGIONTHE FUNCTION AND AMBIT OF RELIGIOUS FREEDOM Pieter Coertzen

Introduction This paper seeks to address the issue of the church and religious freedom, and specifically, the question with regard to the function and ambit of religious freedom in the life of a church. The question about the function of religious freedom relates to the role that freedom of religion can play to help churches fully realize their being as church, while the question about the ambit of religious freedom relates to which sectors of a church’s life are affected by freedom of religion. As far as could be established, not much has been done in this regard from the side of theology or churches. Rik Torfs touches on the question when he discusses the rights and obligations of Christians within the Roman Catholic Church in his book, Mensen en Rechten in de Kerk (Human Rights in the Church).1 In a joint publication, Recht op Recht in de Kerk (The Right to Rights in the Church),2 Rik Torfs, Kurt Martens, Leo Koffeman, and Pieter Coertzen scrutinize the state of procedural rights within Reformed Churches and the Roman Catholic Church. One of the conclusions is that there is a lot of work to be done both in theology and in churches for churches to fully realize the function and ambit of religious freedom. In 1981 Peter Krämer wrote about Religionsfreiheit in der Kirche, Das Recht auf religiöse Freiheit in der kirchliche Rechtsordnung (Religious Freedom in the Church: The Right of Religious Freedom in the Church’s Legal System)3 in which he touches on some of the questions related to the theme of this article.

1 Rik Torfs, Mensen en Rechten in de Kerk (Leuven: Uitgeverij Davidsfonds, 1993). 2 Rik Torfs, Kurt Martens, Leo J. Koffeman, Pieter Coertzen, Recht op Recht in de Kerk. Published in Canon Law Monograph Series 3 (Leuven: Peeters, 2003). 3 Peter Krämer, Religionsfreiheit in der Kirche, Das Recht auf religiöse Freiheit in der Kirchlichen Rechtsordnung Canonistica—Beitrage zum Kirchlichen Recht (Trier: Paulinus Verlag, 1981).

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In order to address the theme and question of this article, attention will first be given to what we can understand under religion and freedom of religion. It will be done with reference to the Bill of Rights in the Constitution of South Africa.4 In the second place, attention will be paid to the church in order to try and determine what it is that constitutes or helps to constitute the uniqueness of the church. Churches need to know their own identity in order to fully utilize the ambit of religious freedom and to be able to also contribute to the rest of society. In 2005 Max Stackhouse wrote that there is a great need for the social embodiment of human rights “particularly in the institution of the church.”5 This, of course, is also a need with regard to freedom of religion, which is seen as the most basic human right. This paper argues that it is exactly for this reason that churches need to know what their own identity is and what the function and ambit of freedom of religion means for them. If the questions about these two aspects of religious freedom are not answered satisfactorily, churches can be delivered to an embodiment of freedom of religion that is in contrast with the uniqueness of their faith identity. In the third section, an attempt will be made to more specifically determine the function and ambit of religious freedom with regard to churches as unique institutions within a specific constitutional context. A helpful document in this regard is the report, Exclusionary policies of voluntary associations, which was published by the Human Rights Commission of South Africa and provided guidelines and principles that can accommodate associational rights within the legal order of South Africa. The report can help churches and religions in South Africa to determine the function and ambit of their religious freedom within South African society. The report, inter alia, states the following “The value of the document is that it allows voluntary associations to assess existing policies and documents, in order to bring their practices and policies in line with the Bill of Rights.”6 It is conceded that if

4

Constitution of the Republic of South Africa, Law 108, 1996. Max Stackhouse, “Why Human Rights Needs God: A Christian Perspective” in Elizabeth M. Bucar & Barbra Barnett, Does Human Rights Need God? (Grand Rapids: Eerdmans, 2005), 33. 6 Report Human Rights Commission of South Africa, 2006, Report: Public Inquiry Exclusionary Policies of Voluntary Associations: Constitutional Considerations. South African Human Rights Commission. http://www.sahrc.org.za; see also Lourens M. du Plessis, Religious Human Rights in South Africa. In Johan D. van der Vyver & John Witte, 5

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the constitutional rights that an association seeks to protect, promote, and enhance relate to religion, culture, or language then the reach of the state may be more circumscribed. It is one of the aims of this paper to try and identify those constitutional rights which churches may seek to protect, promote and enhance so that they can make optimum use of the guaranteed right to freedom of religion.

Religion and Freedom of Religion There are many contrasting opinions about religion. Some see it as a mere private sentiment. Others see it as an ideological expression of group identity with very powerful social and political might that has, in the past, and still is being used to legitimate egoism, war, misogyny, colonial exploitation, and violence. It is not said that religion alone is responsible for all the violence and sorrow in the world and not also “the legal advisors to kings who threw religious saints and martyrs into dungeons, the judges who tried witches against the advice of the clergy, the lawyers who wrote the slave laws, the jurists who drafted the justifications for the division of the world among colonial powers, or the legal bureaucracies that enforced Hitler’s or Papa Doc’s or Stalin’s or Mao’s edicts”7—not to name any of the contemporary names of whom we are aware. But it can nevertheless not be denied that “Religion is high voltage; it can energize much or electrocute many.”8 Throughout time many attempts have also been made to describe or define religion.9 A description of religion which I personally find very useful is that of John Witte. He writes, “religion—embraces all beliefs and actions that concern the ultimate origin, meaning, and purpose of life, existence. It involves the responses of the human heart, soul, mind, conscience, intuition, and reason to revelation, to transcendent values, to what Rudolph Otto once called the “idea of the holy.”10 He then goes on to refine this description with the following: “—religion

Religious Human Rights in Global Perspective: Legal Perspectives (The Hague/ Boston/ London: Marthinus Nijhoff Publishers, 1996), 452–457. 7 Stackhouse, “Why Human Rights Needs God,” 26–27. 8 Stackhouse, “Why Human Rights Needs God,” 27. 9 Stackhouse, “Why Human Rights Needs God,” 27. See also K. Blei, Freedom of religion and Belief: Europe’s Story, (Assen: Koninklijke Van Gorcum, 2003), 1. 10 John Witte, Religion and the American Constitutional Experiment, Essential Rights and Liberties, (Boulder: Westview Press), 230.

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embraces a creed, a cult, a code of conduct, and a confessional community. A creed defines the accepted cadre of beliefs and values concerning the ultimate origin, meaning and purpose of life. A cult defines the appropriate rituals, liturgies, and patterns of worship and devotion that give expression to those beliefs. A code of conduct defines the appropriate individual and social habits of those who profess the creed and practice the cult. A confessional community defines the group of individuals who embrace and live out the creed, the cult and the code of conduct, both on their own and with fellow believers.”11 Just as is the case with religion, there are also different opinions on what religious freedom entails.12 In his attempt to define the essential rights and liberties of religion, Witte distinguishes (1) freedom of conscience, (2) the free exercise of religion, (3) religious pluralism, (4) religious equality, (5) the separation of church and state, and (6) the disestablishment of religion by the state as essential elements of religious freedom.13 They are, indeed, handy distinctions to understand what freedom of religion is and to supply a working definition for freedom of religion.

The Church The following scriptural directives regarding the church should be kept in mind if we want to attain the meaning of the church as a creedal, cultic, orderly, and confessional community able to fully claim and realize its freedom of religion.14

11

Witte, Religion and the American Constitutional Experiment, 230. Ben Vermeulen, “Kerk en Staat en de Mensenrechten” (Church and State and Human Rights), in L.C. van Drimmelen & T.J. Van der Ploeg, Kerk en Recht (Church and Law) (Utrecht: Lemma: 2004), 76–77. See also: J.W. Sap, “Kerk en Staat vanuit het Staatsrecht, Meer respect voor de publieke dimensie van godsdienst” (Church and State in View of Public Law), in Van Drimmelen and Van der Ploeg, Kerk en Recht, 114–117. K. Blei, Freedom of Religion and Belief: Europe’s Story (Assen: Koninklijke Van Gorcum, 2003) 2–3. L.C. van Drimmelen, “Kerk en Staat” (Church and State), in W. van’t Spijker, W. & L.C. van Drimmele, Inleiding tot de Studie van het Kerkrecht (Introduction to the Study of Church Law) (Kampen: J.H. Kok, 1988), 199. 13 Witte, Religion and the American Constitutional Experiment, 37. 14 Erik Wolf, Ordnung der Kirche. Lehr und Handbuch des Kirchenrechts auf ökumenischer Basis (Frankfurt am Main: Vittorio Klostermann, 1960), 466. 12

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The Kingdom of God The kingdom of God forms the context for the church—the church is part of the kingdom of God. Herman Ridderbos calls the kingdom of God the most theocentric concept which scripture offers for our understanding of creation, man, world, and present and future times.15 The kingdom of God and the royal sovereignty of the Lord Jesus Christ cover the entire creation. Where the kingship of Christ applies and is acknowledged as such, something of God’s kingdom becomes visible, and individuals not only become liberated, but the whole pattern of their life also changes. The state is also part of the kingdom of God and although it often does not recognize the sovereignty of God, it nevertheless remains a servant of God for the benefit of mankind. The Church Within the context of the kingdom there are those who are gathered into a unity through the proclamation of the gospel and into a creedal, cultic, orderly, and confessional community—the church.16 One can say that the church is a community of people who are organized, and must be organized with regard to its confession, cult, institution, teaching, discipline, pastorate, diaconate, mission, social calling, etc. As such, the church is an image of the kingdom of God that points simultaneously to the kingdom of God and is also the place where the kingdom of God is supposed to be revealed in this world.17 Jesus Christ Very important with regard to the church and freedom of religion is the fact that Jesus Christ is the only Lord and head of the church.

15 Herman Ridderbos, Studies in Scripture and Its Authority (Grand Rapids: Eerdmans, 1978), 1. 16 Herman Ridderbos, De Komst van het Koninkrijk: Jesus’ prediking volgens de Synoptische Evangeliën (The Coming of the Kingdom: Jesus’ Preaching in Accordance with the Synoptic Gospels) (Kampen: J.H. Kok, 1972), 296–308. 17 Johan Heyns, Die Kerk (The Church) (Pretoria: N.G. Kerkboekhandel, 1977), 23–26. A.A. Van Ruler, “De Kerk is ook doel in zichzelf ” (The Church is a Goal in Itself ), in Verwachting en Voltooiing (Expectation and Fulfillment) (Nijkerk: G.F. Callenbach, 1978), 64.

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Christ is always the primary subject in relation to the church, which is the secondary subject. In the church, it is always a Christological– ecclesiological relationship of existence and not the other way round. This truth is taught in different places in scripture, one of the most important being Ephesians 1:20–23. Christ is the head of the whole of creation, but after his resurrection from the dead he was given as the head of the church. His headship refers to his leadership and government of the church.18 That the church is described in Ephesians 1:23 as “—the fullness of Him who fills everything in every way” brings to the fore a very particular characteristic of Christ’s headship over the church and of the very uniqueness of the church. ‘Fullness’ refers to the area over which sovereignty is exercised.19 The church is the body of Christ and, as the fullness of Him it means that the church is the ‘area’ where there is, or at least ought to be, a demonstration of perfect submissiveness to him as the Lord.20 The Word, the Holy Spirit, and the Offices Christ governs his church through his Word, the Holy Spirit, and the offices. This is also a very unique characteristic of the church. The proclamation of the Word in its diverse forms such as preaching, teaching, deeds of mercy, prophetic addresses, healing, and comforting can be seen as the unique task of the church—offices and members. In the Word the church listens to the voice and the way of the Lord. Through the Curiological work of the Holy Spirit the church hears the voice of the Lord for the time in which it lives, and through the calling and work of office bearers, Christ looks after and cares for his body just as shepherds take care of and look after the flock entrusted to them. It is the task of the office bearers to equip—feed, discipline, and stimulate—the believers for their task in the world/in the kingdom of God, bind them together, and guide them to function as the body of Christ in this world.21

18

I.J. du Plessis, Christus as Hoofd van kerk en kosmos (Christ and the Lord of the Church and the Cosmos) (Kampen: Proefskrif, 1962), 71–72. 19 H. Berkhof, “Tweërlei Ekklesiologie” (Twofold Ecclesiology) in Kerk en Theologie (Church and Theology) 13, (1962), 154. 20 Du Plessis, Christus as Hoofd, 76. 21 J.H. Roberts, Die opbou van die Kerk volgens die Efese-brief (The Building Up of the Church According to the Letter of the Ephesians) (Groningen: VRB, 1963), 140.

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The Building Up of the Believers This entails that it is the task of the church to build up the believers— both quantitatively and also qualitatively. Quantitatively by proclaiming the message of the gospel of Jesus Christ to all people, bringing them to acknowledge the headship of Christ over them, and teaching them to be members of the kingdom of God and of the church the body of Christ. Qualitatively by helping the members of the church to become more and more what they are in Jesus Christ, and to grow deeper and deeper in him until they reach the full maturity which they have in him. It is also the task of the church to help them become more and more the house of the Holy Spirit, whose Curiological work it is to let Jesus Christ be the Lord.22 Between the Indicative and the Imperative The church always exists between the indicative of that which it is and has in Christ and the imperative of that what it has to become in Christ. An example of what this means for the daily existence of the church is the fact that the church is called holy but at the same time it is also called to become holy.23 The above mentioned characteristics are not the only ones that characterize the church. They are, however, very important if we want to understand something of the uniqueness of the being of the church. Always keeping these characteristics in mind can help the church to understand where the limits of freedom of religion lay with regard to itself as church, and how freedom of religion can be put to use in order for it as church to be what it is and has in Christ. Especially in its relation to the state, the church needs to be very sure of its own identity because it can easily happen that the church can begin to see itself as the state does. “A frontier will always be perceived which it (the church) has to guard in virtue of its own self understanding and beyond which it cannot accept either the commands or the prohibitions of the state.”24 Given this proviso, it is very important for the church (s) to avail itself of its own identity, as well as its guaranteed 22 Pieter Coertzen, Decently and in Order, A Theological reflection on the Order for and the Order in the Church (Leuven: Peeters, 2004), 112–118. 23 Coertzen, “Decently and in Order,” 118–121. 24 K. Barth, Church Dogmatics, vol. IV, part 2. (Edinburgh: T & T Clark, 1967– 1977), 689.

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right to freedom of religion within the context of human rights as portrayed in the Bill of Rights.

On the Function and Ambit of Freedom of Religion within the Context of the South African Constitution A wide variety of human rights are addressed in the Constitution of the Republic of South Africa. They can be found in articles 7–37 of the Constitution.25 A broad distinction that can be made between those mentioned is that between the fundamental rights of equality, human

25 The Bill of Rights in the Constitution begins by confirming the protection of the democratic values of human dignity, equality, and freedom [art 7 (1)]. It is applicable to the total system of law of the country and binds natural as well as juristic persons [a,8 (1 & 2)]; The rights are about equality and that neither the state nor any person may directly or indirectly discriminate unfairly against another person on the grounds of, i.a., race, gender, pregnancy, marriage, ethnic or social descendency, color, sexual orientation, age, handicappedness, religion, conscience, opinion, conviction, culture, language, or birth [a 9 (1–4)]; Art 10 is about human dignity and the right that dignity be respected and protected (a 10); Each person has a right to life (a.11); the freedom and security of the person is protected through art 12. Nobody may be subjected to slavery, servitude, and forced labor according to art 13. Article 14 determines the person’s right to privacy and article 15 (1) each person’s right to freedom of conscience, religion, thoughts, conviction, and opinion. Article 15 (2) allows for the exercise of religion at state and state aided institutions given certain conditions while art 15 (3) allows for laws through which marriages according to certain traditions, systems of belief, person—or family law can be recognized given that such laws must be compatible with the Constitution of the country. Article 16 protects the right to freedom of expression; article 17 the right to assembly, demonstration, picketing, and petition, and article 18 the right to freedom of association. Article 19 is about political rights, 20 about citizenship, and 21 about the right to freedom of movement and residence. Article 22 deals with the rights of freedom of trade, occupation, and profession, and article 23 with labor relations. In articles 24 and 25 the rights with regard to the environment and property are dealt with. The socio-economic rights of housing, healthcare, food and water are dealt with in arts 26 and 27. Children’s rights and education are addressed respectively in arts 28 and 29. Article 30 is about the rights of each person regarding language and culture while art 31 addresses the rights of cultural, religious, and language communities. The access to information and the access to courts are the rights which are dealt with in articles 32 and 34 while art 33 is about the right to just administrative action. The rights of arrested, detained and accused persons are dealt with in article 35. The limitation of rights are dealt with in article 36 while states of emergency are addressed in art 37. See: Die Grondwet van die Republiek van Suid-Afrika Wet 108 van 1996 (The Constitution of the Republic of South Africa, Act 108 of 1996), 1996; Ian Currie & Johan de Waal, The Bill of Rights Handbook, 5th ed. In association with Lawyers for Human Rights and the Law Society of South Africa (Juta & Co, 2005); Lourens du Plessis, Religious Human Rights in South Africa, 459–465.

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dignity, and non-discrimination—on the one hand—and the associational rights, which include the freedom of association, freedom of religion, freedom to practice your religion, freedom to use one’s own language and culture, and the right to associate in cultural, religious, and linguistic communities—on the other hand.26 The Report on Exclusionary Policies points out that the reach of the state regarding associations that relate to religion, language, and culture and who wants to protect, promote, and enhance a certain constitutional right often needs to be more circumscribed than, for instance, in the case of associations for trade, occupation, and profession in which case the State will have greater latitude in reaching into the domains of these associations.27 When churches assess their existing policies, rules, and conduct with regard to the requirements of the Constitution and the constitutionality of the exclusionary policies, rules, and conduct which they use to protect their integrity as organizations, the following guidelines and principles can be kept in mind: the rights or interests that the church or religious body wants to protect must be identified; the right that could be infringed by the existing policy or proposed new policy must also be identified; alternative ways of achieving the proposed objective must be considered and, if possible, determined.28 The alternative that achieves the desired objectives must be adopted without unreasonably and unfairly limiting or restricting rights. Reasons must be given as to why a particular method or means was adopted and why other alternatives were discarded or disregarded.29 It must also be considered whether reasonable steps were taken to address the disadvantage associated with one or more of the prohibited grounds and to accommodate diversity, substantive equality, and respect for the dignity of persons. An assessment must also be made on the extent to which churches interact with the broader community or whether it is restricted to exclusively serving the interests of its members.30 It all comes down to the following that must be considered (a) does the associational right upon which the church or religious institutions relies on in a particular instance fall within sections 18 (the right to

26

Report: Exclusionary Policies, 3. see also Du Plessis, Religious Human Rights,

451. 27 28 29 30

Report: Exclusionary Policies, 3. Report: Exclusionary Policies, 3. Du Plessis, Religious Human Rights, 452–457. Report: Exclusionary Policies, 40. Report: Exculsionary Policies, 41–42.

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freedom of association), 30 (the right to use the language or culture of choice), or 31 (the rights of cultural, religious, or language groups) of the Constitution, or any other right which includes associational rights, such as—for instance—the right to fair labor practices. (b) Does the assertion of the associational right infringe upon any other provision of the Bill of Rights? (c) If so, is it reasonable and justifiable in an open and democratic society as provided for in section 36 (the limitation of rights) of the Constitution?31 Churches must also remember that with regard to issues of equalityjurisprudence in South Africa discrimination is deemed where there is differentiation on a prohibited ground; for instance, the grounds mentioned in art 9(3) of the Constitution. In such issues regarding equality, the onus shifts to the respondent to establish that the discrimination is not unfair.32 It can thus only be to the advantage of churches to try and avail themselves beforehand of the reasons; in other words, to justify themselves about why they have certain rules and policies with which people are prohibited from exercising certain rights in the church. Rights such as why certain people cannot exercise membership rights in the denomination as a whole or in a specific local church; why the parties in disciplinary hearings do not have the right to be legally represented; the reason why certain people are not allowed to be office bearers in the church, and why ordinary labor law rights cannot always be exercised in the church, etc.33 It can also only be profitable for churches to compare their own order, rules, policies, and conduct with that of similar and other churches in other democracies in order to establish whether the comparable rules of the other churches are consistent with the Constitutions of their countries. In practice, this would first imply that churches have to determine where in their church order, policies, rules, and conduct discussion regarding discrimination and differentiation can occur; second, they have to determine whether the identified discrimination or differen-

31

Report: Exclusionary Policies, 28. Report: Exclusionary Policies, 33. 33 Kerkorde van die Nederduitse Gereformeerde Kerk met Reglemente, Kerkordelike Riglyne en Funksionele Besluite soos vasgestel deur die Algemene Sinode van 2004 (The Church Order of the Dutch Reformed Church together with Bylaws, Church Orderly Guidelines, and Functional Decisions, Determined by the General Synod of 2004) (Wellington: Lux Verbi, 2004). 32

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tiation is unfair; and third, if they determine that there is discrimination or differentiation in certain instances, they must be able to show that the discrimination or differentiation is not unfair because it is grounded on the legitimate objectives or grounds of faith of the church as a religious association—in other words, a claim can be made to freedom of religion. This can bring about that discrimination or differentiation, which can be seen as unfair in terms of the Constitution, can, on grounds of the legitimate aims and faith convictions of a church, be seen as necessary for the protection of the legitimate aims and religious nature of the church. This can have the effect that a church can have restrictive rules and policies on matters such as membership, admittance to the offices, the conduct of disciplinary hearings, the conduct of appeal hearings, dispute solving, labor relations, etc. because in all of these policies—and also others—it can be necessary to protect the specific faith nature of the church. Restrictive policies in a church can also be necessary to safeguard a church against what is called ‘capturing.’ Capturing takes place when new members of the church, existing members, or even outside parties move to fundamentally distort the purpose, character, and function of the church, sometimes to the extent that the very existence of the body is at risk—including both its physical and religious property.34 The following can be elements in the life of churches—their policies, rules, and conduct—that need to be assessed with regard to the requirements of the Constitution and the constitutionality of exclusionary policies. It can be rules, policies, and conduct which churches might wish to use in order to protect their integrity as churches in the light of freedom of religion. It can refer to the anthropology and view of society that churches work with; it can refer to churches and their related institutions as juristic persons.35 It can refer to a church and its requirements for membership; the church and freedom of conscience, religion, thought, and opinion; the church and religion in state and state aided institutions; the church and freedom of expression; the church and freedom of association; the church and property, and the church and income tax.36 34 S. Woolman, “Association” in Currie, & De Waal, The Bill of Rights Handbook, 423–424. 35 Du Plessis, Religious Human Rights, 445. 36 Du Plessis, Religious Human Rights, 445. “The Law on non Profit Organisations,” Law 71 of 1997; and the latest “Income Tax Law.”

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It can refer to labor relations in the church; rules of procedure for the meetings of church assemblies; disciplinary hearings; the hearings of appeals and the resolution of conflict within the church; requirements for office bearers and their functions; theological training and religious education, the policy of the church on education; the policy of the church with regard to social and ethical issues such as abortion, homosexuality, marriage, gay marriages and the conducting of such marriages; gender issues etc; and the relationship between the church and state institutions such as welfare homes, hospitals, prisons, protection services, the army, air force and fleet. All of the above mentioned, and many more, are matters that churches have to consider with regard to their freedom of religion. This gives an indication of how far reaching the ambit of freedom of religion can be for churches. At the same time, it will, of course, also be necessary for the church—in the light of its uniqueness as church as well as in the light of the kingdom of God—to asses its whole relationship to the state as such.37

Conclusion On the one hand, religion has more general aspects of embracing all beliefs and actions that concern the ultimate origin, meaning, and purpose of life involving the responses of the human heart, soul mind, conscience, intuition and reason to revelation, to transcendent values, and to the idea of the holy. On the other hand, religion is always a specific creed(s), i.e. an accepted cadre of beliefs and values regarding the deepest origins, meanings, and aims in life; a specific cult— rituals, liturgies, patterns of worship, and dedication; a specific code of conduct—accepted by individuals and the community as a whole as a code of conduct for those who confess the faith, practice the cult, and act in accordance with it; and a specific confessional community 37

Du Plessis, Religious Human Rights, 445–446; P. Coertzen, “Kerk en Staat, Die Optimum Verhouding vir Godsdiensvryheid” (Church and State—the Optimum Relationship for Freedom of Religion) Nederduitse Gereformeerde Teologiese Tydskrif, (2005). Johan van der Vyver, “Introduction,” XVIII–XLIV; J. van der Vyver, “Constitutional Perspectives on Church-State Relations in South Africa,” in Brigham Young University Law Review, Vol. 1999, nr. 2 (1997).

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of people who accept the creed, the cult, and the code of conduct, and also practice it. It is especially important to remember that the last distinctions are very important if we want to understand the ambit and function of religious freedom within the context of a constitution and a bill of rights. Given the reality of the South African Constitution—with the Bill of Rights that guarantees freedom of religion and compels the state to always keep it in mind—together with the Christian view that the authority of the state must be accepted, it is very important for churches and also other religious bodies to assess their existing policies, rules, and conduct and consider whether changes are necessary and then make such amendments as required—in order to bring their policies and practices in line with the requirements of the Constitution,38 but also to avail themselves of the relationship between their nature as a church and their order, policies, rules, and conduct. Doing this will, of course, entail that churches know what the ambit of freedom of religion is and what the requirements with regard to freedom of religion are—given their identity as a church and keeping in mind that freedom of religion empowers them to express their unique faith identity in society. If churches do not take freedom of religion in its ambit and function seriously, they can end up in a situation where they will, of necessity, be compelled to follow and act according to the laws of the state even if those laws are in contradiction with the spiritual nature of the church. They can find themselves in a situation where they as churches allow the state to govern the church through its laws. It is clear from documents such as the Report: Exclusionary Policies of the Human Rights Commission that such a situation is not necessarily the desire of the state in South Africa. It is also clear from the scope which the Bill of Rights allows for churches to function as associations in accordance with their deepest convictions, order, and policies. If churches fail to use their freedom of religion and function within that ambit, they will—of necessity—have to function according to the laws of the state, and history has shown that such a situation can have devastating results for the church.39

38

Report: Exclusionary Policies, 3. “Barmer Theologische Erklärung,” 29–31 Mai 1934 in Adelbert Erler, Kirchenrecht, Ein Studienbuch, (München: Verlag C.H. Beck, 1975), 206—208. 39

STATE, CHURCH AND CIVIL SOCIETY. AN ANALYSIS OF TWO RECENT ECCLESIAL DOCUMENTS Eduardus Van der Borght

In a recent monography on Church, State and Civil Society, David Fergusson, professor of divinity at the University of Edinburgh, demands renewed attention for the rich tradition of Christian political theology.1 His central argument is that the past relationship between church and state as a configuration of two dominant institutions that exist in a close and exclusive relationship might be over, but that a more differentiated approach positioning the church in positive relation to other institutions within civil society offers a new perspective for an effective public significance of the church.2 An historical overview reveals different approaches of the Christian understanding of the state. Within the early church, both church and state were subordinated to a theological vision of the divine rule in history and its eschatological outcome. When persecutions and hostility diminished, a shift from the concept of ‘alien citizenship’ to ‘subordinated citizenship’ became apparent. In the second half of the Middle Ages, the emergent bonum commune concept reveals the awareness of the rule of God that surpasses ecclesial forms. Our neighbors are not merely within the church. Furthermore, the idea of the common good is not limited to a narrow political understanding of the church’s relation to the state, as becomes apparent in the Reformed version of the common good concept. Every relationship within the household, the church, and the parish can be sanctified by obedience, individual and collective, to the Word of God. But the gradual breakdown of the organic unity of church and society at the end of the Middle Ages and during the era of the Reformation pressed churches to rethink their relation to the state and their political theology.3 Fergusson acknowledges the contribution of liberalism to arrangements that are indispensable in our current situation such 1

D. Fergusson, Church, State and Civil Society (Cambridge: University Press, 2004) is based on the 2001 Bampton Lectures in Oxford. 2 Fergusson, Church, State and Civil Society, 1. 3 Fergusson, Church, State and Civil Society, 45–46.

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as freedom of worship, association and political action, and—more recently—a commitment to the equality of the sexes. But he refrains from attributing the merits for this to a philosophy of political liberalism, which attaches a primary significance to the autonomous individual. Distinctive theological arguments for religious tolerance rather than philosophies of the Enlightenment form the basis for the commitment to some of the features of liberal society.4 He refers to the themes of peaceful coexistence, the irrationality of state coercion, the freedom of the act of faith, and the prospect of civil conversation with others unlike ourselves from whom we have a good deal to learn. In his opinion, these motives offer a better guarantee for tolerance within pluralist societies than the approach to tolerance of political liberalism, which tends to result in indifference and scepticism.5 Fergusson analyzes two important texts of twentieth century Christianity—the Barmen Declaration and Gaudium et Spes—to prove that the church can make a public contribution to the common good of society on the basis of its own insights and standards.6 The second half of the twentieth century has witnessed the demise of Christendom and the concept of the national church, but, according to Fergusson, the calling ‘to seek the welfare of the city’ has remained. At the same time, the twentieth century’s terrible experiences with authoritarian states has revealed the need for the recognition of institutions that mediate between domestic households and the machinery of the state, such as trade unions, political parties, community groups, and religious and cultural organizations. So churches will continue to contribute to the common good as groups within civil society in partnership with other institutions in society—no longer assuming a triumphalistic ‘the church knows best’ attitude and recognizing divine wisdom in other places. Although Fergusson offers many issues that ask for further discussion, in this contribution I want to limit myself to the question of whether his central thesis—the continuation of the public role of the church no longer in privileged partnership with the state but as contributing institution of civil society—is reflected in the way ecclesial bodies present themselves in their statements. For the churches, free-

4 5 6

Fergusson, Church, State and Civil Society, 69–71. Fergusson, Church, State and Civil Society, 92–93. Fergusson, Church, State and Civil Society, 139.

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dom of religion is linked to the self-perception of their role in society, and the role they expect the state to play. What are the underlying expectations of the role of the church and of the state in relation to public issues? Is the church understood as one partner among many in civil society, or does it still claim a special status? Is the state still understood as central to peace and justice? I will focus on two recent declarations—one by the World Alliance of Reformed Churches and one by Pope Benedict XVI. I will summarize their content and focus on the sections that are relevant for our discussion and will make an analysis of the relationship of the church and the state in both documents.

The Accra Confession as ‘Faith Stance’ The 24th General Council of the World Alliance of Reformed Churches (WARC) produced three reports: one on covenanting, one on mission, and one on spirituality. The first one, Covenanting for justice: the Accra Confession, has especially attracted attention and resonates within the Reformed churches worldwide.7 In this document, the WARC, as an alliance of faith communities, reacts to the devastating effects of economic globalization. If offers a faith perspective on an issue that impacts people from all over the world, but the people of the south more than anybody else. Covenanting for justice: the Accra Confession consists of three parts preceded by an introduction. This introduction (1–4) describes the background of the document. The 23rd General Council of the WARC (Debrecen, 1997) invited the member churches to enter into a process of “recognition, education, and confession (processus confessionis)” (1).8 After observing that nine member churches had committed themselves in the meantime to “a faith stance” (2) and after the confrontation during the conference with the slave dungeons of Elmina and Cape Coast (3), the churches decided to take “a decision of faith commitment” (4).

7 J.P. Asling (ed.), Accra 2004: proceedings of the 24th General Council of the World Alliance of Reformed Churches: Accra, Ghana 30 July–12 August 2004 (Geneva: World Alliance of Reformed Churches, 2005), 153–160. 8 The numbers between brackets refer to the paragraphs of the document.

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The first section, Reading the signs of the times, recalls Romans 8:22—creation continues to groan, in bondage, waiting for its liberation—and indicates the challenge by the cries of the people who suffer and by the woundedness of creation itself (5). Scandals such as the growing income gap between rich and poor, the growing number of people living in absolute poverty, the increase of the debt of poor countries, the millions dying of preventable diseases, the poor who die from the HIV and AIDS global pandemic, and women and children being the majority of those in poverty are a denial of God’s call to life for all (7). The consequences of the plunder of the earth as a result of the policy of unlimited growth among industrialized countries and the drive for profit of transnational corporations has become clear: rapid extinction of species, climate change, depletion of fish stocks, deforestation, soil erosion, threats to fresh water, inundation, storm increase, and lost livelihoods. Increased radioactivity threatens health; and life forms and cultural knowledge are patented for financial gains (8). These signs of the time have become so alarming that they have to be interpreted. The root cause of this massive threat to life—the document says—is to be found in the unjust economic system defended and protected by military might (6). The neoliberal economic globalization is based on some specific beliefs: 1. unrestrained competition, consumerism, and the unlimited economic growth and accumulation of wealth is the best for the whole world; 2. the ownership of private property brings no social obligation; 3. wealth for all is best achieved by capital speculation, liberalization and deregulation of the market, privatization of public utilities and national resources, unrestricted access for foreign investment and import, lower taxes, and the unrestricted movement of capital; 4. social obligations, protection of the poor and the weak, trade unions, and relationships between people are subordinate to the processes of economic growth and capital accumulation (9). These beliefs are unmasked as an ideology that demands endless sacrifices from the poor and creation, makes false promises, and demands total allegiance—which amounts to idolatry (10). This immoral economic system is defended by ‘empire,’ meaning “the coming together of economic, cultural, political, and military power that constitutes a system of domination led by powerful nations to protect and defend their own interests. (11)” Since the 1980s—through the transnationalization of capital—neoliberalism has set out to dismantle the welfare functions of the state. (12) The government of the United

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States of America and its allies, together with international finance and trade institutions (IMF, World Bank, and the World Trade Organization), use political, economic, or military alliances to protect and advance the interest of the capital owners. (13) As a conclusion of this part, the document states that the economic globalization and geopolitics backed by neoliberal ideology protects the interests of the powerful, and captivates all. This system of wealth accumulation at the expense of the poor is condemned as unfaithfulness to God, with a reference to Jesus call to choose between God and Mammon (Lk 16:13). This analysis of the current global economic order is followed by a Confession of faith in the face of the economic injustice and ecological destruction, affirming that “global economic justice is essential to the integrity of our faith in God and our discipleship as Christians.” As a consequence, the participants of the Accra meeting feel urged to confess before God and one another (16). What follows is a confession of faith in the triune God (17), Father (18–27), Son (28–31), and Holy Spirit (32–36) with corresponding anathemas. Because of the faith in God’s sovereignty over all creation and the promise in Christ of life in fullness (18), economic systems which defy God’s covenant by excluding the poor, the vulnerable, and the whole creation from fullness of life are rejected as well as any claim of economic, political, and military empire that acts contrary to God’s just rule (19). Because of God’s inclusive covenant of grace with all creation (20), the culture of rampant consumerism and the competitive greed and selfishness of the neoliberal global market are rejected (21). Because of the accountability to God in terms of the dignity and well-being of people in community within the bounds of the sustainability of creation (22), the unregulated accumulation of wealth and limitless growth at the cost of millions and of God’s creation is rejected (23). Because the justice of God cares in a special way for the poor and calls for a just relationship with all creation (24), the ideology that places profit before people and the teaching that supports such an ideology in the name of the gospel are rejected (25). Because of God’s call to stand with those who are victims of injustice (26), any theology that claims that God is only with the rich or that claims that human interests dominate nature are rejected, as well as forms of injustice which destroy right relations (27). Because Jesus brought justice to the oppressed (28), any church practice or teaching excluding the poor or care for creation in its mission

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is rejected (29). Because of God’s call to the unity of the church in order to make reconciliation in Christ visible (30), all attempts in the church to separate justice and unity are condemned (31). Because of the call to hope in the Spirit (32), the participants commit themselves to seek a global covenant for justice in the economy and the earth (33) with the awareness of standing under the judgement of God’s justice themselves. Complicity and guilt of the current neoliberal economic global system, acknowledgement of having become captivated by the culture of consumerism and competitive greed, failing to play a role as stewards and companions of nature, and disunity of the Reformed family are confessed as sins (34). The conviction of being called to confess, witness, and act are reiterated (35), and this confessing part is closed with trinitarian praise of God (36). In the last part, Covenanting for justice, the confession leads to a commitment to work together for justice in the economy and the earth (37–38 and 42), to translate the confession in a prophetic manner to the local congregation (39), to follow up the recommendations on economic justice and ecological issues (40), and to work together with others for a just economy and integrity of creation (41).

State, Church, and Civil Society in the Accra Confession In the document, the state is almost absent in the analysis and in the perspectives offered. Only paragraph 12 focuses on the state and describes its diminished role in the following words: “In classical liberal economics, the state exists to protect private property and contracts in the competitive market. Through the struggles of the labour movement, states began to regulate markets and provide for the welfare of people. Since the 1980’s, through the transnationalizaton of capital, neoliberalism has set out to dismantle the welfare function of the state. Under neoliberalism the purpose of the economy is to increase profits and return for the owners of production and financial capital, while excluding the majority of the people and treating nature as a commodity.” In the next paragraph, the government of one nation state, the United States of America, and its allies are identified as stimulating the neoliberal economic globalization in which the role of the state is strongly reduced. The second confessing part of the statement neither confesses nor claims any role for the state in order to protect the weak and vulnerable in society in the context of a just economy. The third

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part calls on the churches to covenant for justice in the economy, but remains silent on a possible role for the state. In defence of the confession, one can refer to the limited scope of the statement—to make a faith statement on neoliberal economic globalization—to explain the absence of the state in the document, but it remains remarkable that a text that deplores the dismantling of the economic and social function of the state abstains from providing new stimuli for a positive assessment of the function of the state in relation to economic and social life. Several reasons may have influenced this result. First of all, some will have hesitated to redefine the role of the state after many negative experiences with planned economies in many regions of the globe in the aftermath of the collapse of the Iron Curtain. The confession rejects absolute planned economy as excluding the poor, the vulnerable, and the whole of creation in defiance of God’s covenant (19).9 Second, some may argue that even if the state is absent in the Accra Confession, the governments are among the addressees on the issue of economic and environmental justice in the ‘Report of the Public Issues Committee,’ accepted at the same WARC General Assembly in Accra. Some specific recommendations are made towards governments.10 Others, especially in the south, may have lost confidence in the will and/or capacity of nation states and their governments to change the economic plight of the poor. Still others may refer to the ‘empire’ concept that is used to explain the current economic globalization. It suggests that the economic injustice is planned by invisible alliances of industrial conglomerates with the aid of the American government. They consider the use of this empire paradigm in the document as a dangerous ideological simplification that lays too much blame on one government, while at the same time remaining silent on the corruption and power abuse in many countries in the south and the role played by other major economic powers such as

9

Accra 2004, 42. The phrase “including absolute planned economies” was added in the draft statement at the General Assembly in Accra after much debate. 10 Accra 2004, 200–201. Recommendations are made in relation to fair trade policies, fair and sufficient taxation, debts reductions, the ratification of the Kyoto agreement, international commitments, law enforcement on criminal economic activities, a halt to privatization where it does not serve the poor, and support for church-related development programs.

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China, Japan, etc.11 Whatever the reason, the net result is an almost invisible state in the document. How about civil society? In relation to economic and environmental justice, § 41 reveals a sharp awareness of the need to work together with other religious and non-religious movements and institutions.12 The ‘Report of the Public Issues Committee’ does not only address the churches and the governments, but also the private sector,13 international organizations,14 and other faith-based and secular organizations.15 So in the document, other players in civil society are identified and called upon. Churches are positioned among the agents working for a just economy and environment. Still, the focus of the Accra Confession is about what the churches can do. Except for § 41, the concluding part—Covenanting for justice—only appeals to the member churches of the WARC. This fixation on the role and responsibility of the churches is linked to the format of the document. It is presented as a kind of confession. Because it is not self-evident to present an ecclesial statement on economy and environment as a confession, the background of this confession will be explained.

The Confessional Status of the Accra Confession In summarizing the content, one essential paragraph was skipped that is crucial in understanding its ecclesiological framework. Paragraph 15

11 See the unpublished contribution of the secretary general of the Protestantse Kerk in Nederland (The Protestant Church in the Netherlands), B. Plaisier, De Accraverklaring en de Protestantse Kerk (The Accra Declaration and the Protestant Church) at the study day of the synod of the Verenigde Protestantse Kerk in België (The United Protestant Churches in Belgium) on March 18, 2006. 12 “The general council commits the World Alliance of Reformed Churches to work together with other communions, the ecumenical community, the community of other faiths, civil movements and people’s movements for a just economy and the integrity of creation and calls upon our member churches to do the same” (Accra Confession, § 41). 13 Accra 2004, 201. Recommendations are made to implement human rights, especially workers’ rights, and a general call towards corporations to orient their activities towards economic and environmental justice. 14 Accra 2004, 201–202. Recommendations are made in relation to debts reductions, financial markets stabilization, greater democracy, accountability and transparency of international financial institutions, and disarmament. 15 Accra 2004, 202. A general call for cooperation is made.

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reads: “Faith commitment may be expressed in various ways according to regional and theological traditions: as confession, as confessing together, as faith stance, as being faithful to the covenant of God. We choose confession, not meaning a classical doctrinal confession, because the World Alliance of Reformed Churches cannot make such a confession, but to show the necessity and urgency of an active response to the challenges of our time and the call of Debrecen. We invite member churches to receive and respond to our common witness.” The plenary agreed to include this explanatory paragraph to the understanding of ‘confession’ in the draft text.16 Seong Won Park, executive secretary of the WARC Department of Cooperation and Witness, indicates that despite the consensus about the problematic nature of today’s global economy and about the need to respond in a confessional matter, some delegates were in favor of a declaration or a statement instead of a confession. In order to avoid division on the question whether this was a case of status confessionis, the General Council distinguished its faith stance against economic injustice from a confession in the traditional sense.17 Paragraph 15 justifies its decision with a formal argument. As an alliance, not being a church itself, the WARC cannot make this statement into a classical doctrinal confession, but it leaves this possibility open to individual member churches. In fact, the confessional status of a declaration on economic injustice and ecological destruction has been part of the discussions within the WARC since the suggestion by the southern African constituency in their 1995 meeting in Kitwe for a declaration of a status confessionis on this issue. The Debrecen General Council of 1997 decided to take the time for careful reflection, “a committed process of progressive recognition, education and confession”—a so-called processus confessionis—instead of a quick move to status confessionis.18 The decision to continue with a confessional approach without declaring a status confessionis was matched by the executive committee in its Bangelore meeting in 2000 with a more comprehensive name for the process,

16

U. Möller, “The Accra Confession and its ecclesiological implications,” Reformed World 55 (2005) 3, 202–213, especially 205. The proceedings of the meeting in Accra 2004, 32–33, 42, and 46 are vague on this inclusion. 17 S. W. Park, “A journey for life: From Debrecen to Accra and beyond,” Reformed World 55 (2005) 3, 191–201, especially 199. 18 Debrecen 1997, Proceedings of the 23rd General Council of the World Alliance or Reformed Churches (Geneva: World Alliance of Reformed Churches, 1997), 198.

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“Covenanting for Justice in the Economy and the Earth.”19 In the uncertainty about the right way to address economic issues as confessional issues, the assembly broadened the scope with an action aspect: confession leads to covenanting—another typical Reformed focus.20 The Debrecen General Assembly stated that the current economic injustice and ecological destruction has reached such a crisis level that it has become a matter of life and death; that the survival of the planet Earth is at stake.21 The Accra General Assembly has confirmed this conviction by affirming that global economic justice is essential to the integrity of our faith in God and discipleship as Christians, and that by remaining silent or refusing to act, the integrity of the faith is at stake (§ 16). As became clear in the overview of the development of the Accra confession, the urgency of the current disastrous economic and ecological situations was placed on the agenda of the WARC by the southern African churches. And as a recent article by René Krüger—the president of the Institutio Universitario ISEDET in Buenos Aires— shows, some Latin American churches have been supporting this plea wholeheartedly. He describes the Accra Confession’s perspectives of the south as very challenging, especially for the churches and individual Christians from the north.22 His starting point is the injustice and human despair caused by the devastating collapse of the Argentine economy in 2001 that resulted in a social explosion. He challenges the northern hermeneutical approach to the neo-liberal globalization with its logic of ‘keep the good and correct the bad.’ Kruger urges the churches, especially those of the north, to choose for what he calls a hermeneutics of life. “What are you doing about the religion of Mammon? Which themes are defining the agendas of congregational

19

Park, “A journey for life,” 192. On the old and new Reformed and ecumenical understanding of the concept ‘covenant,’ see D.J. Smit, “Theologische Ansätze für kirchliches Engagement in Fragen der Globalisierung: Reformierte Perspektiven aus dem Südlichen Afrika,” Okumenische Rundschau 53 (2004) 2, 172–174. 21 “In many parts of the world, Reformed churches and communities are challenged by the appalling circumstances in which many people live and by the threat of the ongoing destruction of the environment. Many believe that the time has come to make a confession of faith which rejects and struggles against these injustices, while affirming our faith in the triune God who in Christ offers a new creation.” Debrecen 1997, Proceedings, 197–198. 22 R. Krüger, “The biblical and theological significance of the Accra Confession: a perspective from the South,” in Reformed World 55 (2005) 3, 226–233. 20

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councils, the meetings of church leaders, synods? What motivates professors and students in theological faculties where the next generation of ministers and teachers of religious education are trained? Which are the overarching concerns, themes and tasks of theology and church policy? What part is played in your reflection by the connection between money, property, poverty and eternal life? In this regard the South today is also asking the North: Are you willing to share with us the Bible’s critical presentation of social, economic and political developments? Are you willing to share with us the fundamental biblical concerns for a life in love, dignity and abundance?”23 These powerful, challenging questions make it very clear that in order for the churches to speak out on social issues, they need a hermeneutical reorientation. Speaking out on social issues—so practicing public theology—is not just an occasional business, but an expression of a church that has gone through a conversion process. In the first place, Kruger is addressing the churches of the north. But next to that, the logic of his argumentation also reveals another aspect of the ecclesiological presuppositions of the Accra Confession. The acceptance or refusal of neo-liberal globalization is linked to the choice between mammon and God. As a consequence, the refusal of this economic model must take the form of a confessional statement. From what is described in the previous paragraph, it becomes clear that not all partner churches within the WARC will follow the same logic. This brings us to the question about how social issues are best addressed publicly—through statements or through confessions? Can a faith stance about pressing social issues only be expressed by a confession? Or is the option for a statement instead of a confession a sign that the church is not making the radical choice between God and mammon? The use of confessional language in a statement such as this one on economy and ecology is problematic. In comparing it with the Barmen Declaration and the Belhar Confession the difference becomes clear. Although the Accra text itself does not refer to the Barmen Declaration or the Belhar Confession, it is evident to everybody that these documents were inspiring examples—most of all for the southern African churches, who initiated the process that led to the acceptance of the Accra Confession. Still, there is a gap between these documents

23

Krüger, Reformed World 55 (2005) 3, 233.

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and the Accra Confession. Through their heretical identification of church and volk, the Deutsche Christen put the unity of the church in danger—as did the Dutch Reformed Church through its theological justification of apartheid. But in the case of an unjust economy and ecological destruction, no member church of the WARC is justifying neo-liberal globalization through its teachings. It is a moral issue that demands a strongly worded condemnation by the church. It is an urgent situation that demands theological reflection and action by the churches, but not in the form of a processus confessionis. Duchrow’s reference to ‘prosperity gospel’ is not convincing because it is not official church teaching of member churches of WARC. Neither is the hidden agenda of the neo-liberal market economy in contrast to the open intentions of Nazi and apartheid ideology sufficient ground for a status confessionis.24 So it is preferred to reserve the use of confessions for situations where through heretical teaching the unity of the church is at stake. It also appears to be a risky strategy. It is questionable whether in the long term the theological reflection is assisted by declaring a processus confessionis when many churches, in reality, are still in the beginning of theological reflection on the global economy.25 In the short term, a strongly worded condemnation of the ideology of the neo-liberal economic globalization—defended by empire—might seem to be a victory in the struggle to fight the terrible consequences. But when it becomes clear that the situation is more complex than the offered analysis in the Accra Confession, individual believers and synods might forget that this document admits the enormity and complexity of the situation and intends to refrain from simple answers, and might come to distrust the analysis of the WARC. Not all synods may react as the synod of the Protestant Church in the Netherlands did recently, when it endorsed the conclusions of the document without fully accepting the analysis because it was considered to be incomplete and because

24

U. Duchrow, “Muss es in Accra einen Nord-Süd-konflikt im Blick auf eine klare Stellungnahme zum Neoliberalismus geben?” Ökumenische Rundschau 53 (2004) 3, 402–403. 25 U. Möller, “Folgt im ökumenischen Prozess des Bekennens jetst die Feststellung des status confessionis? Standortbestimmung vor der Generalversammlung des Reformierten Weltbundes 2004 in Accra,” Ökumenische Rundschau 53 (2004) 2, 184–185.

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they had reservations on the form of the Accra Confession.26 Other churches may be inclined to not consider economic globalization as a faith issue—under the pretext they cannot agree with the incomplete analysis combined with a confessional statement or because they are of the opinion that the identity of the church is not at stake. So it is questionable whether putting this very pressing economic issue in confessional language, declaring a status confessionis or a processus confessionis, is the best way to put pressure on the churches, especially those of the north. Many Reformed churches proudly confess to be heirs of the tradition that produced such brave documents as the Barmen Declaration and the Belhar Confession. But especially as Reformed, a self-critical reflex forces us to admit that we are the Christian tradition that has the sad record of historic church splits on dogmatic, ecclesiological, and ethical differences of opinion that at a certain moment in time had grown so divisive that a status confessionis was declared that led to a breaking up of communion which never healed in time. At the same time, it is important to be aware that all major Christian traditions have become aware of the need to address the terrible consequences of economic globalization. The recent Porto Alegre 9th Assembly of the World Council of Churches has also dealt with economic and ecological issues in the Agape document, without the need to make a new confessional statement on these issues in the way the Accra Confession does. Coming back to the original research question of whether the Accra Confession is an expression of the new relationship of the church towards the state as described by Fergusson, one has to con-

26 The general synod of 24/25 November 2005 of the Protestantse Kerk in Nederland accepted the Accra Confession, although they preferred the expression Accra Declaration. In preparation, the synod members were offered a paper about faith and economy with the title Accra’s Appel (Accra’s Appeal). Among others, it refers to the identification of the actors in the economic globalization: international financial institutions such as the World Bank, IMF, ‘Washington,’ and the Transnational Cooperations. This is considered to be simplification because in many cases the intention is not impoverishment of people, and more actors are involved, including the consumers—even those of the south. The report explains the problem of neo-liberal globalization in terms of the dominance of the money system (p. 12). The Accra Declaration is described as a document of prophetic and confessional speaking of the church, in which the prophetic element refers to the experience and the option of the poor and the suffering, and the confessional aspect refers to the hopeful perspective of the kingdom of God.

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clude that—quite remarkably—the state is absent in a document on economy; the text expresses awareness of being one of the agents of civil society; and that the main focus is on the role of the church. This unbalance is reflected in the style of a confession. The Reformed tradition is still searching for an appropriate way to address social issues from a faith perspective without the need to put it in the context of the fight against heresy.

Deus Caritas Est This brings us to the question of whether we can find alternative examples to address social issues from a faith stance without declaring a status confessionis. Very recently, the new pope, Benedict XVI, published his first encyclical letter, Deus Caritas Est, on Christian love.27 It is a totally different genre of church document, but what he writes gives us an opportunity to analyze the way church, state, and civil society are linked to one another. Encyclicals are open pastoral letters by popes. His addressees are the clergy; those who have taken religious vows; and all the faithful lay. With the letter on caritas, the pope focuses the attention of the believers on the core of Christian faith: the Christian image of God and the resulting image of mankind and its destiny (1). He frames his encyclical in the context of “a world where the name of God is sometimes associated with vengeance and even a duty of hatred and violence” (1). He unfolds the theme of Christian love in two connected parts: the first with the title, The Unity of Love in Creation and in Salvation History, about the love God lavishes upon us and the second part with the title, Caritas: the Practice of Love by the Church as a ‘Community of Love,’ about the love that we in turn must share with others. In the context of the theme of this conference, focus will be given to the second part. The second part offers a description of “the Church’s charitable activity as a manifestation of Trinitarian love” (19) and then continues with the description of charity as a responsibility of the church—on the level of each individual member and on the level of the entire ecclesial 27 Originally planned to be published on 25 December 2005, but actually released on 25 January, the day of the commemoration of the conversion of Saint Paul. The text is to be found at http://www.vatican.va/holy_father/benedict_xvi/encyclicals/documents/hf_ben-xvi_enc_20051225_deus-caritas-est_en.html.

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community. This responsibility has had a constitutive relevance in the church from the beginning, as is attested by Acts 2:44–5 and 4:32–37. Believers held all things in common, and there was no longer distinction between rich and poor. As the church grew, this radical communion could not be preserved, but its essential core remained: within the community of believers there can never be room for a poverty that denies anyone what is needed for a dignified life (20). The communal ministry of charity became part of the fundamental structure of the church in the formation of the group of seven deacons (Acts 6) (21) and proved to be one of her essential activities (22–24). So, the first conclusion of this section can only be that next to proclaiming the word of God (kerygma-marturia), and celebrating the sacraments (leitourgia), the exercising of the ministry of charity (diakonia) is part of the threefold responsibility, which expresses the deepest nature of the church. And second, in the church as God’s family in the world no one ought to go without the necessities of life, and, at the same time, its charity extends beyond the frontiers of the church (25). The pope then continues his reflection with a section on justice and charity, which is particular interesting for our conference. Since the nineteenth century, objection has been raised—especially by Marxism—that the poor do not need charity but justice, and that instead of contributing through individual works of charity to maintain the status quo, we need to build a just social order in which all receive their share of the world’s goods and no longer depend on charity. The pope admits that there is truth to this argument. The pursuit of justice must be a fundamental norm of the state and the aim of a just social order must be to guarantee to each person his share of the community’s goods (26). After the industrialization of society in the nineteenth century, the church’ leadership was initially slow to react, but since the Encyclical Rerum Novarum of 1891, the church has permanently developed its social teaching into a social doctrine offering fundamental guidelines (27). The pope points to two elements that have to be taken into consideration if one wants to define the relationship between justice and charity. First of all, the church cannot and must not take upon herself the political battle to bring about the most just society possible. She cannot and must not replace the state. Yet at the same time, she cannot and must not remain on the sidelines in the fight for justice. She has to play her part through rational argument, and she has to reawaken the spiritual energy without which justice, which always demands sacrifice, cannot prevail and prosper. Second,

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caritas will always prove necessary, even in the most just society (28). Promoting justice being an indirect duty of the church, one of her core businesses is charity—doing what corresponds to her nature (29). Globalization has created more channels for communication, humanitarian assistance, cooperation between state and church agencies, and Catholic charitable agencies and those of other churches (30). Still the church’s charitable activities have their own distinctiveness. The pope distinguishes three essential elements of Christian and ecclesial charity: a. Christian caritas is not only executed with professional competence but also with a heartfelt concern; b. Christian caritas must be independent of parties and ideologies because it is not a means of changing the world ideologically, and it is not at the service of worldly stratagems, but it is a way of making present here and now the love which man always needs; c. Charity cannot be used as a means of engaging in proselytism (31). Finally, the pope turns his attention to those responsible for the church’s charitable activity. The true subject of various Catholic organizations that carry out a ministry of charity is the church herself at all levels—from the parishes, through the particular churches, to the universal Church. The fundamental ecclesial nature of the ministry of caritas becomes clear in the promise made by the ordained bishop in the ordination rite to be welcoming and merciful to the poor and all those in need of consolidation and assistance (32). So the personnel who carry out the church’s charitable activity must not be inspired by ideologies aimed at improving the world, but should rather be guided by the faith which works through love. As a consequence, the personnel of Catholic charitable organizations want to work with the church and therefore with the bishop (33). Interior openness to the Catholic dimension of the church is not in contradiction with working harmoniously with other organizations, and respects what is distinctive about the service that Christ requested of his disciples. The activities should be driven by love, humility, and prayer (34–36). In caritas, faith, hope, and prayer go together (39). In his conclusion, the pope refers to the examples of the saints and especially Mary (40–42). If we have identified the agenda behind the Accra Confession as the intention to bring pressure on the churches of the north to be more outspoken in their condemnation of the neo-liberal globalization, then we can refer to the appeal made on Catholic charitable organizations, to confirm and strengthen their Christian, Roman Catholic identity as the hard core of the encyclical letter.

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State, Church, and Civil Society in Deus Caritas Est Paragraph 28 extensively discusses the relationship between the state’s commitment to justice and the church’s ministry of charity. The distinction between church and state is based on the biblical distinction between what belongs to Caesar and what belongs to God (cf. Mat 22:21) or, with the words of Second Vatican Council, the recognition of “the autonomy of the temporal sphere.” The two spheres are distinct, yet always interrelated. The state must guarantee religious freedom and harmony between the followers of different religions. The church has a proper independence and its structure, based on the faith, must be recognized by the state. The central question for the state is how justice can be achieved here and now. But this practical issue cannot be solved without a permanent consideration of what justice actually amounts to, and how blind spots in the justice discourse can be avoided. Here politics and faith meet. Faith liberates reason from its blind spots, enables reason to do its work more effectively, and see its proper object more clearly. This is where Catholic social doctrine has its place—offering consciences formation in political life, clarifying authentic requirements of justice, and enhancing greater readiness to act accordingly, even if this might involve conflict with situations of personal interest. In acting this way, the church does not have the intention to give the church power over the state or does not try to impose ways of thinking and modes of conduct on those who do not share the same faith. She cannot and must not replace the state. A just society must be the achievement of politics, not of the church. But, warns the pope, we do not need a state which regulates and controls everything, but one which, in accordance with the principle of subsidiarity, generously acknowledges and supports initiatives arising from the different social forces and combines spontaneity with closeness to those in need. The church is one of those living forces, being alive with the love enkindled by the Spirit of Christ, not only offering material help, but also—and even more—refreshing and caring for souls. Paragraph 29 discusses the relationship in the life of the church between commitment to the just ordering of the state and society, on the one hand, and organized charitable activity, on the other. On the one hand, the church offers, in its social teachings through the purification of reason and through ethical formation, her own specific contribution towards understanding the requirements of justice and

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achieving them politically. This indirect duty of the church in relation to justice becomes a direct duty of the faithful lay as citizens of the state. Here, the pope inserts three quotes, referring to the call of the faithful lay in various spheres of life to organically and institutionally promote the common good; referring to their mission to configure social life correctly—respecting its legitimate autonomy, cooperating with other citizens according to their respective competences, and fulfilling their own responsibility; and referring to the call on the faithful lay to let charity animate their entire lives as well as their political activities—lives as “social charity.”28 On the other hand, the church’s charitable organizations constitute an opus proprium that act as a subject with direct responsibility, do what corresponds to her nature, and not just cooperate collaterally. The church can never be exempted from practicing charity as an organized activity of believers, and charity of individual believers will always remain necessary because—next to justice—humanity will always need love. The analysis of the relationship between church and state—in relation to the issues of justice and charity—reveals a nuanced thinking, acknowledging the distinction between the two spheres and the difference in core business, while at the same time affirming the interdependence of justice and charity, and church and state. The analysis also reveals that the church has not only accepted the specific responsibility of the state, but also seems to be aware that it is only one of the agencies in civil society contributing to justice and charity. As we have seen, the WARC struggles to find an appropriate way to address social issues from a faith perspective. It pressures the issue by making it a case of processus confessionis and describing it as an issue of choice between God and mammon. Deus Caritas Est, an encyclical with authority in the Roman Catholic Church as a letter from the pope, seems to leave more room for further considerations of social issues than the WARC document that tends to frame the issue in the context of heresy.

28 References to John Paul II’s Post-Synodal Apostolic Exhortation, Christifideles Laici (1988), the Congregation for the Doctrine of the Faith’s Doctrinal note on some questions regarding the participation of catholics in political life (2002), and Catechism of the Catholic Church (1939).

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Conclusion These two examples are not enough to make general conclusions, but these two documents confirm the thesis of Fergusson and prove that at least in the West, churches have become aware of the changed context of their relation with the state. No longer is the church portrayed as a privileged partner in relation to the state. Both documents attest the presence of other religious and non-religious agencies in civil society. As to the role of the state and the church in relation to social issues, the Roman Catholic document offers a consistent view, while the Reformed document remains silent on the issue.

TO BE FREE, RELIGION SHOULD KEEP HERSELF FREE Abraham van de Beek

Introduction When we speak about freedom of religion, the first thought that comes to mind is that the government must guarantee this freedom. The government should not rule over the consciences of the citizens while at the same time ensuring that they can express their religion without hindrance either by the government or by people with other beliefs. Therefore, religious freedom is a task of the government. We can, however, also argue from another perspective: from religion itself. Religion should keep itself free from the state and also free from any other influence that could threaten its integrity. In this contribution, I will argue that this perspective is even more important than the calling of the government. I will even argue that true religion is free in itself and cannot be touched by laws or actions of the government or people who have different convictions. In order to save this freedom, religion should have a specific attitude towards the state. I will build my argument from a Christian perspective and, even more precise, from early Christian convictions. Since the fourth century, these convictions have been overruled by later developments, but—precisely because they were basic for early Christianity—they have been present in Christian thought until now. This approach means that I do not argue from a general perspective on religion, but from a specific religion with a critical view on current mainstream Christianity as well. I do so consciously: religion is not something general, but is always specific. However, that does not mean that there are no basic tenets in all religions that the most profoundly religious people express in their thought and life. It is similar to love: love is always specific, but there are specific tenets that are present everywhere when we speak about ultimate love.

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One of the most influential early Christian writers is Origen, rector of the catechumen school in Alexandria in the third century. He was an erudite man who thoroughly knew Hellenistic philosophy and was the author of the first Christian systematic theology. One of his books is an extensive reaction to a writing by a Greek philosopher, Celsus, who argued against the Christians.1 In this writing, Celsus invited Christians to participate in the administration. The Christians had many critiques about society, and Celsus challenged them to take on governmental responsibility in order to perform the governmental tasks better than others do. Origen’s answer is remarkable: “Celsus also urges us to ‘take office in the government of the country, if that is required for the maintenance of the laws and the support of religion.’ But we recognise in each state the existence of another organization founded by the Word of God, and we exhort those who are mighty in word and of blameless life to rule over Churches. Those who are ambitious of ruling we reject; but we constrain those who, through excess of modesty, are not easily induced to take a public charge in the Church of God. And those who rule over us well are under the constraining influence of the great King, whom we believe to be the Son of God, God the Word. And if those who govern in the Church, and are called rulers of the divine nation—that is, the Church—rule well, they rule in accordance with the divine commands, and never suffer themselves to be led astray by worldly policy.”2 What caused this refusal to assume a task in the administration? We can deduct several answers from Origen’s writings. We find the first in another of his books, On the Principles.3 There he speaks about divine power. Because God is our creator, all human beings should submit themselves to God. And since He is omnipotent, they will finally do so. But this submission is of a very specific character. God could subdue all disobedient people with violence, so that they would not dare to do anything against this God. However, that is not true submission.

1 Origenes, Contra Celsum (J.P. Migne, Patrologia Graeca 11: 641–1632). For the English translation I used the Ante-Nicene Fathers (ed. Alexander Roberts & James Donaldson), 1885. 2 Origenes, Contra Celsum 8,75. 3 Origenes, De Principiis (J.P. Migne, Patrologia Graeca 11: 115–414).

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Their hearts will hate this God. They only externally submit, while religion involves the whole human being. Religion deals with the ultimate. True religion implies loving God with your whole heart, soul, and strength. If you only submit with your body but leave out your heart, it is not religious submission.4 What does this mean for participation by Christians in the administration? Christians would like to change society. But at the very moment they act as servants of the government, they execute power. In this manner they can influence human actions, and they will do so. But they do this on a level that conflicts with true religion. People will adjust to the rules given by Christian administrators, but they will not give their hearts to the ultimate love of God. In Origen’s view, executing power and expressing true religion are not compatible. Resistance against Christians wielding earthly power is not limited to early Christianity. It is not a characteristic of fringe Christians groups either. In the nineteenth century (that is so full of longing for power and wherein Christianity, civilization, and colonization seems almost one and the same), one of the most influential Roman Catholic theologians, John Henry Newman, explicitly opposes the territorial claims of the Holy See during the first Vatican council in 1870. The church should not execute earthly power, but invite people by love. This does not mean that Christians should not be interested in society and state. Neither Origen nor Newman opted for a mere spiritualization of religion. It is not about less, but about more. They are convinced that inner convictions and outward expressions should go hand in hand, and by mere external power you will never attain ultimate love—but ultimate conviction will also change external life. The interest is not in power, but in love and justice that arise from the root of faith. Origin writes: “It is not for the purpose of escaping public duties that Christians decline public offices, but that they may reserve themselves for a diviner and more necessary service in the Church of God—for the salvation of men.”5 “As we by our prayers vanquish all demons who stir up war, and lead to the violation of oaths, and disturb the peace, we in this way are much more helpful to the kings than those who go into the field to fight for them. And we do take our part

4 Origen, De Principiis I,6,1; III,5,6–8 (Migne, Patrologia Graeca 11: 165 resp. 338–340). 5 Origen, Contra Celsum 8,75.

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in public affairs, when along with righteous prayers we join self-denying exercises and meditations, which teach us to despise pleasures, and not to be led away by them. And none fight better for the king than we do. We do not indeed fight under him, although he require it; but we fight on his behalf, forming a special army—an army of piety—by offering our prayers to God.”6 Therefore, the task of Christians towards the government is not to join them, and even less to oppose them, but to pray for them. Christian prayer is more helpful for society than Christian administrators.

Transcendence There is, however, another argument against merging governmental and religious interest. So far the argument was about comprehensive human life. But we can also argue from the very character of religion itself. Religion has to do with the divine. It has to do with transcendence. God does not belong to this world as human beings, stones, or tables belong to it. He does not even belong to it as human love, justice, and hope belong to it. He transcends our reality. This is not a specific Christian conviction. It is common to all religions. I will give an example from a Jewish author in the nineteenth century. The nineteenth century was the century of progress. New views about history and development opened a perspective of a new world of civilization and prosperity. Leading individuals in society were optimistic about the future. ‘Progress’ was the key word for understanding history and human calling in its development. Influential Jewish thinkers joined this ideal. They argued that it was not against true Jewish faith, but precisely implemented the calling of Jews on behalf of the world. The slogan arose: ‘Religion allied to progress.’ Religion is a powerful means to development and a better world. The Jewish author Samuel Hirsch raised his voice against this idea. He writes: “The subordination of religion to any other factor means the denial of religion: for if the Torah is to you the Law of God how dare you place another law above it and go along with God and His Law only as long as you thereby ‘progress’ in other respects in the

6

Origen, Contra Celsum 8,73.

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same time? . . . ‘Religion allied to progress’—do you know, dear reader, what that means? . . . It means sacrificing religion and morality to every man’s momentary whim.”7 Hirsch opposes the confusion of religion and immanent goals. Religion deals with eternity and not with the whims of the day. When you merge religion and progress, you make religion dependent on progress. It becomes a means to an end. Similarly, Abraham Heschel argued about Jewish food laws a century later. Some people argue that complying with the food laws is good for health, such as not eating pork meat. Heschel is very clear about that: “In them is not utility but eternity.”8 We cannot subject religion to utility. Religious laws are not useful. They do not serve health. They intend to serve God. When we blur religion and immanent goals, we blur the divine and the created. Actually, this is a kind of idolatry. It is even a very strong variety of idolatry. In common idolatry the idol is conceived as the true presence of the divine. It is not a symbol that refers to a transcendent reality, but it is the presence of the divine itself. By consequence, you can manipulate the divine. You have God in your hands. It is a small step to use this god for your own ends, as the Israelites used the Holy Ark—the symbol of God’s presence—to gain victory over their enemies in the time of the prophet Samuel.9 The outcome of this action was disastrous. God made it clear that his presence is holy and its symbol should be kept in darkness. It is hidden from human eyes, and every one who touches it is a child of death.10 You cannot use God’s presence for your own ends, not even for the victory of his own people. This is precisely what happens in the alliance of religion and progress. The ideology of nineteenth century progress is only one example. It can be substituted by any other ideology or ideal. That was the case in the time of the Crusades. In the ideology of the crusaders, there was

7 S. Hirsch (1854), in D.H. Frank, O. Leaman & C.H. Manekin, The Jewish Philosophy Reader (London-New York: Routledge, 2000), 293. 8 A.J. Heschel, Gott sucht den Menschen: eine Philosophie des Judentums (Neukirchen-Vluyn: Neukirchener Verlag, 1980), 269. 9 1 Samuel 4:1–11. 10 Though the Philistines kept the ark, they were not able to cope with its presence. Finally, they had to let it go (1 Samuel 5f ). The Israelites who celebrated its return, however, were even stronger hit by God’s glory related to the ark. Several of them were killed (1 Samuel 6:19f ). Also Uzza, who tried to save the ark from falling down from the chariot, did not survive his intervention (2 Samuel 6:6f ).

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a whole complex of confusions of religion and immanent factors. First, they claimed the land as holy land. God and the land, and the Lord and the holy city were linked together in such a way that service to God was identified with the occupation of the land and the city. Next to that, God’s possession of the land was identified with their own possession of the land. Furthermore, participation in the Crusades assured one of absolution and thus one gained a place in the world to come. Therefore, the submission to the call of God was a mere human interest. And, finally, for many crusaders and their leaders it was even a more obvious human interest: they used the call on God for their power and wealth. The Crusades are a strong example of idealization of religion. We can find it, however, during all centuries. It was used by Byzantine and German emperors. It was used by Ottomans, Mameluks, and Americans. It is used by statesmen and by church leaders. No power is as strong as religious power. If you can convince people of the religious importance of your aims, you prepare them to sacrifice their lives. Doing the will of God is more important than one’s earthly life.

Against Pseudo-Religion Political and religious leaders easily use religion for ideological ends. Truly religious people should not succumb to this tendency. The same John Henry Newman, who rejected the earthly claims of the pope, fiercely opposed the influence of the British government in the church while he was still a member of the Church of England.11 Politicians may not rule the church, and believers should not accept the domination of their religion by other ends. They should not adjust their lives to the claims of these ideologies because they must refute idola-

11

Cf. C.S. Dessain, John Henry Newman, 3rd ed., (Oxford: Oxford University Press, 1980), 31, 34f. Because of the close connection of the Church of England to the state, he was very fierce in his opinion about it. As a religious institution the church should keep herself free from earthly power. But because she does not so, she is totally irrelevant: she is not relevant to religion, and she is not a clear institution of the state. Therefore, Newman comes to his deadly conclusion: “It seemed to me to be the veriest of nonentities” (J.H. Newman, Apologia pro vita sua. Being a Reply to a Pamphlet entitled “What, then, does Dr. Newman Mean?” (London: Longman, Green, 1864), 339).

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try. They also have to unmask ideologies as pseudo-religion. They do this for several reasons. They do it on behalf of other people who are misled. Many people are snared by religious claims that are actually a mere perversion of religion. Faithful believers should raise their voices against this deception. They also unmask pseudo-religion because it is a type of blasphemy. The abuse of the most holy hurts us deeply, and we have to make this clear to those who are the perpetrators—both on behalf of ourselves and of other religious people. We have to raise our voices, even if the consequence might be that we enter into conflict with the powers that make religion an ideology. In fact, religious people will always come into conflict with these powers. These powers use religion because it enables them to make absolute claims. It enables them to call people to submission, perhaps even to death.12 Those who do not adjust to that claim undermine the core of the whole enterprise: absolute power and, thus, absolute submission of the subjects. Therefore, leaders who cover their politics with the dress of religion will persecute those who do not want to bow to the idols. They can do so subtly, and they can do so violently. It depends on what tactic seems to be the most successful in the circumstances. But the goal is the same: adjust everyone to their power. Finally, this type of leader makes themselves god. Therefore, ideology and religion do not go together. That does not mean that there are not many religious ideologies. However, my argument is that they are a perversion of what true religion is. By consequence, there is a conflict between religion and ideology. The more that faithful believers refuse to adapt to dominant ideologies, and not; the more they will be oppressed. They will be considered as betrayers, as people who destabilize society, and as enemies of decent citizens. Early Christianity is a good example of this mechanism. The Roman Empire made absolute claims. They had a strong ideology of the pax romana. They were the guarantee of peace and law in the world. This was not a mere human longing, but a divine calling. All these ideals were incorporated in the emperor. Thus, he was called God and Lord, deus ac dominus. People were willing to give their lives on behalf of his well being—not only the soldiers in the army, but

12 Cf. A. van de Beek, “Onward Christian Soldiers! Christians in the Army,” in Acta Theologica 26(1), 2006: 159–179.

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also ordinary people in Rome were prepared to give their blood in the arena on behalf of the health of the emperor.13 Christians were not. They refused to sacrifice their lives on behalf of the emperor. They did not want to sacrifice for the emperor at all. They refused to call him God and Lord. They did not do this even in order to save their lives or goods. Through their refusal, they ran the risk of losing their possessions and even their lives. If they did not give their life willingly, the emperor would take it by violence. And he was authorized to do so because he was considered god and lord over life and death. The emperor not only used lions and swords; he had a whole range of means to subdue those who did not want to submit. Far more successful than bloodshed was propaganda. Bloodshed had the effect that the blood of the martyrs was the seed of the church. Many people became Christian because of compassion for the victims and, even more, because they were impressed by their perseverance unto death. Martyrdom made Christians heroes of religion. But propaganda could depict them as inferior people. Leading philosophers with a dominant position in the system used their intellectual power to explain the inferiority of Christian beliefs. Maybe the effect of their efforts was exceeded by simple cartoons like one that was excavated on the Forum Romanum. It is simple graffiti scratched into a stone that shows an ass on a cross with the text: “Alexamenos adores his God.”14 And even until now the propaganda against early Christian martyrs goes on. In a recent study, the extent of the persecutions is debated with the argument that it is a construct of Christians themselves that organized a mentality of victimization as an identity in order to call forth feelings

13 Cf. H.S. Versnel, “Geef de keizer wat des keizers is en Gode wat Gods is. Een essay over een utopisch conflict” (Give to Caesar what is Caesar’s and to God what is God’s. An Essay about a Utopian Conflict), in Lampas 21 (1988), 233–256. Versnel argues that the games in the arena were not mere volksvermaak (entertainment). The blood of the gladiators was conceived as salutary power for the emperor and his empire. 14 A print of the cartoon is on the cover of the Dutch version of my book on Christology—A. van de Beek, Jezus Kyrios. De Christologie als hart van de theologie (Kampen: Kok, 1998). English version (with a different cover): Jesus Kyrios: Christology as Heart of Theology, Studies in Reformed Theology, Supplement 1 (Zoetermeer: Meinema, 2002).

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of compassion or guilt from others.15 It is a similar argument to the one that denies the Holocaust. Religion and ideology do not go together. You should not blur the lines of religion and politics. Christians were very convinced of this during the first centuries and suffered for it. But after two and onehalf centuries, the emperor became convinced that he could not beat them. And if you cannot beat them: join them. By joining them, he beat them. Since the days of Constantine and his court theologian Eusebius, Christianity itself is a religious ideology in the service of the powers of the world.16 It is, therefore, that Mohammed could call on true religion against Byzantine oppression in the Near East. There is only one God and not a divine courtship with emperor, patriarch, and messengers as its earthly presence. God has no earthly presence with a divine human face. God has no son. He is God—absolute and transcendent in heaven. Islam is a call to true religion and submission to the only One who deserves absolute submission: God. However, other ideals soon overcame religious drive. Liberation became an aim in itself. The success of liberation in the east easily turned to the zest for power. Muslims and Byzantines, and Muslims and Roman Catholics soon became competing ideologies. Peace was only saved when they strictly kept to the borders of the division of the world between a dar-al-islam and a Christian world. Only the Coptic Christians in Egypt, who were excluded from power by Rome and Constantinople, could escape from this allotment.

15 J.M. Lieu, “Accusations of Jewish Persecution in Early Christian Sources, with Particular Reference to Justin Martyr,” in G.N. Stanton & G.G. Stroumsa (ed.), Tolerance and Intolerance in Early Judaism and Christianity (Cambridge: University Press, 1998), 280. See also K. Hopkins, Een wereld vol goden: heidenen, joden en christenen in het Romeinse Rijk (A World Full of Gods: Pagans, Jews, and Christians) (Haarlem: Becht, 2000), 132. 16 See about Eusebius esp. H. Berkhof, De kerk en de keizer: een studie over het ontstaan van de Byzantinistische en de theocratische staatsgedachte in de vierde eeuw (The Church and Caesar: A Study on the Origin of the Byzantine and the Theocratic Governmental Policy in the Fourth Century) (Amsterdam: Holland, 1946), and his Die Theologie des Eusebius von Caesarea (The Theology of Eusebius of Caesarea) (Amsterdam: Holland, 1939).

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Religious ideologies are oppressive. They place absolute claims on people. That makes them powerful. It made the Roman Empire, the Muslim reign of Suleiman, England during Queen Victoria, and modern America successful. Leaders can open a perspective of ultimate fulfillment in the future of their reign. But religious claims make these systems vulnerable as well. First of all, there will be opposition by truly religious people who refute the idolatrous perversion of religion. Next to that, the absolute claims that cover the whole of life dehumanizes human beings. It tends to numb people and to paralyze them in their own initiative. But, finally, some people will not accept it. The government can keep people silent either by bread and games—panis et circenses, as in ancient Rome, present America, or Europe—or by violent oppression as in the Spain of Ferdinand and Isabella, the Soviet Union, or the Iran of Ahmadinejad, but at last philosophers, writers, or dominant characters will open the attack. They can do so directly against the power that oppresses them. But because of the ideological character, a counter movement at the same ideological level will be more successful. The best way to attack a regime with a religious ideology is a religious counter ideology. That clarifies why a true religious countermovement can easily be hijacked by a new political movement, as in the case of Islam. It is a sign of both the ideological power of the Roman Empire and the spiritual power of early Christianity that it lasted so long before Christianity was hijacked—and finally hijacked by the state itself. This probably has to do with the fact that they have the same religious root, with opposite interpretations: people dying on behalf of their divine ruler, or a divine ruler dying on behalf of his people.17 Religion is difficult to keep pure. It is easily used for other ends, both in individual and in political life. Through religious claims you can easily execute power. In opposition to dominant regimes, you can claim freedom with reference to God. Many emancipation movements used this mechanism. That does not mean that the adherents of these movements were subjectively wrong. I am sure that most of them had

17 Cf. A. van de Beek, “Christians in the clash of civilizations,” in M.E. Brinkman & D. van Keulen (eds.), Christian Identity in Cross-Cultural Perspective (SRT 8) (Zoetermeer: Meinema, 2003), 97–109.

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the best intentions and honorable motivations. A higher aim easily blinds people and causes them to lose the critical distance that religion requires. Often it is even a mixture of true religion and ideology because true believers are also not perfect—not even in their faith. By consequence, we find oppressive regimes that justify their power with religious claims—like the Roman Empire, the Apartheid regime in South Africa, and the Byzantine Empire. We see also counter movements of emancipation and liberation that use the same hermeneutics—like liberation theology, Islam, socialism with a kind of secular religion, the American independence movement in the nineteenth century, the Dutch struggle for independence, and the emancipation movement of Abraham Kuyper. Sometimes they begin as a religious movement, but are sooner or later transformed into a new ideology. Due to the absolute religious claims on both sides, the clashes are severe. Liberation easily becomes a liberation or independence war. As soon as the previously oppressed gain victory, it is no exception that they become just as oppressive or even more oppressive than the past regime because they have a legitimization of true religion due to their liberation struggle. Actually, we must also say that in the case that the regime is not violently oppressive but uses religious claims. They are per definition a perverted regime because they confuse the immanent and the transcendent, and, thus, they are open for future oppression even if the present leaders have the best intentions. Religious communities should be very suspicious of supporting any regime. Precisely in the case of a good regime they are at risk of being trapped in the pitfall of religious ideology. That was the case in the Netherlands during the seventeenth century, and that is—for instance—applicable to present day South Africa18 and Hungary as well.19

18 During the apartheid regime theologians supported the administration with theological arguments in favor of apartheid. Presently, many theologians support the new ‘Rainbow nation’ also with theological arguments. They again make religion servant to state ideology. The hermeneutic method has actually not changed, only the regime. Theology in South Africa has difficulties with a clear distinction of public life and Christian identity. Certainly this has to do with a predominance of creation theology over Christology. 19 After communism the church was very delighted with a new regime that gave her freedom. Soon however this turned out in support of the conservative party who guarantees privileges of the church.

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Should religious people refuse to oppose a regime at all? Certainly, they will oppose it. They already do it with their very being, as I mentioned. In early Christianity there are wonderful examples of how to oppose a regime that makes use of religious claims for its own ends. First of all, they opposed it by words. They analyzed the idolatrous character of the state. No true believer in a transcendent God can adore an idol. Even the best pagan philosophers will agree with that. Christians are not people outside society and culture. Most of the early Christian theologians were erudite people who knew how to argue effectively, both in their writings and in public debate. They did not fear to plead for truth and to falsify unjust claims of the government and common philosophy of their day. But far more Christians opposed the regime with their lives. They can refer to their behavior. “And they . . . succour the orphans and widows and those who, through sickness or any other cause, are in want, and those who are in bonds and the strangers sojourning among us, and in a word take care of all who are in need.”20 We can find argumentations like this in many apologies of the second and third century. Christians did not keep themselves aloof from the problems of society. We can even say that their eyes were more open to real societal problems than those of the administrators. They helped the poor, took care for the diseased, shared their meals with those who were hungry, and took the orphans in their homes. This brought them to a strong position in their plea for religious freedom. They argued that they were good citizens—even better citizens because they are Christians. They can lead a self confident defense21 because they know others cannot blame them. If you refer to the irreproachable life of your community and it is not blameless at all, your plea will turn against you. You can only do so because it is true. It was true. That was the main reason why so many people in the Roman Empire joined Christianity. It was not merely because of the death of the martyrs; it was because of their lives. If only your death

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Justin, Apology I, 67 (Migne, Patrologia Graeca 6: 429–432). Cf. E.P. Meijering, Geschiedenis van het vroege Christendom. Van de jood Jezus van Nazareth tot de Romeinse keizer Constantijn (The History of Early Christianity. From the Jew Jesus of Nazareth to the Roman Caesar Constantine) (Amsterdam: Balans, 2004), 177. 21

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is full submission to God, it will not ultimately convince people. But if your life is submission to God and, by consequence, submission to the needs of the suffering, they will be impressed by this divine calling and will finally join you. That is what happened in early Christianity.22 That is the argument that the regime could not beat. Thus, finally, the emperor joined them—and by doing so overcame them. Therefore, we must be suspicious of converted political leaders. Origen warns us: you cannot be a Christian and serve power.

Religious Freedom Early Christian apologists called on the government for justice. They pleaded on behalf of their fellow Christians against persecution.23 They called for freedom of religion. It looked like modern declarations about freedom of religion. Nevertheless, there is a huge distance between the pleas of the second and third century and the modern call for human rights. Modern declarations are rooted in liberalism. “All human beings are born free and equal in dignity and rights.”24 They have inalienable basic rights. These rights are formal rights. They are linked to an individual person without any specification. That is the core of human rights: that they are valid irrespective of specific identifying notions. The plea in early Christianity is very specific. It is not about formal people, but about their actions: because they are performing good deeds.25 Further, it is not a call to formal freedom. It does not call on the right to express myself as I want, even unto the right to insult. They do not refer to that kind of individual freedom. They refer to what they do on behalf of others.

22

Meijering, Geschiedenis van het vroege Christendom, 282–287. See especially: Athenagoras, A Plea for the Christians (Migne, Patrologia Graeca 6: 889–972); Justin, Apology I and II (Migne, Patrologia Graeca 6: 327–472); Tertullian, Apology (Migne, Patrologia Latina 1: 257–536). 24 Universal Declaration of Human Rights, Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948, art. 1. 25 Justin, Apology II, 14 even states that those people who do evil are caught by ignorance. Freedom is not required for Christians (they are ultimately free) but for their opponents. 23

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That brings me to the basic difference. They do not call on human rights. In liberal ideology, I have my own inalienable rights. I can claim them. Early Christianity does not even refer to the complement of this as some people do today: to the duty of every human being.26 They only refer to their action on behalf of others. If I call for freedom, it makes a real difference whether I call on my inalienable right to insult27 or on what our community does on behalf of other people. In the first case, you will receive your right, but you will not win people other than those people who do not want to care for the feelings and the sufferings of the others. In the latter case, you already took care of the people who do not have the opportunity to claim any rights. The systems of the powerful tend to interpret human rights to their own advantage. Early Christians could react in this way because they knew what true religion is. It is not about gaining something.28 It is not for my own interests. Religion is not about utility but about eternity. Therefore, they did not revolt when they did not receive their rights. They preferred suffering to contesting by violence. They did not want to exchange their religion for any other ends. That would deprive them from ultimate freedom. Their religious freedom is just to be religious: not dependent on any earthly power or influence. It is the freedom of belonging to God—to the God who is so omnipotent that He does not rule by power and violence, but can give his life on behalf of his people. This God turns all the ideas of Roman ideology upside down. True freedom is that we can lose nothing because we only depend on God. Paul, the apostle, expresses this freedom in a lyric proclamation: “For I am convinced that neither death nor life, neither angles nor demons, neither the present nor the future, nor any powers, neither height nor depth, nor anything else in all creation, will be able to separate us from the love of God that is in Christ Jesus our Lord.”29 This is religious freedom and religious people should first live that before they call on the government and human declarations.

26 Cf. A. Kinneging, Geografie van goed en kwaad. Filosofische essays (Geography of Good and Evil. Philosophical Essays), (Utrecht: Spectrum, 2005), 151–155. 27 In the Netherlands the cartoon controversy evoked a debate whether the freedom of speech also includes the right to insult. Some politicians fiercely defend this. 28 Paul explicitly refutes people in the Christian community who think faith is a gain (1Timothy 6:5). Certainly it is profitable, but in a very different way (1Peter 5:2). 29 Romans 8:38f.

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What about the Government? Religion should keep herself in the freedom that is intrinsic to her very identity. Religion may not be instrumentalized. Early Christianity was very much aware of this, and therefore they did not strive for a kingdom of God on earth. Therefore, Origen even refused to take part in the administration. Does this imply that, in that time, Christians were totally indifferent to the state? That was certainly not the case. They only believed that one should not confuse the kingdom of God with the state, or confuse the rule of Christ from the cross with the governing of earthly institutions. That they were not indifferent about the government is already clear from their prayer on behalf of the government. You do not pray for somebody if you are not interested at all in their welfare. The prayer of Christians for the government belongs to the normal pattern of the church. We can trace it back to as early as the New Testament. Paul admonishes his readers, “First of all, then, I urge that supplications, prayers, intercessions, and thanksgivings be made for all men, for kings and all who are in high positions.”30 What precisely is the content of that prayer? Do they ask that the government will be Christian? Or that the government will change the world into an ideal society? This idea is not in their prayer. Their aims are much more modest: “that we may lead a quiet and peaceable life.”31 The government is related to a stable society. That is its task, and that is enough. Thus they make a difference between earthly institutions and God’s kingdom, and they want to clearly distinguish between them. How this distinction works in practice is shown in a story about Jesus in the Gospels.32 The Pharisees send their students to Jesus with the question: “Is it lawful to pay taxes to Caesar, or not?” We must consider this using the backdrop of Jewish religious beliefs. The Jews professed that the Lord is their king. The Romans were considered as occupiers who prohibited the establishment of the reign of true religion in the holy land. Does Jesus maintain the religious profession of his people, or does he capitulate to the Romans? In both cases he

30 31 32

1Timothy 2:2. 1Timothy 2:2. Matthew 22:15–22; Mark 12:13–17; Luke 20:20–26.

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would have trouble: either as an unfaithful or as a revolutionary. Jesus asks them to show him the tax coin and asks whose image is on it?33 The answer is unambiguous: “Caesar’s.” Jesus’ reaction is just as unambiguous: “Render therefore to Caesar the things that are Caesar’s, and to God the things that are God’s.” The people should not confuse God and the emperor, or their responsibility towards the government and towards God. That means, on the one hand, that they have to pay their taxes. On the other hand, it also implies that they should not honor the emperor with divine glory. The government is put in its place, and, precisely therefore, we must fulfill the correct obligations towards it. As such it is an institution that has its own task, and we should accept that. As soon as we want to change it based on religious motives, we are misled and blur the distinction between God and world. The government belongs to the created world and belongs as such to the Godgiven reality. We should remain within the limits and distinctions that God has given in order to keep his creation in balance. The consequences become clear in Romans 13. At the time Paul wrote his letter, the city of Rome was turbulent. Some Jewish groups obviously contested the present regime. As a consequence, the emperor ordered that they had to leave the city. It is probable that Christians, who in that time were still very close to Judaism and even often were considered as a Jewish sect, were uncertain about their attitude. Paul is very clear in his admonition to them. They must obey the government because the government is a God given institution. “Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God.”34 That does not mean that Paul defends a theocracy. He precisely refutes it. The government is earthly and as such is given by God, “for he is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain; he is the servant of God to execute his wrath on the wrongdoer.”35 It is the same attitude as Peter calls for: a silent and peaceful life. Because that is the task of the government, Paul distances himself from people who consider the government so bad that it should be replaced.

33 Actually, the religious student is already unmasked as a hypocrite since, according to strict religious laws of his community, he was not allowed to possess any image, and certainly not of the emperor. 34 Romans 13:1. 35 Romans 13:4.

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It is because they agreed with this attitude that Christians did not share in the Jewish revolt against the Romans at the end of the sixties of the first century. Maybe some of them were only afraid for their possessions and life,36 but most of the Christians did not fear martyrdom if it was on behalf of their faith. It was not on behalf of their life, but on behalf of their religion that they did not join the Jews. For the same reason that they refused to sacrifice to the emperor as God and Lord (and therefore died as martyrs), they refused to revolt against the same emperor in the name of God. Give to the emperor what is the emperor’s and to God what is God’s. That is even the case if the government is a wicked administration—as the Roman emperor of that time was. It was Claudius, and anyone who saw the movie ‘I Claudius’ knows what kind of person he was. Even about this perverted man the Apostle writes: “There is no authority except from God, and those that exist have been instituted by God.”37 “For the same reason you also pay taxes, for the authorities are ministers of God, attending to this very thing. Pay all of them their dues, taxes to whom taxes are due, revenue to whom revenue is due, respect to whom respect is due, honor to whom honor is due.”38 Calvin has more extensively elaborated this attitude towards the state. In his commentary on Romans 13:1, he writes: “We ought to be subject to magistrates . . ., because they are constituted by God’s ordination.” At first sight this seems to imply theocracy, and it is often interpreted in that way. Many theologians, also theologians who are at home in the Reformed tradition, are amazed when it is argued that Calvin does not support theocracy. He argues, however, according to the manner of Jesus’ answer to the Pharisee students: in the earthly domain the emperor has power and should be accepted. There is no divine foundation of his rule, except from the structures that belong to creation that God gave in order to make created life possible. “As it is lawful to repel wars and to seek remedies for other evils, hence the Apostle commands us willingly and cheerfully to respect and honor the right and authority of magistrates, as useful to men: for 36

We could argue that Christians in Scytopolis (the former and present Beth Sean) killed Jews at the beginning of the Jewish war in fear that the Jews would revolt and cause a Roman attack of the town. See: A. van de Beek, De kring om de Messias. Israel als het volk van de lijdende Heer (The Circle around the Messiah. Israel as the People of the Suffering Lord.) (Zoetermeer: Meinema, 2002), 81. 37 Romans 13:1. 38 Romans 13:6f.

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the punishment which God inflicts on men for their sins, we cannot properly call ordinations, but they are the means which he designedly appoints for the preservation of legitimate order.”39 The context wherein Calvin writes makes his position even more pronounced. He uses his commentary to contest the Radical Reformation. Those Radical Reformers longed for a kingdom of God on earth. In spite of the tragedy of the Anabaptists in Munster, they continued to think about a change of society that accorded a full Christian life. They denied the right of the government to rule because it did not place the laws of the kingdom of God upon society. Calvin reacts: “There are indeed always some tumultuous spirits who believe that the kingdom of Christ cannot be sufficiently elevated, unless all earthly powers be abolished, and that they cannot enjoy the liberty given by him, except they shake off every yoke of human subjection . . . Hence it seemed unreasonable to acknowledge them for legitimate princes and rulers, who were attempting to take away the kingdom from Christ, the only Lord of heaven and earth.”40 Precisely because Calvin rejects the idea that we should establish God’s reign on earth, he pleads for obedience to the government as an imperfect, limited, created institution. And its only task is to keep people in peace. Peace here certainly does not mean ‘shalom’ as some Christians currently use that word. It is not about abundant life and ultimate fulfillment, but a sober balance between conflicting powers that easily arise if there is no arbitrator. That is precisely the role of the government: to be an arbitrator. No reasonable person can contest the presence of an arbitrator in a soccer match. And his decision must be accepted—even when everybody is convinced it was a wrong decision. So the government is the arbitrator in the game of created society, and we may thank God that he arranged things in that way. We can easily imagine what would happen in that play if there is no arbitrator at all. Better an incompetent arbitrator than no arbitrator at all. Better a wicked government than no government at all. Balance is a keyword in Calvin’s discourse on the civil government. He does not speak about freedom in this context. Freedom is the keyword when he speaks about Christian life. Those who belong to Christ and are led by his Spirit are really free. That is religious freedom, as the

39 40

Calvin, Commentary on Romans 13,1. Commentary on Romans 13:1.

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freedom true religion provides. Calvin speaks about this extensively in an exalted tone in the third book of his Institutes.41 It is not the freedom to do what I want, but the freedom that enables me to give up myself in the service of the other one. It is the life in the freedom of a Christian as Luther earlier wrote about it in his famous booklet, On the Freedom of a Christian: “A Christian man is the most free lord of all, and subject to none; a Christian man is the most dutiful servant of all, and subject to every one.”42 This thought belongs to the core of the Reformation from its very beginning precisely as reformation of the church to early Christian faith. Calvin’s discourse on the government stands in a very different context. It is placed in the last chapter of the Institutes, after extensive deliberations about the church. It appears almost as a kind of appendix. That fits very well in early Christianity’s thought about the government. If needed we will deal with it, not as the core of Christian faith, but precisely in order to make clear that it is not so. It is not about the kingdom of God but belongs to this world with its limits. In that context, Calvin uses the word aequitas.43 We should not translate that to ‘equality’ in the modern meaning as it is used in the declaration of the human rights. Calvin is convinced that people are not equal born.44 Therefore, the government must bring balance and equilibrium to society. According to this position of the government, Calvin is not an adherent of monarchy. A monarch easily forgets the limited nature of his power and will claim absolute lordship over his subjects. On the other hand, Calvin does not propagate democracy. When the crowd rules the country, they easily follow the whim of the day. Due

41 See esp. Calvin, Institutes III, 19, wherein words of the root ‘liber’ occur more than 80 times. 42 Quoted from Modern History Sourcebook, www.fordham.edu. 43 Calvin, Institutes IV, 20, 8. 44 Institutes IV, 20, 16: “What I have said will become plain if we attend, as we ought, to two things connected with all laws, viz., the enactment of the law, and the equity on which the enactment is founded and rests. Equity, as it is natural, cannot but be the same in all, and therefore ought to be proposed by all laws, according to the nature of the thing enacted. As constitutions have some circumstances on which they partly depend, there is nothing to prevent their diversity, provided they all alike aim at equity as their end.” See more extensively: A. van de Beek, “Beyond the Unfounded Optimism of Equity,” in E. van der Borght (ed.), Affirming and Living with Differences, (SRT 12), (Zoetermeer: Meinema, 2005) 147–160.

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to sedition there might be no ruling at all. The best system might be oligarchy: a limited number of wise persons who keep each other in balance.45 Calvin is, however, realistic enough to not make an ideal of this system since any human institution is open to perversion. “The thing itself could not be defined absolutely without rashness, since the nature of the discussion depends on circumstances.”46 Due to his position in Geneva, Calvin could not remain aloof to political involvement. He tried to save the independence of the church from the Genevan political council, but he only partially succeeded. On the other hand, he also belonged to the corpus christianum, he was not able to be as strict as Origen was in politically participating in changes in society. As a consequence, the model of church life of Geneva was a compromise. However, it was later conceived as the ideal type of the Reformer and his actions in politics were conceived as longing for a theocratic state. Due to this blurring, Reformed churches became national churches and Reformed people strived for reformation of state and society. This influence is present as far as in the projects of the World Council of Churches that are strongly influenced by Calvinists, Byzantine Christians, and members of the Church of England. Calvinism is a warning sign within history about the risks of not clearly following Jesus’ admonition to the Pharisee students. We may not blur the domain of God and of the emperor. As soon as Christians are involved in the government, they easily compromise both. I think Origen is wise in his advice. If there, nevertheless, might be a situation wherein Christians feel urged to take responsibility within the government, they should—precisely as Christians—do so anonymously—(after “anonymously” in a clear separation of the neutral state that keeps balance, on the one hand, and the service of the Lord who brought everything in unbalance by becoming a human being and obedient unto death, on the other hand. The latter does not fit in an earthly government and, therefore, the members of the body of Christ are clumsy in that field. Origen is very clear. Maybe the appendix-like chapter of Calvin is already too much. Although I know that it does not fit within mainstream Christianity today—the argument of the sources brings me to this conclusion.

45 46

Institutes IV, 20, 8. Institutes IV, 20, 8.

RELIGION AND VIOLENCE Paul Cliteur

One of the most spectacular developments in the field of religion is not that today religion is a live option for many people, and that secularism is on the wane. It is not “the Return of the Sacred,”1 “la Revanche de Dieu,”2 or even “the Return of Islam,”3 as such, that strikes us. No, the most spectacular development, so it seems to me, is the form in which religion made its reappearance. What we witness today is the return of fundamentalist religion or even violent religion. It is religion that does not recoil from intimidation, threats, murder, and sedition.4 This violent manifestation of modern religion has a basis in the major religious traditions of Judaism, Christianity, and Islam, but also in Hinduism and other religions. So there is not only Judaism, but also fundamentalist Judaism. There is not only Christianity, but also fundamentalist Christianity. There is not only Islam, but also fundamentalist Islam.5 Sometimes this fundamentalism takes a radical form and does not shun violence. Some of the most well known examples are the following.

1 Daniel Bell, “The Return of the Sacred,” in Daniel Bell, The Winding Passage. Essays and Sociological Journeys 1960–1980 (New York: Basic Books, 1980), 324–355. 2 Gilles Kepel, La Revanche de Dieu: Chrétiens, juifs et musulmans à la reconquête du monde (Paris: Le Seuil, 1991). 3 Bernard Lewis, “The Return of Islam,” in Commentary, January 1976, pp. 39–49, revised and recast in Bernard Lewis, Islam and the West (New York/Oxford: Oxford University Press, 1993), 133–155. 4 On the relation of religion and violence, see: Charles Selengut, Sacred Fury. Understanding Religious Violence (Walnut Creek/Lanham/New York/Toronto: Oxford, Rowman & Littlefield Publishers, 2003) and the classic study of René Girard, La Violence et le Sacré (Paris: Bernard Grasset, 1972). 5 On fundamentalism in general, see: Malise Ruthven, Fundamentalism. The Search for Meaning (Oxford: Oxford University Press, 2004); Stuart Sim, Fundamentalist World. The New Dark Age of Dogma, (Cambridge: Icon Books, 2004); Leonard Weinberg and Ami Pedahzur, Religious Fundamentalism and Political Extremism (London/ Portland: Fark Cass, 2004). For Islam in particular, see: Johannes J.G. Jansen, The Dual Nature of Islamic Fundamentalism (Ithaca: Cornell University Press, 1997).

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On the 4th of November 1995, the Israeli Prime Minister, Yitzhak Rabin, was brutally murdered by the radical Jewish student, Yigal Amir. Amir was opposed to the Oslo Agreements, and he saw the murder of Rabin as a solution to this type of bargaining.6 Asked for his motives, the murderer told the judge: “It was God.”7 To the police, Amir declared: “I have no remorse. I acted on the command of God.” A second example comes from Hindu tradition. On the 19th of December 2004, hundreds of Sikhs stormed the Theater in Birmingham because they thought their faith was mocked in a play that was on the repertoire.8 That play was Behtzi or Dishonour.9 This play was written by the Sikh writer Gurpreet Kaur Bhatti. She made a comedy based on the hypocrisy about homosexuality, rape, and suicide in the Sikh community. Bhatti received death threats and went into hiding. Subsequently, the play was canceled. A third example stems from the Christian tradition. Paul Hill, a former Presbyterian minister who shot and killed an abortion doctor and his escort, now on death row, speaks of the “inner joy and peace” that has flooded his soul since he—in his own words—had cast off the state’s tyranny.10 Most examples of religious violence and religious terrorism, however, are coming from radical Islam. In The Netherlands, the filmmaker and writer Theo van Gogh was murdered by a religious fanatic on the 2nd of November 2004.11 The United States of America saw the manifestation of religious terrorism in 2001 on 9/11. 9/11 was a collective terrorist attack, but Europe has a longer history with religious terrorism. Europe was struck by several manifestations of extra-judicial killings as they appear in

6 See: Kenneth Levin, The Oslo Syndrome. Delusions of a People under Siege (Hanover: Smith and Kraus, 2005). 7 November 7, 1995 on www.cnn.com. 8 See “Steun voor Britse sikh-schrijfster,” in Trouw, 24 december 2004. 9 Gurpreet Kaur Bhatti, Behzti (Dishonour), First Performed at Birmingham Repertory Theatre on 9 December 2004, The Birmingham Repertory Theatre, Birmingham, 2004. 10 Quoted in Selengut, Sacred Fury, 37. 11 See: Petter Nesser, “The Slaying of the Dutch Filmmaker—Religiously motivated violence or Islamist terrorism in the name of global jihad?”, Norwegian Defence Research Establishment, PO Box 25, NO-2027, Kjeller, Norway, 2005; Bruce Bawer, While Europe Slept. How Radical Islam Is Destroying the West From Within (New York/Auckland: Doubleday, 2006).

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countries such as Pakistan and Bangladesh. Great-Britain experienced an attempt to stimulate such an extra-judicial killing with the fatwa on Salman Rushdie in 1989. The most recent manifestation of this phenomenon was the Danish cartoon affair of 2006. On the 21th of February 2006, an Islamic court in India issued a fatwa condemning to death the 12 artists who drew controversial images of the prophet Mohammed. The religious decree was issued by the court’s religious head in Lucknow, the capital of Uttar Pradesh state in the north of the country. This religious leader, Maulana Mufti Abul Irfan, said: “Death is the only penalty for the cartoonists who had drawn sacrilegious cartoons of the prophet.”12 Mr. Irfan said it was clearly written in the Koran that anyone who insulted the prophet deserved to be punished. The fatwa would be applicable wherever Muslims live.

Is Violence a Manifestation of Religion? One of the most important challenges of our time seems to me to reflect on this theme of religious violence. My major claim in this article is that we have to take religious violence seriously. And when I say “seriously,” I mean that we cannot deny the religious nature of religious violence. Nevertheless, in the face of this disconcerting phenomenon many people have a reaction of flat denial. Their reaction is this. They say: “There is no relation between religion and violence. It may be true that some people misuse their religion to legitimize atrocious deeds. But religion is not the problem; it is the ordinary misbehavior of the people who hide their real motives behind a religious facade.” This reaction is quite common. The French, radical philosopher and founder of atheism, Pierre Henri Dietrich baron d’Holbach (1723– 1789), wrote that people tend to think that violence is perpetrated “in the name of ” religion, not as a result of religion itself.13 Religion can

12 Dawood Wafa, “Fatwa calls for death of cartoonists—Islamic court condemns 12 cartoonists as riots rage on,” in The Daily Telegraph, February 22, 2006. 13 In Pierre Henri Dietrich baron d’Holbach, La Contagion Sacrée, ou Histoire Naturelle de la Superstion ou Tableau des Effets que les Opinions Religieuses ont produits sur la Terre (1768) (The Sacred Contagion), in D’Holbach, Premieres Œuvres, Préface et notes Paulette Charbonnel (Paris: Éditions Sociales, 1971), 139–175, 170: “on nous dira peut-être que ce n’est point à la religion elle-même, mais à l’abus de la religion, que sont dus les excès dont nous avons parlé.” (“One will perhaps say that

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never be the problem. If religion seems to be the problem, we are mistaken. It is a social problem. It is the individual, psychological makeup of this specific believer. It is . . . everything except religion. A clear manifestation of this attitude can be found in a speech given by a Dutch politician. On Saturday, the 7th of April 2006, the Dutch Prime Minister Jan Peter Balkenende held a speech before the Islamic University in Jakarta, and told his audience that it hurts him that a religion, such as Islam, is experienced as a threat because of the actions of some people. Islam is not a threat, said the prime minister. People that misuse Islam for terrorism are a threat.14 According to Balkenende, religion is not part of the problem; it is part of the solution. Because religion can unite people, it gives us positive power; it can be a source of inspiration. “Our religion,” the prime minister said—leaving obscure what religion he was referring to—is not what is dividing us. I refer to this speech by the Dutch prime minister because many people think along these lines. And, maybe, what is said literally by the Dutch prime minister is correct. But his speech is misleading because of what is left out. What is left out is what another prime minister explicitly stated. I refer to Prime Minister John Howard of Australia who referred, on the 20th of February 2006, to radical Islam as “utterly antagonistic to our kind of society.”15 Now, these two comments do not address the same topic. Balkenende addresses ‘religion’ in general, and he also speaks of ‘Islam’ in general. Howard speaks of ‘radical Islam,’ so he concentrates on a specific brand of Islam. But the good thing about Howard’s remark, so it seems to me, is that he is concerned with what most people are currently concerned about—to wit: the fundamentalist brand of religion. Balkenende is speaking about religion in general. Howard is speaking about religious terrorism. So we cannot compare their different views. What can be compared, however, is the sense of reality that both prime ministers manifest in their remarks. Balkenende is—in his own words—‘hurt’ when people think and say that religion is part

it was not religion itself but the abuse of religion that is responsible for the excesses that we have spoken of.”) 14 Jan Peter Balkende, “Godsdienst is geen probleem, maar oplossing” (“Theology is not a problem but rather a solution”), in Trouw, 8 April 2006. 15 Quoted in Keith Windschuttle, “Howard, cultural warrior,” in The Australian, February 21, 2006.

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of the problem. He has a right to be hurt, of course. But is he really addressing an important social problem? Here we can have some doubts. Should not the prime minister be more concerned that in his country a filmmaker has been murdered and almost decapitated for religious reasons? The first, individual, religiously motivated murder on European soil after the death threats to Salman Rushdie in 1989? That incident should be food for thought. Should not this stimulate the prime minister to put his optimistic conception of religion under critical scrutiny and enter into some soul searching on what the darker sides of religious commitment could mean? The global manifestations of the darker sides of religion necessitate our reconsideration of the question about what religious commitment means. For this reconsideration we simply cannot discard the many manifestations of religious violence and religious terrorism in particular. It is perfectly legitimate to direct our attention to radical and fundamentalist positions and not to liberal positions, the New Age, and the apologetics of people who feel inclined to rescue religion from its detractors. Many people are concerned with the people that misuse their religion, and rightly so. In that context the statements of Osama Bin Laden are an important object of study.16 Of course, we know that in the name of the great religions many good things have been done. If we concern ourselves with Christianity we could refer to Chateaubriand who wrote his Génie du christianisme, Bach’s music, or Mother Theresa who helped the poor and homeless, but that cannot change and cannot compensate for the Crusades, the Spanish Inquisition, and other less fortunate manifestations of the Christian religion.17 The same can be said of Islam. Of course, we all know that the overwhelming majority of Muslims are law abiding citizens and that many of them abhor violence. But what worries us is that some of the young

16 Osama Bin Laden, Messages to the World. The Statements of Osama Bin Laden, Edited and introduced by Bruce Lawrence, James Howard, trans., (London/New York: Verso, 2006). For an analysis of the worldview of Bin Laden and his followers see: Gilles Kepel, Al-Qaida dans le texte. Écrits d’Oussama ben Laden, Abdallah Azzam, Ayman al-Zawahiri et Abou Moussab al-Zarqawi (Paris: Presses Universitaires de France, 2005). 17 See James A. Haught, Holy Hatred. Religious Conflicts of the ’90s (Amherst: Prometheus Books, 1995).

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people feel estranged from Western society and construct their own homemade brand of Islam that legitimates violence and murder.18 This is a fact of life. This cannot be wiped out by optimistic talk of politicians. They should take notice of this, and not try to deny the social manifestations of religion of a violent sort. A religion is not only what we would wish it to mean. A religion is also how it manifests itself into the world.

A Murderous Sect of Carpenters Let me make my point by means of a comparison. Suppose we are confronted with a murderous sect of carpenters. Those carpenters use their screwdrivers not for the purposes the factory that makes screwdrivers had in mind, but for killing people. Those carpenters also have saws. But they do not use the saw for the purposes carpenters usually use saws for; they use the saw as a machine to decapitate people. Under those circumstances it would be a meager contribution to the problem when someone would say that the screwdriver and the saw are used in an improper way by these murderous carpenters. It would also be little helpful, I think, when someone said that most carpenters do not use their saws and screwdrivers for killing people, but for making houses, tables, and chairs. If this murderous sect is a real threat and a considerable amount of young people are in the grip of the propaganda of the murderous carpenters, it would be strange to be primarily concerned with the bad image that the noble trade of carpentry or craftsmanship in general acquired as a result of the murderous carpenters. Now let us address the semantic question. If we know that in some countries in the world the bad carpenters are in the majority and have influence on the government, is it, under those circumstances, of any help to say that they use the word ‘carpentry’ in the wrong way? Is it in any way helpful to assure us that they are not ‘the real carpenters’ because the real carpenters are the believers that we know from our own youth and from our own country? 18 On Islam and violence: Robert Spencer, Onward Muslim Soldiers. How Jihad Still Threatens America and the West (Washington: Regnery Publishing, Inc., 2003); Daniel Pipes, Militant Islam Reaches America (New York/London: W.W. Norton & Company, 2002).

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“The noble art of carpentry has been hijacked,” some people say. Maybe this is true. But this does not, in the slightest way, change the situation. And the situation is that religious fundamentalists explain their deeds by referring to religion, to holy texts, to divine inspiration, and to commands from the highest. Mohammed Bouyeri, the murderer of Van Gogh, is a good example. He completely agreed with the public prosecutor who stressed the religious motivation of the murderer. “As far as your complaint is concerned, I fully agree with you—broadly. I take full responsibility. You have said that what I did was motivated purely by faith.”19 The murderer further stressed that he was never offended by the language of Van Gogh when Van Gogh scolded Moroccans. What concerned the murderer is what the writer had said about Allah and about the Prophet. He explained—in his own words—that “the same law that prescribes to me to decapitate everyone who offends Allah or the Prophet, that same law requires of me not to settle down in this country or in any other country where, as the public prosecutor has described, freedom of expression is proclaimed.”20 These are important words, and I think we have to take them seriously. The murderer proclaims it as his religious duty that is based on a “law” to decapitate everyone who offends Allah or the Prophet. He also contends that he can never settle down in a country where freedom of expression is held in high esteem. Here we have the dilemma of the religious terrorist. He sees it as his religious duty to step in where the state fails to fulfill its duties. The state should punish the unbelievers—those who offend God and his Prophet. But the state does not do this. So there is the religious duty of the sincere believer to do what the state should have done: to apply God’s law.

19 On the 12th of July 2005, at the end of his trial, Mohammed Bouyeri submitted a declaration of thirteen minutes. See for the Dutch text: http://www.sociosite .org/mohammed_b_laatste_woord.php “Wat betreft de aanklacht van u, meneer de officier van justitie, daar kan ik me helemaal in vinden, in grote lijnen. Ik neem de volle verantwoordelijkheid op mij. En u heeft gekenschetst dat wat mij eventueel zou hebben gedreven om te doen wat ik deed, dat dat puur uit mijn geloof is.” 20 “(. . .) dezelfde wet die mij opdraagt om iedereen die Allah en zijn profeet uitscheldt de kop eraf te hakken, diezelfde wet verplicht mij om mij niet in dit land te vestigen. Of in ieder geval in een land waar het vrije woord, zoals de officier van justitie heeft beschreven, wordt verkondigd.”

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This dilemma is as old as the great theistic traditions themselves. It is not surprising that we find illustrations of this dilemma in Holy Scripture. The biblical story where this dilemma is highlighted is the story told in Numbers 25. Here we can read that the Jewish men became intimate with Moab women. The Lord was angry for this and ordered Moses to publicly execute all the heads of the family. So, on divine command, Moses ordered the judges to punish the wrongdoers. Before this took place, however, a person named Phineas saw Jewish men entering into contact with a woman of the other tribe. Phineas was struck with anger. He took his spear and killed the man and the women. The Lord, so the Bible tells us, was happy with this. He praised Phineas for his action.21 This story is, in a nutshell, the dream of every religious terrorist. It does not matter whether we call him Yigal Amir, Mohammed Bouyeri, or Paul Hill—the pattern is always the same. There are two orders. On the one hand, there is the secular order of the state, and, on the other hand, there is the religious order of God. And there are two laws: the law of the state and the law of God. If all would be well, the state would comply with God’s law. But sometimes the state is reluctant to do what God has decreed. Or the state is lazy or not fast enough, as was the case with Moses’ execution of God’s commands. In those cases, religious terrorists take over state authority. Of course, the state will complain that the religious terrorist takes the law in his/her own hands. The people will complain and say the religious terrorist misuses his/her own religion as well as their’s. But from the perspective of the religious terrorist, that does not matter. The question is: does God complain? The religious terrorist is convinced that s/he executes the will of God. Sometimes, as in the story of Phineas, there is clear proof that God is on the side of the terrorists. But that is exceptional. In most cases, the terrorist has to act—as Yigal Amir, Paul Hill, or Mohammed Bouyeri did—without explicit approval from the Highest.

21

Num. 25:13.

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The Problem of the Two Legal Orders Most commentators shunned any relation between the theistic conception of God and possible violence. When Balthasar Gerards murdered the Dutch Prince of Orange (1584) on behest of Philip II and with some approval in Catholic circles, the Enlightenment thinker Montesquieu was repelled. This would reverse all ideas of honor, morals, and religion.22 Does it really? It was Holbach who explicitly stated that religious violence has a basis in the theistic conception of God as legislating for this world. In Le Christianisme Dévoilé, Holbach analyzes the problem of the dual legal order. Everywhere where religion has a firm hold on people and society, we encounter the problem of the dual legal order. Two powers will stand in opposition to each other.23 There is the power of religion, founded in God. And there is the power of the state. Can they not live harmoniously together? This is unlikely, according to Holbach. If religion is strong then the secular ruler tends to be a kind of servant to the priest. If religion is weak, the priest will be subdued to the secular leader. This power struggle has important consequences for the country. Everywhere where Christianity has a firm hold, the two legal orders will stand in opposition to each other.24 Politics that should bring concord among the people will sow division and strife. On the basis of oracular language written in holy books, we will see manifestations of this polarity. There is no denying the problem. The two orders have to conflict, according to Holbach. The political and the spiritual powers of the day have to fight their battle. If the struggle exacerbates, the spiritual powers will call for revolt against the temporal leader.25

22 Montesquieu, De l’Esprit des lois, in: Montesquieu, Oeuvres complètes, II, Texte présenté et annoté par Roger Caillois (Éditions Gallimard 1951), 880: “Toute cela reverse également les idées de l’honneur, celles de la morale, et celles de la religion.” 23 Pierre Henri Dietrich baron d’Holbach, Le Christianisme Dévoilé ou Examen des Principes et des Effets de la Religion Chrétienne (Christianity Unmasked) 1761, in D’Holbach, Premieres Œuvres, Préface et notes Paulette Charbonnel, (Paris: Éditions Sociales, 1971), 94–138, 105: “il s’établit dans chaque État deux pouvoirs distincts” (“in every state two distinct powers are erected”). 24 Holbach, Le Christianisme Dévoilé, 119: “il s’établit deux législations opposées l’une à l’autre” (“There are two legislatures opposed to one another.”) 25 Holbach, Le Christianisme Dévoilé, 123: “ils cherchèrent à soulever les peuples contre l’autorité la plus légitime; ils armèrent des fanatiques contre les souverains,

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What to think of this pessimistic diagnosis of Holbach? It cannot be denied that he points to a serious problem. In the 16th and 17th century this struggle manifested itself in, for instance, the papal bull, Regnans in excelsis (1570). Pope Pius V tried to stimulate a revolt against Queen Elizabeth I of England. He contributed financially to the revolt in the north of the country, but the revolt failed. After that he issued Regnans in excelsis, which admonished the English people to remove their unlawful queen from the throne. From the perspective of Holbach, this power struggle between the pope and the national leader is inevitable. It is the direct result of the two realms: the spiritual realm with political ambitions and the temporal realm which has the same goals. The solution to the problem of Holbach is atheism. In his book, Éthocratie,26 he pleads for a situation where spiritual and temporal power should be in one hand.27 We do not have to share Holbach’s radical conclusions to acknowledge that he pointed to a problem that forced itself on state and society in 16th century Europe, and which has resurfaced with the advent of radical religious movements that claim spiritual and political power. In a multicultural society under current globalization, this political ambition of religious leaders and individuals is a serious problem. How should we tackle this? There are, so it seems to me, three solutions, or rather contributions to a solution: (1) to try to re-establish territorial jurisdiction; (2) to reject the ethics of divine command and establish the autonomy of morals; and (3) the realization of the secular state of a religious neutral state.

travestis en tyrans pour n’avoir pas été soumis à l’Église” (“They tried to absolve the peoples from the most legitimate authority; they armed fanatics against the sovereigns.”) 26 Paul, Henri Thiry baron d’ Holbach, Éthocratie ou le Gouvernement fondé sur la moral (Paris: Éditions d’Histoire sociale, 1976 (Amsterdam 1776)). 27 Holbach, Éthocratie ou le Gouvernement (Ethocracy or the government), 6: “La sagesse et l’équité, armées d’un grand pouvoir, sont capables de changer en peu de temps la face d’un Etat.”

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Re-Establish Territorial Jurisdiction One of the most enlightening books on this problem has been written by the British philosopher Roger Scruton. That book is The West and the Rest.28 Scruton defines the problem with regard to radical Islam as follows. “Western civilization has left behind its religious belief and its sacred text, to place its trust not in religious certainties but in open discussion, trial and error, and the ubiquitousness of doubt.”29 A considerable group of radical Islamists, however, experience this rational discussion, this trial and error, and the “ubiquitousness of doubt” as an enormous attack on their faith, against which they may defend themselves—in their opinion—by using all means, even violent ones, with a plea based on the right of self-defense. Think of the Indian Minister of Minority Welfare of Uttar Pradesh, Yaqoob Qureshi, who offered a 14 million dollar reward to anyone who beheaded one of the Danish cartoonists who drew images of Mohammed.30 Scruton defines the dilemma very clearly when he writes: ‘‘Territorial jurisdictions sit uneasily upon communities, which tend to recognize the validity of no law other than the divine command that shape their identity.”31 This is of great significance to Islam. “For the true Muslim,” Scruton writes, “no law is validated merely by deriving it from the customary law or sovereign edicts that establish a territorial jurisdiction. Laws can warrant our obedience only if they are divinely sanctioned; this means that their validity is established only if they can be derived from the shari’a—the revealed will of God.”32 Naturally, this does not apply to all Muslims. Islam also includes secularized and modernized groups. Nevertheless, it may be true—as Ernest Gellner and Bernard Lewis rightly contend—that of the three monotheistic religions, Islam is the most immune to secularization.33

28

Roger Scruton, The West and the Rest. Globalization and the Terrorist Threat (London/New York: Continuum, 2002). 29 Scruton, The West and the Rest, xi. 30 Windschuttle, “Howard, cultural warrior.” 31 Scruton, The West and the Rest, 25. 32 Scruton, The West and the Rest, 26. 33 According to Lewis: “In islam (. . .) there is from the beginning an interpenetration, almost identification, of cult and power, or religion and the state.” See Lewis, Bernard, “Islam and Liberal Democracy. A Historical Overview,” in Journal of Democracy, 7.2 (1996), 52–63, 61. For Gellner see: Ernest Gellner, “Islam and Marxism: Some Comparisons,” in International Affairs, Vol. 67, no. 1 (January 1991), 1–6, 2: “I think

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If Lewis and Gellner are right, there still is an important problem to solve. How to do this? According to Scruton, it is hard to reconcile the idea of territorial jurisdiction with the political culture that is predominant in Muslim countries. These countries have tried to achieve a kind of loyalty to territorial jurisdiction with the philosophy of Arabic nationalism. The territorially defined nation (qawm) was supposed to replace the Islamic umma as the “focus of loyalty.”34 But this Arabic nationalism has been challenged from the side of the religious fundamentalists, and with a considerable amount of success. I do not think Scruton has a definite solution to the problem, but at least he acknowledges that we have a problem (as most people do not recognize). He continues by assuring us that we have to do everything possible to revitalize specific ideas that may otherwise be lost: “territorial concepts of sovereignty of law, and secular ideas of citizenship.”35 If we do not succeed, we will be faced with a period of chaos, both in a national and in an international context.

The Rejection of Divine Command Ethics That brings me to a second possible solution of the problem. As we have seen in the examples given above, all religious terrorists are in the grip of a specific theory about the nature of ethics. They all subscribe to the theory of ‘divine command ethics.’ The divine command theory of ethics proclaims that what is ‘good’ is identical with what God has commanded. Morally evil is what God has forbidden. Morally good is what God has commanded or prescribed.36 it is fair to say that no secularization has taken place in the world of Islam: that the hold of Islam over its believers is as strong, and in some ways stronger, now than it was 100 years ago. Somehow Islam or other Islam is secularization-resistant, and the very striking thing is that this remains true under a whole range of political regimes.” Nevertheless, the other theistic religions have radical forms as well. On this subject, see Caroline Fourest & Fiametta Venner, Tirs Croisés. La laïcité à l’épreuve des intégrismes juif, chrétien et musulman (Paris: Calmann-Lévy, 2003) and Malise Ruthven, Fundamentalism. The Search for Meaning (Oxford: Oxford University Press, 2004). 34 Scruton, The West and the Rest, 32. 35 Scruton, The West and the Rest, 46. 36 Pierre Blackburn, “L’appel au commandement divin et ses critiques,” in Pierre Blackburn, L’ethique. Fondements et problèmatiques contemporaines, Éditions du Renouveau Pédagogique (Ethics: Foundations and Contemporary Problems), (Saint Laurent, 1996), 115–133, 116: “Ainsi, ce qui est bien, c’est que la divinité recommande; ce qui est mal, c’est ce qu la divinité interdit.”

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Divine command ethics are also described as “supernaturalism.” According to supernaturalists, ethics are based on religion.37 A contemporary representative of divine command ethics, Janine Marie Idziak, formulates the grist of the theory with the following words: “Generally speaking, a ‘divine command moralist’ is one who maintains that the content of morality (i.e., what is right and wrong, good and evil, just and unjust, and the like) is directly and solely dependent upon the commands and prohibitions of God.”38 Characteristic of the divine command theorist is that God is seen as the supreme lawgiver that we—ordinary people—should obey, the moral philosopher James Rachels tells us.39 Under the present circumstances, this divine command theory has very unfavorable consequences. Of course, there were always problems with the theory. Many theologians and ordinary believers have felt uncomfortable with the story of Abraham who was ordered by God to sacrifice his own son.40 Only audacious thinkers like the Danish Kierkegaard or the theologian Emil Brunner have been prepared to accept divine command ethics in its ultimate consequences.41 But under the present conditions (multicultural society and globalism) this theory is nothing short of disastrous. What could help, so it seems to me, is when public authorities would distance themselves from this theory. In other words: they should not publicly presuppose or acknowledge that religion in the foundation of morals, as our prime minister has done in Indonesia. They should point out that we should find a reason for moral behavior, especially in the public sphere, that is not founded in religion.

37 Hary J. Gensler, “Supernaturalism,” in Ethics (London & New York: Routledge, 1998), 33–46, 34. 38 Janine Marie Idziak, “Divine Command Morality: A Guide to the Literature,” in Janine Marie Idziak, Divine Command Morality: Historical and Contemporary Readings (New York and Toronto: The Edwin Mellen Press, 1979), 1–38, 1. 39 James Rachels, “Does Morality Depend on Religion?”, in James Rachels, The Elements of Moral Philosophy, Fourth edition (New York, etc.: McGraw-Hill Inc., 2003 (1986)), 48–63, 50. 40 See “Abraham Commits Attempted Murder—and Is Praised,” in Alan M. Dershowitz, The Genesis of Justice. Ten Stories of Biblical Injustice that Led to the Ten Commandments and Modern Law (New York: Warner Books, 2000). 41 S. Kierkegaard, The Kierkegaard Reader, Edited by Jane Chamberlain and Jonathan Rée (Oxford: Blackwell, 2001), 92 ff.

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That brings me to my final point: the secular state—the state in which a real separation of church and state is established or, what the French call, the laïcité. Let me begin to say that the secular state is not a kind of dogmatic result of the principles of the French Revolution. The secular state is not the practical outflow of the religion of ‘enlightenment fundamentalists.’ The secular state is perfectly in harmony with Christian doctrine. According to some commentators, the separation of church and state is typically Christian. One of the most well-known commentators who stresses this point is the American Islam-scholar Bernard Lewis. Lewis stresses that Christendom and Islam are in many ways sister civilizations. But there are profound differences, especially in the attitudes of these two religions to the relations between government, religion, and society. The founder of Christianity—and here we come to our main theme—bade his followers to “render unto Caesar the things which are Caesar’s; and unto God the things which are God’s.”42 This is the basis of the dichotomy of regnum and sacerdotium. According to Lewis, this is unknown to Islam. During Muhammad’s lifetime, the Muslims became at once a political and a religious community, with the Prophet as head of state.43 This analysis of Lewis seems to be in harmony with the main tenets of Abraham van de Beek’s article, “To Be Free, Religion Should Keep Herself Free.” Van de Beek comes from a different angle than Lewis with similar results. “Religion should keep itself free from the state and also free from any other influence that could threaten its integrity,” Van Beek writes. This commentary would have surprised Holbach because he did not see that within the tradition of Christianity there are roots for the theory of the religious neutral state as well. Many good Christians were secularists; for instance, Felicité Lamennais in his later life. The future of Europe is to a considerable degree dependent on the question whether we will be able to revitalize those ideas. We should

42

Matt. 22:21. Bernhard Lewis, The Crisis of Islam. Holy War and Unholy Terror (London: Weidenfeld & Nicolson, 2003), 5. 43

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no longer ask where we come from, but what is the future of most European states and societies. And the future of most, if not all, European states and societies is multicultural. So we should not be musing on the religion of our youth, but reflect on the society of the future. This society will be culturally and religiously plural. And when I say ‘plural,’ I mean ‘really plural.’ It will be a society with religious sects that are fundamentalist. And under those circumstances, it is important that the state is neutral. Because only a neutral arbiter is trustworthy if the players in the field have strong religious commitments.

CHALLENGES AND DILEMMAS A. van de Beek, E.A.J.G. Van der Borght, B.P. Vermeulen

The results of the debates of the authors are not easy solutions for the problems that arise from the right of freedom of religion. Far from that, we attained progress on a deeper level: an increased sensitivity for the dilemmas regarding law making and law keeping and for the vulnerability and identity of religious people and communities. The interdisciplinary character of the colloquium was essential for this result. It could be attained because we did not aim to develop cut-and-dried solutions. There was no pressure to reach a common declaration. That gave us the freedom to openly discuss what is at stake from different perspectives and to complicate the discussion with aspects that are not easily resolved politically. Precisely these aspects are, however, often fundamental for the issue in debate. A striking discovery was that the contributions of Cliteur and Van de Beek who depart from mutually excluding paradigms—respectively, modern liberalism and classic orthodox Christianity—that obviously should oppose each other were nevertheless so close to each other that their positions could be viewed as complementary rather than opposing or excluding. Cliteur wants to keep the state free from religious power, while Van de Beek opts for religion that abstains from power. Both agree that the intertwining of state and religion will spoil both. In this concluding article, we will not summarize what is written in the preceding articles. We will not even summarize the discussions of the conference. We will, inspired by the discussions, pay attention to specific items that were in debate because these are, according to our opinion, issues that challenge our reflection on freedom of religion and the role of governments and religions in their mutual relation.

Basic First of all, it is clear that freedom of religion is a basic right. Historically, the concept of fundamental freedoms was developed from freedom of religion, as Vermeulen argues in his paper. This is not a

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coincidental historical fact, but has certainly to do with the fundamental character that religion has for religious people. They experience their religion as basic for their human identity. Thus violence of religion is violence of the very being of a person. By consequence, the right to freedom of religion covers all other rights. Thus it is clear that infringement of freedom of religion is often an open door to infringement of other rights as well—as J.M. Vorster indicates. One could argue that because of the comprehensive character of religion an explicit formulation of this right is not needed because it is solidified in specific rights. These specific rights try to protect the integrity of human personal identity and by doing so the fundamental identity that is given in religion for religious people is also covered. In this way, there is not a specific exception for religion that, different from other fundamental rights, is only applicable to religious people. From the perspective of religion, this would not be sufficient because the whole of personal identity is more than the mere sum of its aspects and even more because the self of a religious person usually is conceived as related to an external divine identity. By consequence, it is not merely about the integrity of the person but even more about the integrity of the divine person. Laws against blasphemy aim for this aspect of religious freedom. Further, in a secular society people often do not have much sensitivity for the vulnerability of religious people. Much of what the latter consider as fundamental expressions of their faith might seem to be futile to other people. And in a secular society, people are increasingly less prepared to overstep their own conception of the futility of religious expressions. Therefore, it still seems necessary to explicitly protect religious freedom.

What is Religion? Is everything that religious people claim to be an expression of their faith basic? Are there not also real futilities that are called religious? And are there not religious futilities as well? Not everything that belongs to a religion is so fundamental that it cannot be skipped for a moment because it irritates other people. For the legislature, it is, however, difficult to decide what is futile and what not. Even more, it is hard to distinguish what is religion and

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what is not. At the very moment that religious freedom is guaranteed by law, people might claim the legitimacy of a specific behavior by referring to this right. But who distinguishes between real and false religious claims? That is a short step to distinguish between true and false religion. And is a government competent to do so? The argument can never be that it is absurd to call a specific behavior religious. For many religious expressions seem to be absurd to non-believers, even to believers of other religions. Can, therefore, the government go further than making a law regarding the formal right of freedom of religion without any reference to specific contents? That would exclude, however, the opportunity to refute claims by people who abuse freedom of religion for other ends. Though the government cannot judge the consciousnesses, there must be some instrument to exclude obvious pseudo-religious claims. Even more, any lawgiver will also exclude claims that might be religiously motivated, but do not fit into the standards of human dignity of a specific society. For the people in Carthago, sacrificing children was a deep religious conviction. Nobody wanted to sacrifice their child, but if Baal asked so, they did. No present day government will accept this behavior although the freedom of religion is invoked. Thus it is clear that the government cannot be confined to guaranteeing a mere formal right of freedom of religion. In article 36 of the sixteenth century Belgian Confession, it is written about the task of the government: “And their office is, not only to have regard unto, and watch for the welfare of the civil state; but also that they . . . may remove and prevent all idolatry and false worship.” Today it might seem impossible that the government would judge about true and false religion. But the argumentation above shows that no government can entirely escape this. Every lawgiver has to decide what is religiously acceptable or not. Because we cannot judge about inner conscience, we can only condemn external expressions of religion. The Belgian Confession is a document of persecuted Protestants. It is remarkable that they call on the government to extinguish every false religion because the government was precisely convinced they were doing that by persecuting Protestants. It shows the deep awareness of the authors that the government cannot accept unlimited religious freedom. They were too much averse to the anarchism of the Radical Reformation. The government has to take on the responsibility to remove and prevent false religion. Thus the debate between Guido de

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Bray and the government is not about freedom of religion, but about true religion. Which religion is true and which is false? Today, even though at first sight the task of the government towards religion might seem non-existent, every government has to deal with this question and every government does so. The only difference between the sixteenth century document and twenty first century political practice might be that we would not use the words ‘true and false’ but ‘acceptable and not acceptable.’ As we argued: this means ‘acceptable or not acceptable’ in the light of what a specific society is conceived as human dignity. That means that a specific anthropology defines what the limitations on freedom of religion are. Here a new problem arises. For religious people anthropology depends on theology. Anthropology is not something neutral. By consequence, ‘acceptable and not acceptable’ already has to do with ultimate convictions and, therefore, it does not basically differ from the distinction between ‘true and false.’ The limitations on freedom of religion require a standard according to which the acceptability is defined. That standard exceeds religious claims. That means: that religion is submitted to the standards of society. From its own perspective, religion cannot accept that. Religion is about the ultimate. It cannot be submitted to standards from outside. By consequence, the adherents of religion will in principle not accept the standards and the laws that are derived from it. This principle, that as such is formal, can easily cause issues for conflicts. These issues are not necessarily absolute principles of a specific religion. They might also be futile or of lesser importance for the believers themselves in other circumstances. But in a society with different standards than this specific religion, they become a test case. Ultimately, it is about power. And precisely something futile can become a token to assess which power is more important: commonly accepted values or a specific religion. And the more the conflict grows, the more the token is a sign of true or false religion. If ever the head covering of Muslim women might have been unimportant, nowadays that certainly is not the case. It is a challenge for governments to understand what religion does to people. It is a challenge for politicians to understand how fundamental religion and its expressions function. It is also a challenge to understand that any—as such—futile aspect of religious expressions can become a shibboleth. And as soon as the genie is outside the bottle, it is hard to put it back. It is a dilemma for lawmakers to bal-

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ance between freedom of religion and raising conflicts due to limitations because these limitations restrict human dignity of the believers. Dominant anthropology cannot be decisive in this respect. People in Western countries were and are not always aware that the Western idea of enlightened anthropology used to be applied in such a way, and this seems to be one of the factors for Muslim reactions. If leaders of dominant societal culture do not take this kind of sensitivity serious, they easily evoke conflicts. And since it is about power, violence is at hand. And since it is about ultimate power, extremely aggressive power might be evoked. Religious wars are the most terrible conflicts that ravaged the world. Therefore, we could argue that religion must be excluded from the public domain, that church and state should be separated, that religion should be limited to the private sphere. This distinction between public and private, however, is not tenable. What is done in private houses is not excluded from governmental influence. Laws also deal with the education of children and with the behavior of husbands and wives. Certainly, lawgivers will be restrictive in this respect, but nevertheless, they will not accept everything. Even private life is not fully free, not even religious private life. Thus the government cannot escape from the problem of defining true and false religion and running the risk of evoking violent reactions of believers of religions about religious expressions they call unacceptable. The only solution would be to extinguish religion as such, but few people will plead for that.

Part of the Problem or Part of the Solution? Religion is a problem as long as there are different religions and secular people. Some people, however, argue that religion would rather be part of the solution of societal conflicts than the source of their existence. Religion can also be used in a different way. Religion implies by its fundamental anthropology a set of values for human dignity and behavior that can be very fruitful for building up a stable and viable society. Because of its ultimate character and its relation to the transcendent, it can even call people away from immanent interests, as Van de Beek argues. In the Belgian Confession the phrase about the extinction of false religion is preceded by: “. . . that they protect the sacred ministry. . . .” and continued by: “. . . that the kingdom of anti-Christ may be thus

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destroyed and the kingdom of Christ promoted.” This seems to be even further away from modern politics. Nevertheless, that is not the case. Several political leaders in charge of a public office have called on religions to contribute to societal stability. They can help to educate people to behave responsibly. They can help to support poor and marginalized people. They can help to make stable families. And as soon as politicians call on churches or other religious institutions for help, they express the importance of these communities. This moral support is easily accompanied by financial or other practical support, by cooperation in outreach, or by supporting religious private schools. Thus we have to wonder whether modern Western society after the Enlightenment, makes a real difference from the centuries before. We cannot escape from the fundamental outlines described by the Belgian Confession, and these were not new in that time either. It is only the content that has changed: the specific religions or denominations that are refuted or supported are no longer a specific kind of Christianity. But that is no difference in the government’s basic dealing with religions.

Responsible Actors Some people claim that it is not religion that causes violent conflicts but an aberration of religion. Islam is not violent, but some people abuse Islam for violent actions. Christianity is not violent, but some people misunderstand the true meaning of the gospel. Here we enter the field of theology. Now it is not the government who must decide about true or false religion, but theologians must do so. Certainly, many theologians in almost all traditions will consent that their religion is not violent. But there are also others who refute it. There are both Christians and Muslims who defend violent actions. And not all of them are theologically uneducated people. So the government cannot depend on theologians for their decision on true and false religious claims. Now there is a difference between the government, who has to deal with different religions, and theologians, who claim that their specific religion is not violent. In the latter case, there are written, canonical texts that could help to assess the solidity of the claims. The problem,

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however, is that the interpretation of canonical text differs on such a wide range that theologians can derive almost everything from them. That is especially possible because the texts in themselves are not a logically coherent structure, but historically contextual products with coincidentally opposite statements depending on the context. So theology does not help directly to solve problems in this field. That does not diminish the specific responsibility of theologians. They have to make sure that their opinion is religiously true because it is about life and death. Theologians who call for resistance against laws or unwritten rules of a society must be well aware of their responsibility. Theologians who claim their religion is peaceful and contributing to a sustainable society must check thoroughly whether they are faithful to their tradition. And if they are convinced to be so, they have to convince other people in their community to share this attitude. Actually, it is not the government who has the greatest responsibility in the debate. The responsibility of theologians and other religious leaders is much greater. First of all, they claim that religion is about the ultimate, and not about mere societal structures. But also, as far as these structures are at stake, they must know that many religious people will take their opinion more serious than the politicians’. Therefore, theological training and religious training are of enormous impact on the relation of state, society, and religion. Further, we have to take into account that the government does not deal with theological theories, but with concrete expressions that are religiously defined. Theologians can claim that a religion is peaceful and does not hurt any person, and these claims can be theologically true, but the government has to deal with actual actions of people. It is not about pure and perfect religion, but about lived and expressed religion, even if that religion might be perverted in the eyes of theologians or religious leaders. The government has its own responsibility. In modern societies, she has to maintain freedom and human dignity. For many people, both are one and the same. For other ones, this is not the case. The legislature and the courts that have to maintain the laws often have to choose in the dilemmas that arise from these differences. And we must be aware that governments exist that support privileged religions or denominations. It is a prejudice that they are wrong. That can only be argued from a specific point of view which depends on one’s own convictions.

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It is important to keep the distinctive responsibilities of the actors in this field in mind. Theologians, legal scholars, religious leaders, lawmakers, and courts each have their own responsibility. They should not be confused. Many of the conflicts arise from situations wherein religious leaders interfere in responsibilities of public administration, or wherein politicians think they can easily solve theological problems or refute religious claims. Both tend to be naïve in the other field. There is only one exception from this requirement of distinction between religion and politics: in an absolute theocracy. In that type of society, religion and politics are identical; at least politics are fully integrated in the religious system. There is not an international agency which can judge these regimes. They can only be torn down by other powers that do not like them—and that is a mere arbitrary action—or by another religion that convinces people to other opinions—and that is usually forbidden by theocratic regimes.

Individual or Communal An especially interesting topic was brought in by Juhász in his paper on the Hungarian and Transylvanian history. Freedom of religion was defined as freedom of communities. Religious and ethnic communities had a great deal of autonomy in the Hungarian empire. Modern freedom of religion is based on individual human rights. The latter implies a large extent of subjectivism. It is ultimately the individual who defines what her or his freedom is. This subjectivism makes it difficult for the lawgiver to find a balance between responsible behavior and freedom. In the Transylvanian model, the freedom is for a community that has its own rules and standards that people have to keep. As long as the whole community does not behave in a way that hinders other communities, their autonomy is no problem for the government. Next to that the education of a new generation is a responsibility of this community, so education functions in an organised way. People grow up in the community, and there they are at home. In a form of permanent education, people are kept in the moral and societal system of the group. Certainly, the communal system has many advantages. In a speech at the Károly Gáspár University in Budapest, the Dutch prime minis-

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ter referred to the famous saying of King Stephen I that Juhász quoted. It triggered the idea that such a solution could be helpful for the multicultural and multireligious Dutch society of the twenty first century as well. In the discussion at the colloquium, Juhász rejected this suggestion. It seemed to him to be impossible to apply a traditional model of classic Hungarian culture to modern Western society. We cannot undo the Enlightment and its consequent individualism. We have to accept a pluralist society as a pluralism of individuals, even if these individuals organize themselves in associations or other communities because these are organizations of free people who are also free to leave the community. In that case, any sanction of a traditional community is futile. Further, it is hard to define what the borders of the communities are. In traditional Hungary, the groups were rather well defined by language, religion, ethnic origin, and culture. Usually all of these piled up and provided a multilayered identity to the group, such as Gypsies, Romanians, Hungarians, and Germans, who all lived in the Hungarian empire. Such a clear definition of communities is impossible in the present world with its massive migration of individuals. In the Middle Ages there was also much migration, but it was a migration of groups. Individual migration was an exception. Now migration is individual or concerns only small elusive groups. Consequently, well-defined communities do not exist. And even in the case where they are still rather visible, dealing with ethnic or similar groups evokes its own problems. E.g., the UN tried to strengthen traditional communities in Cameroun by direct support. That evoked a debate about who did belong to the tribe and who did not. As a consequence, people who lived peacefully in the community for a long time were now excluded so that they could not share the provided funds and the available amount for the others was larger.

Conclusion Our deliberations clarified how complicated the issue of human rights is, especially if it concerns the freedom of religion. The fundamental and ultimate character of religion by definition transcends laws that are always implications of a temporal political system, submitted to the categories of time and space. That does not imply that we should

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give up trying to deal with religious freedom on law and policy. For that would imply to give up claiming human freedom at all, due to the fundamental character of religious freedom. Rather we should take up the challenge to deepen our understanding of the fundamental value of the freedom of religion and to define and redefine laws that establish an optimum between this freedom and the demands of public order.

LIST OF CONTRIBUTORS

Paul Cliteur Professor of Jurisprudence University of Leiden, PhD in Philosophy (1985) and Law (1984). His most recent books are The Secular Outlook: In Defense of Moral and Political Secularism (2010) and Esperanto Moral: por un etica laïca (2009). Pieter Coertzen Professor of Church History and Church Law (1977–2010) University of Stellenbosch, South Africa. Currently, founder of a Unit for the Study of Law and Religion in the Faculty of Theology, University of Stellenbosch. Visiting Professor in Comparative Canon Law, Catholic University of Leuven. Publishes in the fields of Church Law, Law and Religion and the History of the Huguenots. Tamás Juhász, PhD (1983) is Professor in Systematic Theology at the Protestant Theological Seminary in Cluj/Kolozsvár, Romania. He has published on the theology of reformed confessions and ecclesiology. Huub Lems (1952), is treasurer of Eukumindo, a German Association for European Missions focusing on Indonesia. He serves as treasurer of the Protestant Church in the Netherlands and is administrator of the Mission Foundation of the Protestant Church in the Netherlands. He holds a master in economics from the Erasmus University Rotterdam (1977) and a master in laws from the Open University Maastricht (2005). He has published on mission, charity, philanthropy and ecumenism. Silviu Eugen Rogobete joined the Diplomatic Corps of the Romanian Ministry of Foreign Affairs in October 2006. Prior to that he was an Associate Professor, Head of the Department of Politics at the West University of Timisoara, where he taught courses on Foundations and the Practice of Human Rights, Philosophical and Political Anthropology, Religion and Politics. Rik Torfs (1956) studied law, canon law and Notary Public Studies at Leuven and Strasbourg University. Professor of canon law and

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religion-state relationships at Leuven University since 1988. He also teaches at the universities of Stellenbosch, Strasbourg and Paris. He is the author of 15 books and 300 scientific articles. His activities include being a columnist for the Belgian newspaper De Standaard and a television maker. In 2010, he was elected a member of the Belgian Senate. Abraham van de Beek is professor in the Christian Creeds at VU University Amsterdam and extraordinary professor in Systematic Theology at the university of Stellenbosch. He is a member of the Royal Netherlands Academy of Arts and Humanities. He wrote on almost all topics of systematic theology with a focus on Christology and Patristics. He has also got a PhD in botany. Eduardus Van der Borght PhD (2000) in Theology, Leiden University, is Desmond Tutu Professor and Associate Professor of Systematic Theology at VU University Amsterdam. He has published on theology of ministry, ecclesiology and public theology. Tymen J. van der Ploeg (1947) studied Law at Leyden University. He works since November 1972 at the Faculty of Law of the VU-University at Amsterdam, since 1992 as full professor in civil law, especially law on legal persons and partnerships. He teaches company law, law on associations and foundations and—in cooperation with other legal and theological researchers—religious communities and law. His research includes these topics, also from a comparative perspective. He is editor-in-chief of the NTKR (Netherlands Journal on Church and Law) and a member of the board of the Centre on Church and Law at the VU-University. Ben P. Vermeulen (1957) is Professor of Education law at the Radboud University Nijmegen, Professor of Constitutional Law at the Vrije Universiteit Amsterdam, and Member of the Council of State (Raad van State). He studied law and philosophy at the Erasmus University Rotterdam, where he defended his dissertation on the freedom of conscience (Vrijheid van geweten) in 1989. Vermeulen has published several books and numerous articles on the freedom of religion and conscience, the separation of church and state, the status of denominational schools and other related subjects.

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Nico Vorster is an Extraordinary Associate Professor in Systematic Theology at the Theological Faculty of the North West University in South Africa. His main field of interest is Christian anthropology, especially the concepts of human dignity, equality and freedom. He has published two books and various articles on themes such as human rights, human dignity, equality, freedom and the relationship between church and state. Hildegard Warnink (1962) studied Theology, Philosophy and Canon Law at Katholieke Universiteit Leuven. She teaches Marriage Law of the Church at Leuven University since 2001. She has been teaching at the Universities of Amsterdam (NL), Nijmegen (NL) and Stellenbosch (S.A.). She has published on Marriage Law and on the Position of Women in the Church. She is an Ecclesiastical Judge at the Church Tribunals of the Archdiocese of Mechelen-Brussels (B) and the Diocese of Rotterdam (NL). Koos Vorster was born in Johannesburg on 12 December 1946 and is currently professor in Christian Ethics at the North-West University (Potchefstroomcampus). He is the author of ten monographs and 68 academic articles in accredited scientific journals. He is an advisor at the United Nations Council for Human Rights on the topic of Religious Freedom. His field of research is human rights and political ethics.

INDEX

Abortion 76, 85 Accra Confession 197–208 Aceh 101 Active neutral model 166, 175–176 Active plural model 166, 176–177 adat law 104 administration 216–217, 229, 231, 259 aequitas 233 Afghanistan Government of 92–93 Consul General of 93 Africa African region 92, 95 Ahmadinejad 224 Alatas, Ali 94 Al-Faruqi, Isma’il 105–106 Ambit of religious freedom 181–182, 192–193 Ambon 89, 100 n. 31, 101 America 4, 224 apartheid 225 Arab Hadith Arab texts 97 Arbitration 134 Aritonang, Jan 97 n. 19, 101 n. 34 Ark 219 Asia Asian region 94 East Asia 94 Assyaukanie, Luthfi 97, 105 Athenagoras 227 n. 23 Atlantic Charter 90 autonomy 34–36, 39–40 Bangkok Declaration 94 Bayle, Pierre 10 Beccaria, Cesare 95 Becker, Dieter 98 Belgian Code of Penal Law Art 267 113 Belgian Constitution Art 21 112–113 Berkhof, H. 223 n. 16 Bodin, Jean 10 Boland, Ben 101 n. 35 Brazil 93 Britain 93

Bruinessen, Martin van Buddhism 99 Byzantines 220, 223

99, 101

Calvin, John 38, 40–41, 231–234 carpenters (murderous sect of) 240 Celsus 216 Cemetery 127 Child Interest of the 125 Christ 61–63 Christianity 84 Christian tradition 92 Christians 97, 104–105 Church 47–48, 52, 55–59, 61, 65, 181–187, 189–193 Church; see also Religious organizations Church as legal person Autonomous sub-division of 136–138 Dissolution of - 134 Church of England 2, 4, 220, 234 Civil Code Dutch 122–123, 125, 129–130, 134, 136 civil rights 90 Civil society 195–197, 202, 208, 212–213 Claudius 231 colonization 92 Conflict resolution 134 Congregation for the Doctrine of the Faith 117 Congress 90 conscience 10, 12–13, 15, 25–28 Constantine 223 Constitutional State 72, 171 Content of marriage 11, 113–114 Contract law 127, 132–133 Contracts 153 Coornhert, Dirk 10 Coptic Christians 223 Court review 131 Crusades 219–220 Danish cartoon affair dar-al-islam 223

237

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Death penalty 74–76 democracy 45, 48, 59, 233 Dessain, C.S. 220 n. 11 Deus Caritas Est 208–213 Dogma 45, 55, 61, 65 early Christianity 215, 217, 221, 224, 226–229, 233 ECHR 144, 146, 152 ECHR Art 12 115 Eden, Lia 103 emancipation 224–225 emperor 220–223, 227, 230–231, 234 enlightenment 31, 39–41, 69, 74–75, 77–78, 80–81, 87, 92, 98 Equal treatment 131 equality 70, 72–73, 76–77, 83, 86, 233 Establishment Clause 71 Ethnic communities 150 Ethnicity 45, 56 European Convention on Human Rights 12–27 Art. 9 122–123, 134 limitation clause 13–14, 22–24, 26 margin of appreciation 22–24 European Union 49, 52, 57 Eusebius 223 Fairness and reasonableness 128, 136 Family life Right on 125 Ferdinand and Isabella 224 food laws 219 forum internum 11–12, 25–26 four freedoms 90 France French Revolution 9, 121 Freedom 67–70, 72–73, 77–84, 86–88 freedom of conscience 10, 25–26, 28 Freedom of expression 126, 128–129 Freedom of internal organization of religious groups 112 Freedom of religion 181–185, 187–188, 191–193 Collective 135–136, 138 devotio domestica simplex 11, 13 devotio publica 13 external 12–13 Individual 123, 136 inner 12–13 In horizontal relations 124, 128–129, 131, 139 in private-vertical-relations 135

in vertical relations 124 limitations 19–24 specific guarantee 24–29 Freud 25 Function of religious freedom 193 fundamentalism 235

181,

Geertz, Clifford 98 Geneva 234 Globalization 144, 152 God’s commands 242 government 3–6, 215–218, 220, 224, 226–234, 253–258 Grotius, Hugo 10 Group law 139–140 Habibie, H.J. 102 n. 37 Halmahera 89 Hamilton, Alexander 95 Hantoro, Juli 103 n. 39 Hatta 97 Headscarf, Islamic 15, 22–23 Heschel, Abraham 219 Hindu 98 Hirsch, Samuel 218 Hobbes, Thomas 95 Hopkins, K. 223 n. 15 Human dignity 67, 69, 72–73, 76–78, 83, 85 human rights 3, 5–6, 69, 72, 81–84, 88–92, 94–96 227–228, 233, 258–259 Horizontal level 142 human rights treaties 11–12 Hungary 31–32, 36, 225, 259 Identity 45, 48–49, 53–58, 63–65 ideology 3–4, 219, 221, 223–225, 228 India 99 Indicative and imperative 187 Individual autonomy 77–78 Individualism 140 Indonesia Bill on Religious Harmony 105 Constituent Assembly 101 constitution 97, 101, 107 High Court 104 ICMI 102 n. 37 Independence 89, 96–97 Indonesians 89, 104, 107 Indonesian Communion of churches 101 n. 32 Minister of Foreign Affairs 94

index Ministry of Religious Affairs 89 musyawarah mufakat 96 New Order 102 P4 100 n. 28 Panca Sila 97 Perda 102 n. 38 Regional Autonomy Law 102, 104 Republic of Indonesia (RI) 91, 96, 107 Sidang Raya 100 n. 31 state ideology 99, 101, 102 n. 36, 104 state philosophy 89, 96, 102, 107 international law 89–90, 92 Iraq 93 Islam 4, 20–22, 27, 223–225, 256 Abangan 98 Allah 105 Darul Islam 101 Da’wah 105–106 Hajj 103 Imam Syafi 98 Indonesian Islam 97–98, 100 Islam state 89, 97, 102, 106–107 Islamic courts 103–104 Islamic jurisprudence 104 Islamic law 92, 97, 99 Islamic religious law (see shari’ah) JAL 102 Khadijah 106 millet 106 Muhammadiyah 99 Muhammed ‘Abduh 98 Nahdatul Ulama 98, 100 Organization of the Islamic Conference 93 pesantren 98 Prophet Mohammed 98, 106 Qur’an 98, 105–107 Raahid Rida 98 Santri 98 shalat 102 Sunni 98 ulama 101 ummah 103, 106 Jakarta Charter Piagam Jakarta 97, 101 Java Javanese 97–98, 100 West Java 101 Jefferson, Thomas 95 Jesus Christ—Head of the Church 185–186

Jesus 228–231, 234 justice 97 Justin 226 n. 20, 227 nn. 23, 25 Kingdom of God 185–187, 192 Kinneging, A. 228 n. 26 Kuyper, Abraham 225 Law 49–51, 56, 58, 65 law on civil organizations 89 Lems, Huub 97 n. 17 liberalism 227, 251 liberation 223, 225 Lieu, J.M. 223 n. 15 local community 35–37, 39–41 Locke, John 10, 95 Love 45, 63–65 Love and justice 85–86 Luther 233 Madjid, Nurcholis 97 Malanczuk, Peter 90 n. 1 Malaysia 99 Marriage Religious 124 Martyrs 222, 226, 231 Meijering, E.P. 226 n. 21 Merger 137 Mill, John Stuart 95 Minister Legal position of 132–133 Minnerath, Roland 92 mission 89, 92, 103, 106–107 Modern liberal society 153 Mohammed 223 monarchy 233 Montesquieu 95 Multicultural law 123, 138–140 Multicultural society 129, 140 Multiculturalism 45, 49, 53–54, 65 Muslims 89, 97–102, 105–106 Nababan, Soritua 101 Natsir, Mohammed 100 n. 27 Netherlands Islam Liaison Group 93 Muslims and government Liaison Committee 93 Protestant Church in the 93 Neutral state 69–70 neutrality 27–29 Newman, John Henry 217, 220 Nietzsche 25

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Offices in the Church 190, 192 oligarchy 234 Origin 217, 259 Orthodox 56–58, 60, 64 Otherness 45, 52, 58, 60, 64 Pakistan 93, 99 Parental authority 125 Paul 228–230 peace treaties 9–11, 15 Persons- and family law 124 Pharisees 229 Poso 89 postmodern (postmodernity) 46, 53–55 power 45, 56, 61–65, 216–217, 220–221, 222–225, 227–228, 231–233, 251, 254–255, 258 Prayer 217–218, 229 progress 218–219, 251 propaganda 222 Property law 126–127 Property of parish 137 proselytism 93 Protestant 99 pseudo-religion 221 public sphere 92 Radical Reformation 232, 253 Rahman, Abdul 93–94 reformation 31, 34, 36–41, 232–234, 253 Regnans in excelsis 244 Religion 45–50, 52, 54–55, 57, 60–61, 64–65, 182–184, 188 n. 25, 189, 191–192 civil 29 definition of 14–18 restrictive interpretation of 13–18 Religious education 72, 79–81 religious freedom 31, 33–35, 37, 39–40, 67–70, 72, 79–82, 88, 158–159, 161, 173–174 European model 147–148 Religious organizations Decisions of 131 Court review of 131 Financial duties of members of 130 Internal structure 130 Law on 134 Legal personality of 122 n. 5, 129–130, 136–137 Religious rights 67, 69–70, 82–83, 157–159, 164–166

religious terrorism 236, 238–239 revolt 228, 231 Roman Empire 221, 224–226 Roman-catholic 99 Roosevelt, Franklin 90 Rosenman, Samuel 90 n. 2 Rousseau, Jean Jacques 95, 98 Roy, Yusman 102 Sacred space 127 Same sex unions 116, 118–119 Sanskrit 97 Saudi Arabia 92–93 Scytopolis 231 n. 36 sects 27 secularism 235 Self determination 69, 72, 77–78 Self realization 77–78, 86 separation of church and state 11, 27–29 shari’ah 93, 98, 101–104, 106–107 Shihab, Aloi 97 Simatupang, Tahi Bonar 100 social contract 95, 97–99, 104, 107 society 1–3, 43, 45, 48, 51, 58–59, 216–218, 221, 226, 229, 232–234 Soekarno 97 South-Africa 4–5, 91 n. 5, 225 South African Constitution 69–72, 193 South African Constitutional Court 72–73 Spinoza, Baruch de 10 St. Paul 25 State 195–213 State and church 131 State and Religion 67, 69 State versus Makwanyane 73–74 Stephen the First (king of Hungary) 33, 35–36 Strasbourg Catholic Theological Faculty of 92 submission 216–217, 220–221, 223, 227 Succession law 126 Suharto 100, 102 Sulawesi South Sulawesi 101 Suleiman 224 Sumardi 102 Supit, Bert 101 Tempo 105 Tertullianus 227 n. 23 The building up of believers The Holy Spirit 186–187

187

index The Word of God 186 theocracy 230–231, 258 tolerance 34–35, 37, 39, 41 Torda, diet of 31, 37 Tort 128, 134 Tradition 45, 48, 54–66 transcendence 218 Transylvania 31–39, 41 Unfair discrimination 76 United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief 93 International Covenant on Civil and Political Rights 91–92 International Covenant on Economic, Social and Cultural Rights 91

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UN Charter 90, 94 Universal Declaration of Human Rights 90–92 Vienna Declaration and Programme of Action 94 United States American Revolution 95 Vatican Council 217 Versnel, H.S. 222 n. 13 Victoria 224 wars, religious 9 Woodward, Mark 97 nn. 20–21 World Council of Churches 234 Yemen 92 Yudoyono, S.B.

102 n. 36