Religion in the Public Square : Perspectives on Secularism 9789462740822, 9789462364318

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Religion in the Public Square

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Religion in the Public Square Perspectives on Secularism

Renáta Uitz (Ed.)

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Published, sold and distributed by Eleven International Publishing P.O. Box 85576 2508 CG The Hague The Netherlands Tel.: +31703307033 Fax: +31703307030 e-mail: [email protected] www.elevenpub.com Sold and distributed in USA and Canada International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786, USA Tel.: 1-800-944-6190 (toll-free) Fax: +1-503-280-8832 [email protected] www.isbs.com Eleven International Publishing is an imprint of Boom uitgevers Den Haag.

ISBN 978-94-6236-431-8 ISBN 978-94-6274-082-2 (E-Book) © 2015 Renáta Uitz | Eleven International Publishing This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. Printed in The Netherlands

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Table of Contents List of Contributors Preface Renáta Uitz

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Roads to Constitutional Secularism: The Foundations of a Political-Legal Concept Matthias Mahlmann

2 Religious Fundamentalism as a Challenge to the Constitutional State Karl-Heinz Ladeur

The Islamist Shari’atization of Polity and Society: A Source of Intercivilizational Conflict? Bassam Tibi

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4 How “Reasonable” Is Accommodation? Guy Haarscher

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Between Aggression and Acceptance: Law, Tolerance, and Religion in Europe Lorenzo Zucca

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De Facto Secularism in a Diversifying Religious Environment: The Changing Relationship between State and Religion in Europe Ronan McCrea

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The Strasbourg Court on Issues of Religion in the Public School System Lech Garlicki

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Contents 8 Russia’s “Orthodox” Foreign Policy Robert C. Blitt

Guide to the Perplexed: Navigating through the Labyrinth of Forum Internum and Forum Externum in Canon Law and Public International Law Peter Petkoff

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175

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List of Contributors Blitt, Robert C. University of Tennessee, College of Law Garlicki, Lech European Court of Human Rights Haarscher, Guy Université Libre de Bruxelles Ladeur, Karl-Heinz University of Hamburg, Faculty of Law Mahlmann, Matthias University of Zürich, Faculty of Law McCrea, Ronan University College London, Faculty of Laws Petkoff, Peter Brunel University, London, School of Law / University of Oxford, Regent’s Park College Tibi, Bassam University of Göttingen, Faculty of Social Sciences Uitz, Renáta Central European University, Budapest Zucca, Lorenzo King’s College, London

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Preface Renáta Uitz What is the place of religion and religious convictions in government, politics and in ­public life – taking into consideration the need to respect the free exercise of religion? In the separation or neutrality paradigm, religious organizations (churches) are expected to stay away from public affairs. But other models of state neutrality and secularity – rooted in historical struggles and influenced by experiences and mistakes – result in differing forms of cooperation between religious organizations and the state. Different religions have different positions on this matter. Challenges to existing arrangements of churchstate affairs come from many corners of domestic debates and international affairs, as well as – and probably most spectacularly – from the vicinity of the religious freedom of less established (or less popular) holders of faith. An eternal problem for neutral or secular states is the extent to which they could (and should) assist in the enjoyment of individual religious freedom and accommodate the faith-based needs of believers without creating an unacceptable entanglement between secular governmental actors and religious institutions. The display of religious symbols in the public square seems to have become the most emblematic of these debates, where somewhat arbitrarily picked religious insignia are transformed into makeshift lighteningrods for grounding strong sentiments (at times masked as constitutional arguments) in increasingly intense public exchanges resulting in new legal rules. Claims of church autonomy are equally problematic when they are invited to shield discriminatory ­employment practices or allegedly criminal behavior. It is well noted that both religious organizations and individuals are legitimate ­participants in the public discourse on matters of public concern where they compete for attention, opportunities and space to advance their positions, in competition with numerous other legitimate participants in the marketplace of ideas. Contemporary debates concentrate on the manner in, and the extent to which, the contributions of r­ eligious actors may and should influence governmental decisions and policies. It is crucial to point out that the secularity or neutrality of a constitutional regime does not suggest or imply that a polity is devoid of strong religious convictions or sentiments and the intense expression thereof. Contemporary constitutional and human rights responses, however, seem to be at loss when invited to address divisive, intense or aggressive interventions launched on behalf of or in the name of religious convictions. The underlying difficulty of these debates is that on their face they appear to tackle the issue of the plurality of any polity not only in its religious composition, but also

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Preface concerning the community’s racial, ethnic and cultural diversity, often with lasting political consequences. At the foundation of exchanges on the role of religion and religious actors in the public square is the centuries-long shadow cast by the religious origins of ‘the political.’1 This entanglement affects the role that participants of heated legal, political and scholarly debates are inclined to assign to constitutions and institutional frameworks. Courts of law are regularly invited to ‘settle the score’ of such debates, even in jurisdictions where the text of the constitution does not provide express guidance. Contributions in this volume offer insight into these debates across jurisdictions and into issues of lasting concern. The first three chapters (by Matthias Mahlmann, Karl-Heinz Ladeur and Bassam Tibi) of the volume address issues and debates pertaining to the theoretical foundations of the justification of, or – more cautiously – the possibility of, a secular state. Matthias Mahlmann’s opening chapter discusses three dimensions of secularism: social secularism, constitutional secularism and the secularism of legitimacy. He offers his insight on the theoretical underpinnings of constitutional secularism, offering a liberal justification based on the religious equality of citizens, and more fundamentally, on equal human dignity. Mahlmann explains that the “religiously neutral state is [.  .  .] neutral only within normative limits [.  .  .] Religious neutrality does not mean ethical agnosticism.”2 When discussing the third dimension of secularism, namely the secularism of legitimacy, Mahlmann tackles the paradox of secularism, i.e. that the values at the foundation of the modern state (human dignity, equality, freedom, and solidarity) are routinely justified with reference to religious (most often Christian) traditions. ­Mahlmann traces developments in thought, both in the works of church fathers and also in philosophy, that have detached the justification of state power from the order of salvation both in the works of church fathers and also in philosophy. He argues that secular ethics is a sufficient and solid foundation for the secular state: “states must justify their existence not as regards to some transcendent order of salvation and its imperatives, but as regards to needs, interests and ideas of justice of human beings.”3 This approach resolves the paradox of secularism by removing its very source, showing that the secularism of the modern state is axiologically self-contained, and does not depend on hidden religious foundations.4 The return of religion to the public square in plural societies is central to KarlHeinz Ladeur’s chapter, a contribution devoted to religious fundamentalism in diverse 1 J. Habermas, ‘The Political’: The Rational Meaning of a Questionable Inheritance of Political Theology, in E. Mendieta & J. vanAntwerpen (Eds.), J. Butler, J. Habermas, Ch. Taylor & C. West, The Power of Religion in the Public Square 27 (2011). 2 Mahlmann, at 3. 3 Mahlmann, at 13. 4 Mahlmann, at 16.

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Preface contemporary societies. The chapter opens by exploring the tension between the internalization of religious convictions (resulting from the withdrawal of religions from politics) and the role of religion “in the maintenance of a symbolic order that mediates the Other and inserts the individual into a cultural order and its basic forms.”5 With its emphasis on the role of religions in preserving symbolic order (or, as explained in other terms, the cultural memory) of a society, Ladeur’s contribution is in sharp contrast with Mahlmann’s argument, which underscores the secular ethical values underpinning secular liberal constitutionalism. Through highlighting the integrative function of Christianity in the West and the role of institutions in mediating cultural transformations, Ladeur finds that “religious freedom as a public, mainly collective, institution has been transformed into a fragment of a diffuse ‘right to identity,’ blurring the distinction between the public and the private domains.”6 In this framework individual religious liberty is transformed into a mere ‘right to recognition.’ In Ladeur’s reading the rise of religious fundamentalism is “a symptom of a deep disturbance in the processes essential for the reproduction of the symbolic order and the identity of individuals.”7 From this perspective, the religious convictions of individuals are at best understood as feelings, while a Muslim woman’s claim to wear a headscarf is read as an example of the cultural socialization process in an environment of increased ignorance.8 Ladeur argues that tensions between Christians and Muslims can only be relieved through a cultural self-reflection and a willingness to learn about each other’s cultures. Religious arguments masked as strong political claims are explored in depth in ­Bassam Tibi’s chapter. His contribution responds to processes in which shari’a law is used to reinvent political Islam. His analysis demonstrates how modern shari’a is positioned as a source of a new kind of constitutional law, uniting all Islamic states in the adobe of Islam. Tibi, however, argues that in its current state shari’a cannot fulfill the role of constitutional law. As a consequence, the shari’atization of Islam (which Tibi equates with a new form of totalitarianism) results in an intercivilisational conflict between the Western and the Islamist understandings of constitutional law. In response, Tibi advocates for the revival of Islamic humanism, in a manner which is mindful of Islam’s traditional rejection of legal philosophy and draws instead upon Islam’s intellectual plurality. His argument is based on the premise that “the return of the sacred compels the recognition of religious legal traditions recently ‘revived’ in an invention of tradition.”9 His proposal emphasizes that in order for it to be successful, “Muslims need to be convinced of the authenticity of reform.”10   5   6   7   8   9 10

Ladeur, at 24. Ladeur, at 30. Ladeur, at 30. Ladeur, at 35. Tibi, at 39. Tibi, at 53.

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Preface Following the chapters on the theoretical foundations of secularism, further contributions (Guy Haarscher and Lorenzo Zucca) examine conceptual tools routinely used for making space for religious claims in daily life in diverse societies. Headscarves and veils are central to illustrating Guy Haarscher’s argument on the scope and limits of reasonable accommodation as applied to religious liberty claims in the public square. Unlike Ladeur, Haarscher employs a framework of individual religious liberty in the ‘space of citizenship’ (i.e. agora or public square), and his analysis capitalizes on contrasting the public sphere with private reason. For Haarscher, the headscarf cases are best seen as strategically placed demands for visibility in the public square.11 When exploring the framework of reasonable accommodation, Haarscher finds that the essence of the concept, as known from disability law, does not fit the field of religious liberty. According to Haarscher, unlike in the disability context, in the case of religion “it is always possible to ask the concerned individual to discipline himself in order to adapt (up to a point) to the requirements of a pluralist and modern society.”12 Instead of reading accommodation claims as requests to opt out from of generally applicable neutral laws, Haarscher submits that a recolonization attempt is present in accommodation claims: through claims for accommodation the oppression of women is extended to the public sphere, as the state will enforce illiberal practices in the name of respecting religious demands. Haarscher calls for recognizing such accommodation claims as a misuse of the language of human rights. Lorenzo Zucca’s chapter reflects on the extent to which religious believers can rely on religious law in their daily lives through revising the concepts of tolerance (as a non-­ moralizing approach) and toleration (as a moralizing stance). As a first step, Zucca maps theories of toleration, distinguishing co-existence theories which focus on the public peace in a Hobbesian way, and permission theories which are more concerned with the prohibition of coercion in matters of faith in a Lockean manner. An additional distinction introduced by Zucca is between theories which are premised on the possibility of a consensus on universal moral truths (the so-called rational consensus theories which aspire for substantive respect and are prevalent in the US) and theories which are premised on the formal equality of individuals in their freedom from religion (and are prevalent in Europe, especially in France). In the second half of the chapter Zucca presents an argument against a moralizing approach of toleration. For Zucca, “[t]olerance thus defined is not about drawing a priori moral lines and imposing them on issues of conflicting beliefs, but is about the ability to cope with them in a way that does not divert individuals from flourishing.”13 In his understanding, tolerance is a disposition, and not an instrumental or

11 Haarscher, at 61. 12 Haarscher, at 70. 13 Zucca, at 86.

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Preface principled approach to toleration.14 Unlike Haarscher, for whom fear is a negative force in the classic liberal sense, for Zucca fear operates as a nudge to learn more about the unknown world even in the context of an ongoing conflict.15 The underlying anthropological premise of Zucca’s theory on tolerance is that the human self-interest in flourishing is stronger than the interest in confrontation. The two chapters which follow (by Ronan McCrea and Lech Garlicki) analyse ­European developments in further detail. Ronan McCrea offers a bird’s eye view of church-state relations in Europe, focusing on the tension between the secular tradition of Europe and the prevailing inequality of religions (churches) in public affairs. According to McCrea, the current European status quo regarding church-state relations is described better in terms of integration than in terms of separation.16 The terms of this integration are based on historically and culturally embedded assumptions on the proper role of religion in the public sphere, and are in clear violation of the principle of equal treatment.17 McCrea argues that increasing religious diversity, combined with religions claiming a more prominent position in the public sphere, present a fundamental challenge to the European status quo because these developments cannot be handled with the prevailing mechanisms of church-state affairs. While the unequal treatment of religions by the state cannot be maintained any longer, as McCrea argues, an “approach that insisted on the removal of all religious elements of state identity, even in the cultural arena, risks undermining the very idea of shared cultural norms and cultural identity, with a consequent impoverishment of the public and cultural life of European states.”18 McCrea urges the removal of the prevailing double standard (discrimination) by distinguishing the cultural contributions of religions from their claims to truth, urging the acceptance of the former and the rejection of the latter.19 The last section of the chapter demonstrates that this distinction is also compatible with national legal developments and the jurisprudence of the European Court of Human Rights (ECtHR), as it stood before the Grand Chamber’s decision in the Italian classroom crucifix case (Lautsi v. Italy).20 The tensions between religions’ truth claims and their cultural contributions, between religion-based identity claims and the need to respect the rights of others, and the clash between public and private spheres as explored in the previous chapters, are all distilled

14 15 16 17 18 19 20

Zucca, at 81. Zucca, part 6.6. McCrea, part 6.3. McCrea, at 106. McCrea, at 108. McCrea, part 6.6. Lautsi v. Italy, ECtHR, Application no. 30814/06, judgment of 3 November 2009. The Grand Chamber overturned the judgment of the unanimous Chamber on 18 March 2011, after the closing of the manuscript.

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Preface to their essence and placed in a new light in Judge Lech Garlicki’s chapter on religion in the public school system in European jurisprudence. The chapter is a telltale reminder that before the judgment of the Grand Chamber, the Lautsi case on the crucifix in Italian public school classrooms was a dispute on rights in public education, and not a milestone in the clash of civilizations. Against a background of highly diverse national models of church-state relations and public education, the chapter carefully traces the development of ECtHR jurisprudence in cases ranging from the Belgian linguistic case 21 to the headscarf cases. Most importantly, the chapter offers a detailed comparison between the smaller nuances of Strasbourg case law as they relate to integrated and to parallel models of religious education, tracing to the emergence of the prohibition of indoctrination in public education in the jurisprudence. Judge Garlicki concludes his analysis by highlighting important guidelines for reading ECtHR jurisprudence. Importantly, he reminds us that the jurisprudence is fragmented not only due to the fact that cases on essentially similar issues were decided on very different grounds (a methodological difficulty), but also due to the fact that general principles developed by the Court are applied closely to the facts of particular cases (a structural difficulty). This structural challenge “leaves some room for flexibility (for which in particular the technique of distinguishing in used), but it also creates a contradiction between the de facto constitutional role of the Strasbourg Court and its individually oriented approach.”22 The last two chapters (by Robert Blitt and Peter Petkoff) of the volume allow for reflection on the aforementioned debates and developments from a geographic and intellectual distance, from two distinct perspectives. Robert Blitt’s chapter on the role of the Russian Orthodox Church in Russian foreign policy is a deeply pertinent example on the dangers of the collapse of the distinctions between religious and secular, public and private, and universal and particular. Blitt argues that as spirituality became an “adhesive for a coherent national security policy,”23 the Orthodox Church grew into a significant actor both in terms of shaping Russia’s policy priorities, including security policy, and especially with regards to the perception of threats for the purposes of developing this policy. This development was enabled by an entanglement of religious doctrine, spirituality and culture. It has given rise to the emergence of a national security doctrine informed by a vision of ‘spiritual revival’, aiming to counter threats represented by non-Orthodox religions and the spread of secularism. In the chapter, Blitt offers a highly detailed illustration of how the components of this ideological framework are mobilized in Russian foreign policy in

21 Case “Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium” v. Belgium (Merits), ECtHR, Application nos. 1677/62, 1769/63, 1994/63, 2126/64, judgment of 23 July 1968. 22 Garlicki, at 143. 23 Blitt, at 150.

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Preface various situations, for example in responding to ECtHR decisions, in staging positions in the UN or in bilateral diplomatic relations. If Robert Blitt’s chapter is sobering due to the detailed insight it provides on the level of daily political practices, Peter Petkoff ’s contribution is noteworthy for shedding new light on one of the most widely accepted dichotomies of the law of religious liberty: the distinction between forum internum (i.e. the absolute core of individually held beliefs) and forum externum (i.e. public manifestations of religious liberty, in the European terminology). Petkoff argues that this distinction, which is so broadly accepted in international human rights law, is worth reading in light of a seemingly similar distinction between the private and the public sphere in medieval Roman Catholic theology and canon law.24 In canon law the distinction “refers not to precise jurisdictional boundaries but rather to two interrelated spheres of legal and political authority exercised by the ecclesiastical institutions. . . . [T]he primary locus of the external forum is the ecclesiastical court, while that of the internal forum is the court of penance (forum poenitentiae or forum poenitentiale).”25 Petkoff ’s emphasizes that in both canon law and theology, the same set of rules apply in these two realms through a process of dialogue: “[w]hat happens in the forum externum cannot be seen in isolation from what happens in forum internum.”26 In contrast, the distinction between the internal and the external forum as we know it from international human rights law capitalizes on the difference of, and distance between, the two spheres, which creates parallel worlds. Petkoff argues that this sharp distinction between the two realms is a source of tension in international human rights law, tension which is worth rethinking in light of lessons from developments in Latin canon law. Contributions collected in this volume were first presented as papers at the 18th annual The Individual vs the State conference in June 2010 at Central European University in Budapest. Special thanks are due to James Tucker for native-language editing, Mónika Ganczer for research assistance, and Zsuzsa Kovács for editorial support. The conference and the publication of this volume were made possible by the continued support of the Open Society Institute – Budapest.

24 Petkoff, especially part 9.4. 25 Petkoff, at 195. 26 Petkoff, at 196.

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1

Roads to Constitutional Secularism

The Foundations of a Political-Legal Concept Matthias Mahlmann 1.1 Historical Complexity and the Dimensions of Secularity The creation of modern statehood is an evolving historical process marked by different distinguishing properties. Historical reality is manifold and does not succumb to conceptual or theoretical delineations. In an ideal-type reconstruction of this process, however, one may highlight with good reason the development of the sovereignty of the state, the monopolization of the means and legitimate use of physical violence, the depersonalization of public power, the creation of a rational bureaucracy, the establishment of a rule of law, democratization and the limitation of public and popular power by a constitution based on human rights. These developments set the stage for other processes that are transfiguring classical models of statehood through internationalization, the pooling of sovereignty, and supranational entities or multilevel modes of governance in our time. Classical accounts hold that another essential feature of this process is the secularization of modern statehood. The modern state had to liberate itself from its religious content and foundations to become part of the political culture of modernity, disenchanted through rationalization.1 This thesis is contentious. Some accounts paint a more differentiated picture of the genealogy of modern statehood, drawing attention to phenomena of historical evolution that do not fit neatly into a linear development of secularization. The ‘confessionalization’ of evolving modern states during the Reformation or the persisting religious identity of many states today, including the possibility of state religions, are examples in this respect. There is certainly much to be said in favor of a complex picture of the history of the relationship of modern statehood and religion, especially if we consider non-European perspectives. Notwithstanding these necessary differentiations, one can state with some confidence that the development of modern democratic constitutional states and – one may add – of new structures of political organization beyond the forms of traditional

1 Cf. on the secularization of law M. Weber, Wirtschaft und Gesellschaft: Max Weber Gesamtausgabe [Economy and society: Collected works of Max Weber], Vol. 22/3, 510 et seq. (2010).

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Matthias Mahlmann statehood is still very much shaped by the idea of secularism. Religions play an important role in modern constitutionalism. Secularism forms, however, in a very fundamental sense part of the normative identity of the project of modern constitutional democracies, since their purpose is not to create religious communities of salvation but a human, fallible order filled with mundane tasks. The secularism of modern statehood has different important dimensions, three of which shall be discussed here: – The first and most basic dimension is social secularism. It concerns the in-the-street secularism of real social life. The legal structure of a society will not necessarily tell one much about this aspect of secularism. A constitutional order may not mirror at all the realities of the social order it is embedded in; a religiously textured normative structure can be superseded by a secular social reality, while a normative separation of religion and state power may be the façade of a predominantly religious social reality. Any account of modern secularism without some religious sociology is therefore prone to be naïve. – The second dimension is constitutional secularism. The secular self-understanding of societies is often expressed in the legal tool that modernity has developed to establish the normative basic order of a society, its constitution. – The third dimension is theoretically the most demanding and perhaps most contentious. It concerns the secularism of legitimacy, the source of the axiological foundations of the modern constitutional orders. These dimensions of secularism shall be discussed in turn. 1.2 The Sociology of Religious Power The first dimension of the secularity of modern statehood is empirical. It concerns social facts: the social distribution of religiously based power in a society. Religions are not just systems of belief and orientation for individuals; they are regularly organized entities that act as mayor social and political actors. Secular statehood is shaped in scope, character, and limits by the social position of organized religious communities in a given society. No concept of secularism can therefore be complete without a sociology of religious power in a society. The United States, for example, has a distinct constitutional history of separating state and religion. Clearly, however, political life there is very much determined by religious forces, more than, say, England’s, despite its Anglican state religion. The secularism of a modern state consequently means that to a certain decisive degree, the formation and the exercise of political power is not only normatively conceptualized as independent from religious actors but is in social reality in fact sufficiently free from such (formal or informal) influences.

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1  Roads to Constitutional Secularism 1.3 Constitutional Secularism 1.3.1

Models of State Neutrality

A non-secular state is not religiously neutral, as it is bound not to religion as such (if such a thing is imaginable at all) but to a particular religion that – it should not be forgotten – excludes non-believers, atheists, and agnostics. The secularity of the state is therefore connected with the concept of its neutrality: if the state is secular, the necessary consequence is that the state not foster any single religious creed, much less at the expense of others. The religious neutrality of the state reflects the religious equality of its citizens. This neutrality, however, has important and evident limits. Any exercise of a religion has to respect fundamental social norms and individual rights; allowing for religiously motivated genital circumcision or violent action against persons with a particular sexual orientation is not something the religious neutrality of the state commands. The religiously neutral state is thus neutral only within normative limits, most importantly of human rights. Religious neutrality does not mean ethical agnosticism. The neutrality of the state can take different forms. With broad generalization, one can distinguish two poles of neutrality pursued today between which many constitutional arrangements oscillate, though there are differing taxonomies.2 There is the laïcist model that creates a strict separation of state and religion manifested, for example, in the interdiction of the presence of religious symbols in the public sphere. Officials or even private persons are not permitted to display their beliefs while in office, in public institutions, or even in the public square in general. France is often taken as an example for such a laïcist conception of statehood, though many qualifications must certainly be made.3 Some cantons in Switzerland’s federal system install similar systems, e.g., Geneva.4 Internationally much discussed practical consequences of this stance are, for example, the prohibition of Islamic headscarves worn by pupils in schools in France or the action against the burqa in the public sphere. A different approach follows a liberal path. Here the neutrality of the state is interpreted predominantly as maintenance of equality between religions and non-intervention into private rights and liberties. The presence of religious symbols in the public sphere is 2 Cf., e.g., N. Dorsen, M. Rosenfeld, A. Sajó & S. Baer, Comparative Constitutionalism 1077 et seq. (2010), distinguishing secularism, separation, coexistence, benevolence, and state religion. 3 Cf. Art. 1, Constitution of 1958: “La France est une République indivisible, laïque, démocratique et sociale. Elle assure l’égalité devant la loi de tous les citoyens sans distinction d’origine, de race ou de religion. Elle respecte toutes les croyances.” [France is an indivisible, secular, democratic and social Republic. It ensures the equality of all citizens before the law, without distinction of origin, race or religion. It respects all beliefs.] Loi du 9 Décembre, 1905 concernant la séparation des Églises et de l’État [Law of 9 December 1905 on the separation of churches and the state]. 4 Art. 164.2, Constitution of Geneva.

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Matthias Mahlmann in such systems not taken as much of a problem, as the manifestation of belief is regarded to be a personal matter. The neutrality of the state is preserved as long as the state does not actively foster certain beliefs. It is not violated if the state refrains from blocking their manifestation in the public sphere, so long as it endorses none of them. England is regarded as an example for this approach,5 as is the United States.6 1.3.2

Problems of Constitutional Neutrality: A Case Study

The reality of constitutional states often fails to fit neatly into such state/religion models. An interesting case study for this is Germany, because through recent developments a mixed model has emerged, one incorporating laïciste and liberal elements, combined with a tendency to privilege certain religions. It is therefore something like a showcase for the various options – the two main varieties of state neutrality, and the renewed tendency to identify a state order with a particular religious creed – pursued by modern constitutional traditions. Major constitutional challenges can thus be nicely illustrated through a closer look at these developments. The background of these developments is the particular conception of the relation of state and religion in German constitutional law. The Federal German Constitutional Court has in this respect developed the concept of the so-called “open neutrality of the state.”7 The idea behind this conception is that religions are supposed to have a positive role not only in private, but in public life as well. The neutrality and thus the secularity of the state manifests itself not by banning the presence of religion in the public sphere but by giving religions space without discriminating against any.8 This conception has been particularly important for matters of education, such as school prayers or Christian public schools.9 The concept was important, too, in the landmark Crucifix judgment of the Federal German Constitutional Court outlawing the installation of crucifixes on the walls of public schools.10 This Crucifix judgment caused one of the most intense debates in Germany’s constitutional history, as it was seen by many Christians as an illegitimate judicial attack on the cultural and religious foundations of Germany, a perception mirrored in some of the reactions to the parallel chamber decision of the European Court of Human Rights (ECtHR),11 now overruled  5 Cf. M. Malik, A Mirror for Liberalism: Europe’s New Wars of Religion, in M. Mahlmann & H. Rottleuthner (Eds.), Ein neuer Kampf der Religionen? [A new war of religions?] 241 (2006).  6 Cf. J. Mikhail, The Free Exercise of Religion: An American Perspective, id., at 271.   7 Standing case law, cf. BVerfGE 108, 282, at 299 et seq.   8 BVerfGE 108, 282, at 299 et seq.  9 E.g., BVerfGE 41, 29, at 49 et seq.; 52, 223, at 236 et seq. 10 BVerfGE 93, 1. 11 Lautsi v. Italy, ECtHR, Application no. 30814/06, judgment of 3 November 2009.

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1  Roads to Constitutional Secularism by the Grand Chamber.12 Other countries like Switzerland, however, have followed a similar course.13 This conception is also one of the important issues in the headscarf debate. Here ­Germany twisted course between a laïciste model, a liberal approach and the attempt to differentiate between various religions is most evident. One point is not contentious: pupils are generally allowed to wear headscarves and other religious symbols at school. This right is not a matter of debate as it is considered a personal choice whether a private person wants to wear such symbols or not. In this sense the framework is definitely – unlike in France – a liberal one. The question of legitimate limits on the wearing of headscarves thus arises so far only as regards to public employees, mostly for teachers. The Federal Constitutional Court allowed in a landmark decision in principle both the ban of religious symbols and their presence in schools. It ruled that it is for the democratically legitimized legislator to decide whether or not the religious symbols are permitted in schools.14 The various German Länder that have the competence in educational matters do not follow a homogenous course implementing this ruling. Some allow the presence of religious symbols; others do not. The bans are sometimes selectively drafted to ban headscarves but not other religious symbols like nuns’ habits or kippas.15 Some political and religious actors argue that the differentiation is necessary as the headscarf stands for the suppression of women, theocracy and the contempt of human rights whereas the Christian religious symbols have no such connotation or are, to the contrary, symbols for the equality of humans and their dignity. There is much debate whether or not this is permissible but some national courts have followed this line of argument, taking Christian symbols like the cross to embody a European heritage of values, not a particular religious tradition.16 This differentiation seems hardly reconcilable with the neutrality of the state that forbids such difference in treatment of various religions.17 The jurisprudence of the German Federal Constitutional Court is rightly unequivocal in this respect, demanding strictly equal treatment of all religions.18 It rightly emphasizes that an interpretation of core Christian symbols as possessing simply cultural meaning fails to take their religious dimension seriously enough – to the detriment of these symbols, one may add.19 There 12 Lautsi and Others v. Italy, ECtHR, Application no. 30814/06, judgment of 18 March 2011. 13 BGE 116 1a 252 banning crucifixes in public schools based on the principle of the neutrality of the state. 14 BVerfGE 108, 282. For comments cf. M. Mahlmann, Religious Tolerance, Pluralist Society and the Neutrality of the State: The Federal Constitutional Court’s Decision in the Headscarf Case, 4 German L. J. 1099 (2003). 15 Cf. Art. 59.2 Bayerisches Gesetz über Erziehungs- und Unterrichtswesen [Bavarian Law on education and instruction]. 16 Constitutional Court of Bavaria, 15 January 2007, Az.: Vf. 11-VII-05. 17 Cf. M. Mahlmann, Differenzierung und Neutralität im Religionsverfassungsrecht [Differentiation and neutrality in constitutional religion law], 1 Myops 39 (2007). 18 BVerfGE 108, 282, at 313. 19 That such interpretation tends to make a core symbol of Christianity an empty shell is the baseline in BVerfGE 93, 1, at 20.

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Matthias Mahlmann is therefore much reason to believe that such differentiations in the laws of some Länder violate basic principles of German religious constitutional law. In consequence, there is a tendency to interpret existing norms in a manner that interdicts any display of religious symbols in public educational institutions by the teaching staff, including those of the Christian religion.20 As has been said above, these legal debates in Germany are paradigmatic for important constellations of modern constitutional law. Other legal systems – not only national ones – also struggle with the definition of the neutrality of the state, how much presence of religion can be tolerated in the public sphere, and whether there is a justification for privileging certain religions in comparison to others. There are many examples for this – from Swiss initiatives to amend the Federal Constitutions to allow for the presence of some religious symbols in the public sphere but not others21 to the acceptance of Christian symbols in state schools by the ECtHR.22 There are manifold factors shaping the concrete constitutional makeup of the relations between religions and the state, not the least being contingencies of historical development. Sometimes concepts such as the neutrality of the state are born of judicial considerations that pursue more than religious impartiality. The conception of some liberal approaches may, for example, be partly inspired by the desire to maintain the persisting influence of the Christian churches in public life at the price of allowing this to other religions as well. Given the current situation the central question, however, is not the reconstruction of such historical genealogies but the modes of the justification for the different models, to which we now turn. 1.4 The Case for a Liberal Approach 1.4.1

Humanistic Individualism and Secularism

The liberal model has many merits that make it an interesting conception from the standpoint of other religions and a secular, agnostic or atheistic perspective. It formulates a doctrine of the neutrality of the state and secularism in general that respects the existential seriousness of religious faith. It is perhaps best suited to deal with the increasing religious pluralism of modern societies, created in substantial measure by patterns of immigration of various kinds and motivations. The following remarks will try to indicate some reasons for this approach.23 20 BVerwGE 116, 359 on a provision in the Land law of Baden-Württemberg. 21 Cf. the 2011 initiative of the Staatspolitische Kommission of the Swiss parliament to propose an amendment of the Swiss Federal Constitution that “Christian-occidental” symbols are explicitly permitted to be displayed in the public sphere as they are taken to symbolize general values. 22 Lautsi case, supra note 12, at Paras. 71-76. 23 For further comments cf. M. Mahlmann, Freedom and Faith: Foundations of Freedom of Religion, 30 Cardozo L. Rev. 2473 (2009).

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1  Roads to Constitutional Secularism Religions have many features. One of the most distinguishing is that religions are not about some minor issue in human lives. They are about how human beings interpret their life in the shadow of conscious mortality, with the need and responsibility for ethical acting, under personal and historical circumstances that are often of a kind that some source of comfort, of assurance of the sense of life is needed as a shield against desperation. Religions consequently have enormous emotional power. They can be (and have been) most destructive forces, yet have also inspired some of the most impressive ethical deeds and cultural achievements in human history. There is no reason to believe that religions will in the long run disappear from the public stage in an inevitable process of secularization. It is true that there is a sociological correlation between indicators of social and economic development of a society and its level of secularism. This correlation holds for most states, with the notable exception of the United States.24 But it would be wrong to conclude that this means the end of religions in epochs to come. This is true not only because of the selective prospects of development for many countries given the current course of affairs on a global scale, or the renaissance of political religiosity in various forms which is in no way limited to Islamism. This is true for the most secular societies as well, given the persisting human condition that, throughout history, has created the need for religious orientation in various forms. Even new forms of spirituality are developed and pursued. Whether one agrees with these developments or not, there is every reason to assume that the reality of most societies will be partly determined by the presence of various religions as a central aspect of life. Given this, a liberal approach to these matters based on a religiously open-minded secularism is a path worth pursuing. This liberal approach has merits not because of a necessarily implied commitment to the intrinsic transcendent value of the religions concerned, and not because of their contribution to the salvation of human beings (though these values might exist for many), but because of the role religions play in the lives of individuals. In other words the liberal approach is justified not because of the respect for religions as such but out of respect for believers as persons, for their life choices.25 Because a liberal humanism forms the basis of this approach, it is preferable not only from a religious perspective that applauds any extension of its room for action but from an agnostic or atheist standpoint as well. This is so because the core of the argument is not the idea that the prospering of religion is necessarily an intrinsic value; religions may be legitimately criticized or even abhorred as intellectually unacceptable or ethically dubious tools to manufacture metaphysical peace where only unrest or rebellion is warranted. At the core of this approach is, to the contrary, the quite different consideration that human 24 Cf. Mikhail, The Free Exercise of Religion, supra note 6, at 272 et seq. 25 The right to universal and reciprocal justification mobilized by R. Forst, Toleranz im Konflikt [Tolerance in conflict] (2003) cannot serve as the basis of a conception of religious freedom: it is a derivative concept from the dignity of persons, cf. Mahlmann, supra note 23, at 2490 et seq. for comments.

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Matthias Mahlmann beings with their manifold needs and wishes have to be respected – whether one agrees with the content of these modes of life or not – for the sake of their humanity. One cannot deny this respect in the case of a matter of such existential importance as religion merely to preserve a critical distance to it, if the concept of respect for human beings as ends-inthemselves is to have more than rhetorical meaning. As the dignity of human beings is equal, the respect due their modes of life must be governed by principles of equality. This is one central deeper reason for the neutrality of the state: neutrality means equality of all religious believers and non-believers, both in treatment and as to their symbolic and practical recognition. There might be exceptional social and historical circumstance where this case for liberal secularism is not convincing, namely in the case of religious civil war. In this extreme situation some kind of laïcism might be the only solution, as any presence of religious symbols would stir more fighting and strife. This situation is, however, not the reality of many states that pursue a rather illiberal path, in Europe and elsewhere. This should not be forgotten in the discussion about secularism, liberalism, and their limits. 1.4.2

Liberal Humanism and the Presence of Religions in the Public Sphere

The consequences of this liberal approach are manifold. There is certainly no contradiction between this viewpoint and the need to ban any state action fostering particular religions, even from a religious point of view.26 Decisions like the crucifix judgments of the Federal German Constitutional Court,27 the Swiss Federal Court,28 or the ECtHR Chamber judgment29 banning the presence of crucifixes in schools are in consequence justified. The same is true for comparable constellations, such as the classical problem of mandatory school prayers.30 The state has to refrain from such visible identification with a particular religion. Failing this, it ceases to be neutral. Informal contributions to religions by state action can also be criticized from this point of view. Clearly, however, given this individualistic approach there is no need to ban the presence of religious manifestations by action or symbols in the public sphere if the manifestations or symbols are identifiable as expressions of individuals. In some states, there is a 26 Cf. for an example of a position with a religious background arguing for equality as the bedrock principle of state/religion relations and against any endorsement of a particular religion (beyond certain versions of the idea of the strict separation of state and religion), M. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (2008). 27 BVerfGE 93, 1. 28 BGE 116 Ia 252. 29 Lautsi case, supra note 11. 30 Cf. e.g., Abington School District v. Schempp, 374 U.S. 203 (1963).

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1  Roads to Constitutional Secularism tendency too quickly to identify with the state public servants or employees in all respects of their behavior. There is no convincing reason for this. There is a big difference between a crucifix installed by the school authority on the classroom wall, and a teacher wearing a headscarf as her personal expression of faith, to take just a very pertinent example. There is no reason to take the headscarf as symbol with which the state identifies. If more religious plurality were the norm, this would be obvious. If a citizen encounters a policewoman with a headscarf in the morning (as allowed in England), a judge – being a Sikh – with a turban (as in the High Court in England) at noon, and a teacher with a kippah in the evening at a parents’ meeting, it would be farfetched to assume that the state endorses all of these creeds at once. To the contrary, the citizen would conclude that a neutral state endorses none of them but gives individuals space to pursue their mode of living. 1.4.3

The Limits of Liberalism

Any form of liberalism must define its limits. Certainly the liberal approach to individual manifestations of faith and their accommodation through law has to be aware of this and somehow determine the scope of the permissible. These limits have to be developed on a case-by-case basis as there is no sphere of life that is not potentially affected by manifestations of religion. In the context of these remarks, there are only a few abstract sketches to suggest there is no reason for fear that the liberal approach might jeopardize the humanistic order it attempts to create by undermining its perseverance against illiberal, even totalitarian threats. On a practical level, any number of justifications for limitation may arise. A firefighter will not be able to wear any religiously motivated headgear, to take an example with some real-life importance in some countries. More complex are other questions where colliding rights have to be balanced. Is it for example justified to allow a religion to ring its bells on certain occasions during the week, even though some citizens might feel disturbed and would prefer to listen to Shostakovich instead? The answer to this question may be simple; other cases are more difficult. The headscarf issue is again a case in point, as not only the freedom of religion of the teacher but the rights of the children are concerned. One has to investigate carefully whether or not their right to be free from religious indoctrination is violated by the vision of the headscarf or – more appropriately – whether such a violation can only be constituted by a certain proselytizing comportment of a teacher beyond the mere wearing of a religious symbol. Some religiously motivated comportment is not allowable under certain conditions, such as the wearing of burqas in the classroom. Here different issues are in play than in the headscarf case, as the burqa not only makes personal communication impossible but also extinguishes the personality of the teacher as such. This is not reconcilable with the idea

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Matthias Mahlmann of human dignity.31 A quite different issue is the wearing of burqas by private individuals. There is little reason to think that a ban on this behavior – even in selected spaces – is justifiable. It is hard to argue that such a ban could pass any test of proportionality given the likely effect to bury the women concerned even deeper in the dungeon of isolation and obscurantist beliefs. The case law of many jurisdictions has developed quite differentiated yardsticks for many other situations. These yardsticks should be carefully studied to avoid rash and undifferentiated solutions that are prone to become the easy prey of religious prejudice, hypocrisy and the sometimes ugly pursuits of identity politics at the expense of often weak and vulnerable religious minorities. 1.5 Religion and the Ethical Foundations of the Modern State 1.5.1

The Paradox of Secularism

There are various assessments of the effects of religion on modern society. Some, like Bertrand Russell, have argued that religions have weakened the forces of reason, given their inherent limitations, and foster dogmatism through an adherence to beliefs that are not open to critical scrutiny. Given some doubtful concrete tenets of their doctrines he concludes that religions have done more harm than good in human history.32 Others take a more positive view. Jürgen Habermas, for example, has in recent essays spoken of the post-secular society, referring to the persistent importance of religions in modern society as a source of civilizing values. He is not endorsing this persistence explicitly and asserts that he personally lacks – using Weber’s term – “religious musicality.” He argues, however, that cultural resources are embodied in religious creeds that can and must be translated into the language of values of secular societies.33 He even states that there is no prima facie epistemic priority of secular reason in comparison to religious outlooks.34 There is a widespread perception that such a more positive analysis is not sufficient to account for the importance of religions for the purposes of the project of the secular state. It is maintained that the modern state, based on positive law, normatively rooted in a constitutional regime, and in some way based on human rights cannot by itself provide 31 For a different view, cf. e.g., Nussbaum, supra note 26, at 350 who argues that eye contact is enough to manifest a personality and establish patterns of communication. 32 Cf. B. Russell, Why I am Not a Christian vi (1957). 33 J. Habermas, Religion in the Public Sphere, 14 European J. of Philosophy 1 (2006). 34 Cf. J. Habermas, Vorpolitische Grundlagen des demokratischen Rechtsstaats? [Pre-political foundations of the democratic constitutional state?], in J. Habermas & J. Ratzinger, Dialektik der Säkularisierung: Über Vernunft und Religion [The dialectics of secularization: On reason and religion] 30 (2005).

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1  Roads to Constitutional Secularism for the axiological basis on which it is founded. The values that form the backbone of the modern constitutional state are unthinkable without a religious foundation, goes the argument.35 Core values as human dignity and equality, freedom and solidarity are not justifiable without reference to certain religious traditions, most importantly Christianity, some say. A concrete (and important) example for this hidden religious foundation of the values of the secular state is the perceived foundation of human dignity in the imago dei conception in Genesis.36 The consequences of this argument can be called the apparent paradox of the secular state. In its light, the secular state frees itself from religious influences, gains independence and autarky but simultaneously, in fact, realizes and embodies values derived from religion itself. The overcoming of the religious determination of state power turns on a more profound level into the realization of the religious values the state appears to transcend. The secularism of the modern state is thus its hidden persistent sacralization. The cunning of religion wins the constitutional day. 1.5.2

The Force of Secular Ethics

This analysis is of much theoretical importance and political relevance. From this point of view not every religion is equally capable of generating the values on which the secular state is founded. There is a clear primacy of Christianity, or the Judeo-Christian tradition, in the eyes of some commentators in this respect. Other religions – most notably Islam – are supposed to be less open to such values or to embody even in their essence a pre-modern unity of religion and the political order that cannot be transcended by their own cultural resources.37 Other world religions (Buddhism, Hinduism, Daoism etc.) often do not even appear on the screen of further consideration in some debates. 35 E. W. Böckenförde, Die Entstehung des Staates als Vorgang der Säkularisation [The emergence of states as a process of secularization], reprinted in E. W. Böckenförde, Recht, Staat, Freiheit [Law, state, freedom] 92, at 112 (1991). 36 There are many variants of this kind of argument: certain capacities of human beings can play a role, though decisive is the relation of humans to God, cf. Catechismus Catholicae Ecclesiae [Catechism of the Catholic Church] 293, 356, 357, 363, 364, 1706; Concilium Vaticanum II, Constitutio Pastoralis Gaudium et spes [Second Vatican Council, Pastoral Constitution ‘Gaudium et spes’] 29 (7 December 1965) Acta Apostolicae Sedis 58, at 1050 (1966). The idea that dignity is not based on properties of human nature but on God’s grace and love is highlighted in protestant theology, e.g., H. Thielicke, Theologische Ethik [Theological ethics], Vol. I. 705 (1951). In a similar sense N. Wolterstorff, Justice 352 et seq. (2008). 37 Cf. the skeptical remarks by A. Frhr. v. Campenhausen, Grundrechte als europäische Leitidee [Fundamental rights as European guiding principles], in D. Mertens & H.-J. Papier (Eds.), Handbuch der Grundrechte in Deutschland und Europa [Handbook of fundamental rights in Germany and Europe], Vol. VI/1 3, at 39-42 (Paras. 104-112.) (2010).

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Matthias Mahlmann To assess the merits of these claims it is helpful to consider some of the roots of the idea of the separation of state and religion within the Christian framework. In this context the tradition formulating the idea of two realms or two swords, the one forming the secular order of the state, the other the spiritual order of believers is of much importance. The idea with the well known biblical inspiration was developed by Augustine through his differentiation of the civitas dei, a spiritual community of Christians and the civitas terrena, the community of corrupted mankind following the dictates of desires. The second is not to be confused with the political state order; quite to the contrary, the order of the state is legitimized by its function to create peace in a world tormented by sin and desires and thus an aliud both to the civitas dei and the civitas terrena. The believers have to exploit – according to Augustine – the “Babylonian peace” created by the secular order to pursue their individual path to redemption.38 The commands of God take precedence over secular laws in case of conflict. Augustine’s thought had a tactical aim, namely to account for the fall of Rome despite Christianity having become the state religion of the Empire shortly before this catastrophe by dissociating any secular state from a direct connection to the history of Christian salvation. The Saint’s theory would later serve as an inspiration for the claims of the rising papacy to supremacy over secular political powers. This theory nevertheless created a relative independence of the state from the order of spiritual salvation and thus became a decisive move for the Christian tradition. A second classical reference point for the relation of state and church is the Reformation, which can be mentioned here as another facet of the debate. Luther was not only inspired in his theory of justification by Augustine’s theology. He echoed Augustinian ideas about the different roles of the secular and the spiritual orders in his – shifting – conception of the relation of Christianity and the state. Luther is often credited with strengthening the idea of the independence of the state from religion. This is true to a certain degree since these orders serve the function, in his theory, of preserving peace and order comparable to that assigned to them by Augustine. The freedom of a Christian is thus something that is mainly realized beyond these mundane spheres, in the inner realm of belief.39 This conception is partly responsible for the often-criticized passive, authority-oriented strand in Luther’s theory of society and the state. During the process of the Reformation, the secular state nonetheless acquired some functions more directly focused on the achievement of salvation, especially by dealing with the schisms in the Protestant confessions and with other beliefs 38 Augustinus, De Civitate Dei [City of God], in E. Hoffmann (Ed.), Corpus Scriptorum Ecclesiasticorum Latinorum [Collection of the works of Latin Church Fathers], Sancti Aurelii Augustini episcopi Opera [The Works of Saint Augustine], Vol. 40, Part I, Pars II, XIX, 13, 17, 26 (1899). 39 M. Luther, Von der Freiheit eines Christenmenschen [The freedom of a Christian], in D. Martin Luthers Werke: kritische Gesamtausgabe [Martin Luther’s work: Complete critical edition] (hereinafter: “Weimare Ausgabe”), Vol. 7, at 20 et seq. (1897).

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1  Roads to Constitutional Secularism (more precisely through their suppression), some endorsed by Luther,40 contrary to his earlier impressive defense of religious tolerance. These theories doubtless contributed to the emerging idea of separation of state and religion. Still, we should not overlook the limits of these classical doctrines. The state achieved, both in the Augustinian and Lutheran conception, only relative independence from religious foundations, as the social order as a whole was still one determined by God’s will and command. Gelasius I’s conception of church-state relations mirrors this.41 With the new scientific outlook and the rise of the age of critical reflection, state and religion were separated in a manner qualitatively different from the thought of Augustine or Luther, among others. The justification of state orders was derived without any reference to an order of salvation. There are many variants, predecessors, and contributors to this process – in natural law theory, in the theories of the social contract, in the Enlightenment from Bayle’s then shocking argument for the possibility of moral and political order even among atheists42 to Kant’s foundation of autonomous morality as the bases of the legitimacy of the state in practical reason.43 With these intellectual and cultural movements, the legitimacy of political orders was finally truly secularized. One should not underestimate the liberating importance of this development towards a secularization of legitimacy. It was a central step toward the rationalization and – most importantly – humanization of justifications for state power and the delineation of its limits through human rights. States must justify their existence not as regards to some transcendent order of salvation and its imperatives but as regards to the needs, interests and ideas of justice of human beings. The secularization of legitimacy is thus not only a negative development, depriving the state order from a characteristic ascribed to it in the past, but a process towards a distinguished positive end: the self-vindication of humankind as the necessary and sufficient source of justifications of state power and human rights. The answer to the challenge of the apparent paradox of secularism seems thus to be the old but still true account of the Enlightenment as to the decisive sources of legitimacy. It is based not on the ethics of different religions but on the self-confident human faculty of practical judgment. Its core is the autonomy of practical insight, its ability independently of religious ethics to stand the test of critical reflection. There is no reason to shelve this 40 M. Luther, Der LXXXII. Psalm ausgelegt [Commentary on the 82. Psalm] (1530), in Weimare Ausgabe, Vol. 31, 208. 41 Cf. Gelasius I’s letter “Duo sunt”, in J. P. Migne, Patrologia Latina [Latin Church Fathers], Vol. 59, Col. 41 B, 42 A (1862): The separation of the sphere of church and state is underlined, the supremacy of the religious office, however, asserted because of its role for salvation. 42 P. Bayle, Commentaire philosophique sur ces paroles de Jésus-Christ: Contrain-les d’entrer (1686) [Philosophical commentaries on these words of Jesus Christ: ‘Compel them to enter’] in Oeuvres Diverses de Mr. Pierre Bayle [Various works of Mr. Pierre Bayle] (1727). 43 Cf. e.g., I. Kant, Die Metaphysik der Sitten [The metaphysics of morals] (1797), Akademie Ausgabe, Vol. VI, 311 et seq.

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Matthias Mahlmann central insight into the history of intellectual self-liberation with a dismissive shrug of the shoulder as a mere chapter in some outdated grand narrative.44 One will not escape this argument by pointing to the religious determination of the apparently secular ethics of enlightened thinkers, say the pietism of Kant. One misses the point of modern ethical reflection if one does not see that a genuine secular ethics has evolved, contentious as some of its contents and deeper modes of justification may be. In consequence, a conception of political orders without religious roots is not necessarily derived from one particular religious (e.g., Christian) outlook. It transcends religious traditions and stands on its own axiological feet. Many difficult issues arise in the context of such secular ethics as to its concrete content or its epistemological foundations and merits. This secular ethics suffices, however, to provide good arguments for the foundation of liberal constitutional orders, for human solidarity and responsibility, and core human rights that protect the much-abused dignity of human persons.45 Given this secular ethics of a concrete humanism, the apparent paradox of the secular state looses its biting sting. The state (and the contemporary supra- and international modes of political and legal institutionalization) is certainly dependent on values it cannot guarantee, on the allegiance of the citizens to democracy, social solidarity and human rights – but these values have their real and secure foundation in a secular ethics and its commands. There is no reason to suspect that such secular ethics might not be able to create the solid foundations political orders need. With a closer look, it quickly becomes clear that religious ethics do not exist as a body of clear doctrines somehow beyond the epistemic insecurities of secular ethical reflection. To the contrary, religious ethics share the fate of any ethical reflection: they are contentious and the object of sometimes quite profound changes through time. The modern Christian ethics is, for example, in many aspects the product of the profound influence of the Enlightenment on older Christian thought. This comes as no surprise. Religious ethics, through their identification of authoritative religious sources and their shifting interpretation, are no less the product of human reflection (though often misperceived as sheer application of sacred commands) than the openly human attempts to justify values and norms. This is in more than one sense

44 Not least because of contemporary quite plausible attempts to reconstruct the idea of practical reason via the theory of mind and certain approaches of cognitive science, cf. e.g., M. Mahlmann, Rationalismus in der praktischen Theorie [Rationalism in practical theory] (2009); M. Mahlmann, Ethics and Law, and the Challenge of Cognitive Science, 8 German L. J. 577 (2007); J. Mikhail, Universal Moral Grammar: Theory, Evidence and the Future, 11 Trends in Cognitive Science 143 (2007); J. Mikhail, Elements of Moral Cognition: Rawls’ Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (2011). 45 Cf. on such justifications M. Mahlmann, Elemente einer ethischen Grundrechtstheorie [Elements of an ethical theory of fundamental rights] 244 et seq. (2008); M. Mahlmann, Rechtsphilosophie und Rechtstheorie [Legal philosophy and legal theory] 283 et seq. (2010)

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1  Roads to Constitutional Secularism an important property of religious ethics as it is one of the sources of their continuous vitality and moral appeal. The secularism of the modern state is thus axiologically self-contained, and not necessarily secretly nourished by religious sources beyond itself. A political theology of values is by no means unavoidable. Its rational alternative is the critical reflection of secular ethics. 1.5.3

Secularism and Human Faith

This self-contained secularism is not irreconcilable with religious faith. To the contrary, it provides common ground for various forms of human civilization that aim to achieve the same ends, a secular ethics of human worth and liberty, whatever the religious outlook may be, whatever spiritual questions are posed beyond this ethical baseline. There are many developments in religious history that nourish this hope. Religions have contributed impressively to a culture of human dignity, justice, and rights. It might be worth emphasizing – given the current state of affairs – that this is true for Islam as well. It is a misguided conception of its history, practice and potential to claim that its spiritual essence is essentially irreconcilable with a modern secular state. The practices of many Muslims around the world testify to this every day. There is an intense debate, inspired not least by Rawls’ idea of an overlapping consensus in public life beyond various comprehensive doctrines, to which religious systems of belief belong,46 what role religion can play in public debate and political and legal decision making. Are religious reasons to be admitted into the public square at all?47 Have religious believers a duty to provide secular justifications for their political demands,48 perhaps as a moral, not legal “duty of civility”?49 Are only politicians and other officials forbidden to use religious reasoning,50 whereas for the public in general, there are post-secular duties of mutual translation, burdening religious believers and secular citizens enlightened about the limits of reason 46 J. Rawls, Political Liberalism 133 et seq. (1993). 47 Cf. e.g., R. Rorty, Religion in the Public Square: A Reconsideration, 31 J. of Religious Ethics 141 et seq. (2003), who wants to limit religion in the public square to the level below “ecclesiastical organizations,” because the latter do harm, after a more restrictive attitude, in R. Rorty, Religion as Conversation-Stopper, 3 Common Knowledge 1 et seq. (1994) arguing for the privatization without trivialization of religion. 48 J. Rawls, The Idea of Public Reason Revisited, in J. Rawls, The Law of Peoples 132 et seq. (2001), though comprehensive secular doctrines are excluded as well, in Rawls’ view. He adopts what he calls an “inclusive view” which means that citizens can “present what they regard as the basis of political values rooted in their comprehensive doctrine, provided they do this in ways that strengthen the ideal of public reason itself.” J. Rawls, id., at 247. An “exclusive view” holds that “reasons given in terms of comprehensive doctrines are never to be introduced into public reason,” something that Rawls felt inclined to, he reports, but rejected, id., 247 n. 36. R. Audi, Religious Commitment and Secular Reason 135 (2000) has proposed in a similar vein a “theo-ethical equilibrium.” 49 Rawls, supra note 46, at 217. 50 Habermas, supra note 33, at 8 et seq.

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Matthias Mahlmann through post-metaphysical thought alike?51 Or are, to the contrary, religious reasons robustly admitted to public debates?52 On a certain level, the answer to these questions is straightforward enough: in a liberal order no reasons can be excluded from public debates. That is the simple consequence one of the most basic points of liberal and democratic rights. The real question seems to be the one discussed above: the question of the decisive sources of legitimacy. Here, a case has been made in this respect for secular sources of human thought. They are necessary sources, because under plausible standards of rationality, no other mode of justification based on revelation, inspiration, tradition or the like, will do for the purposes of the state and the law. Secular reasoning is distinguished by the need and possibility of argument. Religions are often argumentative and full of thought. It is a caricature to think of them as simplistic non-reflective systems of belief. If, however, foundational recourse is taken to sources of insight beyond human thought (which is not necessarily the case), and a conflict ensues between religious command and human insight, then human reflection and thus the realm of argumentation, reasoning and fallibility, must cast the final vote. Therefore no biblical passage,53 or more precisely, the contentious interpretation of its meaning, is decisive for the legal and moral treatment of gays and lesbians, but the kind of arguments from sexual self-determination and autonomy that are the well-justified foundation of liberal case law on the matter around the world54 (and by the way of plausible conclusions for religious ethics of respect as well). 51 Habermas, id., argues that religious citizens must translate religious reasons into secular ones. Secular citizens, however, must also match the exacting demands of post-metaphysical thought: “The secular component to religious modernization is an agnostic, but non-reductionist philosophical position. It refrains on the one hand from passing judgment on religious truth while insisting (in a non-polemical fashion) on drawing a strict line between faith and knowledge. It rejects, on the other, a scientistically limited conception of reason and the exclusion of religious doctrines from the genealogy of reason,” id., at 16. It is interesting to see that Habermas offers the sketch of an interpretation of central tenets of Rawls’ moral philosophy as a secular version of formerly held religious convictions. Cf. his discussion of J. Rawls’ posthumously published works on religion, in J. Habermas, Das ‘gute Leben’ eine ‘abscheuliche Phrase’ [The “good life” – A “detestable phrase”] in J. Rawls & S. Schwark (Trans.) Über Sünde, Glaube und Religion [German edition of John Rawls’ A Brief Inquiry into the Meaning of Sin and Faith, with an introduction by J. Habermas] 315 et seq. (2010) 52 Cf. e.g., C. Eberle, Religious Conviction in Liberal Politics (2002). 53 Leviticus 18:22. 54 Cf. e.g., Dudgeon v. the United Kingdom, ECtHR, Application no. 7525/76, judgment of 22 October 1981; Constitutional Court of South Africa, National Coalition for Gay and Lesbian Equality v. Minister of Justice (CCT10/99) [1999] ZACC 17; 2000 (2) SA 1; 2000 (1) BCLR 39 (2 December 1999) Para. 42 on the effect of discrimination against gays and lesbians: “The denial of equal dignity and worth all too quickly and insidiously degenerates into a denial of humanity and leads to inhuman treatment by the rest of society in many other ways. This is deeply demeaning and frequently has the cruel effect of undermining the confidence and the sense of worth of lesbians and gays.” See also Lawrence v. Texas, 539 U.S. 558 (2003). In these matters, skepticism (with various epistemological backgrounds) about the possibility to draw a clear line between knowledge and belief often plays an important role, cf. e.g., Ch. Taylor, The Meaning of Secularism], 12 The Hedgehog Review 23 (2010); R. Rorty, Religion in the Public Square, supra note 47, at 144. This stance is popular, but not without theoretical alternative, even if one wants to avoid the idea of a possible “Letztbegründung” or epistemological foundationalism, cf. M. Mahlmann, Rechtsphilosophie, supra note 45, at 320 et seq.

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1  Roads to Constitutional Secularism Secular reasons are also sufficient for questions of legitimacy, since they can yield the results needed: a plausible theory of justification of constitutional state order and human rights. For many people, a whole world lies beyond this sphere. As indicated above, modern culture has profited much by the contributions made because of religious motivations derived from this sphere. Secular statehood in political practice and justification is not an enemy to this religious life. It is a bedrock basis of human organization and to be defended as such, not least to give religious belief enough air for respectful equality and peace to breathe. The door for understanding beyond the borders of religions and agnostic or atheistic systems of thought is thus in principle open, though human beings might choose not to use it and to pursue instead, as often in the past, a different and destructive path.

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2

Religious Fundamentalism as a Challenge to the Constitutional State

Karl-Heinz Ladeur 2.1 Introduction: The Reemergence of Religion in the Public Sphere Around the world, we are witnessing a revitalization of the religious issue, which also includes, particularly concerning contemporary Islam, a re-politicization of religion. Religion has become, once again, a political topos.1 The secularized Western world is thus facing a new challenge, for which it appears to be inadequately prepared. The idea of freedom of religion, guaranteed as a fundamental right, obliges Western democratic states to respect the religious activities of their citizens and to ensure their free exercise. Therefore the state is principally allowed neither to favor nor to discriminate against certain confessions. This concept of equidistance is known as the principle of state neutrality. It commits the state to generally withdraw from religious issues, and particularly not to define what can legitimately be classified as religion and religiously connoted behavior.2 The leeway given to the self-definition of religious groups by the German Federal Constitutional Court and its wide understanding of what kind of behavior has a direct relationship to faith – and therefore deserves protection as an aspect of freedom of religion – is to be understood against this background. However, with regard to the new challenges mentioned above, the neutrality principle increasingly serves yet another purpose. Courts use it as an exit-option in order to omit problems which appear to be too complex for the law and rather seem to be an issue for the sociology of religion. In this context, neutrality merely functions as a chiffre for indifference. But this strategy of avoidance, though understandable in the face of the problem’s gravity, undermines the law’s function of conflict resolution. Furthermore, it neither corresponds to the historical development nor to the functional aspects of the idea of religious freedom.

1 See more in K.-H. Ladeur & I. Augsberg, Religion – Toleranz – Recht: Die Herausforderung des “neutralen” Staates durch neue Formen der Religiosität in der postmodernen Gesellschaft [Religion – tolerance – law: The challenge of the “neutral” state through new forms of religiosity in post-modern society] (2007) on the (misleading) concept of a “revival of the religious” cf. also G. Vattimo, The Trace of the Trace, in J. Derrida & G. Vattimo (Eds.), Religion 79-94 (1998). 2 For the kosher slaughter decision of the German Federal Constitutional Court see BVerfGE 104, 337, at 353.

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Karl-Heinz Ladeur In a historical perspective the state’s withdrawal from the religious, corresponding to the withdrawal of religion from politics,3 modifies the idea of religion – including Christianity – as well. Religion now demands the internalization of one’s own conscience, the forum internum, which then is primarily constituted by a focus not on others but on The Other, i.e., God. The liberalization of conscience correlates to the internalization of faith, the public ceremonial exercise of which is limited to non-political aspects. From this individualist perspective, religious tolerance is a rather pragmatic concept: since individual conscience cannot be forced to the right decision, any act of violence becomes futile. This justifies abstention from using state power in order to enforce religious commands. So, according to Locke, the state, while still receiving its tasks directly from God, is limited to those tasks that have a non-spiritual character.4 The state so conceived has the secular purpose of guaranteeing the life of its citizens, but for theological reasons it cannot enforce their inner confessional beliefs. Hence a departure from specific religious commands, which a majority of the population might still regard as an absolute truth, no longer calls for persecution, but can be tolerated instead. This explains continuing reservations about Catholicism: its capacity for institutionalized decoupling of individual faith and politics has been called into question.5 Accordingly, there are voices today claiming that within the Islamic world this step from a “collective” to an “individual” subject, which makes tolerance possible in the modern sense, has not yet been taken. Hence the ­de-politicization of the Islamic world, if possible at all, is still to come. What can be interpreted as a historical confinement of freedom of faith in this sense has its theoretical counterpart in a functionalist theory of fundamental rights. According to Niklas Luhmann’s sociological analysis, fundamental rights are not mere personal freedoms. Rather, within a poly-contextual world which lacks a central point of observance and is only intelligible by multiple second-order perspectives,6 fundamental rights guarantee the differentiation of society in several relatively autonomous social spheres.7 Thus they serve as a barrier against totalitarian tendencies of certain societal subsystems. This theory applies almost perfectly to the new phenomena of religiously motivated and politically ambitious movements. Their tendency to an overarching shaping of society as a whole creates the general conflict concerning the relationship between state and religion.

3 See J. Taubes, Statt einer Einleitung: Leviathan als sterblicher Gott. Zur Aktualität von Thomas Hobbes [In place of an introduction: Leviathan as a mortal God. The topicality of Thomas Hobbes], in J. Taubes (Ed.), Religionstheorie und politische Theologie, Vol. 1. Der Fürst dieser Welt: Carl Schmitt und die Folgen [Theory of religion and political theology, Vol 1. The prince of this world: Carl Schmitt and the consequences] 9 at 14 (1985). 4 I. Harris, Tolérance, église et état chez Locke [Tolerance, church and state in Locke], in Y.-C. Zarka, F. Lessay & J. Rogers (Eds.), Les fondements philosophique de la tolérance [The philosophical foundations of tolerance] vol.1, 175 at 202 (2002). 5 For the U.S., see Ph. Hamburger, Separation of Church and State 481 (2002). 6 Cf. N. Luhmann, Beobachtungen der Moderne [Observations on Modernity] 100 (1990). 7 Cf. N. Luhmann, Grundrechte als Institution: Ein Beitrag zur politischen Soziologie [Fundamental rights as an institution: A contribution to political sociology] 79 (1975).

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2  Religious Fundamentalism as a Challenge to the Constitutional State In this respect Islam demonstrates with particular distinctiveness a structural problem concerning all types of religion. But it can be observed that the Christian confessions also increasingly tend to exert influence on the political process. By contrast, it is the purpose of fundamental rights to secure an independent sphere of action for each societal subsystem. Therefore the guarantee of freedom of religion can only extend as far as religious worship does not encroach upon the activities of other social spheres. Hence the promotion of rules of Islamic shari’a or Jewish halakhah as religiously determined legal orders or a religiously ­motivated refusal of certain scientific theories reaching beyond the private realm (e.g. at school) is not backed by the German Basic Law. Neutrality of the state, in this perspective, does not indicate exempting religion from the challenges of the modern world. On the contrary, it expects religious communities to come to terms with them. Neutrality, then, is one embodiment of the instability of the differentiation of societal subsystems, and must be continually reproduced as a process of neutralization. It, therefore, calls upon the state as the political system to set up variable demarcations vis-à-vis other social systems, including religion. 2.2 Modernity – Religious Freedom – Islam Religious freedom as an individual right has emerged in Western societies in a long historical process over centuries.8 The Roman Catholic Church has recognized this fundamental individual liberty only late in this process; indeed the Catholic Church accepted its legitimacy only in the Second Vatican Council.9 At present the collective dimension of positive freedom of religion in the judgments of the German Federal Constitutional Court has been increasingly supplanted by the centrality of the individual’s negative freedom of religion. As a consequence the object of this liberty appears to be completely restricted to the internal forum (forum internum) of the individual and her self-understanding or even her feeling to possess a certain identity.10 Religious freedom is thus almost completely deprived of its public dimension,11 whereas the institutions of a trans-subjective

 8 Cf. O. Lepsius, Die Religionsfreiheit als Minderheitenrecht in Deutschland, Frankreich und den USA [Freedom of religion as a minority right in Germany, France and the US] 321 (2006).   9 E.-W. Böckenförde, Kirche und christlicher Glaube in den Herausforderungen der Zeit: Beiträge zur ­politisch-theologischen Verfassungsgeschichte 1957-2002 [Contemporary challenges for Church and Christian faith: Contributions to a political-theological constitutional history 1957-2002] 195 (2004); cf. for the development of the Catholic theory of the state R. Uertz, Vom Gottesrecht zum Menschenrecht. Das Katholische Staatsdenken in Deutschland von der französischen Revolution zum II. Vatikanischen Konzil [From God’s law to human rights, Catholic political thought in Germany from the French Revolution to the Second Vatican Council] (2005). 10 Cf. decisions of the German Federal Constitutional Court (BVerfGE) 93, 1 (crucifix); also BVerfGE 108, 282 (Islamic headscarf) where, paradoxically, the focus is on the individual freedom of the candidate whereas the collective aspect of the school as a public institution is neglected. 11 G. Zimra, Politiques de Dieu [The politics of God], 3 Topique - Revue Freudienne 57 (2006).

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Karl-Heinz Ladeur understanding of religiosity, the church, or reference to a transcendental Other beyond the fragmentation of visible reality is transformed into an expression of the individual’s private options.12 A postmodern understanding of the diversity and plurality of religions seems to be the obvious ideological background for such a conception of religious freedom. At the same time a tolerant judgment – which at second sight turns out to be rather a superficial one – on those religious denominations would focus on the assumption that they have “not yet” accepted this process of individualization.13 Islam in particular still seems to epitomize its collective role in public and its link to a specific historical community of believers, the Muslim Umma, whereby the individual’s freedom of conscience and of religion as the object of individual options is downplayed.14 When talking about Islam one must make distinctions (not only because of the evident limitations of my expertise in the field of theology). Obviously a religion with a long tradition allows for different interpretations both in the course of history and within a given phase of its development.15 Still, one can venture the more general hypothesis that most of the versions of at least contemporary Islam give priority to the constraints of belonging to a community of believers over individual freedom of interpretation of the common belief.16 The question whether Islam is in essence or was in the past in fact tolerant turns out to be ahistorical, if one considers the process of self-transformation of this religion (and others). This problem comes to the fore once the question of a conversion from Islam to a different religion is at issue. This individual option is still not accepted by Islam, because according to shared belief every human being is said to be born as a potential believer, and the only difference is between those who are on the right path to Allah – supported by the Muslim community – and others who were not given the right instruction by their parents or the society they live in. However, the conversion from the right belief once it has been given to an individual is regarded as unacceptable in most Muslim societies and is sanctioned more or less severely both in legal forms and by social exclusion. Of course, the freedom to choose a religion or a denomination has evolved in Christian societies only gradually. In the process of the evolution of the modern post-Westphalian state, religious plurality was first accepted for the European monarchs: cuius regio, eius religio (whose realm, his religion), though as a consequence moving to a different regio for religious reasons was 12 M. Gauchet, Un monde désenchanté? [A disenchanted world?] 169, 183 (2004). 13 Cf. for the evolution from the specific law on the relationship of state and churches toward a “constitutional law of religions” (Religionsverfassungsrecht) that is formulated in an individualistic perspective Ch. Walter, Religionsverfassungsrecht: In vergleichender und internationaler Perspektive [Constitutional law of religions: Comparative and international perspectives] (2006); H. M. Heinig & Ch. Walter (Eds.), Staatskirchenrecht oder Religionsverfassungsrecht? Ein begriffspolitischer Grundsatzstreit [Church-state law or religious constitutional law? A political-conceptual dispute on fundamental principles] (2007). 14 Cf. L. Wick, Islam und Verfassungsstaat: Theologische Versöhnung mit der politischen Moderne? [Islam and constitutionalism: A theological reconciliation with political modernity?] (2009). 15 J. R. Bowen, Can Islam Be French? Pluralism and Pragmatism in the Secularist State (2009); O. Roy, Secularism Confronts Islam (2009). 16 M. Chérif, Islam and the West: A Conversation with Jacques Derrida 42, at 83 (2008).

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2  Religious Fundamentalism as a Challenge to the Constitutional State an expression of religious choice. However, one should not jump to the conclusion that the evolution of tolerance is a necessary outcome of the historical process of the selftranscendence of a religion. Globalization may lead to a world society, but at the same time it allows for such a variety of conflicting paths of evolution that imagining a homogeneous, linear development becomes impossible. With respect to Islam the contradictions are reinforced because the “arrow of time” in the history of Western societies seems to take the opposite direction. Even if one should not be too benevolent in assumptions about the tolerance of Islam vis-à-vis other “possessors of the scripture” living as a minority in Islamic countries in the past, in present Islamic societies intolerance toward minorities is rapidly increasing not only towards Jews but also towards Christians and Christian symbols, and the number of adherents of other religions in Muslim society is decreasing dramatically by emigration.17 2.3 Christianity and Islam as Culture In an Islamophile perspective – which by the way has spread much further in Western countries, at least in the media, than the oft-criticized Islamophobia – one might reply that tolerance in Western societies had to be won against the opposition of the Church, and as a consequence cannot be attributed to Christianity. However, this would be a superficial observation. It would leave aside the fact that, in contrast to Islam (and in this respect similarly to Judaism), Christianity from the outset has allowed for much more heterogeneity. This is why one can assume that the path toward tolerance was not inscribed into the essence of Christianity as such, but that it has – even if unwillingly – paved the way to more internal differentiation and in the end, tolerance. Christianity cannot be separated from its trans-religious contributions to cultural processes of innovation that migrated into society at large, even if this movement of variation conflicted with the self-­understanding of the institutionalized Church. The heterogeneity of Christianity contains, in a sense, a moment of self-transcendence which emanates into society. It is symbolized by the plurality of its foundational processes which have roots not only in Jerusalem but also in Rome and in Athens. It is no accident that the Church was institutionalized as a moral person of Roman law that stood from its inception in a potential or real contrast to the state as a legal person in itself,18 whereas Islam was much less formal in the constitution of the community of believers – a constellation much more open to the extension of worldly power to the Umma. 17 The critique of the result of the Swiss referendum on the “prohibition of minarets” looks one-sided, if one takes into consideration that Christian communities were glad if they only had to deal with a “prohibition of church towers.” 18 Cf. K.-H. Ladeur & I. Augsberg, “The Letter Kills, But the Spirit Gives Life”? On the Relevance of Jewish Concepts of Law for Postmodern Legal Theory, 26 J. L. & Relig. 427 (2010-2011).

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Karl-Heinz Ladeur Still, the constitution of the community of Christian believers as “church” allowed for much more unity than, say, in Judaism which refers the reproduction of belief to the observance of the “law” by individuals. This may be due to the fact that Jewry could only for a very short period in history rely on secular power as a potential religious resource.19 However, the unity of the Church as a legal person is to be distinguished from the much more comprehensive unity of the community of Muslim believers, whose constitution allowed for the possibility of the rise and coexistence of competing forms of order. This specific version of legal unity included from its inception the possibility of a conflict between secular and religious powers, and even their separation. Similarly, the complex relationship between Roman law and Roman religion included a distinction of Roman law from the binding forces of religion. This distinction paved the way for the evolution of abstract Roman civil law that developed the concept of the legal person exempt from the obligation to stick to the ritualized formal rules of Roman (and any other traditional) law which required a religious binding as a legal component, as in the conclusion of contracts. Roman law allowed for contracting among persons adhering to different religious denominations. A similar development is apparent in Athens: Christianity was receptive to the non-Christian philosophical achievements of Greece – in particular as a consequence of the ideas of Aquinas – and its reflections on the position of man in the world. This openness contains a possibility for the evolution of a new philosophy that can emancipate itself from its role as the maidservant of theology (ancilla theologicae). The attenuation of the prohibition against images important for both Islam and the Jewish conception of religion has also contributed to a tension between art and religion in Christianity. Art as a forum of reflection of the transformation of the cultural environment, as seen in the development of a centralized focus in paintings (artist as observer), shows Christianity’s receptiveness to deep transformations in architecture and technology and their repercussions in the evolution of an individualistic culture. The assumptions that have been laid out here allow for a further step toward a reflection on religion as culture in general, and of Christian culture in particular (and Judaism as well, to a point). First of all, the thesis can be ventured that, just as there is no progress in philosophy (no essential question raised in the past can be discarded as being solved)20 nothing in culture is ever truly lost. Certain achievements of religion may be forgotten or set aside but nonetheless remain active in the collective unconscious. This assumption epitomizes the role of religion in the maintenance of a symbolic order that mediates the Other and inserts the individual into a cultural order and its basic forms.21 19 For the Jewish concept of law see J. Faur, The Naked Crowd: The Jewish Alternative to Cunning Humanity 107 et seq. (2009). 20 B. Groys, Einführung in die Antiphilosophie [Introduction to antiphilosophy] (2009). 21 M. Safouan, La parole ou la mort, Comment une société humaine est-elle possible? [Speech or death. How is a humane society possible?] 60 (1999).

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2  Religious Fundamentalism as a Challenge to the Constitutional State This is the achievement of an autonomous culture, which in the postmodern discussion is reduced to the love of father and mother (indistinguishable in function) for the child,22 and to a state seen as the provider of education. Within this framework the young individual appropriates knowledge under conditions of self-determination according to his or her own needs, with the support of a peer group of the same age and adult advisors such as the teacher. The otherness of culture, of religion, the transcendence of a collective order larger than the mere inter-subjectivity of communication, is discarded from this purely interpersonal order. Religion in cultural history has had an important role in the formation of the infrastructure of individuality, a trans-subjective cultural memory that draws the limits of the rationalization of cultural processes with reference to rituals and taboo. Against this background the reproduction of culture within families, and divergent roles for father and mother are rendered possible.23 Psychoanalysis is a form of the inscription of the individual in the collective order by Kulturarbeit (literally: culture work). In this process the transcendence from the unorganized id that is dominated by its anonymous drives leads to the emergence of the ego. The tension between the emotional unit of the relationship toward the mother and the father, the preliminary homogeneity of the child’s world as the Third, is the representative of the Other of the symbolic order.24 This symbolic order does not have a stable character; it is rather determined by changing processes of restructuring within the plurality of nonpersonal cultural forces necessary for the development of individual personality and the possibility of a recognition of the world.25 Freud diagnosed the origin of the paradoxes of the trans-subjective generation of personality from non-personal forces and the ensuing Unbehagen in der Kultur (Civilization and its Discontents)26 in the weakness of the symbolic order itself. As a consequence, the concomitant idealization of the protective function of childhood as a societal institution creates the risk of its projection onto ideal communities (Volk or nation, Rasse or race). Examples for this development are to be seen in Communism and Nazism, the latter claiming to be able to enshrine a troublesome, rootless society within the certainty and unity of a body.27

22 M. Schneider, Big Mother: Psychopathologie de la vie politique [Big mother: The psychopathology of political life] (2002). 23 C. Lefort, The Permanence of the Theologico-Political, in H. De Vries & L. E. Sullivan (Eds.), Political Theologies: Public Religions in a Post-secular World 148, at 162 (2006). 24 N. Zaltzman, L’esprit du mal [The spirit of evil] 52, 59 (2007). 25 M. Safouan, Pourquoi le monde arabe n’est pas libre: Politique de l’écriture et terrorisme religieux [Why the Arab world is not free: The politics of writing and religious terrorism] 63 (2008). 26 S. Freud, Gesammelte Werke [Collected works] XIV, 419 (1999). 27 Lefort, supra note 23, at 166.

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Karl-Heinz Ladeur 2.4 Religion, the Differentiation of the “Individual of Society” and Islam With Marcel Gauchet, one might characterize the socialization of the individual as a process not only of learning to coexist with others, but also to observe oneself as a person among others and conversely to observe oneself as somebody in the eyes of others.28 The emergence of a cognitive, symbolically mediated self-relationship is the precondition for a sense of the public quality of culture (as opposed to the private nature of the family), for the recognition of the objectivity of reality (as opposed to the child’s fantasies of unlimited power), for the universality, constraints, and possibilities of socialization beyond the selfreferential unity of the family order. Religion has a structuring role in the formation of the “individual of society” in its reference to the Other that lies beyond inter-subjectivity. It takes the position of the Other against the illusion of a reality that seems to find self-sufficiency in the anonymous combinatory of a vast array of factual relationships.29 Western Christian civilization has previously been characterized by the fact that, from its early beginnings, the religious domain has been a multipolar one, giving the individual cultural and aesthetic forms beyond religion for its reflection on and struggle with the transformation of society and its concomitant uncertainty.30 This assumption is not to be reduced to an educational function of religion in a purely instrumental vein, which would eliminate its religious character. This is an enduring heritage that must be preserved together with the philosophical, cultural and scientific achievements inscribed into the cultural memory of society, determining the forms of individuality in the West. (As a consequence, certain privileges for the constitutional position of the Christian churches are to be accepted, as might stem from a superficial reading of religious freedom for schools.) At the same time this evolution of the forms of individuality may explain why it was possible in the United States and in Europe, until the end of the 19th century, to partially replace the mediation of the symbolic order by the Church and its relevance for the evolution of individuality, without a major catastrophe, without the disintegration of culture and collective order as such.31 (Still, one must accept that the increasing heterogeneity of cultural memory has caused major problems for the reproduction of the collective order.32) Until the 19th century several waves of a transformation of the relationship of

28 M. Gauchet, La démocratie contre elle-même [Democracy against itself] 245 (2002). 29 Lefort, supra note 23, at 162. 30 F. Benslama, La psychanalyse à l’épreuve de l’Islam [The psychoanalytic test of Islam] 90 (2004). 31 J.-M. Hirt, Le miroir du prophète [The mirror of the prophet] 18 (1993). 32 V. Hervouët & J. Nadal, L’enjeu symbolique: Islam, christianisme, modernité [The symbolic issue: Islam, Christianity, modernity] 266 (2004).

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2  Religious Fundamentalism as a Challenge to the Constitutional State religion and philosophy and art – but also of work and technology – preserved a common social reality, as well as a language to describe the openness of its changes.33 The miracle of Western societies consists in the fact that the relationship of religion to philosophy, art, law, and science has allowed for a dynamic of self-transformation within the internal and external obligations imposed by religion.34 The Western subject is fragmented in manifold ways, which may be why it has not only accepted the fact of modernity but has actively taken up the challenge of innovation in an experimental relationship toward the world.35 Culture demands an ever-more intense binding relationship to the self-transformation involved in the constraints and the potential acceptance of the world, while simultaneously weakening the binding force of religious tradition,36 all without necessarily undermining the integrity of the individual. It is important to acknowledge that the complexity and heterogeneity of the Western cultural system has altered the constitution of the subject by symbolic law even when cultural heterogeneity has changed, if only at the expense of the dominance of the integrative function of religion.37 None of this is obvious. To the contrary, it is the unlikely combination of heterogeneous forces, a kind of restructuring of forces between Rome, Athens and Jerusalem that allows for this constellation and retention of cultural order, and simultaneously the process of sense-making beyond the bounds of religion.38 This could be all the more important if we enter into a comparison with Islam, and exercise that we can do here only superficially. First of all, we must return to the issue of tolerance and its development against Christianity.39 As already mentioned, in a superficial view this assumption seems to be true, but it should have become clear why this perspective remains superficial: it ignores the construction of a trans-subjective cultural order in the forms of subjectivity itself, and at the same time it also overlooks that Christian religion and its cultural embeddedness is – in a paradoxical way – a precondition of the self-transformation of the “individual of society” if it has not proclaimed a monopoly against philosophy and art. Against this background some peculiarities of Islam as the third religion of scripture can be observed. An important characteristic of Islam was and still is its intention to reconstruct the purity of the text and the relationship of the believers to it. This is also why Islam until the present day does not accept a historical-critical approach to the holy texts.40

33 Id., at 266. 34 Gauchet, supra note 12, at 169, 171 et seq. 35 R. Friedel, A Culture of Improvement: Technology and the Western Millennium (2007). 36 Benslama, supra note 30, at 96. 37 Id., at 96. 38 Id., at 83. 39 Cf. the overview in Y. Ch. Zarka & C. Fleury, Difficile tolérance [Difficult tolerance] (2004); Ladeur & ­Augsberg, supra note 1. 40 Cf. M. Döbert, Posthermeneutische Theologie: Plädoyer für ein neues Paradigma [Posthermeneutic theology: A plea for a new paradigm] (2007).

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Karl-Heinz Ladeur Scripture and the gaze thereupon obtain a priority41 over the search for the subjectivity of the appropriation of sense. Through the text the eye of the believer can see what is normally beyond the human gaze. The subjective understanding rendered difficult by a text written in classical Arabic of the time of Mohammed takes a back seat to the tradition and the prohibitions that constitute the unity of the Umma.42 In this perspective Islam (unlike Christianity) is still characterized by a conception of the community of believers, God’s followers, and the fundamental tension between politics, philosophy, and the state.43 The relationship between man and woman in an Islamic society is determined by the importance of the gaze, structured as a specular relationship that constitutes the distinction of the visible and the invisible: the woman is the mirror over which the husband bends in order to receive from her eyes the reflection of the sublime that she mediates to him. This is the culturally refined version of the reduction of women to an object that is in the lower classes stripped of its religious and cultural sublimity. Behind this lies the myth of Narcissus, fixated on his own reflected gaze, incapable of breaking the void of self-reference.44 The constraint to hide the female body gets a theological meaning here that is missed by the reduction of the scarf to a religious symbol, though the scarf may still acquire a meaning in postmodern society that leaves the traditional religious significance aside. Islam can only accept the religious freedom of the individual with difficulties because it is founded on the concept of law even more firmly than Judaism.45 It understands itself as the symbolic order that constitutes the essence of both man and humanity as such. This close relationship between symbolic order and the law in Islam, and its inscription into subjectivity is also why the loss of faith in Islam can have a much more disturbing and disintegrating effect than in either Judaism or Christianity, which seem to allow for the split of religion and culture more openly, mitigating any disturbing loss of faith for the individual. Here education, art, philosophy or technical competence can take over a constitutive role for the unity of the self. By contrast, Islam gives a much stronger sense of identity and certainty to its subjects via the integration of individuals into the community than is the case in the other

41 This applies also to liberal versions of Islam, cf. N. Kermani, Gott ist schön: Das ästhetische Erleben des Koran [God is beautiful: The aesthetic experience of the Koran] (2007). 42 Hirt, supra note 31, at 93. 43 Id., at 251 et seq. 44 Id., at 62, 168. 45 Id., at 20; cf. for the limits of the development of religious law Ch. G. Marzen, The Role of Custom in Canon, Jewish and Islamic Law. Supplemented, Superseded or Supplanted by Written Law?, 25 Ohio North University L. Rev. 813 (2009).

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2  Religious Fundamentalism as a Challenge to the Constitutional State monotheistic religions. In other religions, the loss of community is much less likely to be accompanied by a traumatic crisis of identity.46 The symbolic order of Islam is, as we have seen, linked to the inscription of the law and tradition into the human body more bindingly, and the body’s insertion into the community of the believers and their scripture.47 (Western societies have been able to make cultural transformations mediated by institutions.)48 Against this background I would like to introduce two Western forms of fundamentalism: Communism and Nazism. These movements can be so characterized because they are phenomena of what Sigmund Freud has called the Unbehagen in der Kultur,49 a consequence of societal differentiation, of the restraint of aggression and violence through institutions, of the precariousness of the identity of the individual within the constraints of the societal order that cannot plausibly promise a unity of the law and the individual’s self-understanding. The mass movements of the 20th century have tended to destroy the complex infrastructure of the individual – the trans-subjective architecture of the symbolic order and the impersonal constitution of personality – and replace it by an uninhibited satisfaction of drives via a move beyond the heterogeneity of the instances of the ego and collective institutions.50 Pure violent action is unleashed, orchestrated by a Führer that destroys “alien” institutions,51 whereas civil culture – as mentioned earlier – presupposed an abstractness of the “individual of society” that controls its affects and works on the sublimation by Kulturarbeit. For Carl Schmitt52 the transcending of differences, the separations and institutionalizations that constitute civil society, is attributed to the beginning of a new order, a decision that separates friend and enemy, the precondition of all further decisions. That this conception is also incompatible with the symbolic constitution of the individual, his relationship with the order mediating the Third, the Other of culture is obvious. The new beginning puts an end to the self and other reflections of a complex culture of individuality. These short and unavoidably superficial remarks on the relationship of religion and the symbolic order of society shall now be tested on the example of Islam and fundamentalism. 46 Hervouët, supra note 32, at 109; B. Lewis, What Went Wrong? The Clash Between Modernity and Islam in the Middle East 108 (2002). 47 Benslama, supra note 30, at 93 et seq.; generally Wick, supra note 14. 48 Lefort, supra note 23, at 162. 49 Freud, supra note 26, at 419. 50 Cf. for the rigid linguistic link between thinking and speech in totalitarian regimes, Ch. Rousseau, Sur l’ambiguïté des mots [On the ambiguity of words], 96 Topique - Revue Freudienne 135 (2006). 51 Zaltzman, supra note 24, at 23. 52 J. Seitzer, Carl Schmitt’s Internal Critique of Liberal Constitutionalism: “Verfassungslehre” as a Response to the Weimar State Crisis, in D. Dyzenhaus (Ed.), Law as Politics: Carl Schmitt’s Critique of Liberalism 281 (1998).

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Karl-Heinz Ladeur 2.5 The Transformation of the “Individual of Society” in the Post-Modern Era The worldwide phenomenon of the return of religion, particularly in Western countries, shows that both religion and the public realm into which it returns have undergone considerable change. The post-modern state, which might be described as a state that has lost the capacity to promote stable ideal-egos and to function as a public institutionalization of a super-ego,53 tends to boil down its basic structure to a reduced version of the protection of individual rights. A multitude of ego-ideals are offered for autonomous interiorization. This finds repercussions in the transformation of civil rights: they are no longer related to and embedded in stable legal or social institutions which create networks of inter-relationships in society (markets, mass communication, religion, art, etc.), but are regarded as protecting individual identities which can be readily generated in a multiplicity of versions, and freely chosen by persons following their preferences.54 These seemingly autonomous choices are manipulated by special bureaucracies and are, at the same time, failures of autonomous choice procedures, which are cured by the therapeutic state. Meaning is no longer derived from religion or identification with a traditional nationstate. As a consequence, religious freedom as a public, mainly collective, institution has been transformed into a fragment of a diffuse right to identity, blurring the distinction between the public and private domains. The public dimension of civil rights shrinks and re-emerges as a diffuse right to recognition of the freely chosen identity by public authorities and, finally, by every individual. Recognition is an extremely open formula whose volatility is obvious given the fact that the classical liberal harm principle (which was referred to when it came to the determination of the limits of the exercise of freedom) has lost its relevance in decision-making processes both in public procedures and in private firms. This principle has an element of social epistemology to it, once used as a frame of reference for the definition of social and normative rules. Harm refers to a social knowledge basis which is implicit to a multiplicity of fields of practice, from which experience, as a product of a distributed culture of improvement, emerges – as opposed to a statecentered Policeywissenschaft (in Germany) which presupposed the centrality of the state and its privileged position as an observer of society. This general cognitive framework is also based upon a kind of meta-decision on what one can expect from others in general, and the more personal feelings which belong to the private sphere. As Marcel Gauchet has convincingly argued, religious fundamentalism is a new phenomenon which challenges postmodern societies in particular, which have done 53 E. Enriquez & C. Haroche, La face obscure des démocraties modernes [The obscure face of modern democracies] 21 (2002). 54 K. J. Gergen, The Saturated Self: Dilemmas of Identity in Contemporary Life 146 (1991).

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2  Religious Fundamentalism as a Challenge to the Constitutional State everything to demonstrate that religion is not necessary to them.55 Religious fundamentalism is closely linked to its antidote, a weak, narcissistic personality, in a paradoxical symmetric way. Fundamentalism asserts an understanding of religion as a personal preference of the individual. The heteronomy of religion has been transformed into the autonomy of individual identity. The postmodern version of religious fundamentalism is focused upon a personal expressive interiority of feelings, not of religious behavior, attitudes or an attachment to a collective religious order. This evolution has brought state schools, in particular, into troubled waters. One needs only to refer to the crucifix case in Bavaria and Italy, the headscarf issue, sex education, school prayers, home schooling, and the rest. It is much more difficult to strike a balance between conflicting collective understandings of religion and public therapeutic engagements with a view to the harmonization of conflicting personal identities. Against this background, it should be much more important for postmodern secularized societies to reflect more on the fate of their institutions and to try to find a way of re-establishing a stable, binding element of the law56 – not in the sense of a limit imposed on the imaginary autonomy of the individual, but of its constitutive character as a symbolic element of the Other.57 The recognition of this perplexing alien Other allows for the understanding of rules as a grid for action and prepares the ground for the basic structure of a “communal setting among and between selves, rather than what is experienced within the self.”58 Institutions are sets of anonymous rules that blur the boundaries between normative and cognitive rationalities. Accepting the limits of autonomy and of transparency on the one hand, and the illusionary sovereignty of the nation-state and its claim to guarantee identity on the other, opens up a trans-subjective structure that limits narcissism and destructive fantasies, and makes possible the emergence of trust in society beyond inter-subjective relationships. 2.6 Religious Fundamentalism as a Symptom of Unbehagen in der Kultur Whereas Judeo-Christian culture is characterized by its complex architecture of cultural reflections and the binding (or management) of uncertainty, the opening for the observation of the constraints of social order and the differentiation of institutions for the response to the experience of self-transcendence of society in the process of variation and

55 Gauchet, supra note 12, at 147. 56 M. Revault d’Allonnes, Le pouvoir des commencements: Essai sur l’autorité [The power of beginnings: An essay on power] 250 (2006). 57 S. Weber, Benjamin’s Abilities 54 (2008). 58 A. Seligman, Modernity’s Wager: Authority, the Self, and Transcendence 93 (2003).

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Karl-Heinz Ladeur innovation, it is religious culture itself that has liberated religion from the burden of being the all-encompassing beginning and basis of the social order. It has thus allowed for the emergence of democracy, the order that leaves the place of sovereignty empty.59 Modern and postmodern versions of totalitarianism oppose this openness, instead promising a new purity and consistency, a new beginning before all beginnings, a break with the culture of improvement. In contrast, the Islamic state has always only been able to establish an unstable relationship between politics, law and religion that failed to ensure a separation between secular and religious power, and as a consequence blocked both the modernization of religious scholarship and the evolution of secular political institutions. This reflection can also contribute to the understanding of new versions of fundamentalism that promise the renewal of religion by a great awakening and as such are to be distinguished from a reformation, because they do away with all relativizing and institutional logic. On the one hand, this is a reaction to the crisis of the reproduction of the symbolic order in postmodern mass society, evident in new hedonistic ideologies and promising pleasure through liberation from all constraints of tradition and sociality. This structure is also reproduced in the compensations of deficits of individuality that are expected from welfare-state assistance, whereas trans-subjective aspects of subjectivity are more or less neglected. Also, Christian fundamentalists regard this a symptom of decadence,60 calling for a pure religion that must be liberated from the shortcomings of institutions and be set up against a society that is apparently functioning beyond the achievements of religion. Fundamentalism is not a reproduction of the traditional role of religion and its contribution to the formation of identity of the individual in society. On the contrary, it is fixated antithetically upon the disintegration of postmodern culture and is as such an epiphenomenon of post-modernity itself. We should note that fundamentalism finds its expression in criticism of traditional forms of religion and its institutions. Against both the secularized state and traditional forms of believing, it paradoxically invokes a non-institutional individualistic expressive concept of belief 61 that claims to call into question complex arrangements between religious belief and scientific knowledge (“creationism”). Christian fundamentalism breaks with the notion of ‘religion as and in culture’ and replaces traditional religiosity by the expressive emotional identification of the individual with his or her religion, whereas the recognition of the complex heterogeneous trans-subjective cultural order, of which Christian religion has been a component,

59 Lefort, supra note 23, at 148, 162; cf. for the openness of democracy that “follows the ‘impossibility’ of incarnating the essence of democracy and of representing its figure, alongside the necessity of ‘democratically’ keeping open this impossibility;” J.-L. Nancy, Truth of Democracy 39 (2010); cf. also its close relationship to the deconstruction of Christian faith as “the adhesion to itself of an aim without other”; J.-L. Nancy, DisEnclosure: The Deconstruction of Christianity [Transl. B. Bergo et al.] 152 (2008). 60 Gauchet, supra note 12. 61 Id., at 175.

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2  Religious Fundamentalism as a Challenge to the Constitutional State is rejected. Against the order of culture an acultural, unmediated identification of the individual with his or her own emotions and projections is invoked; at the same time the Eigen-rationality (specific rationality) of the state, of culture and their characteristic tensions with religion are denied. It may seem paradoxical that the fundamentalist believer, in his or her antithetical fixation on postmodern culture, can at the same time draw on those forms that the state – which interprets its function as being neutral with respect to religion – attributes to religion in post-modernity. The role of a private internalized feeling is enabled, a chosen denomination of the individual that claims the recognition of his or her own feelings with reference to the negative freedom of religion, whereas the contribution of religion to the reproduction of culture and societal institutions and the concomitant duties of cooperation as well as its contribution to the reproduction of the symbolic order and the infrastructure of subjectivity are denied. Without going into more detail I hope to be able to characterize Islamic fundamentalism, in Western societies in particular. Reflections on Christian fundamentalism should at least have paved the way to a similar analysis of its Islamic counterpart. Here I have again to indicate some doubt about the simplified conception of tolerance that regards the emergence of Islam fundamentalism primarily as a consequence of a global victimization of Islam in postmodern Western societies that should first of all be met by recognition, and by both political and social assistance. (Interestingly this therapeutic approach that is by itself a postmodern phenomenon of disinterest for religion, and at the same time of a reduction of society and collective order to inter-individual mutual “understanding” of one’s identity claims and of providing help, is not directed at Christian fundamentalism.) Against this simplistic attitude it has to be stressed – on the basis of the ideas developed here – that fundamentalist Islam (in this respect similar to the Christian version, if only much more aggressive) fights first of all against its own religious heritage and claims a purified understanding of scripture that seeks to reestablish the integrity of the unmediated text of the Qur’an as law, whereas the political forms of Arabic countries in particular are described as corrupt by Western influence. It must be repeated that this is a postmodern phenomenon and not an archaic residual phenomenon of a traditional society that conflicts with a postmodern one. This is all the more evidenced by the fact that even better educated young men (in particular) are the followers of fundamentalism. This is an indication of the superficial relationship of Islam and modern science and rationality: Islam opens itself to the knowledge that is supposed to be valuable and useful for Muslims in the whole world and has opted for an instrumental loose coupling of religion and the Eigen-rationality of science and technology, rather than for a reciprocal permeability and a reflexive relationship. In my view, this is why in a crisis of this instrumental relationship the breach with modern science and rationality is easily executed. 33

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Karl-Heinz Ladeur In Western culture scientific and technological rationality are embedded much deeper in social institutions and are inscribed in the infrastructure of individuality and its relationship to the world. Destructive energies liberated by the fundamentalist eruption are directed first of all against the established forms of Islam that are compromised by Western modernity, and their unsuccessful adaptation to modern institutions, including the form of the modern state. It cannot give orientation and satisfaction to the poor masses, at least not enough to meet the need for clarity and purity widespread among Muslims. This provokes a feeling of frustration and delusion toward the postmodern world. The challenges for Muslims in Western countries are exacerbated62 because the postmodern knowledge society and its demand for dynamism as a precondition of success require a much higher level of identification with its rationality than previously. The cult of performance, of efficiency, and the self-management of the individual in the networks of postmodern society tend to sever a pragmatic-instrumental relationship of religion and technological rationality that may have seemed acceptable for Islam, as well, in the past63 and to call the individual identity based on it into question. Because of the instrumental relationship of political Islam toward the (post-)modern knowledge society, it has not been able to develop a sufficient level of cultural and institutional differentiation that would have allowed for a reflection on the intriguing processes of fragmentation in a globalizing world. Finally one should not forget how deep the feeling of uncertainty and eradication has also been in Western societies. This challenge has created repercussions in the weakening of the family structure, which in Western societies has putatively been compensated by more public programs. The rise of fundamentalism is a symptom of a deep disturbance in the processes essential for the reproduction of the symbolic order and the identity of individuals. It is an expression of the rift between religion and culture, against which an illusionary violent claim for a restitution of a lost unity (that never existed) is invoked, and leads to an extinction of those Muslims who are suspected to oppose or not to support the fight for purity.64 The same applies to the defense of the sexual purity of sisters by cynical Pakistani young men in Britain: more often than not they keep them as a kind of status symbols and at the same time participate in group rapes of those young women who do not succumb to the regime of the brothers. Fundamentalism, both in its Christian and its

62 Benslama, supra note 30, at 83; M. Benkheira, L’amour de la loi: Essais sur la normativité en Islam [Love of the law: Essays on normativity in Islam] 13 et seq. (1997); Hervouët, supra note 32, at 109. 63 Benslama, id., at 96; Lefort, supra note 23, at 162. 64 This classification of the symptoms of fundamentalism as being postmodern includes the seemingly traditional honor killing, which is not an attempt to defend tradition against a hedonistic individualistic culture, but only a paradoxical symptom of its decay.

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2  Religious Fundamentalism as a Challenge to the Constitutional State (more dangerous) Islamic forms, is a repercussion of the crisis of the cultural reproduction of postmodern societies, to which the latter react more aggressively because of the less stable cultural forms of identity formation in the Islamic world.65 In the West, it is also a consequence of the fact that the mosques are even less able to attract young Muslims to the nostalgic version of Islam that is practiced there. The crisis of the postmodern culture is also mirrored by reactions of Western institutions to the confrontation with the phenomena of Islamic fundamentalism, and the headscarf in particular. The rules that have been formulated in Western countries such as Germany for the access of Muslim women to teaching positions in public schools are based on a superficial analysis of the phenomenon of the rise of Islamic symbols in the public realm of Western societies.66 This tendency finds its expression in the fact that the judgment – treating all religions alike – is solely based on the question how apparent the expression of a supposedly individual sentiment can be without hurting the feelings of other individuals whose freedom seems to be challenged. Once religiosity is reduced to an expressive, individual presentation of feelings stripped of any collective relevance, and thus seen only as a potential infringement of the feelings of others – by the mere fact of being confronted with otherness – the challenge of religion as the transcendent Other can be ignored.67 One should rather ask what the use of the Muslim headscarf by a woman means for the cultural socialization process of children and youth at school who (irrespective of being immigrants or not) more often than not do not know much about their own cultural environment. For young persons the often-touted confrontation with diversity is nothing but an increase in ignorance, which is a widespread outcome of the cultural disintegration and fragmentation processes in a postmodern society.68 65 Against this background the public praise of sons who lost their lives as victims of Israel by their mothers – while the fathers keep silent – becomes understandable: it is a symptom of a postmodern decay of masculinity, it is an expression of the “passion de l’identité” (A. Camus), which is due to a religious fanaticism based on the longing for a fusion of the son with his mother, which is only possible in the moment of death, cf., foreword of the editors of Argument: pourquoi le fanatisme? [Debate: Why fanaticism?] 8 penser/rêver 5, at 10 (2005); N. Zaltzman, Glossaire du fanatisme [Glossary of fanaticism], 8 penser/rêver 212, at 214 (2005). 66 For the decision on the headscarf of the German Federal Constitutional Court see BVerfGE 108, 282. 67 In a modern society there is no “original signifier” which defines the foundations of society; the heterogeneous, the unknown (and unknowable), and the “meticulous” have to be accepted, the sacred is a placeholder of this missing “original signifier”; cf. G. Zimra, De l’illumination aux Lumières [Shading light on the Enlightenment], in M. Balmary et al (Eds.), Le sacré, cet obscur objet du désir? [The sacred, that strange object of desire?] 41 at 74 (2009). 68 The uncertainty of Western society and its public institutions in finding an adequate response to the challenge of Islam also comes to the fore when Muslim pupils of public schools demand an opportunity for public prayer in the school building. Administrators and judges tend to reduce this issue to a question of “expertise” in the analysis of the requirements of religious faith. Cf. K.-H. Ladeur, Das islamische Gebet in der öffentlichen Schule und das Gebot staatlicher “Neutralität” [Islamic prayer in public schools and the requirement of state “neutrality”], 4 Recht und Bildung 15 (2010).

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Karl-Heinz Ladeur 2.7 Conclusion: Ignorance of One’s Own Culture as an Impediment to Understanding the Other A precondition to understanding the phenomena of religious fundamentalism is reflection upon the role of the religious traditions of one’s own culture and its evolution in postmodernity. This is also relevant for non-believers under conditions of secularization, because the cultural theology that has formed the conditions of the “individuality of society” cannot be neglected. Obviously this is incompatible with a superficial culture of diversity that does nothing but mirror the fragmentation processes of postmodern societies, reducing religion to the expressive immediacy of individual feelings protected solely as negative freedom.69 The self-reflection of the role of Christianity (including its Jewish Other) for Western culture may also help us understand the transformation of different religions such as Islam and the common challenge of postmodern society. The practice of superficial balancing of conflicting interests protected by negative freedom tends to reduce freedom of religion to a right not to be confronted in a disproportionate way by the feelings of others. The reference of religion to the Other of transcendence implies a contribution to the establishment of a symbolic order, the impersonal preconditions of personality, the reproduction of which has become a problem of post-modernity. This problem cannot be solved by reference to personal consultancy and therapy within a cult of immediacy. The approach outlined here does not reduce religion to culture; however, even for non-believers in Western societies, it remains the encounter with the trans-subjective Other that cannot be reduced to a matter of private feelings. Once the continuity of cultural theology is interrupted, limited access to an understanding of postmodern culture is an impediment to the analysis of other religions and their reaction (in particular fundamentalist regression) to the postmodern challenge.70 Islam and the East as a whole, have reacted to the narcissism concomitant with the rise of modernity71 primarily by accusing the West without cultural self-reflection.72 A major part of Western culture is also dominated by regressive forms of observation of the changing world. However, it is ignorance of history and a trans-subjective culture that make possible a compassionate observation of Islam’s blame of the West. This irrational emotional approach helps neither West nor East.

69 Cf. for a critique O. Roy, La sainte ignorance: Le temps de la religion sans culture [Holy ignorance: The age of religion without culture] 24, 153 (2008). 70 It is one of several paradoxes of the Islamist movement that it appears to be “modern” in its approach to the interpretation of the Qur’an: each believer is attributed the right to interpret the holy scripture even against the opinion of scholars. See N. Feldman, The Fall and Rise of the Islamic State 109 (2008); this is probably due to the fact that the Islamic state of the past had already reduced the authority of the scholars considerably. 71 Cf. The impressive demonstration of the ideological and social turbulence of the first decade of the 20th century and its challenge for the “Western” individual in Ph. Blom, The Vertigo Years: Europe 1900-1914 (2008). 72 Cf. the subtle analysis of the psychoanalyst in J. H. Ludin, Zwischen Allmacht und Hilflosigkeit: Über okzidentales und orientalisches Denken [Between omnipotence and helplessness: On Occidental and Oriental thinking], 542 Merkur 404 (1994).

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3

The Islamist Shari’atization of Polity and Society

A Source of Intercivilizational Conflict? Bassam Tibi* The modern concept of law is both secular and Western. It claims universality. Today international law is based on this concept, rendering it validity. The return of religion to the public square worldwide since the late 20th century is also a return of the tradition of lex divina, albeit in a new guise. It mirrors a competition between the universality of existing secular law and the particularisms of sacral-divine law. The result has been a war of ideas. The most prominent case here is the Islamic law tradition called shari’a. This particularism – though not shared among all Muslims themselves – claims for itself universal validity. The core question of the present study is whether world peace must necessarily be underpinned by a universality of secular law shared cross-culturally. The next question is how the return of the many particularisms of divine law might be accommodated and whether this return creates perils for world peace. As early as in 1977 the Harvard sociologist Daniel Bell contested Max Weber’s view of secularization understood in terms of Entzauberung or disenchantment. He predicted “the return of the sacred.”1 As time passes by, this prediction has been borne out by the rise of political movements based on religion. With the new century, the return of the sacred vindicates the hypothesis of a global desecularization as a most powerful phenomenon on all levels: locally, regionally, and also world-politically. This return of religion affects existing law. It is, however, not an indication of an increased religiosity as much as a return to the public square closely associated with strong political claims and a demand for a new order for polity and society determined by lex divina. This new feature seems not to be * This chapter was completed at the Center for Advanced Holocaust Studies, Washington D.C. during my tenure there as The Judith and Burton Resnick Scholar for the Study of Antisemitism. This chapter relates to my research at CAHS on Islamist antisemitism as the shari’atization agenda of Islamism includes antisemitic implications (e.g. “shari’a precludes peace / salam with the Jews”, as the Hamas-charta argues—see the reference in note 2). I am grateful to Suzanne Brown-Fleming, the director of the Visiting Scholar Program at CAHS, as well as to CAHS-director Paul Shapiro. The research assistance of Thorsten Hasche is most thankfully acknowledged. 1 D. Bell, The Return of the Sacred: The Argument About the Future of Religion, 13 Zygon 187 (1978), based on a lecture at the London School of Economics. See also D. Bell, The Winding Passage 324-354 (1980). On this debate with rich references see the new chapter 11 added to the second edition of B. Tibi, Islam between Culture and Politics 234-272 (2005).

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Bassam Tibi well understood in the West. For instance, Jürgen Habermas, in his notion of “post-secular society,” suggests that we are seeing a religious revival, a “renaissance of religion.” This view is incorrect. In this context religious faith is represented as a political religion linked to a political order in a contestation of cultural modernity. In fact the return of religion to the public square is a novelty in its present form. Despite the reference to a revival, religionized politics heralds an invention of tradition. The present chapter deals with this new phenomenon with a focus on Islamic law. The transformation of Islam to Islamism implies the use of religion in political conflicts with the allegation that shari’a forbids peace with those classified as enemies of Islam (e.g., the Islamization of anti-Semitism by Islamists2). Specifically, the chapter aims to showcase the re-invention of shari’a in a process of “shari’atization” of Islam that alienates Muslims from non-Muslims and establishes divides within Islam in conflicts that become intractable because they are religionized. 3.1 Introductory Remarks Given the topic of this volume we should ask whether Islamic shari’a is constitutional law? Indeed the politicization of Islam based on a reinvention of shari’a does not fulfil the need for an Islamic law reform. This question is most pertinent to the return of the sacred, which increasingly involves the claim that religious doctrine also provides a concept of a lex divina designed for the public space. This claim is also applied by Islamists to constitutional law. The above is the framework within which the present paper operates; it deals with the drawing of political Islam on traditional Islamic shari’a law to give it a new shape in an invention of tradition. This phenomenon is accompanied by the claim that shari’a is the source for any constitutional law designed for all Islamic states taken as a unity in the abode of Islam. Is this new Islamist interpretation a step toward democratization? Clearly there are two different understandings of democracy and rule of law at work here, facing one another in a war of ideas:3 the Western secular understanding and the new Islamist shari’a-based view of constitutional law that claims to be divine, though created by humans rather than revealed by Allah. The better alternative to this polarization is an intercivilizational bridging of the divides.

On Islamism see the articles included in the special issue of the special issue: 10 Totalitarian Movements and Political Religions 69-220 (2009). On Islamist antisemitism see B. Tibi, Public Policy and the Combination of Anti-Americanism and Antisemitism in Islamist Ideology, 12 The Current 123 (2008). 3 See the relevant chapters in E. Patterson & J. Gallagher (Eds.), Debating the War of Ideas (2009). 2

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3  The Islamist Shari’atization of Polity and Society I argue for the universality of secular constitutional law, and draw on the historical record of medieval Islamic Spain to argue for interfaith tolerance in a peace of ideas. The hypothesis is advanced that there is in fact a conflict between the Salafi-orthodox scriptural understanding of shari’a and modern constitutional law with regard to democracy and individual human rights. To be sure, this inter-civilizational conflict is not a clash of civilizations. To test the hypothesis an inquiry into the historical formation and the substance of Islamic shari’a law is provided. It is argued that our age, characterized by a “return of history,” is marked by a re-emergence of religion in the public space. This is crucial for an understanding of the self-assertive claim to a separate legal tradition for shaping the public space. In a way, the constructed shari’a law denies freedom of religion and contradicts international standards of constitutional law in many other realms central to democracy. The present chapter defends secular law against lex divina, yet it acknowledges that the return of the sacred compels the recognition of religious legal traditions recently “revived” in an invention of tradition. However only reforms to Islamic shari’a law allow the embedding of Islamic civilization within a democratic peace based on the recognition of commonalities by constitutional law. A major hypothesis of the chapter is that in its present, politicized shape shari’a is not an eligible model for constitutional law. It is argued that Islamism (and not Islam) stands in contradiction to basic human rights, primarily the freedom of religion, to a political culture of democracy based on pluralism and power sharing, and other democratic values.4 The contemporary shari’atization of polity and society is a source of inter-civilizational conflict. In terms of the history of ideas we should recall that the notion of shari’a occurs only once in the text of the Qur’an where it denotes “morality.”5 In the history of Islam shari’a was developed by clerics into a social law comprising a) cult, b) civil affairs (marriage, inheritance, etc.), and c) a penal code. In contemporary Islamism, based on the politicization of Islamic faith, shari’a has been promoted to a state law. In this new function shari’a claims to be the constitution of the envisioned Islamic state understood as

4 The chapter is based on three decades of research documented in the author’s published scholarship. The following underpin the present analysis: B. Tibi, Islamic Law / Shari’a, Human Rights, Universal Morality and International Relations, 2 Hum. Rights Quart. 277 (1994); Chapter 7 on shari’a in B. Tibi, Islam Between Culture and Politics, supra note 1, at 148-166; B. Tibi, Islamic Law as Constitutional Law?, in The Japanese Association of Comparative Law (Ed.), Church and State Towards Protection for Freedom of Religion 126 (2006); B. Tibi, Rechtsuniversalismus und kultureller Pluralismus des Rechts, dargestellt am Beispiel der Shari’atisierung des Islam, [Legal universalism and cultural pluralism of law, Illustrated by the example of shari’atization of Islam] 24 Nihon Univ. Comp. Law 13 (2007); B. Tibi, The Return of the Sacred to Politics as Constitutional Law: The Case of Shari’atization of Politics in Islamic Civilization, 115 Theoria – A Journal of Soc. and Pol. Theory 91 (2008). 5 Qur’an, Chapter 45 (Sura al-Jathiya), Verse 18.

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Bassam Tibi divine order of hakimiyyat Allah (God’s rule). This chapter argues that this shari’atization of a law regulating all affairs in state, society and the polity becomes a source of conflict a) within Islam, b) between Muslims and non-Muslims (e.g., Turkey) and c) in world affairs (as a war of ideas between the secular and the claimed divine one).6 The alternative to the polarization undertaken by Islamism is the need for a critical inter-civilizational examination of the shari’atization of Islam. The return of shari’a to politics in a deviation from its original Qur’anic meaning paired with the claim for shari’a to be constitutional law in an invention of tradition threatens the present world order.7 The term dustur (constitution) is alien to traditional shari’a reasoning. The assumption that shari’atized Islam stands in contradiction with democracy implies that this process alienates Muslims from non-Muslims due to the human rightsrelated problems it arises. Neither the classical shari’a nor the invention of its tradition by Islamism is in line with the international standards of human rights law.8 It is worrying to see that the reference to these tensions is disqualified in the present debate as an expression of Islamophobia. This accusation serves as an ideological weapon in the ongoing war of ideas. The best response to this challenge would be the revival of the buried tradition of Islamic humanism as a tool for bridging between the civilizations.9 In short, the conflict is also within Islamic civilization between shari’atized Islam and a pro-democracy, liberal Islam. The potential for a revival of the heritage of Islamic humanism would help incorporate the world of Islam into an international community based on the secular law of democratic peace. In a nutshell, it can be stated that the major characteristic of the return of religion to the public space in Islamic civilization is a return of the sacred to politics as constitutional law. The overall context is the contemporary crisis of modernity, pace Max Weber’s perception of a secularizing trend, a “disenchantment of the world.”10 In other words, the Islamization drive involves a process of de-secularization that must lead to conflict,11 a competition between secular-legislative and divine-interpretative law.12 Analysis will focus on democratic constitutionalism and the challenges to it.  6 See supra note 3.   7 For more details see D. Philpott, The Challenge of September 11 to Secularism in International Relations, 55 World Politics 66 (2002).   8 A. E. Meyer, Islam and Human Rights (1994); B. Tibi, Islamic Law / Shari’a, supra note 4.   9 B. Tibi, Bridging the Heterogenity of Civilizations: Reviving the Grammar of Islamic Humanism, 120 Theoria A Journal of Pol. and Soc. Theory 65 (2009). 10 M. Weber, Soziologie, weltgeschichtliche Analysen, Politik [Sociology, world-historical analyses, politics] 317 (1964). 11 B. Tibi, Islam and Secularization, Religion and the Functional Differentiation of the Social System, 66 Arch. for Phil. of Law and Soc. Phil. 207 (1980), and two decades later by the same author, Secularization and De-Secularization in Modern Islam, 1 Religion, Staat, Gesellschaft 95 (2000). 12 On this call for “the implementation of shari’a/tatbiq al-Shari’a” see chapter 8 in B. Tibi, The Challenge of Fundamentalism: Political Islam and the New World Disorder 158-178 (1998, updated edition 2002), and supra note 4.

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3  The Islamist Shari’atization of Polity and Society One recalls the early findings of the Muslim legal scholar Abdullahi An-Na’im who unequivocally and most succinctly states: “The Qur’an does not mention constitutionalism.”13 It follows that those who construct an Islamic constitutional law in an attempt at de-secularization engage in constructing a post-Qu’ranic legal body; in other words they are creating their own product. Clearly this is post-Qur’anic, (i.e. human) thinking, not divine law as Islamists pretend. In view of this An-Na’im argues that his analysis “has clearly shown that this [democratic] conception of constitutionalism is unattainable under shari’a.”14 In that early book An-Na’im emphasizes that only two options are open for modern Muslims: “either abandon the public law of shari’a or disregard constitutionalism.”15 In my view this is the predicament of Islam between culture and politics in the age of the return of the sacred. In his more recent book An-Nai’im overlooks this predicament, and retreats from his stance quoted above in that he becomes positive about the return of shari’a to the public space.16 The present chapter takes the opposite direction. 3.2 Why Is the Return of Shari’a Law to Public Space a Challenge? Following the abolition of the caliphate shari’a was abolished and removed from the public space. Kemalist Turkey claimed to be the model for Islamic civilization. Currently, Turkey is divided. The Islamist Justice and Development Party (Adalet ve Kalkınma Partisi) is in power, engaged in a creeping Islamization. In general, in the post-bipolar era one encounters an emerging competition between the religious and the secular. The US scholar Mark Juergensmeyer terms this phenomenon a “New Cold War.”17 In the context of the return of the sacred to public space in post-bipolar politics Islam ranks at the top. Why? On the left it was soon suggested that with the fall of communism the West lost its intimate enemy that had ensured the unity of its civilization, and therefore it has sought a substitute. The notion of Islamophobia replaced the earlier one of anticommunism. Ideological games aside, the real issue is the return of the sacred, a process that is already determining the realities in the Islamic world, challenging the views of Weber on Islam and its civilization.18 At work is a re-enchantment in a post-Weberian context. Islamism has moved Islam from an anti-colonial defensive-cultural ideology (jihad as a response to imperialism of the West) to an aspiration to lead the world along Islamic

13 14 15 16 17 18

A. An-Na’im, Toward an Islamic Reformation, Civil Liberties, Human Rights and International Law 100 (1990). Id., at 99. Id. A. An-Na’im, Islam and the Secular State: Negotiating the Future of Shari’a (2008). M. Juergensmeyer, The New Cold War? Religious Nationalism Confronts the Secular State (1993). B. Turner, Weber and Islam (1974).

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Bassam Tibi precepts.19 This goal is expressed in the writings of Sayyid Qutb in the late 1950s and early 1960s. In his Milestones Qutb claims to see humanity on the brink (hafat al-hawiya) revealing “a crisis of the West and bankruptcy of its democracy.” On the next page of this very book one reads the proposition that “only Islam is eligible to lead humanity after the pending breakdown of Western civilization.”20 This thinking is further articulated in a subsequent major book on world peace and Islam. Here Qutb argues that only Islamic dominance under the rule of shari’a could guarantee world peace: Then he suggests a reinterpretation of jihad, viewing it as “a permanent comprehensive world revolution in order to establish hakimiyyat Allah (God’s rule) for saving all of humanity.”21 The views quoted were written and published during the Cold War, but did not become a mobilizing ideology until the end of world bipolarity. Earlier Raymond Aron in his Paix et guerre entre les nations (Peace and War: A Theory of International Relations) compared an artificial division of humanity by bipolarity with a real division consisting of a “heterogeneity of civilizations.”22 The emerging post-bipolarity has brought a reversion. The failed introduction of modernity, along with the crisis of the nation-state and unsuccessful secularization all result in a process of de-acculturation. Was Max Weber wrong – and why? The present deliberations started with a reference to Daniel Bell in his lecture on the return of the sacred at the London School of Economics in 1977. At the time, most intellectuals and scholars in the West seem to have overlooked the phenomenon of the return of religion to public space. Then Jürgen Habermas, after the 9/11 tragedy, moved to the opposite extreme in prematurely announcing a “post-secular society.”23 Does this fashionable formula reflect the nature of the return of religion to public space? This chapter refers to the general debate on secularization, with a focus on the concept for the law exemplified by recent developments in the Islamic world. We focus on the revival of shari’a in a politically based fresh inquiry into Islam and constitutional law. An effort at shari’atization (and of course also related jihadization of Islam) emerge as the dominant current in the return of the sacred. At issue is no less than the order of the world and its legal foundations. Hedley Bull has identified international society with shared values and fundamentally legal concepts of order challenged by the agenda of remaking the world.24

19 On anticolonial jihad see N. Keddie (Ed.), An Islamic Response to Imperialism (1983) and on jihadism B. Tibi, Political Islam, World Politics and Europe: Democratic Peace and Euro-Islam versus Global Jihad (2008). 20 S. Qutb, Ma’alim fi al-tariq [Milestones along the way] (1989). 21 S. Qutb, al-Salam al-Alami wa al-Islam [World peace and Islam] (1992), see also id. 22 R. Aron, Paix et guerre entre les nations [Peace and war: A theory of international relations] (1962). 23 J. Habermas, Glauben und Wissen [Faith and knowledge] (2001); for a critique see B. Tibi, Habermas and the Return of the Sacred, 3 Religion, Staat, Gesellschaft 267 (2002). The theorist of free communication, Habermas, never responded to this criticism. 24 H. Bull, The Anarchical Society 13-15 (1977). On “remaking the world”, see M. Marty & S. Appleby (Eds.), Fundamentalisms and the State: Remaking Polities, Economies, and Militance (1993), which is volume 3 of the 5 volumes of the Fundamentalism Project. See also Philpott, supra note 7.

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3  The Islamist Shari’atization of Polity and Society The following pertinent questions posed by John Kelsay and hitherto ignored in the West are relevant for the issue in point: [W]ho will provide the primary definition to world order? Will it be the West [. . .] or will it be Islam? [. . .] The question for those who envision world order, then, is: who determines the shape of order in the new international context? The question suggests a competition between cultural traditions with distinctive notions of peace, order and justice.25 These questions refer to a conflict embedded in a competition between shari’a and democratic constitutionalism, i.e. between the return of the sacred, and secular law. This is the challenge. The term “shari’a” occurs only once in the Qur’an, but not in a legal sense. In fact, the development of a legal system called shari’a26 is related to post-Qur’anic efforts undertaken by humans, i.e. by the ulema and faqih, but restricted to civil law and a penal code. It was not until the work of Ibn Taimiyyah (1263-1328) that shari’a was associated with siyyasa (state administration) thus becoming an order of the state.27 This explains the appeal and great impact of this medieval faqih Ibn Taimiyya on contemporary “radical Islam” heralding the most powerful variety of the return of religion to the public space, paired with a concept of divine law. To be sure, the call for the implementation of shari’a is not only an issue that pertains to the world of Islam, as it makes claims on global grounds, for a desecularization paired with a de-Westernization of the world. When it comes to Europe the phenomenon of “transnational religion” reaches out to the “old world.” Islamic migration leads to the choices: Europeanization of Islam / Euro-Islam versus Islamization of Europe.28 The “Culture Matters Research Project”29 at the Fletcher School / Tufts University established

25 J. Kelsay, Islam and War 117 (1993); see also J. Kelsay, Arguing the Just War in Islam (2007). 26 The classical works on shari’a are: J. Schacht, Introduction to Islamic Law 1 (1979); N. J. Coulson, A History of Islamic Law (1978). 27 I. Taimiyya, Shari’a Governance (al-Siyasa al-Shari’yya), in A. Black (Ed.), The History of Islamic Political Thought: From the Prophet to the Present 1263-1328 (2011); on Ibn Taymiyya see chapter 5 in B. Tibi, Der wahre Imam: Der Islam von Mohammed bis zur Gegenwart [The true Imam: Islam from Mohammed to present] (1996, 1999 and 2002). The early Abdullahi an-Na’im in his book, Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law (1990) offers a better alternative to Ibn Taimiyya and the views of his contemporary followers. 28 See the results of the UC-Berkeley project: Islam and the Changing Identity of Europe, in N. AlSayyad & M. Castells (Eds.), Muslim Europe or Euro-Islam (2002). Herein B. Tibi, Muslim Migrants in Europe: B ­ etween Euro-Islam and Ghettoization, in id., at 31-52. See also B. Tibi, Europeanizing Islam or the Islamization of Europe, in T. Byrnes & P. Katzenstein (Eds.), Religion in an Expanding Europe 204-224 (2006). 29 B. Tibi, Cultural Change in Islamic Civilization, in L. Harrison & J. Kagan (Eds.), Developing Cultures: Essays on Cultural Change Vol. I, 245-260 (2006); B. Tibi, Egypt as a Model of Development for the World of Islam, in L. Harrison & J. Kagan (Eds.), Developing Cultures: Essays on Cultural Change Vol. II, 163-180 (2006).

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Bassam Tibi the interpretation of religion as a cultural system subject to politicization. The return of religion to public space has also been addressed in “The Fundamentalism Project”30 at the American Academy of Arts and Sciences. The Islamic variety of this return of the sacred, with a focus on the shari’atization in the Dar al-Islam (Abode of Islam), is not restricted to that world. 3.3 Shari’a Law in an Invention of Tradition The view of the 21st century as an age of the global return of religion to the public space refers to the claim that shari’a divine law is comprehensive, even a source for constitutional law and based on the reality of a legal novelty. The notion that shari’a is also a constitutional law can be exemplified in Iraq after the toppling of Saddam Hussein’s dictatorship. This gives rise to the question whether an Islamic state based on a shari’a-inspired constitution can be a democratic alternative to existing authoritarian regimes? In fact, shari’a is an obstacle to democracy in the Middle East and the world of Islam generally.31 Clearly Islam encompasses the component of shari’a understood as Islamic law. It is also true that the term shari’a occurs in only one verse of the Qur’an,32 but in the context of morality, not law. In the 8th century, following the Islamic revelation, the four legal schools (madhahib) of Islamic law were established based on diverse interpretations of the Qur’an revealed by God a century earlier. This makes clear the post-Qur’anic character of shari’a. Furthermore this law was never codified. Rather, Shari’a is an interpretative law, largely restricted to civil law and a penal code. In contrast, today in the world of Islam the call for shari’a is a call for a constructed Islamic state based on a purported shari’a as its constitution. This is an invention of tradition. The Islamist call for this politicized shari’a resonates throughout the world of Islam within the context of the politicization of this religion and Islamization of its law. The related question is whether shari’a is really a constitutional law and how consonant is the call for Islamization of law with a democracy based on popular sovereignty. Might one advance the claim that shari’a is the source for any constitutional law in Islamic countries, allowing for diversity that allows for different understandings of democracy and the rule of law? In fact, an Islamist understanding of constitutional law in shari’a terms is not shared by all Muslims. Furthermore, shari’a understood as a modern constitutional law conflicts with individual human rights. This can be illustrated in the

30 M. Marty & S. Appleby (Eds.), Fundamentalisms and the State, supra note 24. 31 This argument was presented in my keynote address to the 3rd International Congress for Comparative Constitutional Law in Tokyo (September 2005). See supra note 4. 32 See supra note 5.

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3  The Islamist Shari’atization of Polity and Society case of freedom of religion. For instance shari’a denies non-Muslims – despite their recognition as “protected minorities” – equality with Muslims. The idea of pluralism combines diversity with fundamental tenets such as the basic rules of democratic constitutionalism. It follows that diversity of cultures must insist on a common concept of law. The return of the sacred, however, forces the recognition of recently invented religious legal “traditions.” Only a reform of shari’a law allows the absorption of Islamic civilization into a democratic order. I fail to see this reform in the work of Tariq Ramadan who claims to present what he terms “radical reform.”33 In its present form, then, Islamic shari’a is not an eligible model for constitutional law. In fact, shari’a contradicts the values and norms of human rights-based constitutionalism.34 If we accept the truth of this, then no positive assessment of the return of religion to public space can be made. The invented model of shari’a law is no “Islamic reformation” but rather the opposite. The shari’atization of Islamic politics is not al-hall (“solution,” as in “Islam is the solution”) as the Islamists claim, but an obstacle for Muslims in their crisis of coping with their predicament with cultural modernity.35 3.4 The Hypothesis and the State of the Art In testing the hypothesis that the shari’atization of Islam to forge constitutional law is an obstacle to democratization, we must clarify three issues: First, shari’a is law in Islam, but there is no common understanding among Muslims of what is meant precisely by the term. This dispute is equally scholarly, religious, and even political. Second, the term “constitution” and the perception of shari’a as constitutional law derived from it are in fact recent additions to Islamic thought and herald an invention of tradition. The term dustur (constitution) is not used in classical shari’a, but is a recent development. Third, individual human rights, of which the freedom of faith is part and parcel, are also a recent addition to Islam, despite all claims to the contrary. In contemporary Islam this subject has generated great dispute among Muslims.36An examination of this hypothesis presupposes that any well-founded reasoning on the present subject first account for the distinction between scriptural and historical Islam. 33 T. Ramadan, Radical Reform: Islamic Ethics and Liberation (2008). For a dispute with Ramadan see B. Tibi, Euro-Islam: An Alternative to Islamization and Ethnicity of Fear, in Z. Baran (Ed.), The Other Muslims: Moderate and Secular 157-174 (2010). 34 See B. Tibi, Islamic Law / Shari’a, supra note 4; B. Tibi, The European Tradition of Human Rights and the Culture of Islam, in F. Deng & A. An-Na’im (Eds.), Human Rights: Cross-Cultural Perspectives 104-132 (1990). 35 A. Allawi, The Crisis of Islamic Civilization (2009); B. Tibi, The Crisis of Modern Islam (1988). 36 See B. Tibi, Islam’s Predicament with Modernity: Religious Reform and Cultural Change 95-129 (2009).

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Bassam Tibi The following are to be considered: – The level of classifying non-Muslim monotheists (Jews and Christians) as Dhimmitude, i.e., people who are allowed to retain their religious beliefs under restrictions, but are not considered equals to Muslims. On this level one sees a lack of religious pluralism in Islam. – The level of non-monotheist religions (all others outside of Judaism, Christianity and Islam) considered to be an expression of kufr (unbelief) and to be fought against along Qur’anic provisions. – The level of Muslims who either leave Islamic belief through conversion or choose not to believe (atheists or agnostics). These renouncing Muslims are considered to commit either riddah (apostasy) or kufr (heresy) and are therefore to be punished as unbelievers. The riddah-doctrine clearly indicates a lack of freedom of religion in Islam. The above indicate the existence of three categories pertinent to the issue of freedom of religion in Islamic constitutional understanding of interpretative shari’a law. Still, many would agree that the fact that shari’a has never been codified makes it a highly flexible legal system. Indeed this may apply to the classical shari’a, but not to its understanding in the new framework of political Islam. There is an inherent contradiction here: politicized shari’a is understood in a highly dogmatic manner by Islamists, even though they engage in an invention. For instance, the aforementioned three levels are conflated by Islamists, who classify all in disagreement with their view as kafirun (infidels). Their call for tatbiq al-shari’a is also directed against these kafirun – among whom one also finds people of essentially Muslim faith. Thus the denial of freedom of religion touches equally on Muslims and non-Muslims. The politicization of shari’a (civil law) and its advancement to a dustur (constitutional law) results in an invention of tradition. The conclusion that Muslims themselves do not enjoy freedom of religion is based on a consideration of two shari’a-related doctrines: First, the already mentioned riddah (apostasy) and second, the phenomenon of takfir (declaration of a Muslim as unbeliever) in ­Islamic legal thought, both old and new. Freedom of religion granted to others under Islam applies only to Jews and Christians, but it is a limited freedom, and is associated with assigning the others to the legal status of dhimmi. By modern legal standards this is rather a restriction of freedom of religion than a form of tolerance, as it is commonly viewed. The hypothesis includes the normative contention that establishing freedom of faith in Islam requires an Islamic legal reform for which this paper argues on Islamic grounds. The statement of legal differences pertinent to freedom of religion amount neither to accepting the rhetoric of a clash of civilizations nor to what is wrongly viewed as legal pluralism. At issue is not a negative or positive view of the differences, as both cases suggest, but rather the need for a legal reform to facilitate an accommodation in a situation addressed as a predicament of Islam within modernity. The return of the sacred in a political form intensifies this predicament. 46

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3  The Islamist Shari’atization of Polity and Society Even prior to the return of the sacred, Muslim scribes viewed shari’a as “holy given” simply to be interpreted.37 With some exceptions shari’a is never subjected to scrutiny. There are only a few Muslim scholars who go beyond this, such as Najib Armanazi in his 1930 book on international law in Islam38 and, in our present case, Mohammed Said al-Ashmawi.39 Currently Islamic writings on this subject belong to two categories: First, classical shari’a is maintained – albeit in new garb – as in the authoritative books of alAzhar and some Muftis, like the slain Subhi al-Salih of Lebanon.40 Second, shari’a is reinvented in contemporary Islamism. Bluntly put, the Western study of shari’a is riddled with poor scholarship. Since the appearance of two major books – truly unprecedented in their high standards – by Joseph Schacht and by Noel Coulson, there have been no comparable groundbreaking studies of shari’a. Most Western publications deal with restricted areas of Islamic law only of interest to a few specialized legal scholars, but not to the general reader. The view that the Islamist shari’atization of law is an invention of tradition considers the reality that the legal system of the shari’a (usul al shari’a) has always been based on human interpretation. The Muslim legal scholar and former judge of the Supreme Court of Egypt Mohammed Said Ashmawi infers that the claim of shari’a to be divine law is constructed by humans, and therefore not truly based on God’s revelation.41 Throughout the history of Islam all Muslim legal scribes, the ulema, who constructed the madhahib (four schools of Sunni Islamic law) viewed shari’a as the civil law of mu’amalat for settling matters of mu’amalat related to marriage, divorce, inheritance etc. and as a penal code of hudud. In fact, this is the substance of the traditional Islamic shari’a law, which never included a reference to constitutional law, be it in the Hanafi, Shafi’i, Maliki or Hanbali legal schools. Whether or not the shari’a includes freedom of faith is an issue that pertains to the ibadat (divine matters), not to constitutional law, which does not exist in traditional Islam. All of the mentioned madhahib schools are in agreement that no Muslim has the right to leave the Islamic community (umma), be it through conversion to another religion, or through renouncing belief (iman) in Islam. In this respect that this a consensus that any commission of a kufr (heresy) by a Muslim is subject to physical punishment fixed by the hudud law. Abandoning Islamic faith is viewed to be a riddah (apostasy) also subject to a death sentence. In short, in the established shari’a there is no freedom of religion. However,

37 See Sheykh al-Azhar, M. Schaltut, al-Islam, Aqida wa Shari’a [Islam is a religious doctrine and law] (1980). Another Sheykh of al-Azhar edited a textbook in which taschr’i (legislation) is equated with wahi (revelation), J.-H. A. Jadul-Haq (Ed.), Bayan li al-nas [Declaration to humanity] Vols. I-II. (1984 and 1988). 38 N. al-Armanazi, al-Shar’ al-duwali fi al-Islam [International law in Islam] (1990) (based on a Sorbonne Ph.D. thesis first published in 1930). 39 M. S. al-Ashmawi, Usul al-shari’a [The origins of the Shari’a] (1983). 40 See supra note 38 and also S. al-Salih, Ma’alim al-shari’a al-Islamiyya [Essential characteristics of Islamic law] 122 ff. (1975). 41 See supra note 39.

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Bassam Tibi it is the task of the umma (community of Muslims), not the state, to exact these punishments, since Islamic scribes, being legal scholars, never dealt with the realm we address today as constitutional law under state jurisdiction. In general, Islamic fiqh is not state law, given that the state (dawla) was beyond the deliberations of faqihs (legal scholars) in Islam. Medieval Islam offers an exception: Ibn Taimiyya, who coined the term al-siyasa al-shari’yya (shari’a law politics or religious politics) but this remained an exception until recently. In our age of the return of the sacred, 21st-century Islamists (i.e. the exponents of political Islam and also Salafists) call for tatbiq al-shari’a (implementation of shari’a) with an eye to constitutional law above all else. Iraq is here again a case in point. Given the fact that there exists no codified shari’a law one is inclined to ask Islamists which shari’a they have in mind. That there is no common understanding of shari’a in Islam raises this question. The call for shari’atization opens the door for arbitrary politics in the name of divine law. As an interpretative law shari’a was always subject both to individual and madhahib (legal school-related) interpretations of the Qur’an and the Hadith. Even though traditional shari’a never included an understanding of constitutional law, nor make provisions for the conduct of politics, contemporary shari’atization prescribes this dimension and constitutes a remaking of Islam with regard to law and order.42 This is quite recent. In the past, the relevance of shari’a in politics was restricted to providing the caliphs post eventum with a legal legitimacy43 amounting to a declaration that the political deeds of the rulers were in line with the provisions of the shari’a. The faqihs were never independent in their ruling and had no reason to venture into a conception of a constitutional law as a domain of shari’a. The Arabic term for constitution (dustur) is as recent as the issue itself. There are three quite different fundamental understandings of Islamic shari’a pertinent for an understanding of the issue. These are: First, the scriptural understanding of the relevant Quran’ic verse in the al-Jathiya sura (45:18) which reads: “wa ja’ alnaka minha shari’atun bi al-amr fa attabi’uha” (we have ordained for you a shari’a to live in accordance with it). The traditional understanding of this shari’a is “morality,” not law. This is phrased in the Qur’an in the command “al-amr bi al-ma’ruf wa al-nahi an al-munkar” (to enjoin the good and forbid evil). Here shari’a as a morality of conduct for the sumum bonum is clearly not a legal system. At present, there is a need to revive this understanding in a double-track strategy: to refute in Islamic terms the popular call for the shari’atization of law and to contain any arbitrary legal system that violates human rights. Second, in the course of the 8th century four Muslim scribes, Abu Hanifa, Ibn Hanbal, al-Shafi’i and Ibn Malik, established the four legal schools in Sunni Islam that carry their 42 For an early beginning in this direction see the constitutional study by M. D. al-Rayyes, al-Nazariyyat alsiyasiyya al-Islamiyya [Islamic political theories] (1953). 43 On post eventum legal thinking in Islam see Sir H. Gibb, Studies in the Civilization of Islam, Part Two (1962).

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3  The Islamist Shari’atization of Polity and Society names. These were (and continue to be) restricted to civil law, but also cover faith (i.e., the ibadat). At issue is whether there is a freedom of religion associated with these schools: In Islamic law only monotheists (Jews and Christians) enjoy a restricted freedom of religion, but – as we have seen – only as dhimmitude living under Islamic rule or dominance. Others are denied this freedom. Third, at present and since the unfolding of political Islam, shari’a obtained not only a political dimension but also a new form. In conclusion, Islamism is based on an invention of tradition44 applied to shari’a. The result clearly legitimates totalitarian rule. The authoritative theorist of totalitarianism, Hannah Arendt, dealt with the separation of the private and public that goes back to the Greek polis as vita activa of a functioning polity. In her view the abolition of this separation results in totalitarianism; communism and fascism were earlier cases in point discussed by Arendt.45 In my research I suggest a new totalitarianism in the political order envisioned by Islamism (not Islam, to be sure): the so-called hakimiyyat Allah based on a totalizing shari’a.46 Clearly the crisis of modernity promotes a return of the sacred – but this is clearly not the revival of a belief system, nor is it an indication of a religious renaissance. In fact religion is returning in political garb to challenge the secular order and to question secular constitutional law by establishing a shari’atized law. This does not signal a democratization within Islam.47 3.5 Tensions: Legal Universality Containing the Shari’atization of Constitutionalism and International Law Law is a cultural system and cultural tensions might lead to conflict.48 In contemporary Islam shari’a is in a pendulum-swing between ethics and politicization. Ethically the Qur’an includes some opening for freedom of faith. We read the provision: “La ikrala fi al-Din” (no compulsion in religion) (2: 256) and in another verse the Qur’an teaches the believers

44 The origin of the term is: E. Hobsbawm, Introduction: Inventing Tradition, in T. Ranger & E. Hobsbawm (Eds.), The Invention of Tradition 1-14 (1966). 45 See H. Arendt, The Origins of Totalitarianism (1962), and also H. Arendt, Vita Activa (1960) and the reference in the ensuing note. 46 The idea of Hakimiyyat Allah can be traced back to S. Qutb, Ma’alim fi al-Tariq [Signposts along the road] (1989). On this rule see B. Tibi, Fundamentalismus im Islam [Fundamentalism in Islam] 73-86 (2000). See also B. Tibi, Der neue Totalitarismus: Heiliger Krieg und westliche Sicherheit [The new totalitarianism: Holy War and Western security] (2004). 47 B. Tibi, Islam, Freedom and Democracy in the Arab World, in M. Emerson (Ed.), Democratization in the European Neighborhood 93-116 (2005) and furthermore B. Tibi, Education and Democratization in an Age of Islamism, in A. Olson et al., (Eds.), Educating for Democracy 203-220 (2004). 48 B. Tibi, Islam between Religious-Cultural Practice and Identity Politics, in H. Anheier & Y. R. Isar (Eds.), Conflicts and Tensions 221-231 (2007).

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Bassam Tibi to say to others: “lakum dinakum wa liya din” (you have your religion and I have mine) (109: 6). A problem in Islam is that all issues are regulated by divine law. Unlike other religions where religious scholars are basically theologians, in Islam we find learned men of the faith (ulema or scribes) acting as sacral jurists (faqihs, in Arabic fuqaha), rather than as theologians (mutakallimun). In medieval Islam a religious tradition of kalam (theology) developed. There were Mutazilite theologians who were “defenders of reason,” but these never became mainstream in Islamic civilization. The fiqh (Islamic sacral jurisprudence) has always held a monopoly over the interpretation of religious affairs in Islam; for these jurists there is no legal claim to freedom of religion. Deviation is considered an apostasy subject to the penal code of hadud. For dissociating the critique of shari’a, and particularly its Islamist conception, from any Islamophobia, it is most pertinent to reiterate that the Qur’anic meaning is ethical, not juridical, and – therefore – the natural conclusion is that shari’a as a legal system, is a post-Qur’anic construction. However, in the course of Islamic history shari’a became an integral part of everyday Muslim culture, mixing ethical and legal provisions, making of shari’a a way of life if not yet a political presence. Hence we may often refer to the shari’a to understand why most Muslims perceive their religious beliefs in terms of legal instructions. A pious Muslim is thus a lawful person. However, only the ulema have the legal power of interpreting what is in line with shari’a and what constitutes a deviation subject to punishment. Civilizations involve a great number of local cultures; cultural diversity exists within civilizational unity. Today’s globalized world offers an international law based on one legal tradition that claims for itself universality and therefore general acceptance. International law is Western law. With the return of the sacred, each culture revives its own legal traditions and so perceives international law as an externally imposed alien instruction. In this regard, Islamic civilization and Western law take a similar view: Muslims regard their shari’a as universal much as Westerners regard their positive law as international. In denying the claim of the other to universality, an inter-civilizational conflict arises that needs to be addressed. Being a Muslim living as an immigrant in the West I have seldom encountered Western legal scholars who questioned the universal character of their European law. When the term law is employed it means, in all law schools, the tradition that has evolved within Europe based on Roman origins. Culturally this understanding of law predominates only in the Western hemisphere. Yet there are no grounds for assuming the existence of a universally accepted notion of law. Article 1 of the UN Charter rules the settlement of international disputes by peaceful (i.e., legal) means valid for all people and states. The UN may be an international organization of all peoples, but international law is in its origin and cultural roots basically European law that does not necessarily imply universal legal awareness and acceptance 50

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3  The Islamist Shari’atization of Polity and Society in non-Western civilizations. Regarding constitutional law in this context we see Salafi Muslims and Islamists applying the Western notion of dustur (constitution) to the Qur’an, as their Islamic constitution is considered valid for all of humanity. Oxford jurist H. L. A. Hart shows the problem that arises when European-structured law becomes international law binding for new states: It has never been doubted that when a new, independent state emerges into existence [. . .] it is bound by the general obligations of international law [. . .] Here the attempt to rest the new state’s international obligations on a ‘tacit’ or ‘inferred’ consent seems wholly threadbare.49 The return of the sacred to politics only highlights this lack of consent. This phenomenon is fundamentally cultural – religion being a cultural system.50 The environment of change is, however, global. Still, in law a substantial distinction has to be made between modern European positive law and the traditional concept of sacred law, existing simultaneously. In modern democracies the lawmakers are the elected parliamentarians acting in legislative institutions, whereas in Islam the non-elected ulema (scholars of religion) in their capacity as interpreters of the scripture are not only legal scholars, but serve this role in the name of Allah. Hence the two competing legal traditions are legislative-democratic and interpretative-authoritarian law. This competition is fraught with cultural tensions that easily become political in an inter-civilizational conflict over the nature of law. In honoring the principle of legal-cultural diversity the option of an “Islamic Reformation”51 promises to offer promising solutions for legitimizing an Islamization of the law different from those of shari’atization. The call for tatbiq al-shari’a (implementation of shari’a) to be a thriving public choice raises great doubts about the future of the world of Islam, the threat being a return of the sacred in a political-totalitarian form. At this stage of the analysis, the assumption that the reinvented shari’a is not in consonance with international standards of law seems generally accepted. A major problem of Muslim legal thought has been addressed by the enlightened Muslim legal scholar Najib Armanazi. He pronounced the embarrassing observation that shari’a was hardly updated despite its ultimate incongruence with the realities in which 49 H. L. A. Hart, The Concept of Law 221 (1970). See also on international law H. L. A. Hart & M. Akehurst, A Modern Introduction to International Law 21 ff. (1987). The classic work by F. S. C. Northrop, The Taming of the Nations: A Study of the Cultural Basis of International Policy (1987). The basic issues of international law are discussed by T. Nardin, Law, Morality and the Relations of States (1983). 50 C. Geertz, Religion as a Cultural System, in C. Geertz, The Interpretation of Cultures: Selected Essays 87-125 (1973). 51 See A. An-Na’im & M. Arkoun, The Application of Shari’a (Islamic law) and Human Rights Violations in the Sudan, in T. Lindholm & K.Vogt (Eds.), Islamic Law Reform and Human Rights: Challengers and Rejoinders, 135-148 (1993); B. Tibi, Islamic Law / Shari’a, supra note 4, at 75-96.

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Bassam Tibi Muslims live. Traditionally, Islamic legal tradition was seldom revised with the argument that divine law is immutable. The contemporary Islamist claim for shari’atization of Islamic politics takes that very stance. The roots of this thinking can be traced back to the work of the ideological father of political Islam, Sayyid Qutb. Is a reform possible under these circumstances? We explore this in the next section. 3.6 Is a Reform in Islamic Shari’a Law a Viable Prospect? Despite all claims to the contrary, contemporary shari’a is made by humans, not based on Allah’s revelation. Today, there is need for a reform of this kind of Islamic law. Such reform will hardly be promising if it continues to be a mere exegesis of handed-down law. This need for rethinking is conceded by culturally innovative Muslims. The invented Islamic definition of an international law lays claim to an imposition of Islam on the entire world. In legal terms this is a claim for an Islamic constitutional law not limited to the nationstate – an order not accepted by Islam,52 yet essential for the principles of worldwide cultural pluralism. This cannot succeed without a rethinking of Islam by Muslims themselves. Do they accept this? Yes and no. Most Muslims are reluctant to engage in a historicizing Islam, and express this sentiment with a reference to Islamic revelation.53 Bright Muslim minds are far from this ­essentializing of Islam, and instead engage in reviving an alternative to this orthodoxy, in the form of medieval Islamic rational philosophy, which integrated ancient Greek philosophy into classical Islamic thought. Such a revival is most timely in an age of a politicized shari’a54 intent on de-secularization. The contemporary return of the sacred also involves a competition between a reformed shari’a and a totalizing shari’a – the latter alleged to be a divine law revealed by God, where it is in reality not only made by humans but also subject to historical developments. Muslim jurists are fiqh scholars who interpret God’s will exclusively, supposedly without the addition of any human legislation. To maintain this stance, Muslim jurists of the Islamic Middle Ages resorted to the hiyal, a category related to legal devices and evasions in an effort to adapt Islamic law to the life of society. Legal practice was thus adjusted to a changed reality, although the legal norm itself remained untouched in essentialist thinking. This resulted in a behavioral lag: there is no consistency between what 52 For more details on this Armanazi, supra note 38; W. M. Watt, Islamic Political Thought: The Basic Concepts 91 (1969). See also B. Tibi, War and Peace in Islam, in T. Nardin (Ed.), The Ethics of War and Peace: Religious and Secular Perspectives 128-145 (1996). 53 For an interesting interpretation see W. M. Watt, Islamic Revelation in the Modern World (1969). 54 See B. Tibi, supra note 9 and in contrast on shari’a, B. Tibi, Islam and the Cultural Accommodation of Social Change 76-101 (1990); A. E. Mayer, Law and Religion in the Muslim Middle East, 35 American Journal of Comp. Law 127 (1987).

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3  The Islamist Shari’atization of Polity and Society scripturally oriented Muslims do, what they think they are doing, and what they actually do. Could a legal philosophy emerge in Islam that allows for purely human reasoning on law to counter contemporary shari’atization? Of course the virtual deviation from the norm in practice is hardly an Islamic peculiarity. Indeed it is often the starting point of every process of jurisdiction undertaken by a modern European jurist. As one Western scholar puts it, “[t]he legal norm has an existence independent of social reality within its fundamental sphere of validity.”55 This is how Muslim jurists proceed in the belief of a divinely revealed shari’a. For introducing innovations the Islamic jurist might learn a great deal from the European jurist in dealing with legal norms in topical discourse and juristic hermeneutics. These could be integrated into a reformed Islamic legal system, allowing for a conception of rights underpinning the freedom of religion. In leaving aside the question of the origin of law (whether secular legislation or divine revelation) I interpret law along the lines of H. L. A. Hart, as an “open texture.”56 This is a term coined by Hart for describing a fixed written structure of norms, open to interpretation that allows a rethinking of the non-legal norm itself. This seems acceptable to ­Muslims since it combines exegesis (tafsir) with ijthihad. Hart points out that all legal systems, whether traditionally handed down or legislative in character, represent a compromise between two legal requirements, “the need for certain rules” and “the need to leave open,” adding: “In every legal system a large and important field is left open for the exercise of discretion by courts.”57 Hart reminds us that recourse to the same law can have a different content in different times and different systems; Islamic legal history offers a classic example in support of this assertion. There exists no one single legal view accepted by the entirety of the culturally diverse and religiously sectarian umma of Islam. This umma (community) is based on a transnational religion. As a civilization it would be unable to join the world community without opening itself to a substantive legal reform for the individual and his interaction with others. This endeavor does not seem feasible under ideological conditions that reject any cultural borrowing from others – such as the attitude that presently characterizes the exponents of shari’a. Given this, Muslims need to be convinced of the authenticity of reform. Here we must vigorously oppose two extremes: the classical Islamic legal means of the hiyal (legal excuses; one might even say self-deception) on the one hand, and a literal understanding of Islamic law on the other (e.g., amputation of the hand as a punitive measure). The goal is a new perspective; the question regards the potential for “flexibilization” of the Islamic notion of law in Islamic terms.

55 J. Esser, Vorverständnis und Methodenwahl in der Rechtsfindung [Preconception and the choice of method in the finding of law] 32 (1970). 56 See supra note 49. 57 Hart, The Concept of Law, supra note 49, at 102.

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Bassam Tibi To be sure, “flexibilization” is a technical term employed in German juridical debate. It refers to the non-rigid handling of legal norms for coping with tensions between reality and dogma. This is not tantamount to a bending of law at the interpreter’s discretion; rather, flexibilization conveys the notion of a certain pliancy in the process of lawmaking and jurisdiction. In the present crisis I view flexibilization of Islamic law as the better alternative to a politicization of Islam inevitably resulting in a totalizing shari’a based on the Salafist and dogmatic Islamic belief in immutability.58 The truth is that change – even in legal reasoning – has always taken place in Islamic history, despite its dismissal by the shari’a doctrine. This reality belies Islamic and Islamist essentialism. Because a legal philosophy has been not only missing from Islam but also rejected by it, conformist adjustments to the law have been merely pragmatic in nature, while avoiding any rethinking of values and norms. The flexibilization aimed for here would necessarily, unlike the former Islamic hiyal legal tradition, incorporate a full cultural awareness of social and cultural change. The theory of law as an “open texture” in Hart’s sense, Viehweg’s topics, and juristic hermeneutics might all provide great assistance in efforts to modernize Islamic law. The target is to establish an Islamic discourse of legal reasoning that runs, both in the norm and in actual legal practice, from social givens to textual understanding – not vice versa, as the ulema and the faqihs do, for whom the text is the point of departure, resulting in pure or selective scripturalism. In this context I refer to three German scholars. First, to Ralf Dreier’s critical evaluation. The second one is Josef Esser, on whose work I draw for “disclosing topical forms of thinking as an indispensable element in the channeling of meta-dogmatic assessment criteria and in ensuring accuracy.”59 It is in this sense that I also refer to Viehweg’s theory of topical discourse, since it does not address the dogmatic system as such, but is rather designed to counter the notion that a system can be perfect and definitive. Topical thinking in the Islamic notion of law amounts to openness in the legal system, and thus smoothing the way for reform. This is the middle ground between legal reasoning based on secularization and religious scripturalism that essentializes Islam. Despite the grim outlook at present, in better times there have been historical ­periods of openness in Islamic history60 during which intellectual plurality was admitted. The tradition of Hellenized Muslim philosophers, as well as the early debates from which the internal legal differentiation of Islam arose (the emergence of the four legal schools, the madhahib) not to mention the mutalizite “defenders of reason” are evidence of such openness. Another important factor is the distinction in Islamic law between taqlid

58 See supra note 37 and B. Tibi, supra note 1, at 148-166. 59 See supra note 57. 60 The authoritative work on the history of Islam is Marshall G. S. Hodgson, The Venture of Islam, Vol. III. The Gunpowder Empires and Modern Times (1975).

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3  The Islamist Shari’atization of Polity and Society (i.e. submission to the authority of predecessors as fiqh scholars), and ijtihad (i.e. creative lawmaking through individual, independent legal reasoning, albeit bound to operate on the basis of the shari’a). This is the context of Islamic modernism, which arose during the second half of the nineteenth century in Egypt,61 a precursor to a reform of Islamic law in the twentieth century.62 In this context efforts were made for reviving the ijtihad tradition in Islam. However, the return of the sacred in the shape of political Islam aims at the revival of scriptural shari’a.63 Some Western scholars fail to understand that this revival is not what it claims; “Invention of tradition” is a better formula, as we have seen. Despite the strict distinction between this “revivalism” and Islamic orthodoxy (Salafism), there remains a resemblance: orthodox Muslim fiqh scholars respond to all reformers with intolerance, using the medieval tactic of invoking the weapons of takfir (pronouncement of excommunication out of the umma in declaring a Muslim to be an unbeliever) against culturally innovative Muslims. Today, the takfir of bright and reformist Muslims is equally shared by the religious orthodoxy and radical Islamist groups. The tafkir (topical thinking in Islamic law) is equated with takfir (see above). By contrast, Muslim philosophers like al-Jabri revive rationalism in Islam.64 It makes sense to conclude this section with a reference to the Pakistani fundamentalist Muhammad Muslehuddin, who in fact had a Western education and obtained his doctorate in London. This illustrates how criticism of Western Orientalism derails by drawing mistaken conclusions. The Islamist in point takes issue with the late Malcolm Kerr who was in his lifetime a highly respected political scientist from the University of California and served until his assassination as the President of the American University of Beirut (AUB). Kerr accomplished basic research into efforts toward reform, particularly in legal thought within modern Islam.65 Shiite Muslim fanatics murdered him in Beirut in January 1984. In his office as the President of AUB Kerr was a consensus builder and a bridger of civilizational divides. In contrast, Muslehuddin discredits all reform attempts: Those who think of reforming or modernizing Islam are misguided, and their efforts are bound to fail. [. . .] Why should it be modernized, when it is already perfect and pure, universal, and for all time?66

See Ch. C. Adams, Islam and Modernism in Egypt: A Study of the Modern Reform Movement (1968). See N. Anderson, Law Reform in the Muslim World (1976). See, e.g., S. Tu’aima, al-Shari’a al-Islamiyya fi asr al-ilm [Islamic law in the age of science] 208 ff. (1979). M. Abed al-Jabri, Arab Islamic Philosophy (1999); on this tradition with more details see W. M. Watt, Islamic Philosophy and Theology 37 ff. and 91 ff. (1979); B. Tibi, supra note 9. 65 M. Kerr, Islamic Reform: The Political and Legal Theories of Muhammad Abduh and Rashid Rida (1966). 66 M. Muslehuddin, Philosophy of Islamic Law and the Orientalists: A Comparative Study of Islamic Legal System [sic] 247 (1992). 61 62 63 64

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Bassam Tibi In his view, therefore, the task of jurists is solely that of interpreting shari’a in order “to comprehend and discover the law and not to establish or create it.”67 At the end of the day this thinking results in a polarization. In Islamist legal thought one often sees an occurrence of deduction by analogy, which generally suggests the absence of a perfect logical system. In this way, Muslehuddin’s critique of Kerr lacks any logic. He focuses on the latter’s scientific method, which attempts to comprehend Islamic law in rational terms to establish a divide between any critique and the divine law. Divine law is to be preserved in its ideal form as commanded by God, or else it will be devoid of its capability to control society which is its chief purpose. The mistaken view of the Orientalists is due mainly to the fact that the real good may be rationally known and that the law should be determined by social needs, while all such needs are provided for in divine law and God alone knows what is really good for mankind.68 This statement reflects the prevailing contemporary legal views of Islamism. The return of the sacred as a return of religion to public space happens with a reference to shari’a law for providing a directive for the establishment of a God-given order. However, Islamist shari’a is not the classical, traditional Islamic law, but rather religionized politics based on the shari’atization of Islam in an invention of tradition. The Islamist essentialization of Islam can be deconstructed as this invention of tradition that generates conflicts and tensions.69 3.7 Conclusions: Shari’a-Islam Is Not a Democratic Constitutionalism The present inquiry refers in a historical and problem-oriented analysis to the classical shari’a to delegitimize the ideological shari’atization of state and society by Islamism as an invention of tradition. In arguing against the Islamist shari’atization this chapter engages in proposing new avenues. Among them is an adoption of the hermeneutic cognitive approach for rethinking Islamic law in a commitment to opening the way for cultural innovation. The obstacles to this reasoning are formidable. The first victim of shari’atization is a concept of rights including freedom of religion – and of course Muslims themselves. The foregoing analysis supports the assumption that the shari’a of political Islam is, unlike a 67 Id., at 242. 68 Id. 69 N. J. Coulson, Conflicts and Tensions in Islamic Jurisprudence 2 (1969); see also N. J. Coulson, The Concept of Progress and Islamic Law, in R. N. Bellah (Ed.), Religion and Progress in Modern Asia 74-92 (1965); N. J. Coulson & N. Anderson, Modernization: Islamic Law, in M. Brett (Ed.), Northern Africa: Islam and Modernization 73-83 (1973).

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3  The Islamist Shari’atization of Polity and Society potential civil Islam, at odds with democratic constitutionalism. Furthermore, Islamist legal thinking is not receptive to the appeal for an integration of topical discourse into Islamic legal philosophy. In this reluctance the mindset of orthodoxy and political Islam resemble one another. Contemporary Islamist movements of the core opposition make an instrumental use of democratization in their pursuit for tatbiq al shari’a (the implementation of Islamic law), resulting in a shari’atization of politics. This would only bring a new non-democratic component to existing despotic regimes. People within Islamic civilization need legal reform that enables Muslims themselves to engage in a cultural vision for a better future. This argument for change is in no way essentialism; neither is it Orientalism to engage in the idea of “developing cultures.”70 A change in socio-cultural systems inspires the present analysis. Muslims of today are challenged to emulate their ancestors in learning from others. The call for the Islamization of law and de-Westernization of it in a defensivecultural response to rapid change leads nowhere. Islamism ultimately expresses a lack of willingness to cope culturally with structural change. The so-called Islamization of law is an agenda of shari’atization that not only fails to show any sign of cultural accommodation, but also precludes learning from others. The present chapter places the call for tatbiq al-shari’a (the implementation of Islamic law) into the contemporary phenomenon of the return of the sacred, which is not synonymous with a return to the tradition. An “invention of tradition” is at work, relying on reference to traditional law to fill old formulae with fully new contents, while a new political ideology of an unprecedented “Islamic state” is becoming the foremost mobilizing force in the world of Islam. This hardly a harbinger of democratization or a commitment to the rule of law. A closer look to the scripture shows that traditional shari’a originates as a morality. This notion developed historically into a kind of divine civil law, but it was never a constitutional law, like the current one promoted by Islamists in the context of shari’atization of Islam. In the Islamist agenda shari’a becomes an ideological tool put in the service of political Islam. This tool is used as a weapon against all open-minded Muslims and it undermines an open Islam. At present, Islamic civilization is in a crisis,71 challenged by a radically changing modern world. The return of the sacred and its Islamization agenda being a shari’atization of Islam are culturally defensive responses. Islamism stands in severe contradiction to democratic constitutionalism.

70 Tibi, Egypt as a Model of Development, supra note 29. 71 Supra notes 35 and 36.

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4

How “Reasonable” Is Accommodation?

Guy Haarscher 4.1 A Three-Dimensional Question The notion of the public square can basically be understood in three senses. Strictly speaking it denotes the sphere of the state, at least the parts of it to which individual (non-state) actors have access: administrative agencies, tribunals, public schools, public hospitals, etc. For our purposes it will be necessary to distinguish actions by citizens from state actions. Secondly, there are spaces which are either state owned, like streets or parks, or privately owned but open to the public, like restaurants, shops, shopping malls, movie theaters, sport facilities, private hospitals, workplaces, etc. These are places where people come and go, sell, buy, take pleasure in various activities, express themselves in the open (and not in the private space or in any place that is closed to the public). Finally, there is the dimension of the public space in the sense Habermas gave to the term: a virtual place, that is, a link between citizens who express themselves, act and associate, notably in the political domain about questions of public interest (one also uses the phrase “civil society” in that context). Such interactions are well protected in Europe and the United States, particularly as far as freedom of speech is concerned. It is only in dictatorial or – more radically – in totalitarian regimes that these three dimensions are confused: then the state is everywhere, and often it also penetrates into the private sphere or even into the “heads” of the people (like in George Orwell’s Nineteen Eighty-Four). The public space in the third meaning of the term is not simply an agora where people act in a non-political way: it is also a space of citizenship that includes the media and consists of a communication between free and equal citizens committed to the public good (but having the opportunity of proposing various interpretations of that good, which are pitted against each other in such a “space”). 4.2 The Example of the Hijab When we speak of religion in the public square, we ordinarily refer to the three abovementioned dimensions, or at least to the first two. Let us first consider the state, from the perspectives of the citizen and the public official. The problem of the “normal” Islamic veil

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Guy Haarscher (hijab) only arises here, as nothing in democratic-liberal societies can prevent an adult woman from wearing it on the agora (or in the ‘Habermasian’ public-political space). The problem of the burqa (a garment covering all parts of the body including the face) and the niqab (which has an opening for the eyes) is different in that it represents a more radical version of the veil and poses obvious security problems. Belgium recently banished it from the public sphere (as understood in the two first meanings of the term),1 and France legislated in the same vein although the highest administrative jurisdiction (the Conseil d’Etat) expressed some doubts about the legality and constitutionality of a general, acrossthe-board ban.2 Patrick Weil sees in that law a confusion between two dimensions of the public square (state and places open to the public), which, in his opinion, opens the way to a possible invalidation by the European Court of Human Rights (ECtHR).3 A more moderate version of the prohibition of the burqa amounts to forbidding it in the sphere of the state, but not on the agora, except where and when controls are necessary, as is the case at customs or for official photographs (for instance passports). Advocates of a total ban consider the showing of the face to be the minimal condition for a civic relationship in open societies (not to mention religious fundamentalism and oppression of women). Concerning the most common veil, the hijab, there is no question of forbidding it for adult women on the agora.4 The main controversy is about minors at school and state officials – for different reasons. Young girls at school are vulnerable, and France forbade ostensible religious and political signs in 2004.5 State officials must not only be impartial but also must show an appearance of impartiality – as the ECtHR decided – in order to reassure vulnerable citizens who are confronted with the “cold monster,” to use Nietzsche’s term. Other states permit or did previously permit (even France did it from 1989 to 2004) the veil at school6 in the name of freedom of religion and an “inclusive” 1 A proposal to ban the burqa in Belgium was tabled in parliament on 29 April 2010. Available at . The law was finally passed as C−2011/00424, Loi visant à interdire le port de tout vêtement cachant totalement ou de manière principale le visage [Act to prohibit the wearing of clothing completely or mainly covering the face] of 1 June 2011. 2 The French statute (Loi no. 2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public [Act no. 2010-1192 of 11 October 2010 prohibiting face covering in public places]) was passed on 14 September 2010. On 7 October 2010, the Constitutional Council considered that the law did conform to the Constitution, but declared that it could not be applied to places of worship open to the public. Decision No. 2010-613, of 7 October 2010, as available in English translation at . 3 P. Weil, La loi sur la burqa risque l’invalidation par l’Europe [The law on the burqua risks invalidation in Europe], Le Monde, 24 November 2010. 4 Only Turkey forbids the hijab for adult women in the universities. 5 Loi no. 2004-228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics (Act no. 2004-228 of 15 March 2004 concerning, as an application of the principle of laïcité, the wearing of symbols or garb which display religious affiliation in public primary and secondary schools). 6 It is sometimes suggested that the veil should be allowed at a certain age, say at 16. This is a middle-of-theroad position that does not really address the question.

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4  How “Reasonable” Is Accommodation? (as opposed to an “exclusive”) conception of secularism. Only state officials (here teachers and staff members) have an obligation of neutrality, impartiality and secularism, not private individuals (here the pupils). Very often, authorities that accept the wearing of the veil by schoolgirls indicate that if supplementary elements are present – like proselytizing, pressures on the girls, refusal to follow some courses, etc., – measures of prohibition can be taken. Such was the situation in France before the 2004 statute entered into force. In France and Belgium, experience has shown that these supplementary elements are not really separable from the simple symbolic wearing of the veil, as fundamentalist pressures exist in the great majority of the cases, but of course not in all. As far as public officials are concerned, again, several positions are usually defended: the general prohibition for all officials; a prohibition only for officials who are in contact with the public; or, still more restrictively, for officials in a position of authority (a clerk at a counter in a government office, although being in contact with the public, does not exercise real “authority”). Of course, as a private citizen, a woman may enter state spaces such as post offices, etc., with her hijab. And between the respective positions of state officials and simple citizens, there are always grey zones: attorneys, witnesses, assessors for elections, etc. 4.3 Religion in the Sphere of the State: Europe and the United States. Justice Scalia’s Position The question of the presence of religion in the sphere of the state is an old one in the United States and Europe. In the United States, the visibility of religion (generally in the form of a reference to a rather abstract “God” in the state sphere) leaves the impression that the United States is less “secular” than European countries. This is misleading as in Europe the majority of states subsidize churches and religious schools, and religion is taught in public schools. In Europe, we must mention a recent judgment by the ECtHR holding that the presence of a crucifix on state property (in Italian public school classrooms) is not contrary to the ­European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950.7 Indeed, the invocation of a “God” in general, that is, a non-denominational God (not related to a particular church) on banknotes, in the Pledge of Allegiance, at the inauguration of the President,8 etc., is broader, more “inclusive” than the crucifix, which does not make sense for Jews and Muslims (not to mention agnostics, atheists and polytheists). 7 Lautsi v. Italy, ECtHR, Application no. 30814/06, judgment of 3 November 2009 (crucifix in public schools violate the European Convention). On 18 March 2011, the Grand Chamber overturned the ruling of the Chamber. See Lautsi and Others v. Italy, ECtHR, Application no. 30814/06, judgment of 18 March 2011. 8 Although the Constitution does not oblige him to do that, he may also “affirm,” in a secular form, his loyalty to the United States.

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Guy Haarscher When there is a more concrete and denominational presence of religion in the sphere of the state, arguments leading to decisions, notably by the Supreme Court, are more complex and controversial. In Lynch v. Donnelly, the Supreme Court declared constitutional the presence of a crèche surrounded by secular symbols on town property. Chief Justice Burger criticized the notion of separation and defended the idea of accommodation: Nor does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any [. . .]. Anything less would require the ‘callous indifference’ we have said was never intended by the Establishment Clause.9 In 1980, in Stone v. Graham the Supreme Court struck down a Kentucky law imposing the posting of the Ten Commandments in all the public schools of the state.10 In 2005 in one case the Court declared constitutional the presence of a monument on which the Ten Commandments were written, surrounded by secular monuments, at the Texas State Capitol.11 But in another case, the Court declared unconstitutional the presence of the Ten Commandments in courthouses.12 The Court considered that schools and tribunals were more sensitive places in which the citizen or the pupil would strongly perceive the endorsement of Judeo-Christian religion by the state. It was apparently not the case for a monument placed in front of the Texas legislative assembly, together with non-religious monuments. But these problems concern the Establishment Clause of the First Amendment. They are related to acts of public authorities and not to claims made by religious groups on the basis of the Free Exercise Clause. If the latter claims succeed, there will be a presence of religion in the state sphere (or the agora) at the initiative of private individuals, not officials: the Islamic veil in public schools; halal food; female doctors for Muslim women; public swimming pools reserved on certain days for women, etc. Religion in the state sphere concerns establishment and free exercise, state and non-state actors. But the problems raised are very different indeed. The distinction between the two religious clauses of the First Amendment is often, as I shall try to show, not very well understood in Europe: for many secularists, religion in the public sphere, particularly in the State sphere, is taken as a whole and rejected as such. In order to clarify that question, I shall briefly comment on Justice Scalia’s position, which exemplifies the misunderstandings that exist between Europe and the United States as  9 Lynch v. Donnelly, 465 U.S. 668, at 673 (1984). 10 Stone v. Graham, 449 U.S. 39 (1980). 11 Van Orden v. Perry, 545 U.S. 677 (2005). 12 McCreary County v. ACLU, 545 U.S. 844 (2005).

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4  How “Reasonable” Is Accommodation? far as claims based on free exercise and establishment arguments are concerned. In 1990 Justice Scalia wrote the majority opinion in Employment Division v. Smith, which ended the liberal period of the Supreme Court as far as religious accommodation is concerned.13 That period had begun in 1963, when, in the Sherbert case, the Warren Court had elaborated a test that was very demanding for the state and very favorable to religious claims for accommodation.14 In particular, the state had to show a “compelling interest” to be entitled to refuse accommodation.15 In 1990, the Court changed its jurisprudence. Justice Scalia wrote, concerning a demand by two Native Americans to be allowed to smoke peyote for religious reasons, and therefore to be exempted from the application of the relevant criminal law on drugs: Laws, we said, are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).16 [. . .] If the ‘compelling interest’ test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if ‘compelling interest’ really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them.17 13 Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). 14 Sherbert v. Verner, 374 U.S. 398 (1963). 15 Id., at 403: “If, therefore, the decision of the South Carolina Supreme Court is to withstand appellant’s constitutional challenge, it must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant’s religion may be justified by a ‘compelling state interest in the regulation of a subject within the State’s constitutional power to regulate …’” (emphasis added). 16 Employment Division v. Smith, supra note 13, at 879, citing Reynolds v. United States, 98 U.S. 145, at 166-167 (1879). 17 Id., at 888 (emphasis added).

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Guy Haarscher This is a very interesting point. Basically, Justice Scalia warns us about the dangers of a reference to natural or divine law, a law that would permit an individual to disobey a given positive law considered hierarchically inferior to the lex divina. In another context, Justice Black had made the same argument in the name of strict constructionism and the dangers of arbitrariness and judicial activism.18 In Smith Justice Scalia takes a position against religious accommodation, or at least makes it easier for the state to refuse accommodation. Now some of these demands by minority groups may generate a strong visibility of religion in the sphere of the state or on the agora. But this might create a misunderstanding between Americans and Europeans (particularly the French): for the latter, one has to be for or against the presence of religion in general in the sphere or the state. At least in the eyes of a French advocate of laïcité, in the Smith opinion Justice Scalia would thus look at first glance like a secularist, In other terms, if a “European” is against the presence of religion in the public square sensu lato, it will concern the Establishment Clause as well as the Free Exercise Clause. Now, as one knows, Justice Scalia is very accommodating in applying the Establishment Clause, but he is not accommodating at all concerning the Free Exercise Clause. The Smith opinion is a clear example of that. He agrees with the late Chief Justice Rehnquist, who proclaimed that “[t]he Establishment Clause did not require government neutrality between religion and irreligion.”19 He dissented in a very important 1987 decision20 declaring unconstitutional the balanced treatment of evolutionary biology and “creation science.” Justice Scalia also dissented in an already mentioned 2005 case involving a public display of the Ten Commandments in the courthouses of two counties in Kentucky.21 Recently he lauded a 1952 opinion by Justice Douglas declaring that “[w]e are a religious people whose institutions presuppose a Supreme Being,”22 in a case where the Court upheld a public school policy releasing students from class to be able to attend religious instruction elsewhere. It was in the same 1952 Supreme Court decision, where Justice Jackson famously dissented by saying that “[t]he day that this country ceases to be free for irreligion, it will cease to be free for religion – except for the sect that can win political power.”23 Note that Justice Jackson’s answer would certainly have appealed to French secularists if they had known it. See Justice Black’s dissent in Griswold v. Connecticut, 381 U.S. 479 (1965). Wallace v. Jaffree, 472 U.S. 38, at 106 (1985) (dissenting). Edwards v. Aguillard, 482 U.S. 578 (1987). See McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005). Zorach v. Clauson, 343 U.S. 306 (1952), the opinion of the Court was delivered by Justice Douglas. Justice Scalia, who is Catholic and grew up in Elmhurst, Queens, had received religious instruction under that policy. See J. Goldstein, Scalia Decries Drift of Court on Religion, The New York Sun, 2 June 2008, available at . 23 Zorach v. Clauson, id., at 325 (1952) (dissenting). 18 19 20 21 22

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4  How “Reasonable” Is Accommodation? These examples show a divergence between Justice Scalia’s attitude in establishment cases (concerning mainstream religion) and in free exercise cases (concerning minority churches). By contrast, at the time of the liberal Warren and (more ambiguous) Burger Courts, accommodation of religion in the name of free exercise was at its apex. For a French secularist (and perhaps for a European in general), the decisions concerning Seventh Day Adventists or the Amish represent a very controversial complacency towards religion, whereas Justice Scalia’s opinion in 1990 appears to be secularist at first glance. But there is a danger of cultural misunderstanding here. The Warren and Burger Courts broadened the scope of constitutionally protected liberties in general: rights of suspects in criminal procedure; freedom of the press against the danger of defamation trials; right to teach science without being harassed by creationists; rights to contraception and abortion, etc. So the liberal Justices defended freedom of religion (under the guise of accommodation) as they did other liberties. In Western Europe, particularly in France, accommodation of religion is advocated by opponents of abortion and “materialism.” It is far from being always so in the United States. 4.4 Religious Minorities and Reasonable Accommodation Claims to a presence and visibility of religion in the public sphere come, as I briefly mentioned above, essentially from minority communities. For what reason? Basically, because these demands are often24 a subcategory of the claims to reasonable accommodation, which are intrinsically linked to minority religions. Indeed, one usually emphasizes that a claim to accommodation (and the hope that it will be accepted, that is, deemed “reasonable”) only makes sense in the framework of indirect discrimination. If a law is adopted the purpose of which is to voluntarily discriminate against a religious group, one will not ask that it be adjusted to a concrete situation (for example in the form of a derogation): on the contrary, one will try to have it invalidated because it is contrary to the constitutional principle of equality (or non-discrimination). Such a suspect category requires strict scrutiny. Only when a law is considered to be neutral and “of general applicability,” and burdens a specific religious group in a disproportionate way, will an accommodation be requested for the sake of equality and religious freedom. Accommodation necessarily concerns a minority group for two main reasons. First, because if it were related to a dominant religion, the legislator would most probably have spontaneously thought of the possible perverse effects that a neutral, secular law might generate for the believers of the mainstream religion. Secondly – and above all – because

24 But not always: as we shall see, these demands may also be formulated as simple claims to a protected right, as for instance where a law creates direct, deliberate discrimination.

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Guy Haarscher accommodation must necessarily remain exceptional, if one wants to avoid the law of general applicability becoming devoid of all efficacy. In that sense, accommodation can reasonably be related to Aristotle’s idea of equity: it is only in some exceptional cases that a judge will correct dura lex, sed lex. To do it more frequently, through the repeated use of the notion of equity, the judge would risk resorting to natural or divine law. And of course the latter has primacy over positive, mere human law. Then there would not be question of defending accommodation, which presupposes in the first place a respect for the neutral (positive) law. In Europe, the United States, and Canada, some of the most vocal demands from minority groups concern the way women dress. In principle, matters of dressing belong to the realm of personal liberty or freedom of (symbolic) expression, and as such should be protected. And indeed, even in France – which has been much criticized for its policy on the veil – the wearing of the hijab is protected, except on the one hand at school,25 and on the other hand for state officials (the problem of the burqa is very specific and must be treated separately). Concerning public schools, in Belgium, directors have so far had been free to choose their policy on the veil (today 95 percent of schools there forbid it). Where there are regulations prohibiting political and religious signs, advocates of the right to wear the veil at school ask for their abrogation or – depending on the adopted strategy – request an accommodation (which, as far as I know, they have rarely done). 4.5 Public and Private Reason Today claims for reasonable accommodation appear to be essential for the presence of religion in the public space at two different levels. First, in the broad sense of the term, any demand of accommodation – provided it is considered legitimate – involves a modification of the application of a neutral rule of general interest for the sake of a given conviction or creed. In such circumstances, it is almost impossible to avoid a confrontation between civil and religious norms, the latter being considered more important: they have, in a particular situation, for a given believer, primacy over the former. But such a confrontation poses very serious problems for the idea of liberal democracy. Indeed, the concerned neutral norm is the product of public reason in the sense that a majority has been obtained by an appeal to arguments that, as a matter of principle, are 25 But from 1989 (advisory opinion by the Conseil d’État) to 2004 (legislation prohibiting the wearing of the veil in public schools), school directors were obliged to accept veiled students provided there were no supplementary elements such as proselytizing, pressures on the girls or refusal to attend certain courses. It is only because these supplementary elements were finally considered inseparable from the wearing of the veil in the majority of the cases that the French Parliament legislated (after taking the advice of the Stasi Commission appointed by President Jacques Chirac). See G. Haarscher, Secularism, the Veil and “Reasonable Interlocutors:” Why France Is Not That Wrong, 28 Penn St. Int’l L. Rev. 367 (2010).

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4  How “Reasonable” Is Accommodation? accessible to everyone (such an idea is very similar to what Chaïm Perelman called the “universal audience”). This is why a debate leading to the adoption of democratic norms can only involve arguments about secular rules. This is so not because religious norms are considered inferior (or are despised), but for the simple reason that, in a pluralist society where freedom of conscience is constitutionally protected, religious norms cannot be shared by the whole people (laos in Greek – hence the term laïcité). If I invoke, in front of a deliberative assembly, arguments derived from my own religious (or atheist) convictions, they will have the nature of “private reasons,” that is, reasons inaccessible in principle to those who begin their reasoning with different premises (which is of course undoubtedly their right). All public (secular) reasons are accessible to the democratic audience, and only those which at a given time are considered the better will prevail (Habermas speaks in that context of “the force of the better argument”26). Now a demand for accommodation is necessarily expressed by using private reasons: it is because an individual thinks that he must obey a given religious norm – which clearly makes no sense for the rest of the laos – that he or she will request an accommodation. A Muslim woman (or, more often, a Muslim man speaking in her name) need not explain or justify why the veil is considered compulsory. A religious argument is not accessible to an outsider for the same reason: a believer need not justify that for him, say, Saturday is a day of rest, peyote must be used in religious rituals, animal sacrifice is an integral part of his cult, etc. He only has to show that this is for him a matter of religious liberty and that the considered norm creates for him a disproportionate burden as compared to its effects on other individuals. Such a demand for accommodation will be declared reasonable (acceptable) or unreasonable (it will then be refused) taking in consideration the legislation in force, the state of public opinion or the evolution of relevant case law. In any case, one will take into account the nature of the concerned institution, the cost of the measure, and the disorganization it might generate. But all the same, from the beginning a claim is made, based on private reasons that belong to the religious realm, in order to challenge the application of a neutral norm: not directly discriminating against a given group of people. Justice Scalia sees in such a demand a danger that individuals will, so to speak, promulgate their own law (related to their own vision of the divine): there would be a danger of anarchy if natural and divine law were invoked in an arbitrary way. By making such an argument, Justice Scalia would probably be considered a secularist from a European point of view – but we already know that this would be a serious misunderstanding, taking into account his positions on the Establishment Clause.

26 “Argumentation insures that all concerned in principle take part, freely and equally, in a cooperative search for truth, where nothing coerces anyone except the force of the better argument.” J. Habermas, Communicative Action and the Evolution of Society (Transl. Th. McCarthy) 198 (1979).

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Guy Haarscher 4.6 The Modeling of the Public Sphere on Religious Demands Some demands for accommodation result in a form of visibility of religion in the public space. The problem of the Islamic veil is probably the most debated example of such a presence. In France, the fast-food company Quick now only offers halal meat in some of its restaurants.27 Admittedly, this is a decision taken for economic reasons, but it results in a visibility of religion in the public space. Moreover, such a visibility is not merely symbolic as it generates effects on members of the public who do not want to eat halal food. And it also makes religion present in the sphere of the state if one takes into account the fact that French public authorities today own the huge majority of the capital of Quick.28 Another telling example concerns Canada. Orthodox Jews in Montreal paid to replace the windowpanes of a YMCA with frosted glass because they did not want the young male students from a nearby synagogue walking in the street to see the women exercising in shorts. The religious Jews wanted their children – as the Amish did in the Yoder case29 – to be separated from the modern Babylon. In the French and Canadian cases, a row ensued. In the latter case, the tainted glasses were replaced again with normal (transparent) panes.30 There was no demand for accommodation, and no trial. But the fact is that part of the public square was at least temporarily modeled on religious demands. We can also mention a case concerning Sikhs: a pupil was, after a long procedure, authorized to wear a kirpan (ceremonial dagger) under certain conditions dedicated to solving obvious security problems.31 There is another case concerning Sikh policemen being permitted to wear a turban,32 which poses a problem of establishment

27 Since 1 September 2010, this has been the case in 22 of the 358 Quick restaurants in France. It is still possible to order a packed and reheated non-halal burger in these restaurants, Le Monde, 31 August 2010. 28 Quick is 95 percent owned by the Caisse des dépôts et consignations, a financial organization, which is a under the control of the French Parliament. 29 “The trial testimony showed that respondents believed, in accordance with the tenets of Old Order Amish communities generally, that their children’s attendance at high school, public or private, was contrary to the Amish religion and way of life. They believed that by sending their children to high school, they would not only expose themselves to the danger of the censure of the church community, but, as found by the county court, also endanger their own salvation and that of their children.” Wisconsin v. Yoder, 406 U.S. 205, at 209 (1972), opinion delivered by Chief Justice Burger. 30 The glass panes were installed in September 2006, and removed in March 2007. CBC News, 19 March 2007. 31 See the Multani case that began in 2001. On 2 March 2006, the Supreme Court of Canada ruled 8-0 that a total ban of the kirpan in schools violated the Charter of Rights. Multani v. Commission scolaire MargueriteBourgeoys, [2006] 1 S.C.R. 256. 32 The Royal Canadian Mounted Police authorized Sikhs to serve while dispensing them from the obligation to wear the traditional felt hat. The decision was challenged as being contrary to the freedom of religion of the members of the public who would enter into contact with policemen wearing a turban and a ceremonial dagger. The Federal Court rejected the claim. See Grant v. Canada (Attorney General), (1995) 125 D.L.R (4th) 556.

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4  How “Reasonable” Is Accommodation? stemming from the possible perception by citizens of such a headgear as putting them in the position of outsiders in the sense Justice O’Connor gave to the term in her endorsement test.33 According to the ECtHR, an appearance of impartiality is perhaps as necessary as impartiality itself.34 In France and Belgium, some veiled women say that what they have “in their head” is more important than what they have on their head. But the latter element is also fundamental as far as state officials are concerned: in that case, a sort of European “endorsement test” might be activated. Other demands, although they always necessarily involve by themselves a religious claim on the public secular sphere (they aim at an accommodation of secular law for religious reasons) can result in a private or discreet – thus almost “invisible” – behavior: smoking peyote, sacrificing animals in faraway places, practicing polygamy in private places (Mormon fundamentalists35), working on Sundays (here the norm itself can be considered to be at least historically linked to the dominant religion), asking for an exemption from military service (Quakers36) or from reciting the Pledge of Allegiance (Jehovah’s Witnesses in the 1940s37), taking children out of school before the age defined by law (Amish in Wisconsin38). These are cases that often flow from a will to live far from the public square, or not to participate in activities related to “Modernity,” in the meaning – very American indeed – of the right to be let alone (which was the very basis of the right to privacy as presented in the famous article by Warren and Brandeis39). Of course the “strangeness” of these people makes them visible to “tourists” but such a phenomenon has nothing to do with their will. It remains that in the broad

33 “Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Lynch v. Donnelly, supra note 9, at 688 (1984), concurring opinion of Justice O’Connor. 34 See, notably, Kress v. France, ECtHR, Application no. 39594/98, judgment of 7 June 2001; Martinie v. France, ECtHR, Application no. 58675/00, judgment of 12 April 2006. 35 The Church of Jesus Christ of Latter-day Saints officially abandoned polygamous marriage in 1890 and has excommunicated since 1904 members of the Church who practiced or promoted polygamy. But polygamy is still practiced today by Mormon fundamentalists. 36 Quakers and Mennonites have been exempted from conscription since 1864 by the Union as well as by the Confederacy. See R. B. Flowers, That Godless Court? Supreme Court Decisions on Church-State Relationships (2005). 37 In Minersville School District v. Gobitis, 310 U.S. 586 (1940), the Supreme Court declared that the Witnesses could not be exempted from the Pledge. The Court spectacularly reversed its jurisprudence three years later in West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943). That change was generated by the violence against the Witnesses in the United States, as well as by the terrible situation of Jewish and Gypsy minorities in Europe under Nazi rule. 38 Wisconsin v. Yoder, supra note 29. 39 S. Warren & L. D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). The phrase was coined by Judge Thomas M. Cooley.

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Guy Haarscher sense of the term, these derogations result from the intervention of a certain religious group in the public sphere, which allows them not to be bound by a neutral40 norm of public interest. 4.7 Religion as a “Disability” One can object that demands for accommodation are formulated in the language of public reason because they are based on the secular values of equality and liberty, and not enunciated in terms of private reason. In that perspective, these demands are not equivalent to a claim for privilege, but they concern real and concrete equality that should be (re) established. Nevertheless, I think that such an argument raises considerable problems. First, the notion of accommodation is easily applicable to the domain of disability sensu stricto, that is, when an able and competent individual cannot accomplish a given function because an innate malformation or the effects of an accident prevent him from doing so. Of course, he has not “wanted” the disability and it is not possible to ask him to “modify” it in order to adapt to the given work environment. So he asks for accommodation in order to avoid indirect discrimination. For instance, he will request, if he cannot walk, the building of passageways and ramps allowing him to have access to his work place in a wheelchair. Admittedly, such demands may sometimes be considered excessive or impracticable, that is, “unreasonable,” but their very nature does not raise problems of legitimacy in terms of equality. It is quite different for religious claims. Religious claims are often formulated in terms of disability sensu lato in the sense that a given religious practice would place the concerned individual in a problematical situation, whereas this difficulty does not exist for others. But the parallel between disability sensu stricto and religion stops here. The demand for religious accommodation can be formulated in both senses, and it is always possible to ask the concerned individual to discipline himself in order to adapt (up to a point) to the requirements of a pluralist and modern society. If he answers that some elements of his religious practice that he has

40 I must add here that in democracy, a norm the adoption of which is the result of a debate involving various conceptions of the public good, is of course not politically neutral. But it is religiously neutral when it aims neither at favoring nor at hindering one religion or religion as such. Here neutrality is closely connected to the French idea of laïcité, which involves that a spiritual commitment can create neither an advantage nor a disadvantage for the individual – the same idea appears in the “effect” prong of the “Lemon test:” “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, [. . .] finally, the statute must not foster ‘an excessive government entanglement with religion.’ . . .” Lemon v. Kurtzman, 403 U.S. 602 (1971), at 612-613 (1971), opinion delivered by Chief Justice Burger (emphasis added). For the person who asks for accommodation the neutral norm creates an indirect disadvantage which, the argument goes, should be compensated for. See G. Haarscher, Integrity and Neutrality of Legal Institutions, in A. Sajó (Ed.), Judicial Integrity 43 (2004).

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4  How “Reasonable” Is Accommodation? to abandon are an integral part of “himself ” – of his identity – and that he would, so to speak, mutilate himself by doing so, one will be able to give him the following argument: The only manner for him not to abandon anything of the basic requirements of his faith consists in acting – if this were still possible – as Puritans did in the 17th century, that is, chartering a new Mayflower. In the promised land that he will have attained, he will only live with those who think and act as he does, and he will not have to abandon anything of his religious practice to live with others, because they will be exactly like him as far as religion is concerned. But he will also be warned that such unanimity does not last long, except when it is imposed from above. In these circumstances, if he is unfortunate enough to believe even slightly differently than his coreligionists, he will be pitilessly persecuted and crushed by representatives of the official religion for being a dissident. Then, in order to live according to his inner convictions, he will have to abandon much more than it would be the case in modern open and secular societies. Roger Williams understood this very well when he decided to found Rhode Island, a pluralist colony in which individuals progressively liberalized their creeds and practices in order to be able to accept and recognize each other as free and equal citizens.41 To return to a contemporary example, a Sunni Muslim will have to abandon many fewer of his convictions and practices in Europe or the United States than in Shia Iran in order to simply and peacefully live according to his faith. The same is true, vice versa, for a Shiite living in Saudi Arabia. So here is the difference with a disability in the strict sense of the term: not only in matters of religious claims must the secular norm adapt, but also – and perhaps essentially – the individual must “discipline” himself in order to make the requirements of his faith compatible with the values of a pluralist world (which is much less demanding than a dominant religion). Actually, such a situation approximately corresponds to Rawls’ idea of reasonable pluralism.42 4.8 Reasonable Compromise or the (Re)Colonization of the Public Sphere? Today in Europe, demands for accommodation come essentially from the Muslim minority. We must carefully clarify the context of these claims. Indeed, Muslims are a minority in Europe, but at the same time Islam is one of the great religions in the world, with approximately one billion and a half believers. Admittedly, one should not confuse, as racists

41 This is one of the sources of the future Constitution of the United States, and more precisely of the religious clauses of the First Amendment. 42 See J. Rawls, Political Liberalism 152 et seq. (1993).

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Guy Haarscher do, Muslims with Islamists, and a fortiori Muslims with the most radical terrorist branches of Islamism. But it remains that Islamists enjoy the benefit of an immense “fishpond” and can exploit deep resentments related to the present situation of the Muslim world. The responsibilities for such a situation are multiple, but it is all too easy to unilaterally accuse Americans and Zionists. Moreover, Islam rules as an official religion in many countries, under different guises, and with an intensity of violence which varies according to time and place. With the Internet and the globalization of communication, any minority problem can become a world question and mobilize believers (who are often manipulated and intimidated) on the other side of the globe. So it is clear that Islamic claims come not only from frustrated local minorities but are also often part of a global strategy. Hence the crucial question in the field of accommodation is very often formulated as a demand for visibility on the public square. Is such a request the expression of a “reasonable” individual desire, or does it flow from a global strategy aimed at struggling against infidels (“miscreants”) by attempting to weaken the secular state and to progressively erase the progress concerning the status of women, sexual freedom, liberty of science and the rights of homosexuals? What does not make the decision easy in this context is the fact that, very often, fundamentalists have adopted a problematic habit: they “translate” their demands into the language of human rights and liberal democracy.43 Even women who wear the burqa happen to express their positions by declaring “this is my choice,”44 that is, they invoke religious liberty as well as equality and non-discrimination. But in the case – very improbable indeed – where they knew about the jurisprudence of the Warren and Burger Courts, they would be unable to use it as a reference to support their position because the Islamist movement, while “translating” its claims into the language of religious freedom, is at the same time ready to weaken the protection of other rights, such as women’s rights, including the right to abortion, the right to sexual intercourse before and outside marriage, and the struggle against other discriminations (between men and women, or homosexuals and heterosexuals for instance). Some Muslim women (or, very often, their husbands or brothers) want to be treated only by female doctors, sometimes even in emergency cases. There is a famous case that took place in Lyon, France, when a Muslim husband, confronted with a perilous delivery, had vigorously opposed the intervention of male emergency physicians and anesthetists. This resulted in irreversible internal injuries to the child.45 One can also mention demands

43 On the concept of translation, see G. Haarscher, Rhetoric and its Abuses: How to Oppose Liberal Democracy While Speaking Its Language, 83 Chi.-Kent L. Rev. 1225 (2008). 44 See Témoignage: ‘Je porte le voile intégral, c’est mon choix’ [Testimony: “I wear an integral veil: it is my choice”], Le Soir, Brussels, 21 April 2010. 45 See Le Point, Paris, 11 June 2008.

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4  How “Reasonable” Is Accommodation? for halal food in restaurants and cafeterias managed by public authorities46 (and demands for legislation imposing it on private companies in the name of non-discrimination), as well as public swimming pools reserved some days for women. In the latter case, the abovementioned ambiguity is perhaps the most radical: these women-only swimming pools satisfy the most fundamentalist leaders, who can be sure that no man will see the bodies of Muslim women before their marriage (which will often be arranged and forced); virginity at the time of marriage will be imposed on women, which will create a demand for hymen reconstruction addressed to doctors by desperate young girls. Even in the cases when marriage is not arranged, the right of women (and men) to meet and freely love each other will have been violated, and sexual misery will be all but guaranteed. So the oppression of women at home will be, as it were, extended to the public space; in this vein one can also understand the phenomenon of the burqa, that is, the integral veil. The public sphere, via the state and appropriate legislation (or accommodation of existing “neutral” laws) will thus be progressively modeled on religious demands that are sometimes only apparently “progressive.” It will legitimize illiberal practices and values and will make it still more difficult for “dissenting” young women to resist the pressures of the group (as when the veil is authorized at school). A fundamental regression concerning human (primarily women’s) rights will thereby be legitimized. A demand for accommodation resulting in the presence of religion in the public space (our problem) should be distinguished from a demand for positive discrimination. In the majority of the cases, the former does not involve the granting of privileges to some individuals “for the good cause.” Often, accommodation is almost costless in terms of public spending, but the “price” to be paid in terms of human rights and secularism of the state and the public space is very high indeed. There is no demand for positive discrimination when one claims a right, or an accommodation that boils down to a liberty, that is, a first generation civil right (such claims are almost always the case). One does not ask for a special privilege: neither quotas, nor (generally speaking) money but the freedom to wear the veil or the burqa, to be treated by a female doctor, not to eat pork, etc. Admittedly, these two latter demands can be interpreted in terms of “positive” rights, that is, they request actions (involving public spending) dedicated to restoring equality; but again, the difference is quite obvious with a disability sensu stricto; the same difference is important, although less clear, with social inequalities. Misery is nearly unalterable for child victims of the social lottery; but the demands for halal or kosher food, for instance, are different in nature: there is always the possibility that a Jew or a Muslim “spiritualizes” his practice

46 A minimum acceptable accommodation would amount to not imposing the eating of pork on the pupils and offering them, if possible, an alternative meal. But going farther than that would transform a demand for Aristotelian equity into a claim to natural Law (see above Justices Scalia’s and Black’s positions). I put aside the important problem of the sufferings endured by animals in ritual slaughtering.

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Guy Haarscher of religion, giving up its strictly ritualistic demands. This does not of course amount to abandoning religion. Often, to the contrary, it leads to a deeper, more “internalized” conception of the divine. Ritualistic legalism has often been considered to be the less important part of genuine religion. One can think of the religion of the “heart” and of the words pronounced by Jesus as well as by Hillel: the Torah commands to love God and your neighbor as thyself; all the rest is commentary. One could add that any particular prescription contrary to that general ethical imperative should be either rejected or reinterpreted in the light of the latter principle – “charity” in Christian terms. One might also mention Erasmian humanism, or even the religion of the Founding Fathers of the United States, particularly Jefferson. Still, we sometimes forget that the demand for accommodation presupposes an idea of compromise: the very logic of such a claim involves one’s acceptance of the validity of a neutral law of general applicability, and thus the very principle of deliberative democracy, as well as constitutionally protected rights (because reference is made to one or two of these rights – freedom of religion and non-discrimination – and human rights are generally considered to be indivisible). Accommodation results from a demand for compromise between the constitutional and legal validity of the neutral law (if the very purpose of the law, in the sense of the Lemon test, were not neutral in spiritual matters, it would be invalid) on the one hand, and the right to free exercise on the other.47 If, in a more or less disguised way, fundamentalist claims were naively accepted by democrats, and if the compromise only constituted a façade, a trap for “useful idiots” (to use the language of Lenin and the Communists), then democracy would be in peril. But we must immediately add to the latter remark that such considerations are more easily acceptable to politicians (whose very job consists in anticipating the future by devising some global measures of general interest) than to judges who, quite legitimately indeed, are reluctant to make an individual responsible for the strategies of others and the evil that they do. Admittedly, policies must respect individual rights, but politicians will be more tempted to test the limits of these rights in the name of neutral policies of public interest – without necessarily attempting to apply an illiberal morals of consequences – than judges who, by definition, are ultimately bound by particular “cases and controversies.” One might object to this saying that the Amish, for instance – an “isolationist ethnoreligious group” in Will Kymlicka’s classification48 – are not, to say the least, advocates 47 This is the reason why, rhetorically speaking, when I discuss the question of the veil at school I invert the most common argumentative process. Instead of saying (as hijab advocates do) that young girls can perfectly wear the veil and respect the values of liberal democracy, I argue that we must first reaffirm these values, then see whether their defense is compatible with the wearing of the veil by pupils. See G. Haarscher, supra note 25. This is the first of the three positions I define in conclusion of this chapter. It is also, according to me, the most convincing one. 48 See W. Kymlicka, Western Political Theory and Ethnic Relations in Eastern Europe, in W. Kymlicka & M. Opalski (Eds.), Can Liberal Pluralism Be Exported? Western Political Theory and Ethnic Relations in Eastern Europe 37 et seq. (2001).

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4  How “Reasonable” Is Accommodation? of modern democratic values. But they respect the law and ask to be let alone. Their demand for accommodation aims at satisfying the latter requirement – but, in so doing, they decide for their children by depriving them, as Justice Douglas argued, of the multiple opportunities that contemporary life offers them.49 In short, if there were no problems concerning the children and their future, the Yoder decision would probably look less shocking to a European. I thus distinguish in the present context between three positions. First, we must mention those who defend liberal-democratic values and ask for an accommodation – in a sincere way, and not in a perverse, manipulative or sophistic one – in order to better protect these values (at least freedom of religion and equality) in their particular situation. In a sense, their position can be related to the Rawlsian idea of overlapping consensus:50 principles are first justified and accepted, then motivations to respect and defend them are found in “comprehensive conceptions of the good” that are shared by some members of society. If the application of the concerned principles requires in a certain case a reasonable accommodation, it will be accepted (I go here beyond what the second Rawls would probably have authorized). Secondly, there are those who admittedly feel alien to liberal-democratic values and the culture these values involve, but they impose only on themselves the constraints of their religion, and as for the rest they are law-abiding citizens. The big problem concerning this second category results from what Kymlicka calls “inner limitations,” that is, an illiberal power exercised by self-proclaimed leaders on members of a group (particularly children, who are more vulnerable). The Amish belong to that category, as well as, probably, Seventh Day Adventists refusing to work on Saturdays or Native Americans smoking peyote or dissident fundamentalist Mormons. They advocate a morally conservative view of democratic values. They defend freedom of religion and might sometimes be classified in the third category. It is the category of those who only use in a sophistic way the language of human rights and democracy in order to re-conquer positions lost by religion in secularized societies. This is of course the case of fundamentalists.

49 “The Court’s analysis assumes that the only interests at stake in the case are those of the Amish parents on the one hand, and those of the State on the other. The difficulty with this approach is that, despite the Court’s claim, the parents are seeking to vindicate not only their own free exercise claims, but also those of their high-school-age children. It is argued that the right of the Amish children to religious freedom is not presented by the facts of the case, as the issue before the Court involves only the Amish parents’ religious freedom to defy a state criminal statute imposing upon them an affirmative duty to cause their children to attend high school. . . It is the future of the student, not the future of the parents that is imperiled by today’s decision. If a parent keeps his child out of school beyond the grade school, then the child will be forever barred from entry into the new and amazing world of diversity that we have today.” Wisconsin v. Yoder, supra note 29, at 241, 245, partially dissenting opinion of Justice Douglas. 50 See Rawls, supra note 42, at 150-154.

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Guy Haarscher Liberally minded religious people often do not make such claims because, as I have indicated, they can, through self-discipline and a reinterpretation of the sacred commands, accommodate their faith to the requirements of a pluralist and secular state. A very telling paradigm of such a conception is the Intelligent Design policy. Under a pseudo-scientific guise, it aims at re-imposing religion at school in science classes, as judge Jones so cogently demonstrated in the Dover case.51 Admittedly, technically speaking, ID advocates do not ask for accommodation: these disguised creationists have abandoned their former claim that Darwinism should be simply excluded from class (such was their position at the time of the Butler Act and the Scopes trial52). Today, their claims have become much more modest and apparently compatible with liberal-democratic values: they often only want to impose a disclaimer on the model of the one that was declared unconstitutional by judge Jones. Claims to accommodation raised in Europe by Muslim leaders often belong, like those raised by evangelical Protestants in the United States, to the third category, that is, the strategy of re-conquest and the use of the language – but only the language – of human rights and compromise. A re-colonization of the secular public sphere is here at stake, and it sometimes simply means a (hidden) hatred for liberal democracy. From that point of view, demands for accommodation can in no case be considered reasonable, as sophistry has meant at least since Socrates the very opposite of a sound exercise of reason.

51 See Tammy Kitzmiller, et al. v. Dover Area School District, et al., 400 F. Supp. 2d 707 (M.D. Pa. 2005), Case No. 04cv2688. 52 See G. Haarscher, Perelman’s Pseudo-Argument as Applied to the Creationist Controversy, 3 Argumentation 361 (2009).

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5

Between Aggression and Acceptance

Law, Tolerance, and Religion in Europe Lorenzo Zucca* 5.1 Introduction Europe is once again beset by religious conflicts. There are several examples of unrestrained opposition against, and by, religious minorities and majorities alike. One need only think of the ban on minarets in Switzerland, which is spreading like wildfire in Germany, Italy and beyond, or the veil saga that has occupied French politicians and their society in the last two decades. The target of opposition can be a religious majority as well; one example is the litigation on the crucifix in the classroom.1 Needless to say, opposition calls for an equal reply, and so religious minorities and majorities respond with individual actions or campaigns against secular societies and their states. Religious conflicts are not new in Europe; the religious wars of the 17th century were the bloodiest and most violent confrontations on the continent. The Treaty of Westphalia of 1648 put an end to them, and organized Europe in such a way that states could rule over religiously homogenous communities.2 There were Catholic and Protestant states; religious pluralism within each state was limited as much as possible. Religious conflicts in the 17th century were about belief, more precisely about the best form of Christian faith. Their starting point was theological disagreement.3 Religious conflicts today are about political disagreement. They are conflicts about whether or not the faithful can bring to bear their religion in the public sphere in order to regulate their own behavior – be it in a classroom, in parliament, in courts, or in the streets. Religious pluralism has not been a characteristic trait of European nation-states since Westphalia; in

*

I wish to thank Jill Craigie, Marco Dani, Christoph Kletzer, Joseph Raz and Leif Wenar and the participants to the workshop on toleration, equality, and segregation in the name of culture, 25 May 2010, Jerusalem, and the participants to the conference on “Religion in the Public Square,” at Central European University, Budapest, for very useful comments. The manuscript was closed before the decision of the Grand Chamber in Lautsi v. Italy on 18 March 2011. 1 Lautsi v. Italy, ECtHR, Application no. 30814/06, judgment of 3 November 2009. 2 According to the principle devised in the Treaty of Westphalia: cuius regio, eius religio. 3 J. Ratzinger would like to see more theological arguments in the public sphere, see J. Ratzinger, Truth and Tolerance. Christian Belief and World Religions (2004). The Archbishop of Canterbury would also welcome more theology in public debates, see the conclusion to his lecture, Archbishop’s Lecture: Civil and Religious Laws in England: A Religious Perspective (2008), available at .

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Lorenzo Zucca the Council of Europe, there are still many states with an established church and fairly homogeneous societies.4 This is markedly different from the USA, for example, where nonestablishment is constitutionally protected and religious pluralism is at the foundation of the state.5 But European societies are changing rapidly, becoming increasingly more pluralist. This makes conflicts more visible, rather than less so. Toleration emerged in the 17th century and was portrayed as the best response to religious conflicts. It was recognized as a key political virtue, which the state imposed as a legal obligation. A famous example of such a legal implementation is the so-called Act of Toleration 1689.6 Liberal thinkers also promoted toleration. Locke, for example, argued that “the toleration of those that differ from others in matters of religion is so agreeable to the Gospel of Jesus Christ, and to the genuine reason of mankind, that it seems monstrous for men to be so blind as not to perceive the necessity and advantage of it in so clear a light.”7 Locke regarded toleration as an imposition of reason and the lack thereof is explained in terms of being carried away by “irregular passions.” Both the Act of Toleration and Locke’s Letter Concerning Toleration are examples of a moralizing attitude of the political and intellectual elite towards the masses. Toleration is regarded as one chief virtue of morally enlightened people capable of regarding wrong beliefs as conditionally acceptable. Most liberal theories that promote toleration follow this path of imposition of reason from an ideal moral viewpoint. These theories are normative through and through, relying on heavy assumptions about the wrongness of some religious beliefs and the rightness of some liberal values. The question is whether toleration as a moralizing attitude provides a good enough way of coping with conflicts that involve religion. The short answer is that toleration might have dealt with 17th century conflicts, but does not seem to provide a sound basis to deal with present-day engagements. Recent historical accounts show that the master narrative of toleration – as the virtue coming from the elite and spreading trough the masses as a solution to religious conflicts – is not so accurate as a narrative, nor so promising in today’s context. Those historical accounts show that tolerance was practiced on the ground long before the elites’ appeals to toleration. By this, I mean that as a biological, physiological and psychological matter every individual has a disposition to cope with a certain amount of diversity – tolerance of a non-moralizing kind – that does not depend on sophisticated moral reasons.8 The 4 Andorra, Armenia, Denmark, UK Church of England (since Toleration Act 1689, c.13) & Church of ­Scotland (CoS Act 1921), Finland, Georgia, Greece, Iceland, Liechtenstein, Malta, Monaco, Norway. 5 M. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (2008). 6 The subtitle says: “An Act for Exempting their Majestyes Protestant Subjects dissenting from the Church of England from the Penalties of certaine Lawes.” See J. Raith, Statutes of the Realm, Vol. 6. 1685-1694, at 74-76 (1819). 7 J. Locke, A Letter Concerning Toleration (1689); in J. Locke, An Essay Concerning Toleration: And Other Writings on Law and Politics 1667-1683, J. R. Milton & P. Milton (Eds.) (2010). 8 B. J. Kaplan, Divided by Faith: Religious Conflict and the Practice of Toleration in Early Modern Europe (2007).

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5  Between Aggression and Acceptance practice of tolerance does not depend on a prior decision to refrain from opposing some categories of beliefs or people. In this chapter, I shall argue that non-moralizing tolerance should be distinguished from moralizing toleration and should be understood as the human disposition to cope with diversity in a changing environment. Tolerance thus defined is the basis for an alternative approach for dealing with religious conflicts, an approach less dependent on normative assumptions and more responsive to empirical data, including psychological insights as to the human ability to deal with difference. In what follows, I will first present toleration as a moralizing attitude. Then I will show the limits of liberal theories based on such an understanding of toleration. I will suggest instead that we should pay more attention to tolerance understood as the natural disposition of every individual to cope with difference as the best basis for dealing with religious conflicts. 5.2 Toleration as a Moralizing Attitude I will start with one definition of religious toleration given by the Oxford English Dictionary: “Allowance (with or without limitations), by the ruling power, of the exercise of religion ­otherwise than in the form officially established or recognized.”9 One of the striking elements of this definition is the suggestion that there is an established religion in the first place. A ­ ccording to this definition, toleration implies an act of establishment of a religion. ­Although striking, this is not inconsistent with the present existence of an established Church of ­England and with many other de jure established churches in Europe, not to speak of de facto ones. The second, closely connected, element of the definition is that there is an asymmetry between the majority and minorities. The religion of the majority is free by definition, while minority religions are permitted by political fiat. Here lies the third element of the definition: The allowance is given out by the ruling power; it is a top-down concession that can be revoked whenever the ruling power so decides. And the ruling power can also decide whether or not to impose limits to the allowance graciously granted (fourth element). There may be disagreement about the scope of toleration, but there is agreement as to its point. Toleration carves out a space between right and wrong beliefs: the space of tolerable wrong beliefs. In the Act of Toleration 1689 Anglican beliefs are held to be the right ones. Protestant beliefs are tolerable wrong beliefs; Catholic beliefs are plainly wrong and therefore unacceptable. In many European states, including the UK, this implied that one religious faith is recognized as the official truth and the other faiths as wrong. Toleration thus defined is an act of establishment of right beliefs, and as such is deeply problematic.

9 Oxford English Dictionary Online, available at .

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Lorenzo Zucca The wrongness of religious (or secular) beliefs is only postulated but not argued for. Any imposition flowing from such a postulate is likely to be regarded as irrational and unfair. Toleration is a political ideal allegedly imposed by natural reason that requires people to put up with a certain amount of wrong beliefs.10 Not all wrong beliefs are tolerated; some are considered intolerably wrong. In this context, it is certainly better to be tolerated than not, but this does not mean that being tolerated should be regarded as a privilege.11 The key of toleration is that the state singles out morally right beliefs which become official truth. Other beliefs, despite being officially wrong, can be tolerated either out of principled respect or prudential calculation. Liberals of various stripes disagree about toleration. Generally they disagree as to how to create and maintain a cohesive society given the fact of pluralism. Two main strategies appear to characterize liberal attitudes towards religion: one is instrumental and the other is principled. The instrumental approach starts from the inevitability of conflicts among religious people or between religious and secular people; this is rooted in 17th century ­Europe and its experience with religious conflicts. The instrumental approach can take two forms. The first calls for peaceful coexistence for the sake of a more secure and c­ onflict-free society, despite major disagreement on issues of belief. If someone does not comply, then the sovereign authority is entitled to punish such a person for intolerance. We can call it the “coexistence conception” of toleration (Hobbes). The second relies on the fact that the state cannot coerce people to revise their beliefs; one must accept them, however grudgingly. We might call it the “permission conception” of toleration. I have already mentioned that both the Act of Toleration 1689 and Locke’s Letter Concerning T ­ oleration are paradigmatic examples of the permission conception, which involves a moralizing attitude that divides beliefs and behaviors into right, wrong, and tolerated. An illustration of the coexistence conception of toleration is the so-called ideal of modus vivendi.12 This ideal can be met when competing groups in a society are roughly equal (otherwise instability between the two is likely). Modus vivendi theories start from the conviction that it is impossible to reach consensus about certain selected values, since disagreement about basic values penetrates decisions at every level. Given the fact of persistent disagreement, the only possible moral attitude to avoid violent conflict is to call for a duty of co-existence. People live in the same space, but pass each other like ships in the night. They are requested to disregard each other’s behavior in order to guarantee peace

10 Here an important caveat is ‘a certain amount.’ Not all wrong beliefs can be tolerated in this version of toleration. There are beliefs that are considered to be intolerably wrong. The state differentiates between right beliefs, wrong beliefs, and intolerably wrong beliefs. 11 A very promising criticism of toleration is offered by L. Green, On Being Tolerated, in M. Kramer et al. (Eds.), The Legacy of H. L. A. Hart 277 (2009). 12 J. Gray, Two Faces of Liberalism 135 (2002).

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5  Between Aggression and Acceptance and security within a society. This approach relies on the possibility of devising common institutions that exercise power fairly while maintaining pluralism of values and beliefs. The problem with this moralizing attitude is that it is bound to be very unstable: what happens, for example, when political elites themselves call for unrestrained opposition towards religious minorities in order to ride and spread negative feelings vis-à-vis ­Muslim immigrants? In these cases, political institutions find themselves in a dilemma: either they uphold their commitment to free expression as a paramount value of democracy, accepting that this is likely to foment more social conflicts and fears. Or they curtail some forms of expression on the basis that they are disrespectful to minorities, thereby opening the debate of the real value and limitations of free expression. European societies face the double threat of extreme right-wing parties banking on fears, and extreme religious groups becoming more popular and emboldened in the face of adversity.13 A mere moral attitude of coexistence can hardly bridge the gap between those two constituencies. Principled approaches attempt to show that there are some moral reasons that require us to take into account religious beliefs with respect or even esteem. According to some authors, the American tradition of religious liberty relies on a principled attitude of respect towards religion, though there is disagreement as to what the term really means.14 In any case, it is possible to suggest that one major strand of the American tradition of religious liberty relies on rational consensus theories, which argue that it is possible to devise well crafted procedures with a view to obtaining agreement on a selected number of values that will constitute constitutional bedrock for everyone.15 This theory relies on the hope that there will be convergence on few universal moral truths. Rational consensus theories often promote the moral attitude of respect rather than toleration. In Europe, republican France promotes respect towards individuals independently of their religious beliefs. This can be deemed formal respect, in contrast to the substantive respect that seems to characterize the American experience.16 La République

13 See, e.g., Le Pen v. France, ECtHR, Application no. 18788/09, decision on inadmissibility of 20 April 2010. 14 See the exchange between Martha Nussbaum and Brian Leiter. See M. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (2008). B. Leiter takes issue with that view in Foundations of Religious Liberty: Toleration or Respect?, 47 San Diego L. Rev. 935 (2010). This debate is quintessentially American. All the authors define toleration and respect as mutually exclusive. By taking this position, one narrows down toleration to a notion of coexistence at best. Here I suggest that there are at least four conceptions of toleration following from R. Forst, Toleration, in Stanford Encyclopedia of Philosophy (2008), available at . Forst distinguishes between four types of toleration: permission, co-existence, respect and esteem. 15 See J. Rawls, Political Liberalism (1993). Even if it were possible to come up with such a list, it would still be unclear whether that agreement at the abstract level precludes disagreement at the level of implementation of those values. 16 Nussbaum, supra note 14, defends the idea of thick respect which requires a positive attitude of esteem towards religion: not only we recognize each other as equal member of the community, but we regard each other’s position as likely to bring something to all of us.

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Lorenzo Zucca represents the union of all the people within the territory. There is no mediation between the individual and the République: the values of one must correspond to the values of the other. There is no space for intermediate communities to represent individuals. Given this outlook, every citizen is regarded as strictly equal in a formal way. Here lies the difference with the American conception of respect, which postulates that everyone enjoys equal citizenship and freedom of religion. In France, everyone enjoys equal citizenship and freedom from religion. In France one has to accept laïcité as the precondition for participation in public life.17 The République does not recognize cultural differences within its own territory. In public institutions everyone is formally equal and must be seen to be formally equal. Hence, for example, no conspicuous religious symbols are allowed in public schools.18 In other parts of Europe, coexistence is still the preferred basis for the moral attitude of toleration and informs multicultural practices in the North of Europe. British and Dutch multiculturalism are partial illustrations of such theories. In their understanding society is constituted by plural communities that do not overlap and live separately in the same territory. Each community has a limited power to regulate some aspects of the life in common within that smaller unit. Each community regards itself as culturally independent, while recognizing the moral and political need of toleration in order for everyone to preserve his own lifestyle. Conflicts within communities are in principle settled internally, but they may be dealt with by ordinary institutions if the community is incapable of finding a compromise. This poses various problems, as the standard applied by ordinary institutions will invariably be different from standards applied within a community. All these models appear to face serious problems in practice. French republicanism is not able to solve a major tension between its commitment to formal equality and the lack of substantive equality. Muslim pupils in French schools often come from underprivileged backgrounds. If you exclude them on the basis that they breach formal equality, you will reinstate their economically disadvantaged status thereby creating a vicious circle. Accepting them under the condition that they remove their religious symbols is not a solution, as this simply reinforces their belief that they are not equal to other people.19 The central problem with this position is that the moralizing attitude of respect for all is paid at the very high price of giving up one’s beliefs in the public sphere. Dutch and UK multiculturalism appear to be too thin and presently very strained.20 Religious minorities may enjoy greater freedom, but they do not enjoy the same access to opportunities provided by society. Moreover, their voices are not sufficiently represented, 17 On this point see C. Laborde, Critical Republicanism: The Hijab Controversy and Political Philosophy (2007). See also O. Roy, Secularism Confronts Islam (2007). 18 Laborde, id. 19 C. Laborde, Critical Republicanism: The Hijab Controversy and Political Philosophy (2007). 20 I. Buruma, Murder in Amsterdam: The Death of Theo Van Gogh and the Limits of Tolerance (2006).

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5  Between Aggression and Acceptance and indeed often misrepresented. To live in a community bruised and battered is a good recipe for creating antagonistic feelings that can only grow when left unaddressed. The existence of separate-but-equal communities wedges them apart from one another, creating less than optimal conditions for future coexistence.21 It may be that these examples do not represent the full gamut of constitutional frameworks that aspire to maintain a cohesive society. Nevertheless, the weakness of these major models is demonstrated by a general trend in Europe, where the relationship between religious and non-religious people is strained. These approaches require varying moral attitudes towards religion: permission, coexistence, respect, or esteem. Instead of opting for one or the other option, I argue that it is necessary to change fundamentally the viewpoint from which the issue is examined. A fresh start involves a better understanding of the psychology of tolerance and promotes a different role for the state in fostering tolerant behavior that is not informed by moral requirements.22 Before moving to that point, let me illustrate with an example how different approaches of toleration fall short of coping with religious conflicts. 5.3 The Limits of Moralizing Attitudes: Lautsi as an Illustration A recent landmark case of the European Court of Human Rights (ECtHR) can serve as an illustration of the limits of moralizing attitudes towards religion. The case is Lautsi and it is already amply known and discussed and does not require a lengthy presentation. The basic issue concerns the presence of crucifixes in Italian school classrooms. Lautsi argued that the presence of the crucifix infringed her secular conviction, whereas the Italian State claims that the crucifix stands for the values of secularism. Put it this way, the disagreement is between two forms of secularism, but in reality the question is whether religious symbols and traditions have a place within the secular public sphere. The ECtHR argued in favor of Lautsi on the grounds that the presence of the crucifix is incompatible with her laïque conviction. So far we distinguished two main moralizing attitudes towards religion: toleration as a basis for modus vivendi, and toleration as a principled position that is sometimes reinterpreted as respect. Regarded from the viewpoint of respect, the issue is not simple: Does the moral attitude of respect help to tip the balance in one direction or another? The plaintiff is pointing out that the right to education includes the respect of parents’ religious and philosophical convictions. But the Court must also respect the convictions of all the other

21 Behavioral economics shows that radicalization of individuals happens when they are segregated. Separate groups tend to think more radically rather than more moderately. See C. Sunstein, Going to Extremes: How Like Minds Unite and Divide (2009). 22 Spinoza’s Tractatus Theologico-Politicus provides a great inspiration for this endeavor. See in particular Chapter XX.

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Lorenzo Zucca parents; in particular it may well be the case that the majority of the parents have Catholic convictions in line with existing social and cultural traditions. Is it possible to show respect to Lautsi’s convictions and thereby ride roughshod over those of other parents? The issue of respect from a moralizing perspective is problematic because it pits individual convictions against one another. This conflict can hardly be solved by reference to a neutral standpoint, as the removal of the crucifix clearly prioritizes one conviction over all the others. Moreover, it has to be added that beside individual convictions, there is also an interest of society as a whole to have its cultural and social traditions respected. The reasoning of the Court does not take this into account but simply leans towards an individualistic morality of rights: principled approaches regard rights as individual entitlements to use against the state. The problem is that there is something missing from the picture which cannot be put in terms of rights: it is in the power of any nation-state to define its symbols of cultural and political allegiance, including the symbols that will feature in a classroom. From the viewpoint of instrumental toleration the issue is slightly different and focuses on the role of the symbol itself. Is the display of such a symbol conducive to an environment where all the pupils can coexist without feeling emotionally disturbed – or will the symbol prove to be more divisive than uniting? Instrumental approaches regard rights as side constraints on the power of the state, but also on the rights of other people. From this viewpoint, one is more inclined to accept that there may be conflicts between two rights in given circumstances. Interests protected by rights can reasonably clash. It is easier to see that the state can have interests at odds with those of the individual claimant. However, instrumental approaches do not offer a conclusive argument one way or another. They may provide powerful arguments in favor of diversity, but they are unable to say what holds us together besides the fact that we do not want to kill each other. Instrumental approaches of the multiculturalist stripe justify the existence of various institutions that promote their own values. This is illustrated, for example, by the UK system of multi-faith schools that pays lip service to diversity but does not do much to promote convergence. Thus the state creates and maintains separate communities that may never meet unless they have an issue where their interests part and conflict begins. Both instrumental and principled toleration involve an evaluation of the costs of a pluralistic society. The justification for such solutions differs. For principled approaches, equal citizenship means that each individual should divest herself of any social or cultural attachment other than the republican one when living in a public space. It is not pleasant, but this is the cost to pay for having a plural society in which everyone has an equal voice. Instrumental approaches stress the difference between people rather than one unified identity. Minority groups have different needs than the majority. They therefore must be accommodated so that their rights protect their needs, even if this waters down important values in some instances. 84

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5  Between Aggression and Acceptance Neither approach, however, is capable of fully coping with the conflict between secular and religious people. Either solution entails more polarization rather than less. The republican position leaves no room for diversity, while the multicultural position leaves no room for convergence. Both approaches over-rely on rights as encapsulating liberal values that can potentially be accommodated either through ranking or through definitional balancing. Neither approach captures the day-to-day practice of living together (as opposed to the moralizing attitudes of coexistence or respect) which is a much more reliable basis to understand what helps people to live together and what causes polarization leading to insoluble religious conflicts. 5.4 A Fresh Start: Tolerance Distinguished from Toleration English is the only European language to draw a distinction between ‘tolerance’ and ‘toleration.’ In German (Toleranz), French (tolérance), Italian (tolleranza) and Spanish (tolerancia) there is only one word for those concepts. Not that the distinction in English is clear and easily applicable. Tolerance and toleration are used as synonyms in the literature; often one finds the two used interchangeably. But I do believe that it is possible to draw a distinction between toleration-as-a-moralizing-attitude and tolerance-as-a-natural-disposition. The former is a normative concept in that it tries to justify and impose one moral and political worldview; while the latter is descriptive in that it attempts to capture the way in which people behave when faced with diversity. A similar distinction is drawn by the historian Benjamin Kaplan: “[This book] begins from the crucial premise that tolerance was an issue not just for intellectuals and ruling elites, but for all people who lived in religiously mixed communities. For them tolerance had a very concrete, mundane dimension. It was not just a concept or policy but a form of behavior.”23 Here, I propose a stipulative definition of tolerance as distinguished from toleration. I am not suggesting that the distinction mirrors ordinary language closely, although it has a link to it. I argue that this distinction illuminates both theory and practice, putting the latter in a better light by showing how people behave when confronted with difference; it improves the former by pointing out what should be the role for the state and for individuals in light of the practice. As we have seen, conventional understandings of toleration begin with a general political ideal of a peaceful society, and draw from that conclusions as to the appropriate moral attitude towards religion. The alternative approach based on tolerance-as-a-disposition starts from the emotional reaction to diversity in order to build up some correctives where the practice shows weaknesses. 23 Kaplan, supra note 8, at 8.

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Lorenzo Zucca Tolerance, as I see it, focuses on the disposition of an individual or a group of individuals to put up with an external agent of disturbance. This notion is rooted in a biological, physiological and psychological understanding of human behavior and does not depend on prior moral judgment, although it forms a more solid basis for further moral deliberation. To illustrate the notion of tolerance I have in mind I will take few examples from the Oxford English Dictionary: The action or practice of enduring or sustaining pain or hardship; the power or capacity of enduring; endurance. More widely in Biol., the ability of any organism to withstand some particular environmental condition. Biol. The ability of an organism to survive or to flourish despite infection with a parasite or an otherwise pathogenic organism.24 Tolerance is the disposition of putting up with external agents of disturbance; it involves a psychological attitude that strikes a middle ground between wholehearted acceptance and unrestrained opposition.25 In a fairly stable society, most people lean towards that attitude; tolerance as a disposition carves out a space for every individual to flourish according to one’s own thoughts and beliefs alone, relatively unencumbered by the multifarious emotional inputs that derive from other people’s beliefs and behaviors. If one did respond to each external stimulus, then the ability to flourish independently would be seriously hampered. Life would boil down to an emotional roller coaster whereby our beliefs and behavior are always defined in opposition to, or in emulation of, those of others. Needless to say, this is already the case in many circumstances but cannot possibly be the guiding norm of our life, since it would leave no space for us to develop and flourish autonomously. Tolerance thus defined is not about drawing a priori moral lines and imposing them on issues of conflicting beliefs, but about the ability to cope with them in a way that does not divert individuals from flourishing. Of course tolerance is a matter of degree. It can only work when someone or a society is in a condition of mental and physical stability, rather than embroiled in unproductive conflicts. The healthier the individual or the society, the greater its ability to cope with external agents of disturbance, and vice versa. To see tolerance in this way amounts to a Copernican revolution in matters of organizing a plural society, as it requires that we radically change the basic question. Toleration as a moralizing attitude asks us to focus on how to regulate society to avoid conflicts or to respect each individual

24 Oxford English Dictionary Online, available at . 25 T. M. Scanlon, The Difficulty of Tolerance 201 (2003). Scanlon also calls it a middle way between wholehearted acceptance and unrestrained opposition.

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5  Between Aggression and Acceptance voice. Tolerance as a non-moralizing attitude asks us to focus on what are the root causes of individual and social malaise that lead to aggression against the religious other. 5.5 Tolerance as a Non-Moralizing Approach My approach begins from tolerance-as-disposition rather than moralizing toleration. It is different and can be distinguished from both principled and instrumental approaches that promote toleration as a moralizing attitude. There are three main differences between a moralizing and a non-moralizing approach. Firstly, tolerance is not a principle to be imposed by legislation or a virtue to be preached by elites, but a human disposition that needs to be understood. Tolerance is not an attitude that is imposed either by a moral or political doctrine, but a behavior that emerges as a natural human response to difference. It is not the moral or political means through which religious conflicts are solved and dispelled, but the innate response to the fact that each one of us experiences conflicting emotions when faced with diversity. When a society is stable and healthy, there is little talk of the practice of tolerance. It is when things go wrong that intolerance is on everyone’s mouth. Secondly, tolerance as a disposition can only flourish in an environment where freedom of thought is protected above everything else. This could be regarded as a moral aspect, but only in a negative manner insofar as it entails that no thought or belief is to be considered as right or wrong from the outset, as is the case from a moralizing viewpoint. Every person, secular or religious, should be free to advance their own ideas and beliefs and argue for them. This is only possible, though, if no assumption or presupposition is considered to be a dogmatic element of a constitutional position. A healthy polity will devise ways to cope with disagreement, but will never find a way to solve an issue once and for all. Thirdly, a non-moralizing approach insists that antagonistic emotions towards diversity result from lack of appropriate thinking. How can one possibly hate something or someone just for being different? Such emotions are more likely with a moralizing approach that states a priori which beliefs are right and which are wrong. Wrong beliefs can sometimes be tolerated, but others are firmly opposed as a matter of stipulation. For example, polygamy is considered morally wrong and unacceptable in our societies, but I would argue that this is not the case out of necessity. Why would it be unacceptable to have a relationship between several people when this is the result of open and rational deliberation? The only reason why polygamy is perceived as intolerably wrong is because the institution of marriage, as defined by Christian norms, does not accept any other form of union beyond of monogamy.26

26 Divorce may be said to have introduced diachronic polygamy: it is permitted to have more than one wife/ husband provided that this is done one at a time.

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Lorenzo Zucca Now that the three main differences have been set out, we can elaborate a more articulated approach to tolerance as a non-moralizing disposition. The starting point is the clash within each of us: we all oscillate between wholehearted acceptance and unrestrained opposition when we are first exposed to people whose behavior and symbols markedly differ from ours. If each individual simply followed those emotions unreflectively, we would constantly go through a rollercoaster that leaves no time for flourishing. Tolerance as a disposition is naturally devised and helps us to mediate between strong emotional reactions. As a matter of practice, each of us is prepared to put up with a great deal of behavior that may appear to be inconsistent with societal values or individually held beliefs. This is explainable in terms of the drive to survival that characterizes our self-development.27 We would not be able to concentrate on our own flourishing if we were constantly pulled in one or another direction. Of course there are paradigmatic cases of acceptance and opposition. One does not tolerate murder. The emotional reaction to that is unrestrained opposition; there is no room for tolerance of such an act. Most relationships and actions, however, do not fall at the extremes of the spectrum. They provoke mixed reactions pulling in different directions. Through a process of reflection about those reactions, individuals come to regard most of them as part of their world without fully accepting or rejecting them.28 Here begins the practice of tolerance, which has two stages: firstly, humans unreflectively steer a middle path between competing emotions of acceptance and aggression; their interest in unencumbered flourishing is stronger than their interest in confrontation. The second stage begins when the competing emotions strongly pull in opposite directions: at this point, human beings qua reflective beings are able to form ideas about those emotions, and as a result of this reflective process they tend towards a balance between opposite reactions, without which their lives would be an endless and meaningless series of confrontations.29 But of course even a reflective attitude cannot preclude all the conflicts that remain an integral part of everyone’s lives. Each individual projects her internal clashes onto the external world, bringing them to bear on the life of her group. Her family, community, city and country – inasmuch as they strive to be one – also clash with other people or actions. The root of any conflict of values is the original clash, an emotional response to someone or something not fully familiar or well known. A non-moralizing approach based on tolerance rejects the idea

27 Spinoza calls it conatus – the striving for individual empowerment and development. See B. de Spinoza, Ethics (1996). 28 Tolerance is not the same as indifference, which is a state in which there is no emotional reaction. It may be, however, that a protracted state of tolerance becomes one of indifference. 29 This what biologists call homeostasis, the natural tendency to regulate one’s body so that it adapts to environmental circumstances, see, e.g., A. Damasio, Looking for Spinoza: Joy, Sorrow and the Feeling Brain (2003).

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5  Between Aggression and Acceptance that value-conflicts might be resolved by imposing one value over another. Internalized clashes that attest to an emotional reaction towards unknown people or things are inevitable. In fact, those internal clashes are necessary for the cognitive process, as they stimulate the will to know the external world. Unfortunately, however, conflicts bring with them negative feelings such as fear, which can constitute a limit to the knowledge of the external world, pushing individuals towards a defensive approach rather than a cognitive one. A non-moralizing approach based on tolerance does not rely on prior judgments as to what can be the object of toleration and what should be firmly opposed. This would assume that one has already made up one’s mind about rightness or wrongness, often without properly getting to know the object of intolerance. Clashes within are more complicated than that and have various layers. First of all, one responds to the broader issue of a known or unknown phenomenon. If it is known appropriately, then the internalized clash will not be very hard to deal with. It is when the phenomenon is unknown that things are complicated. Individuals and societies tend to simplify these matters by applying ready-made values to the unknown phenomenon and filing it away in the right or wrong boxes. A non-moralizing approach based on tolerance resists such categorization and pushes for more knowledge before passing judgment. Human beings have worked out a great number of collective responses to internal clashes. Religion itself is a given response to a peculiar such clash: we feel that we are eternal when we reflect about our soul, and yet we know that we are mortal. Religion resolves this clash by claiming the separation between the life of the soul and the life of the body. By privileging the former over the latter, religion offers consolation to a split individual. The spiritual clash within addresses the damning problem of the meaning of life. What are we doing in this world? This explains why religion is still so fundamental for the great majority of people worldwide, offering an answer and allowing people to get on with their lives in the meantime. Individuals and groups care a great deal about the precise answer they have been given. They care because they believe it to be true. Consequently they must believe that any other answer is false. How is it possible to tolerate a false claim on something that is so important to people’s lives? The spiritual clash within – mediated through institutional religion – is sometimes projected onto the external world, becoming a social conflict between individuals, groups, and even nations. Europe as a whole was devastated by such a conflict in the 17th century. The political response to it was to carve out religiously homogeneous regions within which people would not be requested to tolerate other religious views. Toleration as a political virtue applied to relationships between nation-states following the Treaty of Westphalia of 1648. Homogeneity, however, is itself unstable because the natural freedom of thought with which we are endowed pushes us in different directions (as it was the case for Luther, Zwingli and Calvin, for example). Moreover, homogeneity has never been truly realized on 89

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Lorenzo Zucca .

the ground. Historical accounts of life in Europe show that different religious communities had to live side by side and the important news is that they generally found ways to do so.30 Tolerance as defined here supports a non-moralizing attitude towards diversity rather than one that divides the world into right and wrong beliefs a priori. But unfortunately there are instances in which tolerance gives way to unrestrained opposition, entailing a spiral of social polarization and ultimately violence. In these cases, I do not believe that it is helpful at all to preach the attitude of toleration as a political ideal that would solve those conflicts. The most important thing to begin with is to reflect about the causes that led to intolerance. Political and economic considerations are obviously important, as these undermine self-confidence and hope. When fears enter the scene, it is almost impossible to avoid the consequence that our inner clash between acceptance and opposition will be resolved in favor of the latter. 5.6 Knowledge of Fear Tolerance as a disposition informs the relationship between individuals belonging to different groups in a society. The instinctive mechanism of tolerance, however, can be hampered by entrenched prejudices and fears stemming from misunderstandings about other people. A racist, for example, is incapable of tolerance, as his conception of the other will be clouded by a set of prejudices formed a priori. Mutual knowledge that dispels prejudices is therefore absolutely necessary to promote and encourage a flourishing practice of tolerance. Unfortunately prejudices are often associated with fears; these two together make the possibility of mutual knowledge very difficult. Knowledge of fear allows every individual to form reflective ideas about emotions; investigation of the subconscious is a good tool for keeping emotional reactions under control. The smooth functioning and development of tolerance-as-a-disposition depends partly on the knowledge of one’s own fears. But of course this investigation is a matter of individual choice and cannot be imposed on just anyone. Individuals who oscillate between competing emotions without being able to find a middle ground are in a difficult position and can hardly flourish under these conditions. If each one of us were able to inspect our subconscious and dig out the root causes of fear, then we would oscillate much less perilously between opposing emotions towards diversity. Of course on a grand societal scale it is impossible to promote this; each one of us must put up with a certain amount of entrenched emotions that cannot be explained away rationally. Institutions can nevertheless nurture and protect the natural disposition to tolerate in many other ways, and in particular through education.

30 Kaplan, supra note 8.

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5  Between Aggression and Acceptance Fear is not only negative. It performs a very valuable role in the life of human beings. It averts the mind to an impendent danger and calls for a cautious attitude towards an unknown object or person. Fear warrants against immediate reaction or engagement. It generally nudges the individual towards further examination as to the actual danger faced. It also promotes a cognitive attitude towards knowledge of the external world. When you know the object or person that is feared, you are able to apprehend it in a way that is not dangerous. Perhaps our fear will disappear altogether as knowledge will have shown that there is no danger intrinsic to the external object or person triggering fear. So not only does fear protect us from danger, but it may also stimulate our knowledge of the external world which is yet unexplained. Sometimes, however, fear overwhelms us and temporarily clouds our reflective abilities. We are frozen into inaction and refuse to know the object of our fears. This is the case for example with Muslim minorities in Europe. Many consider them a threat to Europe and depict them as such in the media. The mass reaction to these minorities is dictated by such fears, and entails unrestrained opposition to some or all aspects of the behavior of the minority. Most of the time this reaction is not supported by actual knowledge but simply based on a stereotypical description of the target of hatred. Fear can become phobia when left uncontrolled by reflective attitudes. Phobia is a systematic fear against persons or objects that has become entrenched and cannot be dispelled by the usual cognitive process that leads our minds to apprehend the external world. It is fair to say that today in Europe there is widespread Islamophobia. That is, a systematic fear towards religious minorities that pits them against secular western society. The general reaction toward those minorities is unrestrained opposition and there does not seem to be an easy way out of this deadlock. How can we break the spell of Islamophobia? Some say by effectively protecting minority rights.31 I do not think this is the correct response, as it reintroduces boundaries that are impossible to police: under what conditions do we punish speech that offends religious minorities? I believe instead that the state should do all it can to prevent religious conflicts and promote mutual knowledge. We can take shari’a law as an example. The conventional reaction is one of unrestrained opposition. Think of the emotional reaction faced by the Archbishop of Canterbury when he defended the possibility of having Muslim Arbitration Tribunals applying shari’a law to private disputes.32 He was then supported by the later President of the UK Supreme Court, Lord Phillips.33 Both genuinely hoped that by engaging with shari’a law, part of the mystery and fear that surrounds it 31 J. Waldron, Toleration and Calumny: Bayle, Locke, Montesquieu and Voltaire on Religious Hate Speech, Amnesty International Lecture, Oxford, 12 May 2010, available at . 32 Archbishop’s Lecture, supra note 3. 33 Lord Phillips, Lord Chief Justice, Equality before the Law, Speech at the East London Muslim Centre, 3 July 2008, available at .

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Lorenzo Zucca would be dispelled. And when fear lifts its hold and allows for further knowledge, we can finally learn that shari’a law is not so different from legal codes of behavior inspired by Christian principles. Some elements of shari’a law will remain incompatible with “ordinary” law; in particular physical punishments will be at odds with our practices. Yet such punishments are not the core of shari’a law; they are perfectly detachable elements of a general system of rules that can be regarded as compatible with ordinary laws. This is not to say that we are under an obligation to wholeheartedly accept shari’a law. After examination, we may still conclude that we disagree with its fundamental tenets, and consider it as not fully acceptable. But this is not a ground for unrestrained opposition either. This is a case where tolerance is emotionally possible once the cognitive prerequisites have been fulfilled. It is important to be clear at this point: in a secular state, it is possible to be tolerant to people who follow shari’a law to guide their behavior in certain domains. It is also possible that a conflict between two religious people be solved by an arbitrator accepted by both. But it is not permissible to have rules of behavior that are incompatible with ordinary laws. 5.7 Law and Tolerance (Lautsi Again) The best way to illustrate the practical difference of my approach is to take up the Lautsi case once more. There are three main aspects to take into account from my perspective: Firstly, the initial conflict should be regarded as an opportunity for learning. Is the crucifix in Italy a symbol of secularism as the state claims? The Italian government, for example, “attributed to the crucifix a neutral and secular meaning with reference to Italian history and tradition, which were closely bound up with Christianity.”34 One may object that the crucifix is neutral, but it is hard to dismiss the role played by Christianity in Italy in shaping the social and political space in many ways. It is of course possible to suggest that secularism developed in opposition to religious values, but it would be churlish to claim that secular and religious values are mutually exclusive since their history is one of exchange and dialogue rather than competition and denial. The role of reason in promoting knowledge is, however, limited and we cannot necessarily say that deeper knowledge of conflicting interests leads to a better solution in practice. This leads us to the second element of my approach. The limits of acquiring knowledge through reason give rise to the necessity of imagination as a way to find a new solution for the future. Can we really deal with this issue by applying a “neutral” moral standard? Is it possible to solve the conundrum posed by Lautsi simply by applying a conception of secularism that ignores the social and cultural 34 Lautsi case, supra note 1.

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5  Between Aggression and Acceptance traditions of a country? I do not believe it is possible. Instead, I think that the presence of a symbol can be the starting point of a creative debate. Pupils may be asked whether they want to complement that symbol or remove it. In either case, they should be asked to provide an explanation. Those who take the crucifix for granted would have to review their position, while those who oppose it or never even thought about it are encouraged to think about it from a fresh viewpoint. The crucifix could become a starting point for reflection rather than an endpoint. This may put the students in a position where they can truly empathize with others. This leads to my third point. Knowledge and imagination must be supported by an ability to put oneself in other people’s shoes. This was arguably very difficult some years ago in Italy when the vast ­majority of the population was Catholic. In such a context, it was difficult to ­appreciate the viewpoint of a diverse position. Immigration and further secularization today have created a more diverse environment in the classroom and in the society. It is therefore more important than ever to engage in an empathic process that leads people to know their mutual starting points so that negative emotions and passions can be ruled out from the outset. To sum up, law can promote tolerance and a healthy environment by creating a framework within which the conflict can be dealt with in three different ways: it has to stimulate mutual knowledge by providing genuine platforms of cultural exchange, starting with primary education, where one can learn about religious differences. Secondly, it has to stimulate freedom of thought through creative and imaginative channels rather than imposing a readymade set of values. Thirdly, it should encourage every individual to put themselves in someone else’s shoes so that negative emotions towards diversity can be effectively reined in. Solon claimed that each society deserves the laws that it can bear.35 Let me explain why this makes sense: a society ridden by conflict and hysteria will only be able to bear laws that do not upset the majority. As a consequence, the minority will be silenced and suppressed. On the other hand, a society that is strong and stable will much more easily bear internal conflicts without becoming fragmented. Those conflicts will be regarded as opportunities to engage in further knowledge. They will also push us all to reinterpret creatively our traditions so as to accommodate as many diverging views as possible. 5.8 Conclusions Religious conflicts will not be solved or explained away once and for all. They will always return, presenting difficult decisions for all European states and their institutions. The master narrative of toleration cannot dispel all the issues that arise between secular 35 Montesquieu, L’Esprit des Lois [The spirit of laws] (1979).

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Lorenzo Zucca majorities and religious minorities. It may well be that toleration was the right answer to religious conflicts in the 16th century. In a world that was little secularized, the major issue was to create a space for both religious minorities and majorities. Toleration presented a reason against aggression toward religious minorities that held “wrong” beliefs from the viewpoint of the majority. But the price to pay for toleration was high: the entrenchment of official truth about right beliefs, and the subsequent creation of a trichotomy between right, wrong, and tolerable beliefs that is not easy for the state to police without major inconsistencies. Such a trichotomy could only come about with a moralizing attitude between majorities and minorities, with an isolation of minorities and considerable limitation on dissent about majority values. Social homogeneity achieved stability at the prize of freedom of thought on the fundamental issues of society. Europe remained homogeneous for a long time and enjoyed periods of stability followed by instability until it broke down completely with World War II. In the last fifty years Europe has enjoyed great stability but social homogeneity has been replaced by great social and religious pluralism. Religious pluralism poses great challenges for secular authorities. Europe today is largely secular. Religious beliefs have been banned from the public sphere and cannot constitute a source of an official truth supported by the state. Instead, the state has embraced conceptions of power and truth that do not depend on religious beliefs. The separation between theology and philosophy put reason on a pedestal and religious beliefs were relegated to the private sphere. Power and truth have been secularized, but this does not mean that they now enjoy strong foundations. Secularism no doubt achieved much, but is itself subject to criticism. In particular, secularism can be established as the new official truth of the state, which is not necessarily desirable as it entrenches and imposes a rigid interpretation of right and wrong, whereby religion is classified as being on the wrong side if it aims to speak its voice in public. A non-moralizing approach requires of each individual that no official truth be taken as written in stone (including the truth of laïcité). It also requires the state to create the pre-conditions for mutual knowledge, which is the most important goal in nurturing the natural disposition of individuals and groups to cope with difference. Such an approach is skeptical about conceptions of secularism that rule out altogether the possibility of a public role for religion – not that religion should enjoy unlimited access to the public sphere or special protection as it makes its voice heard. It nevertheless cannot be excluded from participation in political affairs as a matter of principle, because it may carry some important messages that should be taken into account. Secularism should be regarded as a default framework, a worldview or worldviews within which disagreement about the best political regime, and the best life, are widely protected. This will be the subject of a separate project.

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6

De Facto Secularism in a Diversifying Religious Environment

The Changing Relationship between State and Religion in Europe Ronan McCrea 6.1 Introduction This chapter argues that an increasingly necessary clarification of the significance and meaning of the legal privilege and symbolic recognition accorded to religion is underway in Europe. It will suggest that the need for such clarification arises as the current relationship between religion, the law, and the state in Europe is the outcome of implicit compacts between culturally entrenched religions and the state that are underpinned by unarticulated shared cultural norms which are breaking down as Europe becomes more culturally and religiously diverse. In the first section of the chapter I will sketch the broad outlines of the relationship between religion and law in contemporary Europe. In section two I will outline the challenges currently faced by this relationship. The third section will suggest that these challenges require a clearer distinction between recognition of religion as an element of national identity, which is acceptable, and recognition on the part of the state of the truth claims of individual religions, which is not. The final section will show how the first steps towards such clarification can be seen in recent jurisprudence of the European Court of Human Rights (ECtHR) and in developments at EU and state level. The chapter concludes by suggesting that the current approach is not a new departure but represents a desirable clarification of the implicit norms underlying European approaches to relationships between the individual, the state, the law, and religion – and that the more muscular nature of the religious identity of some immigrant communities in may in fact be edging Europe towards a more explicit secularism than it has previously embraced. 6.2 Privilege and Recognition in a Secular Context Europe is notable in international terms for the relatively the secular nature of its culture and politics. On average, Europeans are less likely than the inhabitants of any other continent to say they believe in a deity or to attend religious services regularly.1 According to 1 P. Norris & R. Inglehart, Sacred and Secular: Religion and Politics Worldwide (2004).

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Ronan McCrea the World Values Survey some 49 percent of those in agrarian societies reported attending a religious service at least once a week.2 In the developed United States, the figure is almost as high at 46 percent.3 By contrast, the European Values Survey found that in 1999-2000 only 20.5 percent of Western Europeans reported similar levels of church attendance.4 Similarly, as to core religious beliefs, only 53.3 percent of Western Europeans said they believed in life after death,5 a figure some 23 percent lower than that given by respondents in the United States.6 Europeans also hold significantly lower levels of belief in notions such as heaven, hell, sin, and in the existence of a deity, than either less developed societies or developed countries such as Canada and the United States.7 On the other hand Europe is far from being an entirely ‘godless’ continent. Levels of nominal adherence to religion remain high while Christian religious institutions and symbols remain important elements of the national life and collective identity of most European states.8 Nevertheless, this religious belief is far less central to both personal and political identity than is the case in other areas of the world. Davie suggests that Europe exhibits a “vicarious religion” which she sees as representing a uniquely European frame of mind in which the actively religious are seen as carrying out religious activities “on behalf of ” the non-actively religious, who see religion as something of which they approve but do not take part in. Even this vicarious religiosity appears to be a rather minor component of Europeans’ identity and worldview. The 2008 Eurobarometer survey on ­European values asked EU citizens and citizens of states applying for EU membership to name the three most important values for them personally. The most frequently mentioned answers were “peace” (45 percent), “human rights” (42 percent) and “respect for human life” (41 percent). “Religion” on the other hand, was mentioned only by 7 percent of respondents.9 Such an approach to religion leaves religious organizations with much less influence over law, politics and society than in areas of the world where levels of belief are much higher and where such belief plays a more central role in values and identity. Religious organizations do retain influence in certain areas. They are involved in issues such as poverty and immigration. They are also major participants in political debates around what Casanova calls “life world issues,” namely issues relating to the beginning and end of life, family structures, and sexuality. Indeed the Catholic Church has made 2 Id., at 70. 3 Id., at 74. The figure in relation to the United States is the figure from the 2001 survey while the figure for agrarian societies represents a composite of the figures for all surveys between 1981 and 2001. 4 G. Davie, Europe: The Exceptional Case: Parameters of Faith in the Modern World 6 (2002). 5 Id., at 7. 6 Id. 7 Id., at 6-7. See also data from the Gallup Opinion Index and World Values Survey quoted at page 90 of Norris & Inglehart, supra note 1. 8 Supra note 4. See also G. Davie, Religion in Europe: A Memory Mutates 44 (2000). 9 Eurobarometer 69, 1 Values of Europeans, European Commission, Directorate-General for Communication, November 2008.

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6  De Facto Secularism in a Diversifying Religious Environment it clear that such issues will form the central focus of their attempts to influence public policy. In a 2006 address to the European People’s Party, Pope Benedict XVI stated that: [. . .] As far as the Catholic Church is concerned, the principal focus of her interventions in the public arena is the protection and promotion of the dignity of the person, and she is thereby consciously drawing particular attention to principles which are not negotiable.10 As to the specific areas of policy related to the dignity of the person, the Pope mentioned three areas upon which the church had focused: – protection of life in all its stages, from the first moment of conception until natural death; – recognition and promotion of the natural structure of the family – as a union between a man and a woman based on marriage – and its defense from attempts to make it juridically equivalent to radically different forms of union which in reality harm it and contribute to its destabilization, obscuring its particular character and its irreplaceable social role; – the protection of the right of parents to educate their children.11 These issues are at the forefront of contemporary political debate within Europe,12 and at the crux of the value differences separating values of the West from those of less economically developed regions.13 Large-scale immigration into Europe, particularly from Muslim countries, has given these issues a new lease of life14 and reopened conflicts which the proponents of traditional Christian morality had thought lost for many years. In late 2004 an expert group appointed by the EU issued a report entitled Islam and Fundamental Rights in Europe concluding that: [. . .] the major area of conflict between Islam and Human Rights is not politics but on Civil Law and culture as demonstrated in the debate over secularism and Islam. The highest divergence between Muslims and non-Muslims

10 Address of Pope Benedict XVI to the European People’s Party of 30 March 2006 full text at (last visited 20 June 2008). 11 To take just a few examples, legalization of gay marriage was a major source of conflict between the right and left in Spain in 2005 and in Portugal in 2010 while British politics has seen major clashes over the issue of exemptions for religious bodies from laws prohibiting discrimination on grounds of sexual orientation. The legalization of the Pacte Civile de Solidarité in France in 1999 was also a major source of conflict, and the legal status of abortion remains a major topic in Irish politics. 12 See, e.g., B. Bawer, While Europe Slept: How Radical Islam Is Destroying the West from Within (2006). 13 Supra note 1. 14 J. Klausen, The Islamic Challenge: Politics and Religion in Western Europe 15-16, 92 (2005).

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Ronan McCrea seems to concern the questions of morality and sexuality as shown in the debate over the headscarf but also on the question of sexual orientation.15 Similarly, Klausen found significant resistance to recognition of the right of states to protect gay rights, even amongst Muslims who were otherwise relatively well integrated into European societies.16 6.2.1

Weak Substantive Influence

Thus, although significant secularization has taken place, and although most mainstream European religions have come to accept the legitimacy of secular political authority, this has not meant that religion has been removed from law or political life. On the contrary, gray areas remain and in certain areas, religion continues to seek to play a role (and succeeds to varying degrees) in influencing law and politics in the Member States of the European Union. Nevertheless, religious influence over law and politics in Europe, while not negligible, is in international terms relatively weak, even in relation to “lifeworld” issues. The postwar period in Europe has been characterized by a steady decline in religious influence in this area. For instance, in 1940, homosexuality was illegal in 17 of the 25 member states of the EU in 2004.17 By 1993, Ireland found itself to be the only then member of the Union to maintain a policy of complete criminalization, and reformed its laws later that year. The countries of Central and Eastern Europe which sought to join the Union following the fall of the Iron Curtain all decriminalized before accession (though, in the case of Romania and Cyprus, only as a result of pressure from European institutions).18 The Catholic and Orthodox churches opposed decriminalization.19 15 See J. Césari, A. Caeiro & D. Hussain, Islam and Fundamental Rights in Europe, Final Report, October 2004, European Commission, DG Justice and Home Affairs, Centre National de la Recherche Scientifique, École pratique des hautes études, Groupe de sociologie des religions et de la laïcité, Para. 3 of the Executive Summary. This conclusion was underlined by joint statement condemning homosexuality by leading figures from a range of Islamic organizations in early 2006 published in the London Times, available at (accessed 6 October 2006). 16 Supra note 14, at 92. 17 See The International Lesbian and Gay Association, World Legal Survey, available at (last visited 9 November 2006). 18 The Baltic states decriminalized in 1992 (Latvia and Estonia) and 1993 (Lithuania) with Romania and ­Cyprus doing so in the year 2000. 19 For an account of the opposition of the Irish Catholic Church to reform of the Irish law see K. Rose, Diverse Communities: Evolution of Gay and Lesbian Politics in Ireland (1993). The Vatican has since stated that it no longer seeks the criminalization of private consensual homosexual activity though it has not opposed recent legislation seeking to impose such criminalization in Rwanda or Uganda. For accounts of the attitude of the Romanian Orthodox Church see F. Buhuceanu, ACCEPT Country Report on the Status of LGBT, available at (last visited 14 June 2006) and Romanian Orthodox Church Denounces Homosexuality, Reuters News Agency, 13 September 2000, available at (last visited 14 June 2006).

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6  De Facto Secularism in a Diversifying Religious Environment The law in relation to abortion has been subject to a similar process.20 By the end of World War II only Sweden had legalized the practice. By 2009, 44 of 47 member states of the Council of Europe had provided for at least some legal access to abortion. The law in relation to other “lifeworld” issues such as adultery and divorce has also been subject to a decreasing degree of religious influence. Adultery, for instance, was considered a crime in several European countries until the 1970s, all of which subsequently decriminalized the practice while divorce was finally legalized in Ireland in 1997.21 Europe is also notable for the degree to which it has provided legal recognition to same sex relationships. Seven ­European states recognize same-sex marriage while a further 13 provide some degree of legal recognition to same sex-couples. The only non-European countries to recognize same-sex marriage are South Africa and Canada. It should be remembered that opposition to matters such as same-sex marriage and abortion can arise from sources other than religion and that traditional attitudes towards lifeworld issues persist in many European states, particularly those in Central and Eastern Europe.22 Nevertheless, there is, at the very least, a strong correlation between attitudes to these matters and levels of religious belief23 and Europe’s approach to these issues is notable for the weak influence exercised by the approach of mainstream traditional religions. 6.2.2

Extensive Symbolic Recognition

On the other hand, despite the low level of religious influence over law and politics in Europe, European states do not, in general, have a strongly secular approach to churchstate relations. Indeed, given that the idea of state neutrality in relation to religion has been “a central plank of liberal thinking about the state and its ethical dimensions”24 the most striking feature of church-state relations in Europe is the almost total absence of such neutrality. Indeed, in the more intensively religious United States, the constitutional prohibition on the establishment of any religion has lead to the imposition of far more strictly secular standards of state neutrality than in secular Europe, with state funding and

20 See the Childbirth by Choice Trust Report, Abortion Law, History and Religion, available at: (last visited 8 November 2006). 21 Irish law criminalized adultery until 1981, French law until 1975 and Austrian law until 1997. See K. G. Singh, EU-Turkish Engagement: A Must for Stability of the Region, South Asia Analysis Group Papers (last visited 19 June 2006). 22 Eurobarometer 66 (2006) Standard Eurobarometer: Public Opinion in the European Union, available at (last visited 30 May 2007). 23 M. Procter & M. Hornsby-Smith, Individual Context Religiosity, Religious [sic.] and Values in Europe and North America, in L. Halman & O. Riis (Eds.), Religion in Secularizing Society: The Europeans’ Religion at the End of the 20th Century (2003). 24 J.T.S. Madeley, European Liberal Democracy and the Principle of State Religious Neutrality, in J. T. S. Madeley & Zs. Enyedi (Eds.), Church and State in Contemporary Europe: The Chimera of Neutrality (2003).

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Ronan McCrea endorsement of religion strictly prohibited under the jurisprudence of the US Supreme Court.25 In Europe, by contrast, although the legislative imposition of religious views of the good life on individuals has been significantly curtailed by secularization, church and state are, in general, both financially and legally intertwined. The population of most European states contains a significant majority of a single faith and particular religions have played, and continue to play, major roles in the national identity of many states. This link between states and certain religions is reflected in official structures in most European countries. In his 1982 survey of church-state relations in the world, Barrett found that of the 35 sovereign territories in Europe, only five could be termed secular in the sense that the state neither promoted neither religion nor irreligion. Nine communist countries were Atheistic, fourteen were associated with a single confessional tradition while Finland supported two (Russian Orthodox and Lutheran). Six states were committed to the support of a plurality of religious organizations with Belgium for example paying salaries for the clergy of six different denominations.26 Furthermore, as Madeley points out, even the five states classified as secular had arrangements which would fall foul of the version of nonestablishment developed by the United States Supreme Court (with even famously secular France falling short of the ideal of strict neutrality in several respects). Indeed, when de facto circumstances were taken into account, no European state could be said to have a fully ­neutral approach by the state towards religion, with most states offering large-scale subsidies to certain denominations.27 A review of the situation in the year 2000 showed that there had been no large-scale shift towards state neutrality. Despite the large increase in the n ­ umber of cases (there were 47 independent states, some 12 more than in 1980), only Sweden and newly reunified Germany had moved towards a greater degree of neutrality (though both still provided large subsidies to religious organizations). By far the largest trend was towards the removal of previous restrictions on religious life (a relic of the communist era) and their replacement with state support for recognized denominations (either through the taxation system or through direct state funding of church buildings and facilities).28 Europe’s approach to religion is therefore characterized by an odd mixture of formal links between religion and the state on the one hand and relatively limited substantive religious influence over law, politics, and society on the other. Strong links between particular national identities and specific faiths mean that religion is given a degree of official recognition and an exalted symbolic status in many states. On the other hand, the impact of this

25 See, e.g., Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1997) where the Supreme Court held that governmental action which supported religion must have a secular purpose and avoid “an excessive governmental entanglement with religion” to pass constitutional muster. 26 D. Barrett (Ed.), World Christian Encyclopedia: A Comparative Study of Churches and Religions in the Modern World AD 1900-2000 (1982). Quoted in Madeley, supra note 24, at 13. 27 Id., at 15. 28 Id., at 17.

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6  De Facto Secularism in a Diversifying Religious Environment recognition is tempered by strong secularist elements of European culture that draw on strong traditions of political liberalism protecting principles such as individual autonomy and free expression from curtailment on religious grounds. European equivalents of largescale political religious groups such as the Christian Coalition, enormously influential in American politics, have not generally been able to establish a similar political role in European states where political debate has tended not to be receptive to religiously specific arguments.29 6.3 Gray Areas: Cultural Understandings and the Disconnect between de Jure and de Facto Status Religion’s symbolic status and institutional status in many European states is therefore, to a degree, out of line with its actual power. Shared cultural norms and assumptions (which, given that a large majority of voters remain at least nominal members of religious faiths, must often be shared by the faithful) relating to the limited nature of permissible religious influence over law and politics have come to blunt the practical impact of this religious privilege on substantive law. The Irish Constitution, for example, requires that blasphemy be punished by law.30 However when faced with an attempt to enforce the relevant article in 1999, the Supreme Court refused, stating that the common law offence of blasphemous libel criminalizing the mere act of publication of blasphemous matter without proof of any intention to blaspheme could not be reconciled with “a Constitution guaranteeing freedom of conscience and the free profession and practice of religion.”31 In the absence of a statutory definition of blasphemy, the Court was unwilling to allow any prosecution of the offence.32 29 Evangelical Christian organizations such as Christian Voice in the UK or the Christian Solidarity Party in Ireland have remained very marginal political forces. Similarly Christine Boutin’s invocation of the Bible in the French debate on the PACS was seen as a scandal. See Ch. Boutin, Passionaria des valeurs familiales et sociales [Passionaria of family and social values] Agence France-Presse, 18 May 2007, available at . An exception to this may be Poland where parties such as the League of Polish Families have had significant electoral success, though the EU places limits on religious influence over law and politics as does the jurisprudence of the European Court of Human Rights. See R. McCrea, Limitations on Religion in a Liberal Democratic Public Order: Christianity, Islam and the Partial Secularity of the European Union, 27 Yearbook of European Law 195 (2008). 30 Art, 40.6.1.i, Bunreacht na h-Eireann. 31 Corway v. Independent Newspapers [1999] 4 IR 485. 32 Id. In 2009 the government succeeded in passing highly controversial legislation providing for the clarification of the elements of the offence of blasphemy in Irish law. The law (the Defamation Act of 2009) did however contain a clause providing that no crime would be committed where the defendant could “prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates” (Sec. 36). The Minister for Justice proposed in March 2010 that a referendum would be held in late 2010 to repeal the article of the Constitution mandating that blasphemy be a crime. See Ahern to Propose Blasphemy Amendment, The Irish Times, 17 March 2010, .

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Ronan McCrea Similarly, British blasphemy law gradually moved from a situation where it covered any questioning of Christian doctrines to covering (in its last successful invocation in 1979) only “contemptuous, reviling, scurrilous and/or ludicrous material relating to God, Christ, the Bible or the formularies of the Church of England [and must also] be such as tends to endanger society as a whole, by endangering the peace, depraving public morality, shaking the fabric of society or tending to cause civil strife.”33 In both countries therefore, a significant legal privilege granted to a particular faith, with the potential to impact significantly on principles such a freedom of expression, was interpreted in the light of secular elements of contemporary culture to significantly restrict such impact. Similar stories have emerged in several European countries where laws against offending people on religious grounds have not prevented regular lampooning of Christianity, nor the publication of works ridiculing Christianity or religion in general.34 Such an approach has, of course, been controversial and does not mean that religious groups themselves have accepted the restriction of privileges in this manner. However, the mainstream Christian religions present on the European scene since the Reformation have, as Roy notes, by and large had to come to terms with the secular nature of the political system in Europe either as a matter of realpolitik or theological conviction.35 Furthermore, even when mainstream Christian churches are determinedly opposed to a particular state policy such as abortion or legal recognition of gay couples, their ability to translate such opposition into political action is limited by the relatively minor nature of the role played by religion in the identity of many of the members of their churches. In any event, as Roy has argued, even in the event of a clash between European Christian churches and the state in matters such as abortion “the two parties accept precisely that the debate will not turn into opposition to the political system.”36 This, Ferrari argues, is the outcome of “a new Westphalia” that was “genetically inscribed in the crucial hairpin bend of the period after the Second World War” under which the religions present on the European public scene in the immediate postwar period accepted the political supremacy of the liberal democratic state in return for a “constitutional secularism that is less and less interpreted as separation and more and more as integration” which enabled them to take a full part in civil society.37

33 R. (Green) v. City of Westminster Magistrates’ Court [2007] EWHC 2785 (Admin) Para. 11. 34 Recent years have seen major success in Europe for anti-religious books such as Ch. Hitchens, God Is Not Great: How Religion Poisons Everything (2009) and R. Dawkins, The God Delusion (2008), which treat religion as a phenomenon that is foolish and, at times, evil. 35 O. Roy, Secularism Confronts Islam (Transl. G. Holoch from the French) 19 (2007). 36 Id., at 21-22. 37 A. Ferrari, Religions, Secularity and Democracy in Europe: For a New Kelsenian Pact, Jean Monnet Working Papers Program, NYU School of Law (2005). Available at (last visited 19 June 2006).

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6  De Facto Secularism in a Diversifying Religious Environment 6.4 Gray Areas in a Context of Increasing Diversity: Challenges to the Established Pattern This arrangement where significant legal privilege is granted to particular faiths but the impact of such privilege is limited by shared cultural assumptions in relation to the limited influence of religion over law, politics and society, has been coming under pressure in Europe in recent times. First, the compact to which European religions are said to have signed up contained significant gray areas. As Roy has noted, religious acceptance of the restrictions on religions’ political influence was often more political than theological. In the French context he noted that [the] church’s acceptance of the republic and of laïcité was political, not theological. [The “toast of Algiers” by Cardinal Lavigerie of November 1890 through which the Vatican indicated its acceptance of France’s secularism] had nothing to do with new theological speculation; it was a purely political decision motivated by political considerations.38 Mainstream European religions never fully accepted that religious teaching could not provide the basis for laws and, particularly in countries such as Ireland where they retained significant power, sought to use the coercive power of the law to enforce their teachings in relation to lifeworld areas such as contraception and homosexual behavior.39 Second, the religious makeup of Europe has undergone significant changes since the postwar period. Alongside significant secularization (in the sociological rather than the legal or philosophical sense) and reduction in the numbers adhering to historically dominant Christian faiths, the postwar period has seen considerable immigration, which has brought to Europe significant numbers of adherents to religions such as Hinduism, ­Buddhism and Sikhism whose historical presence in Europe had been very minor. Immigration has also brought large numbers of Muslims to Europe. Islam has played a major role in European history and many of the cultural advances made in periods such as the Renaissance were reliant on Muslim learning. The role played by Islam in Europe has, however, historically been primarily that of Europe’s historical “other” rather than as a player in the development of relationships between religion, law, and the state in ­European societies.

38 O. Roy, supra note 35, at 18-19. 39 See K. Rose, Diverse Communities: The Evolution of Lesbian and Gay Politics in Ireland 27, 44 (1994); more generally, see E. O’Reilly, Masterminds of the Right (1992).

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Ronan McCrea These religions were not players on the European public scene at the time that the “new Westphalia” became a possible arrangement between religions and the state in ­Europe. In any event, the structures and limitations on religious influence over law and politics that solidified following the end of World War II were themselves the product of a specific cultural history of which Christianity is an enormous part. The ideas of the appropriate nature of the relationship between religion, the law, and the state that underpin European approaches in this area are the product not only of Christian, humanist and Christian-humanist thought,40 but also of centuries of conflict and compromise in Europe between mainly Christian religious forces, the state, and advocates of secularism and humanism. It is therefore inevitable that mainstream European Christian denominations will find it easier to accept the limitations placed on their influence over law and politics by any implicit compact between religion and the state that has emerged in Europe, rather than religions such as Islam that neither played a similar role forming this compact nor were exposed to the same degree to the historical forces and events that brought it about. The same could perhaps be said in relation to African Christian churches, which, while influenced by European Christianity, retain a much more central role in African societies than their European equivalents. As Roy has noted in an observation relating to Islam in the French context that can equally be applied to other religions, suspicion and fear can be generated by the emergence of “new communities of believers who do not feel bound by the compromises laboriously developed over the past century between cathos and laïques.”41 Similarly, Davie has noted how damaging misunderstandings have arisen from the presumption that all religions share a “live and let live” approach to religion when such approach is in fact far from universal.42 These misunderstandings are particularly liable to arise in a context such as Europe, where a strong symbolic role for religion is modified and moderated by shared but often only implicit culturally and historically conditioned expectations regarding the appropriate public role of religion. As to blasphemy, for example, as noted above, some European states have retained laws that seek to punish the publication of blasphemous material. In this they appear similar to states such as Pakistan, Iran and Saudi Arabia that also criminalize blasphemy (albeit with much harsher penalties). However, what is understood as legally actionable blasphemy – not merely by the State but also by the adherents of mainstream Christian denominations – is radically different in Europe. In the Corway

40 C. Taylor, A Secular Age (2007). 41 O. Roy, supra note 35, at 6. 42 See G. Davie, Religion in Modern Britain: Changing Sociological Assumptions, 34 Sociology 113 (2000). Suggesting that that the difference in attitude to religion of native Europeans and immigrant communities ”has led to persistent and damaging misunderstandings." See also P. Norris & R. Inglehart, supra note 1.

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6  De Facto Secularism in a Diversifying Religious Environment case decided by the Irish Supreme Court, it was not the Catholic Church but an aggrieved individual who sought the prosecution of an artist who had drawn an offending cartoon. Similarly, the plaintiff in the Jerry Springer case in the United Kingdom in which the plaintiff sought to judicially review a refusal to prosecute the producers of Jerry Springer: The Opera,43 was a fringe Christian group rather than any of the mainstream Christian churches. Indeed the crime of blasphemous libel was successfully invoked only once in Britain in the second half of the 20th century.44 Therefore, despite the existence of blasphemy laws in some states, as cultural understandings of the importance of free speech led most of the mainstream faithful not to regard strong criticism as blasphemous and to seek to invoke the law only in extremis, strong criticism of Christianity and Christian churches has become routinely accepted not only by European states but also by members of mainstream Christian denominations in Europe. As the furor surrounding the publication of cartoons of the prophet Mohammed in a Danish newspaper showed, many mainstream adherents to religious traditions that have not been shaped to the same degree by the secularizing influence of European history have rather different ideas of what constitutes blasphemy or unacceptable criticism of religion. Given that a crime of blasphemy or other restrictions on offending religious beliefs are actually on the statute books of many European states, adherents to religions that have a less tolerant approach to criticism may perceive that blasphemy laws are being applied in a selective manner and therefore feel aggrieved and discriminated against when they find that what they view as blasphemous or unacceptable is nevertheless not subject to prosecution due to commitments to free speech and the relativizing of religion and its importance that has occurred in European societies. Something similar, albeit not identical, can be observed regarding symbols and uniforms in state public contexts. School uniform rules can prove to be less challenging for Christians, as ideas of what is normal or neutral are conditioned by cultural norms that have, in Europe, been influenced to a greater extent by Christianity than any other religion. The symbols of the state can also relate to Christianity to a greater extent than to other religions. For example, Sikh recruits to the Garda Síochána (the Irish police force) have not been permitted to substitute religious items such as turbans for standard elements of the uniform, on the basis that the members of the police force must appear

43 The opera portrayed Jesus and other members of the Holy Family as dysfunctional guests on The Jerry Springer Show, a confessional show featuring guests involved in unusual and often degrading sexual relationships. 44 The crime of blasphemous libel was abolished by the British Parliament in 2008 (The Criminal Justice and Immigration Act 2008). Attempts to criminalize language which was “abusive or insulting” towards religion as 2006 Race and Religious Hatred Act were rejected. See Ministers Lose Religious Bill Bid, BBC News, 1 February 2006, available at .

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Ronan McCrea to be neutral.45 However, the emblem of the force, which appears on the helmets of all members, contains symbols that are clearly linked to the Celtic tradition of Christian monastic art that forms a major part of Ireland’s cultural heritage. These issues pose difficult questions and boundaries can be hard to draw. To the Sikh officer this may appear to be an instance of double standards yet to the majority community in Ireland, the Garda symbol is not seen as religious in nature but merely as a reflection of an important element of the nation’s cultural heritage. The greater diversity of religions in Europe therefore poses significant challenges to existing ways of dealing with the relationship between religion, the law, and the state. The symbolic status granted to religion by the state, or previously largely symbolic laws relating to matters such as blasphemy, have come to be seen in a new light as the cultural consensus that had limited their impact breaks down. Therefore, just as the unused and symbolic powers of the British monarchy would be threatened by the arrival to the UK of significant numbers who genuinely believed in monarchical government, similarly the symbolic status of European religions has been called into question by the increase in the number of adherents to religious traditions whose relationship to politics and law has not been shaped by the same conflicts and compromises which influenced the relationship between culturally entrenched forms of Christianity and the state in Europe. 6.5 Leveling Up and Leveling Down Addressing the perception of unequal treatment that the current approach entails could involve a “leveling up” of religious influence, where restrictions on religion’s public role are relaxed in order to enable outsider religions to achieve a comparably broad role to that of insider faiths. It could also involve a degree of “leveling down” under which the influence of insider religions over law and their symbolic recognition are more strictly controlled with consequent restriction of the ability of European states to reflect their cultural heritage in their law and symbolic arrangements. Neither is without its difficulties and I will suggest that neither is wholly satisfactory. To date no consensus has emerged in this regard. Some have argued that the more vigorous religiosity of many immigrants may lead to a process in which the secular elements of the European public order are made more explicit. Indeed an unnamed German politician quoted by Klausen in her study of politically active European Muslims predicted

45 Green Party Calls on Gardaí to Rethink Its Ban on Sikh Turban, The Irish Independent, 22 August 2007, available at .

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6  De Facto Secularism in a Diversifying Religious Environment that the result of the increased presence of Muslims in Europe will be the institution of greater separation between church and state.46 However, such an outcome is far from inevitable. Powerful voices have spoken out against the notion of a more secular Europe and have called for a reassertion of Europe’s Christian identity47 while the Catholic Church has, at times, used controversies, such as that surrounding the publication of cartoons of the Prophet Mohammed in the Danish press, to exploit the gray areas in Europe’s current religion-law-state compact in order to push for measures to restrict freedoms such as the right to ridicule religion which emerged from past conflicts between Christianity and secular forces in Europe.48 The option of “leveling up” and significantly reducing restraints on religious influence over law and politics has major drawbacks. As non-believers cannot contribute meaningfully to the formation of laws justified on religious grounds, it risks compromising the ability of all groups to participate in public debate. Given that major European religions such as Roman Catholicism and mainstream versions of Islam retain ambitions to use the law to enforce compliance with their teachings in relation to “lifeworld” matters, “leveling up” risks imperiling the valuable European tradition of protection of privacy and individual autonomy.49 As the Mohammed cartoons affair showed, leveling up may also radically restrict the scope of free expression in relation to religious matters. It may also encourage religious organizations such as the Catholic Church to seek to win back some the powers to stifle criticism which they had lost over preceding centuries.50 On the other hand, to attempt to cure the political inequalities which result from the ill-defined nature of the boundary between the cultural and political realms by insisting on absolute equality of religions in the cultural arena represents the kind of radically multiculturalist approach that has not found recent favor with European electorates and which would deny the right of nation states to develop their own cultural identity and to retain the cultural links to the past (imagined or real) which are a key element of any national identity. As Taylor rightly points out, sustainable political communities are not

46 J. Klausen, The Islamic Challenge: Politics and Religion in Western Europe 179 (2005). 47 See J. H. H. Weiler, Un’Europa Cristiana [A Christian Europe] (2003) and G. Weigel, The Cube and the Cathedral: Europe, America and Politics without God (2005). 48 See, Intervention of the Holy See at the ordinary session of the United Nations Human Rights Council on Religious Freedom, Address of H. E. Msgr. Silano M. Tomasi, Geneva, 22 March 2007. Available at (accessed 1 May 2007). 49 See, e.g., the Vatican’s opposition to a United Nations motion calling for an end to the criminalization and punishment of individuals on the grounds of their sexual orientation, The Pope’s Christmas Gift: A Hard Line on Church Doctrine, Time Magazine, 3 December 2008. The Vatican later clarified that it was not necessarily in favor of criminalizing homosexuality. However, it did not object to the principle of criminalization of homosexuality in Uganda in 2009-2010 and actively objected to moves to decriminalize homosexual conduct in Ireland as late as 1993, see K. Rose, supra note 37. 50 Id.

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Ronan McCrea made up of “a scratch team of history with nothing more in common than the passenger list of some international flight”51 but require some kind of common identity.52 Therefore, although leveling down would bring fewer problems in terms of political equality and individual autonomy it would, in its most intense form, involve significant restrictions on the ability of European nations to maintain a vibrant and distinctive shared culture. European history, art and music have all been heavily influenced by Christianity. For instance, an education system in a historically predominantly Protestant or Catholic country that devoted as much time to studying Islam and Hinduism as to the study of Christianity would give students an inaccurate and defective understanding of their national cultural heritage and would leave them with a much weakened sense of connection to a shared cultural past. Similarly the centrality of festivals such as Christmas and Easter or the feasts of particular saints such as Saint Patrick’s day in Ireland or the day of Saint Joan in Catalonia, are not strictly neutral in religious terms but also help to maintain the sense of community promoted by shared holidays and celebrations. An approach that insisted on the removal of all religious elements of state identity, even in the cultural arena, risks undermining the very idea of shared cultural norms and a common cultural identity, with a consequent impoverishment of the public and cultural life of European states. 6.6 Clarification of Meaning: Religion as Culture v. Religion as Truth How therefore can the principle of equal treatment of religions be reconciled with the protection of Europe’s secular tradition and the role of specific forms of religion in European culture? The answer lies in making clearer and more explicit the fundamental elements of the existing European approach to religion. This is a process that, as I will show, is in fact already underway. The common element of European approaches to the relationship between religion, the state, and the law is based on a hitherto insufficiently articulated distinction between recognition of a specific faith as an element of a particular national culture and recognition of religion’s claim to truth. The restrictions on the recourse to religious teachings that we see in Europe as a basis of law rely on a recognition that in democratic societies committed to civic equality, an approach on the part of the state recognizing any particular religion as true, violates the openness of the political debate to those who do not follow that particular faith. Non-members of a particular faith will, as Rorty has noted,53 be unable to participate meaningfully in political debate aimed at aligning the law with the teachings of a faith they do not share. Given the teachings of many 51 C. Taylor, Liberal Politics and the Public Sphere, Discussion Paper no. 15, The Centre for the Study of Global Governance, London School of Economics, 19 (1995). 52 Id. 53 R. Rorty, Religion as Conversation-Stopper, 1 Common Knowledge 1, at 1-6 (1994).

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6  De Facto Secularism in a Diversifying Religious Environment mainstream faiths on matters of blasphemy, gender, and sexuality, the removal of such restrictions also risks major curtailments of rights such as freedom of expression, equality, and privacy, respect for which has been a key element of Europe’s postwar public order. The rolling back of the limitations on religion’s political and legal influence would therefore be unwelcome. What is therefore needed is a clarification of the content of and purpose of such restrictions that accommodates the role of particular religions in national cultures but also addresses the sense of double standards and discrimination felt by outsider faiths that perceive that they are being accorded a lesser civic status, in addition to a more marginal cultural role. The best means to achieve this is to highlight the key distinction between religion’s cultural role and its claim to truth; a distinction that in fact already underpins European approaches in this area. This distinction is based on the recognition that, as a matter of reality, particular faiths have made a disproportionately large contribution to the cultural identity of many European states. The cultural symbols and other shared traditions of these states are therefore likely to reflect this contribution and to favor that particular faith to some degree. The existence of state churches in many European states (which has been upheld by the European Court of Human Rights) as well as the clear-cut favoring involved in alignment of public holidays with the holy days of a particular religion or the use of religiously linked symbols for state purposes (such as the emblem of the Irish police force), all testify to the accommodation of this cultural role for religion as a key element of European approaches to the relationship between religion, state, and law. What the accommodation of this cultural role does not mean is that the state recognises the claims or beliefs of a particular religion to be true. It is precisely such recognition that becomes incompatible with European approaches to the relationship between religion, state, and law. It is this refusal to acknowledge the truth of the claims of any faith – even one which has had a formative influence on national culture – that distinguishes European approaches from those of more intensely religious areas of the world where political discourse is more open to theologically-based arguments. This can be seen most clearly in countries such as Iran, Iraq or Saudi Arabia where agreement that a proposed piece of legislation is contrary to Islam would effectively close the door on any attempts to pass it into law.54 In this vein it is notable how legislators opposing laws that grant more rights to women in Pakistan and Afghanistan have argued against such laws on explicitly

54 The constitutions of all three countries make it clear that all legislation must be compatible with shari’a (see Art. 2(1)(a)é, Constitution of Iraq; Arts. 2 to 5, Constitution of the Islamic Republic of Iran; Chaps. 1, 2 and Art. 6, Constitution of Saudi Arabia). Consider for example the likely fate of a proposal to introduce same-sex marriage in any of these countries. There may be other cultural reasons behind opposition to equality between genders or sexual orientations but the hostility of mainstream versions of the Islamic religion is clearly a major factor. While most European countries have not yet enacted same-sex marriage, theological arguments play a much lesser role in debate on these issues.

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Ronan McCrea religious grounds, namely that they are “un-Islamic.”55 Explicit attempts to legislate for religious morality are far less accepted in Europe.56 Moreover the ECtHR has explicitly ruled that theocracy is incompatible with the European Convention on Human Rights.57 Of course such a restriction is more challenging for religions that seek to use the law to enforce obedience to their teachings but, for the reasons outlined above, this is an unavoid­able necessity if the liberal democratic system is to be maintained. 6.7 Culture/Truth Distinction as a European Norm 6.7.1

Developments at EU Level

EU law also adopted the distinction between cultural and political religion to a significant degree. It has recognized religion as an element of national culture. In the Grogan and Schindler cases the European Court of Justice recognized religiously influenced derogations from EU law duties in relation to gambling and abortion as part of national cultural autonomy.58 It has also characterized laws prohibiting Sunday trading as legitimate ways to protect “national or regional socio-cultural characteristics.”59 The Lisbon Treaty explicitly recognized the right of Member States to retain particular links to specific faiths60 while Directive 2000/78 which governs discrimination in employment provided exemptions to facilitate the role traditionally played by religious organizations in the provision of healthcare and education services in some Member States.61 On the other hand, the Union has stated that the introduction of religious elements into the legal systems of applicant states and the imposition by Member States of biblical sexual morality through criminal law at the expense of the right to privacy are incompatible with EU membership.62

55 See, e.g., Strong Feelings Over Pakistan Rape Laws, BBC News, 15 November 2006, available at or Pakistan Law Change ‘Un-Islamic’, BBC News, 22 August 2006, available at and Afghan Women Protest New Law on Home Life, The New York Times, 15 April 2009, available at all of which show the degree to which specifically religious arguments remain central to the lawmaking process in these countries. 56 McCrea, supra note 29. 57 See, Refah Partisi (the Welfare Party) and Others v. Turkey, ECtHR, Application nos. 41340/98, 41342/98, 41343/98, 41344/98, judgment of 13 February 2003, at Para. 82. 58 Judgment of 24 March 1994 in Case C-275/92, Her Majesty’s Customs and Excise v. Schindler, [1994] ECR I-01039. Para. 60, Judgment of 4 October 1991 in Case C-159/90, SPUC v. Grogan, [1991] ECRI-4685. 59 Judgment of 23 November 1989 in Case C-145/88, Torfaen Borough Council v. B & Q plc [1989] ECR3851. 60 Art. 16C, Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the ­European Community, OJ C 306/42 17.12.2007. 61 Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation Art. 2(5) OJ L 303, 2.12.2000. 62 See, R. McCrea, supra note 29, at 195.

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6  De Facto Secularism in a Diversifying Religious Environment 6.7.2

The Evolving Jurisprudence of the European Court of Human Rights

This facilitation of religion’s role in national culture, along with the restriction of religious influence in the legal and political arenas, is consistent with the idea that a common ­European approach to the relationship between religion, law and state prohibits state recognition of the truth of the claims of any particular religion. This is confirmed by the repeated statements of the ECtHR that the European Convention on Human Rights ­requires that state interaction with religion should be confined to the role of “neutral and impartial organiser of the exercise of various religions, faiths and beliefs”63 and has stated that that “the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs.”64 This neutrality means that, as claims to truth, all religions are equal in the political arena in Europe. The civic equality of all religions is thereby upheld. The state is prohibited from endorsing the theology of any religion (or indeed atheism) as true or from attempting to pass such theology into law. However as elements of national culture, European approaches do not require all religions to be recognized as equal. The Strasbourg Court has, for example, explicitly upheld the right of states to maintain an official state church.65 While national cultures will eventually adapt to greater religious diversity and while the increased presence of religions such as Hinduism and Islam within European states will no doubt eventually be reflected in national cultures, until this happens, the state remains free to reflect symbolically the particular role of certain faiths in national history and cultural identity. Boundaries in this area are particularly problematic to draw. It can be difficult to decide whether the presence of an Archbishop at official ceremonies or the presence of a religious symbol in a state building is the reflection of cultural heritage or implicit endorsement of the truth of a particular faith. In the past when Europe was less religiously diverse, this distinction may not have been so important, as the vast majority of people accepted both the truth claims of the majority national religion and its cultural role. Furthermore, in the immediate postwar period, the mainstream Christian denominations appeared to have accepted an implicit compact under which they limited at least some of their claims to legal and political influence, thus easing the path towards respect for principles such as free expression on religious matters, gender equality and respect for gay rights, which many of them may have opposed.66 63 See, Refah Partisi case, supra note 57, at Para. 91 citing Cha’are Shalom Ve Tsedek v. France, ECtHR, Application no. 27417/95, judgment of 27 June 2000, at Para. 84, and Metropolitan Church of Bessarabia and Others v. Moldova, ECtHR, Application no. 45701/99, judgment of 13 December 2001, at Para. 123. 64 Refah Partisi case, supra note 57, at Para. 91. 65 Darby v. Sweden, ECtHR, Application no. 11581/85, judgment of 23 October 1990. 66 A good example of such limited ambitions can be see in relation to Roman Catholic opposition to laws facilitating abortion, in relation to which, as Roy has noted, both church and state “accept precisely that the debate will not turn into opposition to the political system.” O. Roy, supra note 35, at 21-22.

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Ronan McCrea As noted above, in a more religiously diverse Europe there are significant religious groups that do not feel bound by “the compromises laboriously developed over the past century between cathos and laïques”67 and there is a resultant danger that failure to distinguish between religion’s cultural role and its claim to truth may result in the undermining of the limitations on religious influence over law and politics with potentially adverse consequences for important values such as free expression, gender equality, and gay rights. Some argue that the increased presence of Muslims in Europe will result in the institution of greater separation between church and state. Certainly increased religious diversity means that greater clarity is required regarding the meaning of the recognition accorded to religions by European states, and perhaps that a greater degree of strictness to ensure that symbolic recognition of religion’s cultural role does not stray into state endorsement of truth, is also called for. It is indeed the case that in recent times move towards greater strictness and an increasing distinction between state association with a particular religion as a matter of culture and state recognition of the truth of the claims of a particular religion can be seen in the jurisprudence of the ECtHR. In Buscarini and Others v. San Marino68 the Court found that the requirement that those elected to the San Marinese parliament take a traditional oath including the phrase “I swear on the Holy Gospels” was a violation of the right to religious freedom protected by Article 9 of the European Convention on Human Rights. The San Marinese government had argued that the oath was in fact cultural in nature and that it needed to be seen in the light of fact that “the history and traditions of San Marino were linked to Christianity” and that “the oath’s religious significance had been replaced by the need to preserve public order in the form of social cohesion and the citizens’ trust in their traditional institutions.”69 The Court dealt very briefly with this argument, concluding that “requiring the applicants to take the oath on the Gospels was tantamount to requiring two elected representatives of the people to swear allegiance to a particular religion, which is incompatible with Article 9 of the Convention.”70 An explicit distinction between association between the state and a particular religion on the basis of that religion’s status as an element of national culture, as opposed to recognition on the part of the state of the truth of the claims of that religion, and a more comprehensive analysis of the relevant issues, were seen in the case of Lautsi v. Italy.71 In this case, appealed before the Grand Chamber, the ECtHR engaged in an explicit analysis of whether the placing of crucifixes in Italian state schools could be seen as merely 67 68 69 70 71

Id., at 6. Buscarini and Others v. San Marino, ECtHR, Application no. 24645/94, judgment of 18 February 1999. Id., at Para. 36. Id., at Para. 39. Lautsi v. Italy, ECtHR, Application no. 30814/06, judgment of 3 November 2009. The Grand Chamber overturned the Chamber decision on 18 March 2011, after the closing of the manuscript.

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6  De Facto Secularism in a Diversifying Religious Environment reflective of Italian culture and universal values or whether it could be seen as an endorsement of Roman Catholicism qua religion by the Italian state. It is notable that the Italian government did not base its defense of the presence of crucifixes in the classroom on the basis that it was permissible for the Italian state to associate itself explicitly with Roman Catholicism as a religion but rather that the cross “recalled a cultural tradition and humanist values shared by non-Christians.”72 This approach implicitly accepts that it would be impermissible for the state, at least in the context of its education system, to endorse a particular religion as the true faith and that only those religious symbols which were at least capable of being viewed as cultural and generally acceptable, rather than as representing a particular faith, could legitimately be placed in state education systems. The Court approached the case on the same basis and focused its analysis on the question of whether the cross was a religious or a cultural symbol thus assuming that, if it could be seen as a religious symbol, its presence would be illegitimate. The Court found that “the cross has a plurality of meanings amongst which the religious is predominant.”73 It stated that “the presence of the crucifix in classrooms goes beyond the use of symbols in specific historic contexts” and recalled its decision in Buscarini that “the traditional character, in the social and historical sense, of a text used by parliamentarians to take an oath does not deprive the oath of its religious nature.”74 Accordingly, the Italian state had interfered with convictions of the applicant, as the presence of the crucifix in state schools was “a sign that the state aligns itself with the Catholic religion.”75 This interference could not be justified, as the Italian Government had suggested, by the need to compromise with Christian-inspired political parties as “the state is obliged to uphold confessional neutrality.”76 Although the decision may have been influenced by the fact that the case related to the state education system which the Court recognized as being a place where “people are dependant on [the state] and vulnerable,”77 nevertheless the Court has, in both Lautsi and Buscarini, clearly distinguished between state recognition of a particular religion as an element of its culture and state recognition of a particular religion’s claim to truth. It also indicated in both cases that it is willing to look behind an assertion that the relevant symbolic endorsement is merely cultural in nature, as in Lautsi, where the Chamber’s decision was based its conclusion that the relevant endorsement related to Catholicism as a religion and not as an element of cultural identity. In taking this stance the ECtHR has moved towards the approach of the United States Supreme Court, whose jurisprudence in 72 73 74 75 76 77

Id., at Para. 40. Id., at Para. 51. Id., at Para. 52. Id., at Para. 53. Id., at Para. 56. Id., at Para. 48.

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Ronan McCrea relation to state endorsement of religion has regularly focused on the question of whether state sponsorship of symbols with a religious aspect can be seen as facilitation of cultural celebrations (which would be constitutional) as opposed to the demonstration of the government’s allegiance to a particular sect or creed.78 6.7.3

Developments at the State Level

A move towards more explicit assertion of the secular elements of the European public order can be seen in the political arena as well. Here measures to restrict the symbolic role of religion and to reaffirm the limits of religious influence in the public arena can be much more easily linked to worries about Islam and the threat that some fear it poses to freedom from religion in Europe. Moves to ban the wearing of all ostentatious religious symbols in state schools in France and the prohibition of all religious symbols in state offices in Berlin were both linked to concerns prompted by the wearing of the Islamic headscarf. Indeed, several German states have moved to restrict the wearing of either the Islamic headscarf specifically or religious symbols in general, in government offices and the education system.79 In 2008 the Danish government moved to prevent the wearing of visible religious symbols, notably the headscarf, in courtrooms.80 Similarly, many European states have responded to concerns relating to the impact of large-scale Muslim immigration by introducing measures that require non-EU immigrants to indicate awareness or acceptance of principles such as gender equality, gay rights and liberal democracy. In 2000 the French minister of the interior Jean Pierre Chevènment sought specific assurances from Muslim groups that they were committed to the principle on secularism on the grounds that unlike Christianity, Islam: [. . .] has experienced neither the Renaissance or the Reformation. Certainly, Islam does distinguish between the religious and secular domains. However, 78 See, Allegheny County v. ACLU, 492 U.S. 573 (1989). The Court upheld legislative prayers and the placing of the phrase “In God We Trust” on the grounds that they represent “ceremonial deism” devoid of any actual religious content. See S. B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 Colum. L. Rev. 2083 (1996). It should be noted that the United States Supreme Court, interpreting a different text and operating in the context of a very different polity, has imposed a much more exacting standard of secularity on the states than the European Court of Human Rights. The placing of a crucifix in state schools would almost certainly fall foul of the United States constitution. See, e.g., Stone v. Graham, 449 U.S. 39 (1980). 79 See Religious Tradition or Political Symbol? Muslim Headscarves Test the Limits of German Tolerance, Der Spiegel, 20 June 2008, available at . See also Discrimination in the Name of Neutrality, Human Rights Watch, 26 February 2009, which contains details of the different measures adopted by German states, available at . 80 See, Forbud mod religiøse symboler i retssale [Ban on religious symbols in courtrooms], Jyllands Posten, 14 May 2008, available at .

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6  De Facto Secularism in a Diversifying Religious Environment there is no shortage of Muslims to point out that this distinction calls for a level of coordination [between the two domains] and consequently permanent involvement of religion in the secular sphere.81 In 2003 France amended its 1945 law to require immigrants to satisfy a condition of “Republican Integration.”82 In July 2008, the Conseil d’État upheld a refusal to grant French nationality to a Muslim woman on the grounds that her “radical practice of her religion,” which included the wearing of a niqab, was incompatible with the basic values of French society including gender equality.83 In the same vein, in February 2010 the French justice minister refused to accord citizenship to a man who required his wife to be fully veiled and who failed to accept the principles of gender equality and secularism.84 In 2000, 2002 and 2003 legislative changes were introduced in The Netherlands that required applicants for naturalization to indicate their “integration” into Dutch society by means of a series of exams examining knowledge of Dutch society and the Dutch language.85 In 2006 an immigration test was introduced requiring immigrants to answer a series of questions about the Netherlands such as its provincial structure and the role of the monarchy. It also requires immigrants to show an awareness of Dutch norms in relation to sexual liberalism and gender equality. Questions in the exam ask how people should react if the see two men kissing or whether hitting women or female circumcision are acceptable practices.86 Those who wish to take the exam are required to complete extensive language classes and are sent an instructional video that shows footage of topless bathing and a same-sex couple kissing. Those who pass the test will be required to swear allegiance to Holland and its constitution within five years.

81 My own translation. The original French version is: “à la différence du christianisme, n’a connu ni la renaissance ni la Réforme. Certes, l’Islam distingue le domaine religieux et le domaine mondain. Mais il ne manque pas de musulmans pour faire observer que cette distinction appelle une coordination et, par consequent, une implication permanente du religieux dans le mondain.” From the speech of Minister Chevènment of 28 January 2000, available at . See Ferrari, id. 82 See Art. 6(3) of Loi no. 2003-1119 du 26 novembre 2003 relative à la maîtrise de l’immigration, au séjour des étrangers en France et à la nationalité [Law no. 2003-1119 of 26 November 2003 on the control of immigration, residence of aliens in France, and nationality. Journal Officiel, no. 274, 27 November 2003. 83 CE 27 juin 2008, Mme Faiza M. Conseil d’État, No. 286798. 84 See, France Refuses a Citizenship over Full Islamic Veil [sic], BBC News, 3 February 2010, available at . 85 Royal Decree of 14 April 2002, Staatsblad 2002, No. 197, Royal Decree of 15 March 2003, Staatsblad 2003, Royal Decree No. 118 on the entry in to force of the Act of 21 December 2000, Staatsblad 2000, No. 618. 86 See, The Civic Integration Exam Abroad, Immigratie en Naturalisatiedienst [the Dutch Immigration and Naturalisation Service], available at (last ­visited 7 June 2007). In particular see page 23 which specifies that in addition to EU citizens, American, Canadian, Australian, New Zealand, Japanese, Norwegian, and Swiss nationals are exempt from the test. See also Holland Launches the Immigrant Quiz, The Sunday Times, 12 March 2006 at (last visited 16 June 2006).

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Ronan McCrea In 2005 the German states of Baden-Württemberg and Hesse proposed citizenship tests which asked applicants to prove their attachment to the values of the Basic Law by answering questions such as “What do you think of the fact that parents forcibly marry off their children?”, “Does the holding of office by open homosexuals disturb you?”, “Do you think that a woman should obey her husband and that he can beat her if she is disobedient?”,87 and “Explain the term ‘Israel’s right to exist.’ ”88 In 2002, Austria introduced a compulsory “Integration Agreement” as part of the reforms of its Aliens Act89 while in 2005 Britain introduced a “Life in the UK Test” which examines the knowledge of British values, culture, and history by applicants for British citizenship. Included in the tests are questions probing acceptance of principles such as gender equality and the importance of tolerance.90 In late 2006, then Prime Minister Tony Blair stressed the importance of these principles in a speech in which he criticized a “new and virulent form of ideology associated with a minority of our Muslim community” and warned migrants that “our tolerance is part of what makes Britain, Britain. Conform to it; or don’t come here.”91 6.8 Conclusion All of these measures speak (amongst other things) to an anxiety that the established limitations on religious influence over law and politics in Europe may be undermined by the presence of significant number of adherents to religions that have not been exposed to the secularizing influences of European history and who may not feel bound to accept the implicit compact between religion and state that emerged in Europe by the end of World War II. This anxiety has not brought about a desire amongst most Europeans to jettison the religious elements of national identities92 but, as noted above, has made it necessary to clarify these limits. 87 See, Europe Raises the Bar for Immigrants, The Boston Globe, 22 May 2006 (last visited 1 May 2007). See also the guidelines provided by the Baden-Württemberg government, infra note 87. 88 See, Becoming German: Proposed Hesse Citizenship Test, Der Spiegel, 5 September 2005 at (last visited 2 June 2006). The guidelines for the test provided by the Baden-Würrtemberg government can be accessed at (last accessed 10 October 2007). 89 See S. Barbou des Places & H. Oger, Making the European Migration Regime: Decoding Member States’ Legal Strategies, 4 European Journal of Migration and Law 360 (2004). 90 See, Core British Values, BBC News, 17 May 2006 (last visited 27 November 2006) and also New UK Citizenship Testing Starts, BBC News, 1 November 2005, at (last visited 27 November 2006). 91 See, Conform to Our Society Says PM, BBC News, 8 December 2006. Available at (last visited 11 December 2006). 92 Indeed powerful voices have argued for a reassertion of Europe’s Christian identity. See, e.g., G. Weigel, supra note 46; J. H. H. Weiler, supra note 46. It is also notable that some German states have passed laws restricting the wearing of headscarves, but not other religious symbols, in schools or government buildings (see supra note 73).

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6  De Facto Secularism in a Diversifying Religious Environment To summarize, the approach of the ECtHR has been to distinguish two separate roles that religion has played in Europe. The first is a cultural role, reflecting the formative influence of Christianity and specific forms thereof on the national identities of most European states. The second is recognition of the truth claims of a particular religion, manifesting itself in phenomena such as the use of state institutions for religious proselytism, the basing of laws on religious teaching or zealous policing of expression offensive to religions. In the past, both of these roles were recognized by European states. However, phenomena such as secularization, feminism, and the rise of liberalism and ideas of human rights gradually restricted state recognition or promotion of religious truth with the consequent withering of the ability of religions to ensure that state law reflected religious morality when such morality conflicted with principles such as the protection of privacy or equal treatment. This happened slowly, and gray areas where the precise terms of the implicit compact between culturally entrenched religions and the state may have been understood differently by each side, have remained. Furthermore, the persistence of such gray areas was strengthened by the fact that religion’s cultural role persisted, and strict separation of church and state was not therefore achieved in most European countries. Nevertheless, the impact of such grey areas was also limited by the secularization of European societies which reduced the expectations of religions and their adherents in relation to the power and influence that it was permissible for them to exercise over law and politics. The arrival and growth in Europe of communities of believers who belong to religious traditions that have not been subject to these influences and experiences means that these gray areas need to be made more black and white, lest things like dormant blasphemy laws be converted into something much more threatening to liberal democracy. Paradoxically therefore, the more muscular religiosity of immigrant populations may in fact be serving to secularize Europe. The trend towards eliminating gray areas can be seen in the inclusion of requirements that immigrants accept limitations on religious influence over law and politics, as well as ideas such as feminism and gay rights as a condition of residency in the immigration laws of several states. It can also be seen in laws such as France’s legislation on religious symbols in schools and in the accession conditions laid down by European Union for new members. The ECtHR has perhaps made the most explicit moves in this regard in cases such as Buscarini and in Lautsi where it showed an increased strictness in relation to state endorsement and promotion of religion. The Lautsi Chamber’s judgment builds on the Court’s frank acknowledgment of the dangers of theocracy and religious domination of law and politics in the Refah Partisi case, where it upheld the dissolution of a Turkish party which had been found guilty of aiming to establish a theocracy.93 The Chamber in Lautsi explicitly distinguished between state endorsement of a particular religion as an element 93 Supra note 62.

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Ronan McCrea of national culture (which is seen as acceptable) and endorsement of the truth claims of a particular faith (which is unacceptable). As greater religious diversity leads to greater recognition of the controversial and religious nature of some of the symbols of “insider” faiths which were previously seen as neutral and cultural in nature, so some adjustments in state practice will be necessary to ensure that the boundary between cultural recognition and recognition of religious truth claims is maintained. Although the approach of the ECtHR does bring greater strictness to what has been a gray area, it does not break significant new ground. Rather, it merely makes explicit previously implicit limitations on religion with a consequent clearer delineation of the limits of the state’s permissible cultural relationship to a particular faith. Such an approach is highly welcome and avoids the risk that cultural and symbolic recognition of religion might be interpreted as opening the door for a political and legal role for religion that would endanger equal democratic participation, gender equality, free speech, and respect for gay rights. It also avoids the unfair and discriminatory approach adopted by some German states that have selectively banned Islamic religious symbols while failing to acknowledge that Christian symbols, as signs of religious conviction, can be equally controversial. It is the clarification of this vital distinction between religion as an element of national culture and religion as a religious faith or claim to truth that should also help to reduce the sense of resentment on the part of “outsider” religions whose adherents may otherwise feel that legal and political limitations on religious influence are being applied to them to a greater extent than other religions. Of course, by limiting religion to a cultural as opposed to a political role, this approach does provide culturally entrenched religions with a greater public role than faiths whose large-scale presence in Europe is more recent and whose cultural influence is accordingly less established. It is also true that the boundaries between the cultural and the political are difficult to draw. As Gramsci94 and Žižek95 have noted, although cultural norms and practices are thought of as non-political and non-ideological, they are in fact far from ideologically and politically neutral. The EU’s recognition of bans on abortion and restrictions on gambling as cultural in nature are strong evidence of the sometimes porous nature of the boundaries between the political and the cultural. Nevertheless, the difficulty in drawing such boundaries is why the role of constitutional courts and international courts, such as the ECtHR, is considered to be so important; in Lautsi the Court showed itself capable of drawing the necessary distinctions. In

94 Gramsci speaks of culture as “a network of cultural values and institutions not normally thought of as political”, see A. Gramsci, Selections from the Prison Notebooks 238 (1971). 95 Žižek argues in relation to cultural norms that “in a given society certain features, attitudes and norms of life are no longer perceived as ideologically marked, they appear as neutral.” See S. Žižek, In Defence of Lost Causes 21 (2008).

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6  De Facto Secularism in a Diversifying Religious Environment any event, restrictions on explicitly religious influence over law and politics serve important and valuable purposes. Such an approach provides some protection to the principle of formal political equality between religions and between individuals while respecting the reality that certain religions have made greater contributions to European culture than others. Thus, the distinction between religious truth claims and religion’s cultural role in national identity claims allows necessary limitations on religious influence over the law and politics to be reconciled with respect for the role of religion in European national identities. Although this approach does inevitably involve a degree of inequality between insider and outsider faiths such a situation is not immutable, and routing religious claims through the notion of culture can help to ensure a greater inclusion of minority groups than would otherwise be the case. While national cultural identities have strong links to the past, culture is an evolving phenomenon which is constantly subject to change and development, as occurred for example in relation to gender equality when longstanding patriarchal European traditions were replaced by more egalitarian approaches. While individual religions can also evolve and can encompass widely divergent world-views, participation in this evolutionary process is only open to those who accept the divinely inspired nature of that religion’s founding text or basic beliefs. Participation in the process of cultural evolution and change is not necessarily similarly restricted and can be open to the contributions of all. Even in a society where a particular faith has been dominant, the cultural role of this dominant faith may evolve and take on board the viewpoints and traditions of minority groups. The process of clarification of the meaning of the recognition accorded by European states to religion is therefore a welcome development that shows encouraging signs of maintaining the reflexivity of European culture while acting as a bulwark against any theocratic tendencies which may emerge in the future.

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7

The Strasbourg Court on Issues of Religion in the Public School System*

Lech Garlicki 7.1 The European Convention on Education and Religious Freedom: An Overview Religions have been an element of all societies. For almost 300 years, public schools have also emerged as a necessary component of the modern state. Since religious freedom assumes diversity and public schooling must maintain certain degree of uniformity, a clash between conflicting approaches and demands is unavoidable. It is the function of the state to provide for a solution, and in the European legal space it is the function of supranational jurisdictions to supervise state actions that affect individual rights. The European Convention guarantees, on the one hand, the freedom of religion and conscience, understood as the freedom “either alone or in communication with others and public or private, to manifest religion or belief, in worship, teaching, practice and observance” (Article 9 of the European Convention). Freedom of religion and conscience applies not only to adherents of religious denominations: “it is also a precious asset for atheists, agnostics, skeptics and the unconcerned. Pluralism, indissociable from a democratic society, depends on it.”1 On the other hand, Article 2 of Protocol No. 1 establishes the right to education and provides that the State “assume functions in relation to education and to teaching” but in the exercise of those functions should “respect the right of parents to ensure education and teaching in conformity with their own religious and philosophical convictions.” Thus the State has the right – or rather obligation – to provide public schooling for all children whose parents are not prepared to turn to private schools. At the same time, the State must respect both the general freedom of religion and conscience and the specific guarantee of that freedom in the operation of the public school system.

This chapter is partly based on: L. Garlicki & M. Jankowska-Gilberg: Religiöse Aspekte im öffentlichen Schulsystem vor dem Hintergrund der Rechtsprechung des EGMR [Religious aspects of the public school ­system in light of the jurisprudence of the ECtHR], in P. Gomez, C. Grewe, A. Kley, M. Kotzur, K. Odendahl, B. Schindler, D. Thürer & B. Ehrenzeller (Eds.) Religionsfreiheit im Verfassungsstaat [Freedom of religion in the constitutional state] (2011). The manuscript was closed before the judgment of the Grand Chamber in Lautsi v. Italy. 1 Kokkinakis v. Greece, ECtHR, Application no. 14307/88, judgment of 25 May 1993, at Para. 31. *

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Lech Garlicki 7.1.1

The Need for a Uniform European Standard vs. the Principle of Subsidiarity

The very essence of the European Convention is to provide for general standards that must be uniformly respected by all 47 Member States. But acceptance of universal standards is not the same as acceptance of uniformity. While contemporary Europe often emphasizes the need for common standards and universal values, this has never been understood as the elimination of national, regional and local differences. Each country in Europe has its own heritage that lies in tradition and history, religious and moral values, political and constitutional conventions, and simply a society’s way of life. In other words, each country has, usually over centuries, elaborated its own identity that may be described as its own culture. The countries of Europe may uniformly adhere to general values like human rights and the rule of law, but pluralism occupies a prominent place among those values. Thus, the current process of European integration has a dialectic nature: the trend towards creating uniformity sometimes collides with efforts toward preservation of traditional values, relations and attitudes – in short, the distinct cultural identities of individual states. Needless to say, religion and in particular the religious structure of a society constitutes a core element of those cultural identities. The European Convention acknowledges the predominant role of national authorities: The machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. The Convention leaves to each Contracting State, in the first place, the task of securing the rights and freedoms it enshrines. [. . .] By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in better position than the international judge to give an opinion on the exact content of the [Convention] requirements [. . .].2 But, at the same time, the Convention sets certain standards that must be universally observed in all Member States. The Court has emphasized on many occasions that the State’s power to regulate: “[. . .] goes hand in hand with a European supervision. Such supervision concerns both the aim of the measure challenged and its necessity; it covers not only the basic legislation but also the decision applying it, even one given by an independent court.”3 This produces a certain tension between subsidiarity and universality that must be addressed on a case-to-case basis. Therefore “some interpretational tool is needed to draw the line between what is properly a matter for each community to decide at local level and what is so fundamental that it entails the same requirement for all countries whatever the

2 Handyside v. the United Kingdom, ECtHR, Application no. 5493/72, judgment of 7 December 1976, at Para. 48. 3 Id., at Para. 49.

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7  The Strasbourg Court on Issues of Religion in the Public School System variations in traditions and culture. In the European system that function is served by the doctrine of the margin of appreciation.”4 In a nutshell, this doctrine reserves for the Contracting States some room to decide how to implement the Convention standards in a way that corresponds best to the domestic conditions. While the very idea of margin of appreciation is based upon the respect for the subsidiarity principle,5 it has never been stated in the written text of the Convention. Rather, it emerged in the Strasbourg case law as an entirely judge-made creation. Thus, it is the ECtHR who, in the final resort, delineates the scope of what shall be left for the States. 7.1.2

The Doctrine of Margin of Appreciation in Practice

The application of the doctrine of the margin of appreciation is based upon three ­assumptions: 1) the Convention sets universal standards and within those standards allows the Member States a choice; 2) the Court should respect choices taken by the domestic authorities as long as they do not collide with any of the universal standards; 3) the scope of choice varies depending on several factors: in some situations domestic authorities are allowed a “wide” or (only) “certain” margin of appreciation. In others the margin of appreciation remains very limited or does nor exist at all. Since it is the Court’s function to decide what (if any) margin of appreciation is appropriate in respect to each particular type of case, the doctrine offers a considerable degree of flexibility in the a­ pplication of general standards to individual situations. Among the factors that determine the scope of the margin left for the State, the existence of a common cultural context (i.e., of a particular traditional combination of moral, religious, ideological, political and constitutional values and attitudes) in which particular rights operate within the society is of particular importance. It should not, of course, be forgotten that the Convention as such is based on a certain political philosophy, and that it also presupposes a universal acceptation of certain social, cultural and moral values. In particular, such values as tolerance, pluralism and democracy constitute the core of the entire Convention system. Those values must be respected and protected by all Member States. At the same time however, there have always been profound differences between societies (and hence between Member States). In the Convention process those different identities of Member States must be accepted and respected. 4 P. Mahoney, Marvelous Richness of Diversity or Invidious Cultural Relativism, 19 Hum. Rights L. J. 1, at 1 (1998). 5 “It is the essence of the national margin of appreciation that, when different opinions are possible and do exist, the international judge should only intervene if the national decision cannot be reasonably justified” (Wingrove v. the United Kingdom, ECtHR, Application no. 17419/90, judgment of 25 November 1996, Concurring opinion of Judge Bernhardt). See also M. E. Villiger, The Principle of Subsidiarity in the European Convention of Human Rights, in M. G. Kohen (Ed.), Promoting Justice, Human Rights and Conflict Resolution through International Law: Liber Amicorum Lucius Caflish, 623 at 624-626 (2007).

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Lech Garlicki Delimiting the national margin of appreciation is particularly difficult when there is a conflict involving important religious or/and philosophical values. The Member States differ in their tradition and history, as well as in their religious structures, their dominant moral values, and their existing degree of tolerance. It must not be forgotten that over the last two decades those differences have become more stark due to the geographical expansion of the Convention system and also the evolution of the role of Islam in some Member States. It may be very difficult to identify common ground to approach problems of religion and consequently problems like family life, sexual orientation, abortion, or euthanasia. The underlying philosophy of the Convention assumes a pluralism of views and judgments, and requires tolerance. Tolerance means, on the one hand, that the mere fact that others may have views and values not shared by a majority, cannot be called into question. But it also means that those who represent less orthodox views and values must not disrespect the feelings and reactions of other social groups. Those relations develop horizontally among individuals and groups, and may only indirectly be controlled by Convention standards. The State’s role is focused primarily on securing a peaceful coexistence of different systems of values. Quite often it calls for elaboration of compromises (or, at least, for elaboration of a framework in which such compromises become feasible) and for the State acting as an arbiter. While such State action must respect all standards set out in the Convention (and in the case law of the ECtHR), any assessments of “necessity,” “justifiability” or “public interest” are beyond the purview of Strasbourg’s ivory tower. The Strasbourg judges cannot ignore the local context of each and every case and are constantly faced with the contradiction between universalism and particularism. What may be perfectly acceptable in a Nordic society might provoke shock and distaste in some other corners of Europe. 7.2 Education under the European Convention: State Powers and Parental Rights The State has a right as well an obligation to establish a system of public schools and to see that each child be included into a decent system of public or private education. The right of access to public education refers, nowadays, to all levels of education. The Convention does not guarantee, in principle, the right to educate children at home.6 The State’s obligation to provide for public education assumes that the State has a competence to organize the system. “The right to education guaranteed by the first sentence of Article 2 by its very nature calls for regulation by the State, but such regulation must

6 See Family H. v. the United Kingdom, EComHR, Application no. 10233/83, decision of 6 March 1984; B.N. and S.N. v. Sweeden, EComHR, Application no. 17678/91, decision of 30 June 1993; Konrad v. Germany, ECtHR, Application no. 35504/03, judgment of 11 September 2006.

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7  The Strasbourg Court on Issues of Religion in the Public School System never injure the substance of the right nor conflict with other rights enshrined in the ­Convention or its Protocols.”7 Under the case law of the Strasbourg Court: – the State has a wide discretion in determining its educational system: “the right to education [. . .] by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of community and individuals”;8 the right to education refers to the educational institutions actually existing in the material time; that right cannot be, in principle, understood, as enhancing State’s obligations to establish new schools of a particular type, e.g., schools with a particular language of instruction; – the setting and planning of the curriculum fall in principle within the competence of the States; – the State has competence to organize the operation of public schools also in respect to the internal rules of behavior (including common manifestations, dress codes, etc.) and to apply disciplinary sanctions to enforce those rules. The State’s powers must, however, remain consistent with the parents’ rights to have their religious and philosophical convictions respected. In other words, the margin left for the organizational and regulatory activity of the State ends where the operation of a public school becomes incompatible with children’s/parents’ convictions. One of the most important criteria in this respect is the prohibition of indoctrination: The State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. This is the limit that must not be exceeded. Such an interpretation is consistent at one and the same time with the first sentence of Article 2 of the Protocol No. 1, with Articles 8, 9 and 10 of the Convention and with the general spirit of the Convention itself, an instrument designated to maintain and promote the ideals and values of a democratic society.9 Thus, neither the curriculum (as set in general regulations and as implemented in particular schools), nor the general operation and discipline within the public school system may transgress limits implied by the prohibition of indoctrination. 7 Campbell and Cosans v. the United Kingdom, ECtHR, Application nos. 7511/76, 7743/76, judgment of 25 February 1982, Para. 41. 8 See the Belgium Linguistic case: Case “Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium” v. Belgium (Merits), ECtHR, Application nos. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64, judgment of 23 July 1968, at Para. I. B. 5. of Part ‘The Law’. 9 Kjeldsen, Busk Madsen and Pedersen v. Denmark, ECtHR, Application nos. 5095/71, 5920/72, 5926/72, ­judgment of 7 December 1976, at Para. 53.

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Lech Garlicki The European standards are, by their nature, rather general and call for compromise and good faith in the process of their national implementation. The very concept of indoctrination may vary according to different cultural and religious traditions of particular States and also – as mentioned in Klejdsen – may vary according to the actual range of alternative educational possibilities open to all students.10 The first “great decisions” of the Court concerning the right to education were adopted several decades ago: the 1968 Belgian Linguistic case and the 1976 Kjeldsen case set several principles that are still valid in the case law of the Strasbourg Court. In the beginning of the current century, the Court – for the first time – was invited to take a closer look at the relationship between religious education and the mission of public schools; its findings were, in particular, summarized in the 2005 Leyla Sahin case,10 the 2007 Folgerø case,12 and the 2009 Lautsi case.13 Two issues of this case law seem to evoke a particular interest: – the place of religious instruction in public schools, first of all the content of instruction and its position within the school curriculum – the manner and scope of expression of religious conviction in public schools, in respect to both the individual right of students to express their individual convictions and the regulatory power of schools to promote or impose certain forms of religious expression. Although the Kjeldsen case did not deal directly with the problem of whether a public school is allowed to include religious instruction into its curriculum,14 it was – and still is – the leading precedent for that area as well. The Court established four principal rules: – The State’s obligation to ensure access to education enhances the power to decide what kind of public schools system should be established and the power to decide on the structure and content of the school curriculum;

10 “In its investigation as to whether Art. 2 of Protocol No. 1 has been violated, the Court cannot forget, however, that the functions assumed by Denmark in relation to education and to teaching include the grant of substantial assistance to private schools. Although recourse to these schools involves parents in sacrifices [. . .] the alternative solution it provides constitutes a factor that should not be disregarded in this case.” Kjeldsen case, supra note 9, at Para. 50. 11 Leyla Sahin v. Turkey, ECtHR, Application no. 44774/98, judgment of 10 November 2005. 12 Folgerø and Others v. Norway, ECtHR, Application no. 15472/02, judgment of 29 June 2007. 13 Lautsi v. Italy, ECtHR, Application no. 30814/06, judgment of 3 November 2009. The manuscript was closed before the judgment of the Grand Chamber on 18 March 2011. 14 It should be recalled that in Kjeldsen, the Court addressed the compatibility of sex education with parents’ rights under Art. 2 of Protocol No.1. The applicants claimed that integrated and compulsory sex education, as introduced into State schools, was contrary to the beliefs they hold as Christian parents. The question, therefore, was not whether and how religion can be taught in public schools, but rather what are the limitations in teaching non-religious subjects that may offend the religious convictions of the parents.

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7  The Strasbourg Court on Issues of Religion in the Public School System – Article 2 of Protocol No. 1 and, in particular, its “religious guarantee” applies to the entire educational program; there is no distinction between religious instruction and other subjects; – Subjects containing religious, philosophical, and moral messages constitute an inseparable part of many “non-religious” subjects in school curricula; the Convention cannot be read as preventing States from imparting through teaching or education information or knowledge of a directly religious or philosophical kind; it does not even permit parents to object to the integration of such teaching or education in the school curriculum; – However, any subject that may have religious or philosophical connotations must be conveyed in an objective, critical and pluralistic manner; failure to observe this requirement transforms legitimate education into a process of indoctrination, by definition a violation of parents’ rights. These four rules are applicable to the regulation and content of the entire curriculum and are also determinative for the regulation and content of religious instruction understood as a separate subject offered to students. 7.3 Religious Instruction in European Public Schools under the Convention In Europe there is no uniform system of religious instruction in public schools, just as more broadly there is no uniform system of the relations between the State and religious communities. In consequence, the choice of one or another system clearly remains within the State’s margin of appreciation. The Strasbourg Court is only allowed to examine whether particular national system does not encroach upon parents’ or students’ rights as guaranteed by Article 9 of the Convention and Article 2 of Protocol No. 1. National regulations vary to a considerable degree. Nonetheless they can be categorized into three models: – The secular model (based in particular on the French tradition of secularism) in which no religious instruction is offered in public schools, or at least no religious instruction may constitute a part of the school curriculum; – The model of integrated religious instruction, in which teaching of religion is provided as a separate subject, but this teaching is not based upon any particular religion and is constructed as a general, denominationally-neutral instruction about problems of religion; this model exists in several European states and its compatibility with the Convention has been recently assessed in regard to regulations adopted in Norway, Turkey and Germany;

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Lech Garlicki – The model of parallel (denominational) religious instruction, in which teaching of religion is not only provided as a separate subject but is also taught separately for each denomination represented by students of a particular school; in other words, each of the primary religions is invited to take care of the instruction of its principles and beliefs. It is the responsibility of the school to arrange for parallel, denominationallyoriented classes in religion. Students and parents must have the right to choose a religion class that corresponds with their convictions or, alternatively, a religion-neutral course on general ethics. 7.3.1

A Brief Note on the Secular Model

The secular model has never been directly examined by the Strasbourg Court. It can still be assumed that in its principal concept it falls under the state’s margin of appreciation. As long as the school curriculum is not conceived as an atheistic or anti-religious indoctrination (i.e., as long as information about religion, philosophy and morals in the other courses is conveyed in an objective, critical, and pluralistic manner), it would be difficult to deny the compatibility of that model with the Convention. 7.3.2

The ECtHR’s Stance on the Integrated Model

The integrated model has been assessed at length by the Court on several occasions; the leading case being Folgerø and Others v. Norway.15 In Folgerø, the Court established a ­violation of the Convention. Although the judgment was adopted by a narrow ­majority in the Grand Chamber (9:8), the split was not related to the proclamation of general ­principles, but rather to the manner in which those principles had been applied to the modalities of the Norwegian regulation.16 The Court summarized the “general principles” for the interpretation of Article 2 of Protocol No. 1 in the following manner: – The two sentences of Article 2 of Protocol No.1 must be interpreted not only in the light of each other but also, in particular, of Articles 8, 9 and 10 of the Convention; the guarantee of parents’ rights (the second sentence of Article 2 of Protocol No. 1) “aims at safeguarding the possibility of pluralism in education [. . .] In view of the power of the modern State, it is above all through State teaching that this aim must be realized”;

15 Folgerø case, supra note 12. 16 The Norwegian regulation provided that all students of elementary and secondary schools must take classes on Christianity, Religion and Philosophy (KRL) and allowed for partial exemptions from participation upon a reasoned request of parents.

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7  The Strasbourg Court on Issues of Religion in the Public School System – Article 2 of Protocol No. 1 establishes an obligation of the State “to respect parents’ convictions thorough the entire State education programme”; – Parents, in the discharge of a natural duty towards their children, may require the State to respect their religious and philosophical convictions; – A balance between individual interest and that of a group must be achieved: it must “ensure the fair and proper treatment of minorities and avoid any abuse of dominant position”; – The setting and planning of the curriculum fall in principle within the States’ competence: Article 2 of Protocol No. 1 “does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind”; – The State must “take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination”; – “Indoctrination” denotes a situation in which ‘parents’ religious and philosophical convictions are not respected,”17 The holding of Folgerø was threefold. Generally, the Court accepted the model of integrated teaching as compatible with the Convention. Thus, the very fact that the subject “Christianity, Religion, and Philosophy” was included into the curriculum and, in ­principle, was compulsory for all students, did not in itself constitute a violation of the Convention. The violation resulted only from the substantive and procedural determination of this subject. In the substantive dimension the Court first analyzed the structure of instruction. It accepted that Article 2 of Protocol No. 1 provides for no right to isolation: it “does not embody any rights for the parents that their child be kept ignorant about religion and philosophy in their education.” Furthermore, taking into account the religious context of Norway, religious instruction may proportionally focus on the presentation of the ­Christian religion: “The fact that knowledge about Christianity represented a greater part of the curriculum [. . .] than knowledge about other religions and philosophies, cannot [. . .] of its own be viewed as a departure from the principles of pluralism and objectivity amounting to indoctrination.”18 However, the State’s margin of appreciation becomes more limited as to the content of the instruction: since pupils were also invited to engage in various religious activities “which would in particular include prayers, psalms, the learning of religious texts by heart and the participation in plays of a religious nature,” and

17 Id., at Para. 84. 18 Id., at Para. 89.

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Lech Garlicki since those activities offered some priority to the Christian religion, there emerged a situation of imbalance. This situation “would be capable of affecting pupils’ minds in a manner giving rise to an issue under [Article 2 of Protocol No. 1].”19 In the procedural dimension, the Court put strong emphasis on the principle of exemption: parents or students who regard the religious instruction, as provided by the school system, to be incompatible with their convictions must have the opportunity to be exempted from instruction. The Court ruled that the system of (only) a partial exemption imposes an excessive burden on the parents, who had been required regularly to analyze the content of upcoming lessons; exemption can be granted only if they were able to demonstrate that subjects to be taught are irreconcilable with their conviction. In addition, the requirement of written justification of every exemption request could easily amount to parents’ obligation to disclose their intimate convictions to the school authorities.20 The lack of a proper exemption system, combined with the actual program of the KRL course, gave rise to a violation of Article 2 of Protocol No. 1. The Folgerø approach was followed in the Zengin judgment,21 in which mandatory religious instruction in Turkish public schools was declared to violate the rights of parents guaranteed under Article 2 of Protocol No. 1. While a possibility of exemption was provided for adherents of certain religions, it did not apply to some others, in particular to the Alevi faith, an Islamic denomination. The Court recalled the general principles summarized in the Folgerø judgment. It reiterated that “in a pluralist democratic society, the State’s duty of impartiality and neutrality towards various religions, faiths and beliefs is incompatible with any assessment by the State of the legitimacy of religious beliefs or the ways in which those beliefs are expressed.”22 The Court came to the conclusion that the Turkish regulation of the subject “Religious Culture and Ethics” cannot be considered to meet criteria of objectivity and pluralism and, more particularly in the applicant’s particular case, to respect the religious and philosophical convictions [of the] followers of the Alevi faith, on the subject of which the syllabus is clearly lacking.”23 This substantive shortcoming was further amplified by the lack of adequate procedural regulation. The procedure of exemption, being limited only to adherents of certain religions, does not provide sufficient protection for other religious minorities. This procedure was shaped in a manner that was “likely to subject them to a heavy burden and

19 20 21 22 23

Id., at Para. 94. Id., at Paras. 95-100. Hasan and Eylen Zengin v. Turkey, ECtHR, Application no. 1448/04, judgment of 9 October 2007. Id., at Para. 54. Id., at Para. 70.

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7  The Strasbourg Court on Issues of Religion in the Public School System to necessity of disclosing their religious or philosophical convictions in order to have children exempted from the lessons in religion.”24 More recently, in Appel-Irrgang and Others v. Germany,25 the Court dealt with the system, adopted in Berlin, that provided for a compulsory course in ethics (religious instruction was also offered at the school premises but only as a supplementary option). First, the Court disagreed with the applicants’ argument that the ethics course constituted a non-neutral form of secular indoctrination. The Court analyzed the content and structure of the program and arrived at the conclusion that both the aims and the message of the course conform to the requirements of pluralism and objectivity. The Court noted that the course “does not attach particular weight to any particular religion or denomination and its goal is to convey certain basis values common for all students.” Secondly, the Court rejected the argument that the course did not reserve sufficient space for information about Christian religion, contrary to the historical position of this religion in Germany. The Court confirmed the Folgerø approach that national tradition may justify more detailed presentation of the dominant religion. However, this principle cannot be interpreted as establishing an obligation of all states to do so. These decisions belong to the State’s margin of appreciation. Finally, the Court did not accept the argument that the very introduction of a mandatory course in ethics violated the religious convictions of the applicants. The Court applied a two-fold test: 1) whether the course was structured in a way that offered a priority to a particular religion; 2) whether it promoted sentiment against existing religions, in particular Christianity. Negative responses to both questions convinced the Court that there had not been any violation of the Convention. This summary of the case law dealing with the system of integrated religious instruction demonstrates certain general principles: – The system, as such, fits within the State’s margin of appreciation, even if a general course on religion(s) is replaced by one on non-denominational (neutral) ethics; – In the structure and content of such a course, quantitative distinctions that give priority to a “traditional religion of the State” are not prohibited per se; more problematic are qualitative distinctions, since they create a greater risk of (prohibited) indoctrination; – There must be sufficiently effective procedural guarantees for one to be exempted from religious instruction; undue restriction of the exemption may constitute a violation of the Convention.

24 Id., at Para. 76. 25 Appel-Irrgang and Others v. Germany, ECtHR, Application no. 45216/7, decision on inadmissibility of 6 October 2009.

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Lech Garlicki 7.3.3

The Parallel Model of Religious Instruction

The third model of religious instruction is based on the principle of parallelism: every major denomination has the opportunity to hold its “own” religious classes, each parent or student has a right to choose one of those courses and, for those students who do not identify with any of those religions (including agnostics and atheists) an alternative course of ethics must be provided. This model has been, as yet, assessed only in respect to Polish regulation of religious instruction.26 On the one hand, it was contested that the general model of religious instruction is incompatible with the requirements of Article 2 of Protocol no. 1. On the other, there were claims that the inclusion of grades (marks) for religion into school reports raises problems under Articles 9 and 14 of the Convention. One of the possible approaches is that the general assessment of the Polish system should rely on the principles of interpretation of Article 2 of Protocol No. 1 as recapitulated in Folgerø: the State is bound to respect parents’ conviction throughout the entire public school education program; the State must ensure the fair and proper treatment of minorities and avoid any abuse of the dominant position of any particular group or religion; the curriculum as set by the State may include information of a religious/ philosophical kind, but must ensure that it is conveyed in an objective, critical and ­pluralistic manner; the State is forbidden to pursue an aim of indoctrination. It might however be observed that under the parallel system, each denomination holds classes on its “own” religion and, by definition, those classes must be oriented towards teaching and supporting the principles and belief of a particular religion. The requirement of objectivity and pluralism as well as the prohibition of indoctrination must also be present in that system, but must be interpreted accordingly.

26 C.J., J.J. and E.J. v. Poland, EComHR, Application no. 23380/94, decision on inadmissibility of 16 January 1996; Saniewski v. Poland, ECtHR, Application no. 40319/98, decision on inadmissibility of 26 June 2001; Grzelak v. Poland, ECtHR, Application no. 7710/02, judgment of 15 June 2010. Poland is a predominantly Roman Catholic country. Under the Polish system, there are separate classes for each denomination represented by more than 3 pupils of a particular school. Pupils (parents) opt for one of the courses by submitting so-called “positive declarations.” For pupils who do not wish to take religion courses, an alternative course in ethics must be provided. A grade (mark) for those courses is included into the yearly school reports as well as into the final reports confirming the completion of a given level of schooling (i.e., elementary school, gymnasium and lyceum). Grades (marks) obtained for religious instruction or ethics are counted towards the “average mark” obtained by a pupil in a given school year. It is provided that school reports contain a separate rubric of religion/ethics. Therefore it is impossible to determine whether a pupil took one of the courses on religion or the ethics course. The problem is that, in some schools, the course in ethics is not provided (due to a very limited number of interested pupils) and in consequence the yearly school report of pupils who did not attend the available course on Catholic religion may contain a straight line under the rubric religion/ethics. This leaves a message that a pupil did not take the course on the Catholic religion, and most probably was not member of the Roman Catholic Church.

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7  The Strasbourg Court on Issues of Religion in the Public School System It is not impossible that distinction adopted in the Kokkinakis case might be of some usefulness: a distinction has to be made between bearing Christian witness and improper proselytism. The former corresponds to true evangelism, which [represents] an essential mission and a responsibility of every Christian and every Church. The latter represents a corruption or deformation of it. It may [. . .] take the form of activities offering material or social advantages with a view to gaining new members for a Church or exerting improper pressure on people in distress or in need; it may even entail the use of violence or brainwashing; more generally, it is not compatible with respect for the freedom of thought, conscience and religion of others.27 Therefore, while each separate Church may be allowed to convey a message on its doctrine and principles, the prohibition of “improper proselytism” would constitute an absolute limit; State tolerance of “improper proselytism” would be tantamount to indoctrination. Furthermore the vulnerability of the school environment should also be taken into account. Thus teaching religion (and, in particular the dominant religion) must never result in the discrimination against minorities or undue pressure on adherents of other religions, or on atheists and agnostics. On the other hand, the requirement that instruction be conveyed in an objective, critical and pluralistic manner applies in full to the ethics courses, for which the State bears exclusive responsibility. In such a system, particular importance must be attached to the freedom of choice. Pupils and parents should be free from any undue pressure or influence when opting for one of the courses on religion or ethics. As long as those courses remain optional and as long as the choice depends on the wish of parents and pupils, it may be assumed that such a system of teaching, ideally applied, falls within the margin of appreciation as to the planning and setting of the curriculum accorded to States under Article 2 of Protocol No. 1. More problems may arise where such a “model application” of the system is not fully implemented. The Court seems to be clear on the matter of voluntariness: in both earlier decisions concerning (and upholding) the Polish regulation, it was emphasized that pupils were not obliged to attend religious instruction, as this was organized on a voluntary basis. An a contrario conclusion seems more than appropriate in this respect. If no alternative course on ethics has been provided, it may perhaps still be maintained that the scope of the State’s obligation depends on the number of pupils involved and that the State may not be absolutely required to provide such a course for one pupil only. This

27 Kokkinakis case, supra note 1, at Para. 48.

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Lech Garlicki problem has not yet been clearly addressed by the Court. What the Court was invited to decide, however, was related to the “straight-line” rule: if student did not follow any of the available courses on religion and if no alternative course was provided, the school report contains a straight line under the rubric “religion/ethics.” In the Grzelak case, the applicants suggested that this system gives rise to a violation of Article 14 read together with Article 9 of the Convention. They submitted that the absence of a grade for a religion/ethics course cannot be regarded as an entirely neutral and simple reflection of facts: “the message conveyed by such a document is unambiguous and anything but neutral – the ethics class was not available as an optional subject and [the pupil involved] chose not to attend religion class.”28 It was further alleged that since the grade obtained for religion/ethics is included in the calculation of the yearly average grade, the inaccessibility of ethics classes may have an adverse impact on pupils. In conclusion, they maintained that “the fact of having no mark for religion/ethics inevitably has a specific connotation and distinguishes the persons concerned from those who have a mark for the subject.”29 In a country like Poland, it “may amount to a form of unwarranted stigmatization” of such persons. In consequence, the Court was invited to decide whether such difference in treatment “between non-believers who wished to follow ethics classes and pupils who opted for religion classes was objectively and reasonably justified and [whether] there existed a reasonable relationship of proportionality between the means used and the aim pursued.”30 The negative response would lead to the conclusion that “the State’s margin of appreciation was exceeded as the very essence of the right not to manifest [religious affiliation or] convictions under Article 9 was infringed.”31

7.4 The Islamic Headscarf in the Classroom and the ECtHR The school is a public institution and it goes without saying that the State must retain regulatory powers concerning not only the structure and content of the curriculum but also the rules governing the internal order and operation of the school. Those regulations might enter the religious sphere in two different ways: – The school might establish prohibitions or requirements regulating individual behavior of students that may interfere with their religious or philosophical convictions; and – The school might expose students to permanent contact with messages and/or symbols promoting a particular religion.

28 29 30 31

Grzelak case, supra note 26, at Para. 97. Id., at 95. Id., at 100. Id.

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7  The Strasbourg Court on Issues of Religion in the Public School System In practice, the former problem arises in respect to the prohibition of the Islamic headscarf and the latter to the presence of a cross/crucifix in school classrooms. The Strasbourg Court has already had opportunities to elaborate its position in both areas. It is a valid principle that, in general, the establishment of dress codes remains within a school’s regulatory powers.32 A school would have to adopt a very oppressive and unreasonable regulation before there might be a chance to declare that it unduly interferes with the personal autonomy of students and, therefore violates Article 8 of the Convention. The standard of protection becomes, however, quite different when a dress code is applied to situations in which wearing particular dress is motivated (required) by a particular ­religion. In such situations, recourse is made to Article 9 of the Convention. This issue has arisen particularly in relation to the Islamic scarf and, as is well known, certain (if hardly all) European countries have decided to prohibit the scarf for teachers, and sometimes also for students. The problem evokes numerous controversies and is tackled from very different angles: for some, the prohibition exposes students to a grave moral dilemma and compels them to violate rules of their religion; for others, the headscarf symbolizes inequality and sends a message incompatible with the basic values of the Convention. The Court accepts that the problem of dress codes may affect freedom of religion. It is clear that freedom of religion also implies the freedom to manifest one’s religion. “Bearing witness in words and deeds is bound with the existence of religious convictions.”33 However, since – under Article 9(2) – freedom of religion may be subjected to limitations, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and to protect a general public order. Thus in assessing whether a particular dress code remains compatible with Article 9, it is necessary to establish a reasonable balance between conflicting interests. In other words, once it is established that a prohibitive dress code interferes with the freedom of religion, the State must demonstrate that its establishment is “necessary in a democratic society.”34 The basic norm of reference is here Article 9, a provision that leaves less room for the State’s margin of appreciation than Article 2 of Protocol No. 1. Historically the first question before the Strasbourg Court was raised by a teacher affected by the prohibition to wear the Islamic headscarf in the course of her teaching duties. In the 2001 Dahlab v. Switzerland35 decision, the Court upheld the dismissal of

32 E.g., Stevens v. the United Kingdom, EComHR, Application no. 11674/85, decision on inadmissibility of 3 March 1986: male students may be required to wear a tie at school. 33 See, generally, Kokkinakis case, supra note 1, at Para 31. 34 Restrictions of the wearing of religious symbols may, in the first place, be justified by necessities of public safety. The Court accepted regulations requiring removal of a religious dress for a security check in an airport (Phull v. France, ECtHR, Application no. 35753/03, decision on inadmissibility of 11 January 2005), or in a consulate (El Morsli v. France, ECtHR, Application no. 15585/06, decision on inadmissibility of 4 March 2008.). 35 Dahlab v. Switzerland, ECtHR, Application no. 42393/98, decision on inadmissibility of 15 February 2001.

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Lech Garlicki an elementary school teacher who had refused to stop wearing an Islamic headscarf. The Court, confirming the approach of the Swiss Federal Court, raised three principal arguments: – The particular nature of the applicant’s profession: a state school teacher represents the State educational authority (and the Swiss Constitution established the principle of denominational neutrality of public schools) and in consequence enjoys a particular status involving both privileges and obligations: “State school teachers have to tolerate proportionate restrictions on their freedom of religion”; – The particular vulnerability of students/pupils affected: the applicant taught very young children and “it is very difficult to assess the impact that a powerful external symbol such as the wearing of a scarf may have on the freedom of conscience and religion of very young children. [Such children] are more easily influenced than older pupils. In those circumstances, it cannot be denied outright that the wearing of a headscarf might have some kind of proselytizing effect”; – The particular nature of the Islamic scarf: wearing the scarf results from a religious precept that “as the Federal Court noted, is hard to square with the principle of gender equality. It therefore appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-­discrimination that all teachers in a democratic society must convey to their pupils.”36 Thus the Court’s position contained a double message. On the one hand, the Court focused on particularities of the assessed situation: a combination of the public status of the school and the very young age of the affected children allowed more room for State interference in the freedom to manifest religious beliefs. Thus, the Court left open what its response would be had a similar prohibition arisen in respect to another (higher) level of education. On the other hand, the Strasbourg Court recalled the position of the Swiss Federal Court containing a substantive and general condemnation of the very nature of the Islamic scarf. This might suggest that the Court would also adopt a more restrictive approach to other situations in which an Islamic scarf is displayed in public. There is still no clear answer which of these approaches would dominate the Court’s case law. The most prominent judgment was adopted in the 2005 Leyla Sahin case.37 The Court examined und upheld the Turkish university regulation prohibiting students from wearing the Islamic headscarf. Still, the exact scope and authority of Leyla Sahin remains unclear. On the one hand, the Court accepted the application of the headscarf ban for

36 Id., Para. 1 of Part ‘The Law’. 37 Leyla Sahin case, supra note 11.

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7  The Strasbourg Court on Issues of Religion in the Public School System university students, considerably expanding the Dahlab holding, now extended from teachers to students (despite the fact that students, unlike teachers, cannot be regarded as agents of the State) and it was applied to universities (where, by definition, students are more mature and less prone to undue influence). On the other hand, the Court placed particular emphasis on the special situation of Turkey as a country in which Islam represents a majority religion. The Court recalled, firstly, the general principles as to the role of the State in the matters of religion. The State cannot be regarded as merely a passive observer. On the contrary, the State plays the role of “a neutral and impartial organizer of the exercise of various religions, faiths and beliefs; this role of the State is conducive to public order, religious harmony and tolerance in a democratic society.”38 While tension between opposing religious groups forms a part of reality, “the role of the authorities is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other.”39 Therefore “a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position.”40 This necessitates mutual compromises “entailing various concessions on the part of individuals and groups which are justified in order to maintain and promote the ideas and values of democratic society.”41 Questions concerning the relationship between the State and religions are particularly complicated because on the one hand, opinion in a democratic society may differ widely in respect to religion, and on the other, it is not possible to discern throughout Europe a uniform conception of the significance of religion in society. This leaves more room for the role of national decision-making bodies, i.e. for the national margin of appreciation. “This will notably be the case when it comes to regulating the wearing of religious symbols in educational institutions.”42 Consequently, “the institutions of higher education may regulate the manifestation of the rites and symbols of a religion by imposing restrictions as to the place and manner of such manifestation.”43 The background for the reasoning in Leyla Sahin was offered by the 2003 Refah ­Partisi44 judgment. In Refah Partisi the Court upheld the dissolution of a radical Islamic party. The Court noted that problems of religion and politics must be assessed within the general system of values like pluralism, democracy and tolerance. The State has more room in controlling and banning actions that may represent a menace for those values.

38 39 40 41 42 43 44

Id., at Para. 107. Id. Id., at Para. 108. Id. Id., at Para. 109. Id., at Para. 111. Refah Partisi (the Welfare Party) and Others v. Turkey, ECtHR, Application nos. 41340/98, 41342/98, 41343/98, 41344/98, judgment of 13 February 2003.

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Lech Garlicki In assessing the Turkish version of the headscarf ban, the Court recalled its finding in Dahlab that “wearing the Islamic headscarf could not easily be reconciled with the message of tolerance, respect for others and, above all, equality and non-discrimination.”45 The Court took into account the particular situation in Turkey and, particularly: the impact which wearing such a symbol, which is presented or perceived as a compulsory religious duty, may have on those who choose not to wear it. [. . .] In a country in which the majority of the population, while professing a strong attachment to the rights of women and a secular way of life, adhere to the Islamic faith, imposing limitations on freedom in this sphere may be regarded as meeting a pressing social need [. . .] especially since this religious symbol has taken on political significance in Turkey in recent years.46 In such a context, “where the values of pluralism, respect for the rights of others and, in particular, equality before the law of men and women are being taught and applied in practice, it is understandable that the relevant authorities should wish to preserve the secular nature of the institution concerned.”47 The Court noted a particular significance that the Constitution of Turkey attaches to the principle of secularism: “this principle, which is undoubtedly one of the fundamental principles of the Turkish State which are in harmony with the rule of law and respect for human rights, may be considered necessary to protect the democratic system in Turkey. An attitude which fails to respect that principle will not necessarily be accepted as covered by the freedom to manifest religion.”48 This led the Court to the conclusion that the ban on wearing religious symbols (primarily the headscarf ban in practice) satisfied the quite stringent requirements of Article 9(2) of the Convention. Not surprisingly, it was also accepted under the less restrictive standards of Article 2 of Protocol No. 1. The holding of Leyla Sahin was easily applicable to other situations arising in Turkey,49 but at the same time it was very much oriented towards the particular situation in that country. In the factual, social dimension, the Court put a strong emphasis on the dominant position of the Islamic faith in Turkey. In the legal, constitutional dimension, the Court recalled the principle of secularism as one of the cornerstones of the Turkish democracy. What was not clearly answered was the general scope of application of Leyla Sahin. The Court left open, at least to some extent, whether a similar ban would be upheld in a country in which Islam remains one of the minority religions 45 46 47 48 49

Leyla Sahin case, supra note 11, at Para. 111. Id., at Para. 115. Id., at Para. 116. Id., at Para. 114. According to Kurtulmus v. Turkey, ECtHR, Application no. 65500/01, decision on inadmissibility of 24 January 2006, headscarf ban can be imposed on teachers at public universities; Köse and 93 Others v. Turkey, ECtHR, Application no. 26625/02, decision on inadmissibility of 24 January 2006: a ban on religious symbols can be imposed on students of public schools of a religious character.

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7  The Strasbourg Court on Issues of Religion in the Public School System (and therefore the expectation of scarf-wearing becomes less compulsory) and in which the State decided not to adopt the principle of secularism. Some answers were offered by the Court in the 2008 Dogru v. France50 judgment. The Court accepted sanctions imposed in 1999 on a student who refused to take off her headscarf in physical education and sport classes.51 The Court confirmed that “wearing the headscarf may be regarded as motivated or inspired by a religion or religious belief ”52 and therefore enters the ambit of Article 9, constituting interference with the freedom of religion. Nevertheless, “having regard to the circumstances of the case, and taking account of the margin of appreciation that should be left to the States in this domain, the Court concludes that the interference in question was justified as a matter of principle and proportionate to the aim pursued.”53 The Court raised three principal arguments: – The lack of a common approach among the Member States: “where questions concerning the relationship between State and religions are at stake, on which opinion in a democratic society may reasonably differ widely, the role of the national decision-making body must be given special importance. This will notably be the case when it comes to regulating the wearing of religious symbols in educational institutions, in respect to which the approaches taken in Europe are diverse. Rules in this sphere will consequently vary from one country to another according to national traditions [. . .]”54 – The necessity to impose restrictions in order to reconcile the interests of various groups: “The State may limit the freedom to manifest a religion, for example by wearing an Islamic headscarf, if the exercise of that freedom clashes with the aim of protecting the rights and freedoms of others, public order and public safety.”55 – The secular nature of the French State: “in France, as in Turkey or Switzerland, secularism is a constitutional principle, and a founding principle of the Republic, to which the entire population adheres and the protection of which appears to be of prime importance, in particular in schools. The Court reiterates that an attitude that fails to respect that principle will not necessarily be accepted as being covered by the freedom to manifest one’s religion and will not enjoy the protection of Article 9 of the Convention.”56

50 Dogru v. France, ECtHR, Application no. 27058/05, judgment of 4 December 2008. 51 Thus the controversy preceded the 2004 amendments to the French Education Code that generally prohibited the wearing of signs or dress by which pupils overtly manifest a religious affiliation. The substance of the 2004 regulation has not been assessed by the Strasbourg Court. 52 Dogru case, supra note 50, at Para. 47. 53 Id., at Para. 77. 54 Id., at Para. 63. 55 Id., at Para. 64. 56 Id., at Para. 72.

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Lech Garlicki A common assessment of the Dahlab, Leyla Sahin and Dogru cases shows that the Court is ready to uphold reasonable restrictions on wearing religious symbols in public schools in respect to both teachers and students. In all three cases, however, the Court attached certain significance to the fact that the each of the three States adopted the principle of secularism as one of the cornerstones of the constitutional system. Two questions, concerning the wearing of religious symbols, still remain open: – To what extent arguments applicable to a secular State are transferable to other types of constitutional regulation of relations between the state and religions; – To what extent arguments applicable to the particular context of public schools (where the State has a particular responsibility for teaching and education) are transferable to other areas of social life.

7.5 The Chamber Judgment on the Crucifix in the Classroom in Lautsi v. Italy Controversies concerning the wearing of religious symbols have dealt with a traditional scheme in which the State imposes restrictions on individual action. An inverse situation emerges when an individual remains a passive addressee of actions taken by the State. The display of religious symbols by the authorities in public places represents one of the most prominent examples. It may raise problems particularly where individuals have no choice but to remain in a given place, in other words, in places where persons are dependent, or where they are particularly vulnerable. It goes without saying that public schools are such places. In 2009, in the Lautsi v. Italy case,57 the Court addressed the question of mandatory display of a crucifix in classrooms in public schools and found that the Italian system had violated Article 2 of Protocol No. 1 taken together with Article 9 of the Convention. As is well known, the Lautsi judgment evoked vivid criticism in several countries, and the case was brought before the Grand Chamber after a referral request of the Italian Government had been accepted. The Chamber recalled and reiterated the general principles of interpretation of Article 2 of Protocol No. 1, as recently summarized in the Folgerø judgment. Two observations deserve attention: 1) Respect for parents’ convictions must be possible in a context capable of ensuring an open school environment that encourages inclusion rather than exclusion, regardless of the pupils’ social background, religious beliefs or

57 Lautsi case, supra note 13.

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7  The Strasbourg Court on Issues of Religion in the Public School System ethnic origins. Schools should not be the arena for missionary activities or preaching; they should be a meeting place for different religions and philosophical convictions, in which pupils can acquire knowledge about their respective thoughts and traditions.58 2) Respect for parents’ religious convictions and children’s beliefs implies the right to believe in a religion or not to believe in any religion. The freedom to believe and the freedom not to believe (negative freedom) are both protected by Article 9 of the Convention.59 The Court first emphasized that the school environment involves a significant component of dependence and vulnerability: The schooling of children is a particularly sensitive area in which the compelling power of the State is imposed on minds which still lack (depending on the child’s level of maturity) the critical capacity which would enable them to keep their distance from the message derived from a preference manifested by the State in religious matters.60 Furthermore, the Court rejected the argument of the Italian Government that, considering the role of religion in Italian history and the deep roots of religion in the country’s tradition, it is possible to attribute to the crucifix a neutral and secular meaning and to regard it as a positive moral message of Christian faith, transcending secular constitutional values to have a role in Italian history and tradition closely bound up with Christianity. In the Court’s opinion, “the symbol of the crucifix has a number of meanings among which the religious meaning is predominant.”61 In consequence, its impact on young pupils, especially the applicant’s children [must be taken into account], because in countries where the great majority of the population owe allegiance to one particular religion the manifestation of the observances and symbols of that religion, without restriction as to place and manner, may constitute pressure on students who do not practice that religion or those who adhere to another religion.62 The presence of crucifixes in classrooms constitutes “an integral part of the school environment and might therefore be considered a “powerful external symbol.”63 58 59 60 61 62 63

Id., at Para. 47c. Id., at Para. 47e. Id., at Para. 48. Id., at Para. 51. Id., at Para. 50. Id., at Para. 54. See also Dahlab case, supra note 35, at Para 1.

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Lech Garlicki Finally, the Court held that: [. . .] the presence of the crucifix may easily be interpreted by pupils of all ages as a religious sign, and they will feel that they have been brought up in a school environment marked by a particular religion. What may be encouraging for some religious pupils may be emotionally disturbing for pupils of other religions or those who profess no religion. That risk is particularly strong among pupils belonging to religious minorities. Negative freedom of religion is not restricted to the absence of religious services or religious education. It extends to practices and symbols expressing, in particular or in general, a belief, a religion or atheism. That negative right deserves special protection if it is the State which expresses a belief and dissenters are placed in a situation from which they cannot extract themselves if not by making disproportionate efforts and acts of sacrifice.64 This led the Chamber to the conclusion that it “cannot see how the display in state-school classrooms of a symbol that it is reasonable to associate with Catholicism (the majority religion in Italy) could serve the educational pluralism which is essential for the preservation of “democratic society.”65 The Lautsi case is interesting for three main reasons: – It addresses the State involvement in supporting a particular religion within the public school context, i.e. the problem relatively close to the above-discussed problems of ­curriculum and religious instruction; – It applies the approach elaborated in respect to the Islamic religious symbols to a ­completely different environment; – It was applied in respect to a country which, according to the recent case law of its Constitutional Court, adheres to the principle of secularism as one of the “supreme principles” of the constitutional system; as noted by the Constitutional Court, “the Constitution contained the principle of secularism and the religious nature of the State had been explicitly abandoned in 1985.”66

64 Lautsi case, supra note 13, at Para. 55. 65 Id., at Para. 56. 66 Id., at Paras. 24-25.

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7  The Strasbourg Court on Issues of Religion in the Public School System 7.6 Conclusion The case law on issues of religion in public schools has considerably developed over the last decade; it has followed trends in other areas of religious freedoms67 and, more generally, to almost all aspects of human rights protection. At the same time, however, matters of religious freedom seem to raise particular difficulties, and the Strasbourg jurisprudence is not always able to provide clear answers to all problems and controversies. The Court’s task has become especially complex as it faces a tri-dimensional difficulty: structural, methodological and politico-cultural. The structural difficulty emerges from the very nature of the Strasbourg system. Problems of religion and of its place in the public sphere call for general solutions. The countries of Europe have not as yet been capable of agreeing on a common approach; there are still many different versions ranging from a secular state to a state-established Church. Some common rules can, of course, be elaborated by the judicial branch but this requires that courts act in a “constitutional capacity,” i.e. that they be able and willing to establish general rules of a binding quasi-constitutional nature. The Strasbourg Court, however, was conceived as a constitutional court. It deals with individual applications and, in consequence, its judgments and decisions are always strongly linked to the particular facts of a particular case. It is not always clear how the Court would react to another case arising from a slightly different set of facts. While it is true that the most important message of the Strasbourg judgments is contained in the motifs (in “The Law” part of judgments), those motifs are usually drafted rather in the form of persuasive arguments than imperative commandments. It leaves some room for flexibility (for which, in particular, the technique of distinguishing is used), but it also creates a contradiction between the de facto constitutional role of the Strasbourg Court and its individually oriented approach. The methodological difficulty results from the different nature and background of cases hitherto decided by the Strasbourg Court. It should not be forgotten that a good portion of the case law, especially that on the school dress codes (Dahlab, Leyla Sahin, and Dogru), was created in response to the headscarf ban, i.e., in respect to a particular type of religious culture that (except for Turkey) still remains somewhat foreign for the mainstream approaches present in European societies. Furthermore, it should not be forgotten that in the scarf cases the Court upheld the state-imposed ban on individual action, confirming the conventional national legislation as remaining within the national margin of appreciation. Finally, those decisions of the Court should be assessed against a more

67 See, e.g., A. Sajó (Ed.), Censorial Sensitivities: Free Speech and Religion in a Fundamentalist World (2007).

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Lech Garlicki general problem, namely the obligation of the State to intervene when basic values of the Convention system are put in question. In other words, the scarf-ban jurisprudence of the Court cannot be, at least intellectually, detached from its general position in respect to some radical interpretations of Islam. Thus, the scarf ban could have been viewed against the background of cases like the Refah Partisi68 judgment, and this could prompt the Court to accept the national ban on wearing religious symbols in public schools. The question, however, remains to what extent this approach may find analogous application in situations where – as in Folgerø,69 Lautsi70 or Grzelak71 – the Court is invited to reject general measures adopted by the State, those measures enjoy support of the mainstream of public opinion in an affected country and, while those measures may interfere with certain rights of certain individuals, there is no claim that they run counter to the very system of Convention values. The politico-cultural difficulty is a consequence of the lack of consensus as to the place of religion(s) in modern societies, and especially, as to its (their) place in the public sphere. The Court cannot and should not provide solutions of philosophical, sociological and political questions in a situation where European societies have appeared unable to propose common approaches. The Court may provide a certain framework or establish certain limits in this respect, but it cannot venture into areas that still remain uncharted. The scarf ban represents a very good example as it may be assessed from completely opposite perspectives. For some, the wearing of a scarf/veil/burqa should be regarded as a “powerful external symbol” that may be regarded as difficult to square with the principle of gender equality, one of the basic values protected under the Convention. This approach is also visible in the Court’s case law on that matter. For others, however, the wearing of a scarf should be regarded as a manifestation of religious beliefs, or even as the observation of an important religious obligation of every adherent to a particular religion. Therefore, any ban (understood as a state imposed obligation to undress) may create grave moral conflicts for involved individuals.72 Since it is obvious that the State’s margin of appreciation would become quite wide for the first approach and much more limited for the second approach, and since it equally obvious that European states have not yet been able to adopt any common approach, the Strasbourg case law would continue to “hang in the air” as long as European societies are unsure about their course of action. This makes the whole “religion jurisprudence” particularly open to flexibility, even inconsistency.

68 69 70 71 72

Refah case, supra note 44. Folgerø case, supra note 12. Lautsi case, supra note 13. Grzelak case, supra note 26. See in this respect the position of Judge Francois Tulkens, the lone dissenter in Leyla Sahin case, supra note 11.

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8

Russia’s “Orthodox” Foreign Policy*

Robert C. Blitt 8.1 Introduction The government of Russia and the Russian Orthodox Church (ROC)1 – the country’s predominant religious group – underwent back-to-back changes in each institution’s respective leadership. In an article previously published elsewhere, I explored the domestic implications of President Dmitri Medvedev and Patriarch Kirill’s relationship and concluded that in the short space of two years, their partnership served to further entrench a discriminatory three-tiered status system for religious groups and – perhaps more significantly – has generated multiple new channels of influence for the ROC in Russian social and political life, including handing the Church its long-coveted prizes of access to the public education system and the military.2 As this chapter will demonstrate, the ROC’s influence is increasingly evident beyond the realm of domestic policies, in both formulating and advancing Russian interests abroad. Consequently, the breakdown in the constitutional principle of secularism so evident in the domestic realm has spilled over into Russia’s foreign policy, leading to the bizarre reality whereby a secular state is advocating on behalf of Orthodoxy and “traditional” values abroad. 8.2 The Russian Orthodox Church’s Foreign Policy Mandate The Moscow Patriarchate, like the Russian government, is actively concerned about developments outside of Russia and the potential implications these developments may have on the home front. This concern is not limited to the “near abroad” former Soviet bloc states or the canonical territory of the Moscow Patriarchate as defined to include ­“Russia, Ukraine, Byelorussia, Moldavia, Azerbaijan, Kazakhstan, Kirghizia, Latvia, Lithuania, ­Tajikistan, Turkmenia, Uzbekistan and Estonia.”3 Rather, it extends to all other states This chapter is an earlier, reducted version of a more extensive study which appeared as Russia’s Orthodox Foreign Policy: The Growing Influence of the Russian Orthodox Church in Shaping Russia’s Policies Abroad, 33 U. Pa. J. Int’l L. 363 (2011). 1 The terms Russian Orthodox Church, ROC, Russian Church, the Church, and Orthodox Church are used interchangeably herein to refer to the Moscow Patriarchate. 2 R. C. Blitt, One New President, One New Patriarch, and a Generous Disregard for the Constitution: A Recipe for the Continuing Decline of Secular Russia, 43 Vand. J. Transnat’l L. 1337 (2010). See also R. C. Blitt, How to Entrench a De Facto State Church in Russia, 2008 BYU L. Rev. 708 (2008). 3 Department for External Church Relations of the Moscow Patriarchate, The Statute of the Russian Orthodox Church, Art. 3, available at . *

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Robert C. Blitt where Russian Orthodox Christians may be living, provided they “voluntarily” join the Patriarchate’s jurisdiction.4 Even more broadly, the Church’s purview is truly global, covering virtually every country as well as many major intergovernmental institutions. In then-Patriarch Kirill’s mind, “[t]he universal nature of the Christian teaching makes us interested in various spheres of the life of society. The Church acts on equal footing as a subject of relations with different states and with international public and political organizations. We defend our values and promote the rights and interests of our congregations.”5 Most of the ROC’s effort abroad is managed through its Department of External Church Relations (DECR), which is tasked with the sweeping responsibility of “maintain[ing] the Church’s relations with Local Orthodox Churches, non-Orthodox Churches, Christian organizations and non-Christian religious communities, as well as governmental, parliamentary, inter-governmental, religious and public bodies abroad and public international organizations.”6 In practice, the DECR operates as a foreign ministry that hosts ambassadors, travels widely, and interacts with the United Nations (UN), European Union (EU), and Organization for Security and Cooperation in Europe (OSCE), among others. The Church’s foreign policy objectives are multi-pronged and diverse, yet they share a remarkable amount of overlap with the government of Russia’s foreign policy priorities. As Patriarch Kirill remarked in a letter to Foreign Minister Lavrov on the occasion of his 60th birthday: “During your service as foreign minister, the cooperation between the Russian foreign policy department and the Moscow Patriarchate has considerably broadened.”7 8.3 Russian Foreign Policy: Disregard for the Constitutional ­Obligations of Secularism, Separation and Nondiscrimination Moscow has lost sight of its constitutional obligations related to secularism and separation of church and state even in the formulation and execution of its foreign policy. In the first instance, a break is evident in the rhetoric disseminated through Russia’s Ministry of Foreign Affairs (MOFA) as well as in speeches by President Medvedev and others. The central concept being espoused here is neatly encapsulated in the constant refrain in favor of “spiritual values.” So pervasive is this notion that it has implanted itself at the apex of ­Russia’s strategic planning, in both the National Security Strategy (NSS) and the Foreign 4 Id. 5 Church Diplomacy Is not Just a Matter of Inter-Church Relations, Diplomat, September 2008, available at . 6 Department for External Church Relations of the Russian Orthodox Church, DECR Today, available at . 7 Department for External Church Relations of the Russian Orthodox Church, Patriarch Kirill’s Congratulatory Message to Russian Foreign Minister S. Lavrov, 22 March 2010, available at .

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8  Russia’s “Orthodox” Foreign Policy Policy Concept (FPC). On another level, beyond words and ideological positioning, numerous concrete policy ventures implemented abroad illustrate a governmental willingness to further burnish the already glossy – but nevertheless constitutionally verboten – patina of religious favoritism routinely demonstrated in the context of domestic affairs. 8.3.1

The Ideological Centrality of Orthodoxy in Russian Foreign Policy as Expressed through Euphemism

8.3.1.1 The Role of “Spirituality” in Russia’s National Security Strategy Russia’s National Security Concept (NSC) from 2000 garnered attention for its unusual emphasis on the need for “spiritual restoration.”8 According to this document, Russia faced a dual threat: internally from “the depreciation of spiritual values” which promotes tension in relations between regions and the center;9 and externally by “cultural-religious expansion into the territory of Russia by other states.”10 To eliminate these risks to national security, the NSC called for, inter alia, “protection of the cultural, spiritual and moral legacy [. . .] the formation of government policy in the field of the spiritual and moral ­education of the population, and [.  .  .] counteraction against the negative influence of foreign religious organizations and missionaries.”11 Although the NSC invoked the generic term “spirituality,” in substance the policy objective intended the restoration of Orthodoxy specifically, and to a much lesser degree Russia’s other “traditional faiths.”12 Indeed, the NSC went on to brand foreign religious organizations a “negative influence” despite the fact that many of these religions had existed in Russia for decades. While the tactics of some missionary groups operating in Russia following the collapse of the Communism rightfully may be deserving of criticism, the fact that all foreign religious organizations were branded a threat stemmed from the indiscriminate attacks arising from various domestic sources, including some academics who argued that most missionaries “served the interests of the countries from which

  8 Part II, National Security Concept of the Russian Federation, Approved by Presidential Decree No. 24 of 10 January 2000, available at .   9 Part III, Id. 10 Part IV, Id. 11 Id. 12 Julie Elkner writes that original use of the term “spiritual values” dating back to 1992 “was intended to flag a shift away from Soviet militant atheism and from state persecution of religious believers. Subsequently, however, this linkage [. . .] has been taken up and used as a weapon for ends which are far removed from the principles guiding the legislators who drafted this law.” J. Elkner, Constructing the Chekist: The Cult of State Security in Soviet and Post-Soviet Russia, at 250-251 (2009) (unpublished Ph.D. dissertation, Kings College, University of Cambridge) (on file with the author).

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Robert C. Blitt they came.”13 The ROC was not immune to endorsing this vociferous criticism, painting missionary groups as a threat to “the integrity of [Russia’s] national consciousness and our cultural identity,” bent on destroying Russia’s “traditional organization of life” and “the spiritual and moral ideal that is common to all of us.”14 In 2008 the Medvedev government released a revised National Security Strategy intended to replace former President Vladimir Putin’s NSC from 2000.15 Although at least one observer has argued that the decision to explicitly nullify certain strategies of the previous regime signaled the “opening of a new stage, perhaps in an attempt to avoid [. . .] being perceived as merely a continuation of Putin’s policies,”16 many aspects of M ­ edvedev’s 2008 NSS in fact embodies a clear continuation of Putin’s strategic vision. For example, “intelligence and other activities of special services and organizations, foreign governments and individuals”17 is listed as the primary threat to Russia’s national security, ­beating out even the activities of terrorist organizations.18 The need to combat this bogeyman – ostensibly manifested under the guise of foreign religious organizations and nongovernmental organizations (NGOs) – through the creation of various bureaucratic hurdles and other tactics is torn directly from Putin’s playbook and enthusiastically supported by the ROC.19

13 J. Anderson, Putin and the Russian Orthodox Church: Asymmetric Symphonia?, 61 J. Int’l Aff. 185, at 194 (2007). 14 M. S. Shterin & J. T. Richardson, Local Laws Restricting Religion in Russia: Precursors of Russia’s New National Law, in D. H. Davis (Ed.), Religious Liberty in Northern Europe in the Twenty-First Century, 141 at 155 n.48 (2000) [Art. 9 of the Sobor Council of the Archbishops of the Russian Orthodox Church (Dec. 1994, unpublished)]. 15 Decree of the President of the Russian Federation on 12 May 2009, No. 537 “On National Security Strategy of the Russian Federation until 2020,” declares null and void the Presidential Decree of 17 December 1997 No. 1300 “On approval of the National Security Concept of the Russian Federation” (Collected Legislation of the Russian Federation, 1997, No. 52, Art. 5909) and the Presidential Decree of 10 January 2000 No. 24 “On the Concept of National Security of the Russian Federation” (Collected Legislation of the Russian Federation, 2000, No. 2, Art. 170). Security Council of the Russian Federation, Стратегия национальной безопасности Российской Федерации до 2020 года [National security strategy of the Russian Federation to 2020], May 12, 2009, available at . 16 J. Morales, Russia’s New National Security Strategy: Towards a ‘Medvedev Doctrine’?, ARI 135/2009, 25 September 2009, available at . 17 Part IV(2)(37), National Security Strategy of the Russian Federation until 2020, supra note 15. 18 Id. 19 According to Putin, “I think that it is clear for all [.  .  .] when these nongovernmental organizations are financed by foreign governments, we see them as an instrument that foreign states use to carry out their R ­ ussian policies.” M. Schofield, Putin Cracks Down on Nongovernmental Organizations, McClatchy, 20 F ­ ebruary 2007, available at . The ROC strongly believes that international human rights norms promote a “western” anti-irreligious agenda that poses an immediate threat to Russian traditional (Orthodox) values. For more on the Church’s relationship to Russia’s NGO law, see R. C. Blitt, Babushka Said Two Things – “It Will Either Rain or Snow; It Either Will or Will Not": An ­Analysis of the Provisions and Human Rights Implications of Russia’s New Law on Nongovernmental Organizations as Told Through Eleven Russian Proverbs, 40 Geo. Wash. Int’l L. Rev. 1 (2008).

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8  Russia’s “Orthodox” Foreign Policy To make more explicit this continuation in policy, Medvedev specifically singled out the perceived threat posed by religious and other organizations intending to disrupt ­Russian unity and territorial integrity, and destabilize the political and social status quo.20 Such groups have at various times been labeled as “weapons [of] destruction” designed to promote American geopolitical interests,21 and more recently, by a Russian court in the case of Scientology, as extremist and “undermining the traditional spiritual values of the citizens of the Russian Federation.”22 This latter feat is impressive particularly in the face of the European Court of Human Rights’ (ECtHR) judgment rejecting Russia’s ­decision to deny the same Scientology branches (in Surgut and Nizhnekamsk) status as a religious group because they had not existed for at least 15 years in Russia.23 Scientology now joins the Jehovah’s Witnesses and the collected works of Said Nursi on Russia’s everlengthening list of banned extremist materials.24 Even Medvedev’s stated belief that the “main idea” behind his NSS is “security through development”25 appears derivative of Putin’s previous approach.26 Here too, the recycled emphasis on development for Russia’s citizens creates prominent space for the role of spirituality and the ROC. In 2009, the ROC and United Russia expressed their intent to “jointly decide [. . .] what their common values are and what modernization tasks must be accomplished” in the context of Russia’s development plans.27 The party of Putin and Medvedev went on to assert that “Russian modernization should be based on Orthodox faith.”28 Conveniently, Medvedev’s NSS laid the groundwork for this step by calling for greater cooperation with institutions of civil society, including religious groups. Under the rubric of countering threats to national security that may impede the development

20 Part IV(2)(37), National Security Strategy of the Russian Federation until 2020, supra note 15. 21 Anderson, supra note 13, at 194. 22 UPI, Russia Bans Scientology Literature, 22 April 2010, available at . 23 Church of Scientology Moscow v. Russia, ECtHR Application no. 18147/02, judgment of 5 April 2007, at Para. 97. 24 Production, possession or distribution of materials included in the list is punishable under Art. 13, Federal Law on the Counteraction of Extremist Activity, 2002, No. 114-FZ, (25 July 2002, as amended on 29 April, 2008). As of December 2010, the list included 727 prohibited items (up from 614 items listed in March 2010). Federation Ministry of Justice, Федеральный список экстремистских материалов [The federal list of extremist materials], available at . 25 President of Russia (Kremlin.ru), Beginning of Meeting with Security Council On National Security Strategy of the Russian Federation Through to 2020 and Measures Necessary to Implement It, 24 March 2009, available at . 26 Putin’s 2000 security strategy mentioned development no less than 20 times. National Security Concept of the Russian Federation, supra note 8. 27 Church, United Russia Want State-Church Partnership Sealed by Laws, Interfax, 1 December 2009 [Factiva DANWS00020091202e5c1000ry]. 28 United Russia Considers Orthodoxy as Moral Basis for Modernization, Interfax, 17 February 2010, available at .

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Robert C. Blitt of Russian citizens, the NSS endorsed such cooperation as a means of “ensur[ing] the preservation of cultural and spiritual heritage” and addressing problems related to the “spiritual life of society.”29 Medvedev’s fallback on spirituality as the adhesive for a coherent national security policy generates significant opportunities for the Church to play an instrumental role in shaping Russia’s national development priorities, and as a natural extension of this, impacting Russia’s security policy and threat perception as well. Notably, all senior political figures in Russia are speaking from the same set of spirituality-infused talking points. At an exhibit on Orthodox Russia, Medvedev remarked that the “[i]ntransient spiritual values of Orthodoxy and other traditional confessions have always been at the centre of our national identity: Today they continue to facilitate the moral and ethnical renovation of Russian society and promote tolerance, patriotism and civic consciousness among young people.”30 During an Orthodox Christmas Eve meeting with Patriarch Kirill at the ROC’s Danilov Monastery, Prime Minister Putin praised the Church for “educating citizens in a spirit of patriotic love for their country and passing on a love for spiritual values and history.”31 Speaking to the OSCE, Russia’s Deputy Minister of Foreign Affairs invoked spiritual values as a component of Russia’s security interests.32 And finally, Foreign Minister Lavrov has explained the Russian government’s interest in Orthodox religious sites outside of Russia as a natural extension of the “spiritual revival [. . .] taking place in Russia, [and] our return to spiritual values and shrines.”33 8.3.1.2 A Note on Culture as a Synonym for Orthodoxy It is worth underscoring that the ostensibly dogma-neutral concept of “spiritual development” that entered Russia’s lexicon with Putin’s 2000 NSC34 entails a very particular interpretation limited in the main to Russian Orthodoxy. This is evidenced in ­Russia’s 2008 Foreign Policy Concept35 which, among other things, acknowledges that the

Part IV(3)(52), National Security Strategy of the Russian Federation until 2020, supra note 15. Medvedev’s Wife Visits Exhibition ‘Orthodox Russia’, Itar-Tass, 4 November 2009. A. Odynova & G. Stolyarova, Church Calls For Return of Treasures, St. Petersburg Times, 11 May 2010. Ministry of Foreign Affairs of the Russian Federation, Statement by Deputy Minister of Foreign Affairs Alexander Grushko at the Opening of the OSCE Annual Security Review Conference, 1 July 2008 (Doc. No. 961-01-07-2008), available at . 33 Ministry of Foreign Affairs of the Russian Federation, Russian Foreign Minister Sergey Lavrov’s Interview with Cyprus News Agency, 26 December 2007, available at . 34 Part II, National Security Concept of the Russian Federation, supra note 8. 35 Part II, “The Modern World and the Foreign Policy of the Russian Federation”, The Foreign Policy Concept of the Russian Federation, approved by Dmitry A. Medvedev, President of the Russian Federation, on 12 July 2008, available at . 29 30 31 32

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8  Russia’s “Orthodox” Foreign Policy Russian government “actively interacts with the Russian Orthodox Church and other main confessions of the country” for the purpose of strengthening Russia’s international security.36 The discussion of how “spirituality” has infiltrated Russia’s national security strategy rhetoric would be incomplete without also examining the connection between spirituality and culture in Russia’s NSS and FPC. From the content of these documents, it is clear that culture is considered to include religion, and Russian Orthodoxy in particular. This linkage in turn generates additional points of entry for the ROC, from which it is able to further challenge the secular promise of Russia’s constitution. According to the NSS, the threat to national security within the cultural arena is the perceived domination of mass (i.e. Western) culture targeting the spiritual needs of marginalized groups, and its associated unlawful encroachment on cultural objects.37 To meet these challenges, the NSS endorses the paramount role of culture in reviving and preserving moral values and strengthening the spiritual unity of the multinational people of the Russian Federation.38 The FPC paints a similar picture, concluding that the increase in cultural and civilizational diversity necessitates creating a larger role for religion in shaping international relations. To facilitate this role, the document calls for engaging the “common denominator that has always existed in major world religions.”39 With this outlook in place, government officials make the ROC’s tie-in with Russian culture explicit. According to Foreign Minister Lavrov, Russia’s MOFA: [. . .] maintains the closest ties with the Russian Orthodox Church, which is the church most Russians belong to. Our cooperation is one of the long-time traditions of domestic diplomacy. We value the influence Orthodoxy had on the formation of our statehood, the shaping of culture and molding of the consciousness of Russia’s multi-ethnic people. We also commend the role played by the Russian Orthodox Church in the life of present-day Russia as one of the consolidating forces of Russian society.40

36 Part III, “Priorities of the Russian Federation for addressing global problems,” Id. 37 Part IV(7)(80), National Security Strategy of the Russian Federation until 2020, supra note 15. 38 Part IV(7)(84), Id. The task of strengthening the spiritual unity of a multinational – and multireligious – people may strike some as being contradictory. It is also questionable whether the promotion of such a task is rightfully suited to a secular government. 39 Part II, “The Modern World and the Foreign Policy of the Russian Federation", The Foreign Policy Concept of the Russian Federation, supra note 35. Here again, use of the term “major world religions” implies an ­exclusive and discriminatory approach to which groups might reasonably be part of such engagement. 40 Diplomacy Needs a Moral Foundation (Interview with Sergei Lavrov), Diplomat, September 2008, available at .

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Robert C. Blitt Minister of Culture Alexander Avdeev makes the equation of Russian culture with Russian Orthodoxy even more explicit: “Russian culture will flourish and remain the center of the national idea only if it is in very close dialogue with the Russian Orthodox Church, if it is connected with the understanding that spiritual and historical values are both sacred.”41 Confirming the Moscow Patriarchate’s intent to take advantage of these entry points, its Basis of the Social Concept already endorses cooperation with the state in “spiritual, cultural, moral and patriotic education", as well as “culture and the arts” more generally.42 Metropolitan Hilarion has called for the “complete destruction of the wall between the Church and culture that was established in Soviet times,” and asserted that “If the Church does not take part in the country’s cultural life, culture is running the risk of turning into an anti-culture.”43 In a similar vein, Patriarch Kirill has made clear the link between Orthodoxy and Russian culture. In his view, the ROC’s parishes abroad “fulfill a cultural mission. They are an important link between their Motherland and the people living far away from their native country. The parishes run both Sunday schools and grade schools for children whose parents want them to be educated in the spiritual and cultural traditions of their native country.”44 Although the Russian government has placed an obvious and longstanding emphasis on restoring and protecting “spiritual” values and culture, and the ROC has heartily endorsed this policy, recent polling data suggest that Russian citizens view the country’s national security priorities in a dramatically different light. According to the survey findings, the dearth of spirituality ranks at the bottom of the list of national threats facing Russia: Only three percent of Russians shared the view that the lack of spiritual values and the lack of culture posed a major threat to Russia.45

41 Russkiy Mir Foundation, Александр Авдеев: Российская культура будет успешно развиваться только в сотрудничестве с Русской православной церковью [A. Avdeev: Russian culture will flourish only in cooperation with the Russian Orthodox Church], available at . See also . 42 Part III(8), “Church and State,” Russian Orthodox Church, The Bases of the Social Concept, Russian Orthodox Church: Official Website of the Dep’t for External Church Rel., available at . 43 Senior Cleric Urges Russian Church to Play Greater Cultural Role, RIA Novosti, 9 March 2010, available at . According to the ROC’s Bases of the Social Concept, “if culture puts itself in opposition to God, becoming anti-religious and anti-humane and turning into anti-culture, the Church opposes it.” Part XIV(2), “Secular science, culture and education,” The Bases of the Social Concept, supra note 45. In the context of preservation of culture, there is a lively debate in Russia over the decision to return to the ROC icons and other religious relics held in Russian museums. 44 Church Diplomacy, supra note 482. 45 Opinion Poll: Only 3 Percent of Russians Think the Lack of Spiritual Values to Be a Major National Threat, Interfax, 13 July 2009, available at . Meanwhile, 11 percent of respondents considered the economic crisis and weak industry as a major threat facing Russia. The second threat most cited by those polled (9 percent) included alcoholism, drug addiction, and Russia’s shrinking population (9 percent), and the third slot addressed the perceived military threat from NATO and the West and the possibility of a third world war (7 percent). Six percent considered terrorism, poverty, low living standards, corruption, theft, bureaucracy, and unemployment as major threats.

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8  Russia’s “Orthodox” Foreign Policy 8.3.1.3 “Spiritual Security” & “Spiritual Revival” Feeding into the government’s emphasis on spiritual values, spiritual revival, and spiritual development – or perhaps even as shorthand for all these terms – is the Russian notion of “spiritual security.”46 This concept embodies efforts to protect Orthodoxy inside Russia by framing the threat of religious competition from missionaries and “nontraditional” faiths as endangering nothing less than the security of Russia. In part, this protection is achieved through an alliance between the ROC and the FSB,47 as well as the burgeoning relationship with Russia’s predominant political party, United Russia. Spiritual security also has an external connotation that relates to the role of the ROC abroad. As prime minister Putin stated in 2009, “In the dialogue with other SisterChurches, the Russian Orthodox Church has always defended and hopefully will continue to defend the national and spiritual identity of Russians.”48 This collaboration is also achieved by way of partnership abroad with Russia’s MOFA, promoting “Russianness” and “collaborat[ing] to protect the spiritual security of the Russian diaspora from nonOrthodox religions and especially from the spread of secularism.”49 Medvedev has allowed his administration to strengthen this exclusive partnership. At the 3rd World Congress of Compatriots Living Abroad, Medvedev addressed the task of supporting Russians abroad: I cannot help mentioning the role of the Russian Orthodox Church and our other traditional confessions in reviving the spiritual unity of compatriots and strengthening their humanitarian and cultural ties with the historical homeland. We will certainly continue contacts between the state and appropriate confessions.50 The outcome of this ongoing arrangement has the following symbiotic results: Abroad, the government benefits from the ROC’s efforts as a willing partner in reinforcing ­Russia’s “spiritual security", which in turn boosts the channels available to it for the projection of Russian power abroad. On the home front, the government ensures that religious groups or “sects” deemed by the ROC to constitute a threat are sufficiently repressed. As D ­ aniel Payne has rightly concluded, spiritual security serves “as the basis for protecting and 46 Anderson, supra note 13. 47 Elkner, supra note 12, at 252 and 265. 48 On quote in D. Payne, Spiritual Security, The Russian Orthodox Church, and the Russian Foreign Ministry: Collaboration or Cooptation?, 52 Journal of Church and State 712, at 715 (2010). 49 Id., at 719. 50 DECR, Patriarch Kirill Attends the Opening of the 3rd Congress of Compatriots Living Abroad, 1 December 2009, available at . Formal cooperation between the ROC and MOFA on the issue of Russians abroad dates back to at least 2003. Святйший Патриарх Алексий принял участие в заседании рабочей группы по взаимодействию МИД России и Русской Православной Церкви, [Patriarch Alexy attends a meeting of the Working Group on the interaction of the Russian Foreign Ministry and the Russian Orthodox Church], 21 November 2007, available at .

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Robert C. Blitt uniting the Russian Orthodox people against threats to its spiritual and cultural well-being, especially by limiting the amount of freedom experienced in [Russia’s] civil society.”51 But the potential damage caused by the Russian government’s preoccupation with spiritual security runs deeper still. According to Julie Fedor, insofar as Russia’s FSB has “cloak[ed] itself in spiritual rhetoric, [it] will not only attain moral respectability, but will effectively place itself beyond the reach of any legitimate criticism, scrutiny or control.”52 From this more contextualized vantage point – and even before considering the practical ramifications – it would appear that the generic notions of safeguarding and promoting spiritual development, culture and spiritual security already establish a conceptual approach to foreign policy and national security that undercuts Russia’s constitutionally mandated secularism and separation of religion and state. As the next section demonstrates, the government and the ROC have worked diligently to put this conceptual approach into concrete practice through a variety of tacit and intentional endeavors and partnerships. It is these tangible efforts that more definitively confirm Medvedev’s willingness to allow the Moscow Patriarchate’s growing role to expand beyond internal affairs and into the foreign policy realm, as well as the enthusiasm of both parties to intensify this relationship despite overriding constitutional directives of secularism, separation of church and state, and nondiscrimination. 8.3.2

Putting Rhetoric into Practice: The Ascendancy of “Spirituality” in Russia’s Foreign Policy

The framework outlined above is not intended as mere rhetorical flourish. In fact, the ­ideological principles first espoused by Putin and since expanded by Medvedev have resulted in tangible and growing neglect within Russia’s foreign policy for the constitutional principles of secularism, separation, nondiscrimination, and equality. This abandonment of constitutional imperatives is evident in a variety of official actions designed to either condone or facilitate the encroachment of Orthodoxy into Russia’s foreign policy and consolidate the ROC’s role as a “spiritual partner” to Russia’s MOFA. 8.3.2.1 Russian Orthodox Church – Ministry of Foreign Affairs Working Group In 2003, then-Patriarch Alexy paid his first official visit to Russia’s MOFA.53 And it is from this starting point that the two organizations have been able to develop policies related 51 Payne, supra note 48, at 716. 52 Elkner, supra note 12, at 291. 53 Ministry of Foreign Affairs of the Russian Federation, Opening Remarks by Foreign Minister Sergey Lavrov at Press Conference After Tenth Meeting of Working Group on MFA-Russian Orthodox Church Interaction, 20 November 2007 (Doc. No. 1836-21-11-2007), available at .

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8  Russia’s “Orthodox” Foreign Policy to defending and deepening Russia’s “spiritual” values and the ROC’s interactions overseas. At the time of this meeting, the parties agreed to establish a working group that, in Foreign Minister Lavrov’s words, would enable the Church and Foreign Ministry to work “together realizing a whole array of foreign policy and international activity thrusts.”54 Cementing the ROC-MOFA partnership in the form of a permanent working group struck Lavrov as natural, since such a move reflected “an age-old tradition of Russian domestic diplomacy.”55 In general, the ROC-MOFA working group meets regularly, sometimes in smaller subgroups, to discuss a range of issues including the maintenance of cultural and spiritual links with Russians abroad, the upholding of their rights, and preserving “the cultural and historic legacy of [the] Fatherland and of the Russian language.”56 In promoting these activities, Lavrov has described the ROC as nothing less than “a huge mainstay of government actions in this sector.”57 More specifically, the meetings serve as strategy sessions that address the planning of the Patriarch’s international travels and evaluate the ROC’s activities in international organizations as well as developments in its inter-religious relations, including with the Vatican.58 From this vantage point, the Church’s past and future actions are coordinated (and possibly modified) based on implications – and advantages – for Russia’s “secular” foreign policy. In this manner, the Church and MOFA operate in tandem to advance the state’s foreign policy goals, including, for example, giving the ROC and “traditional” religious values greater prominence within the international system.59 At the same time, the existence of the working group is another tangible reminder of the ROC’s special treatment, the inequality of other religious faiths, and the state’s failure to abide by its constitutional obligations. This is particularly evident when the substantive sessions of the ROC-MOFA working group are juxtaposed to the apathetic and intermittent efforts of MOFA’s advisory council on cooperation with Muslim organizations.60

54 Ministry of Foreign Affairs of the Russian Federation, Transcript of Foreign Minister Lavrov Remarks at Orthodox Easter Reception, Moscow, 30 April 2008, (Doc. No. 605-01-05-2008), available at . 55 Id. 56 Transcript of Foreign Minister Lavrov Remarks at Orthodox Easter Reception, supra note 54. 57 Id. 58 DECR, О проведении XIII заседания Рабочей группы по взаимодействию Русской Православной Церкви и Министерства иностранных дел Российской Федерации [On the 13th meeting of the Working Group on the Interaction of the Russian Orthodox Church and the Ministry of Foreign Affairs of the Russian Federation], 29 June 2009, available at . 59 Id. 60 Publicly available information on this body is scant.

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Robert C. Blitt The advisory council has met only a handful of times since its establishment in June 2007,61 and has limited its discussions to the status and prospects of Muslim education,62 and problems encountered by Russian Muslims during the hajj to Saudi Arabia.63 8.3.2.2 The Russkiy Mir Foundation: A Chimera State-Church Foreign Policy Tool In addition to the collaboration growing out of the ROC-MOFA working group, the government and Church have established additional avenues for coating Russia’s foreign policy with a veneer of Orthodoxy. The Russkiy Mir (Russian World) Foundation64 is a quasi-governmental institution65 established by Vladimir Putin in 2007 by presidential decree. According to Putin: The Russian language not only preserves an entire layer of truly global achievements but is also the living space for the many millions of people in the Russian-speaking world, a community that goes far beyond Russia itself [. . .]. In my view, we need to support the initiative put forward by Russian linguists to create a National Russian Language Foundation, the main aim of which will be to develop the Russian language at home, support Russian language study programs abroad and generally promote Russian language and literature around the world.66 The foundation’s purpose is to “promot[e] the Russian language, as Russia’s national heritage and a significant aspect of Russian and world culture, and [to support] Russian language teaching programs abroad.”67 More broadly, Russkiy Mir’s mission statement provides for “supporting, enhancing and encouraging the appreciation of Russian language, 61 Diplomacy Needs a Moral Foundation, supra note 40. 62 Russian Council of Muftis, МИД России усиливает взаимодействие с религиозными организациями [Russia’s Foreign Ministry strengthens cooperation with religious organizations], 16 October 2007, available at , and Ministry of Foreign Affairs of the Russian Federation, О заседании Консультативного совета по взаимодействию МИД России с российскими мусульманскими организациями [On the meeting of the Russian Foreign Ministry Advisory Council for Cooperation with Russian Muslim organizations], 16 October 2007, available at . 63 Ministry of Foreign Affairs of the Russian Federation, О заседании Консультативного совета по взаимодействию МИД России с российскими мусульманскими организациями [On the meeting of the Advisory Council for Cooperation with the Russian Foreign Ministry Russian Muslim organizations (Newsletter)], 27 March 2008, available at . 64 The Russian word “mir” also means “peace” and “community". 65 It might also be considered a government-organized nongovernmental organization, or GONGO. 66 Russkiy Mir Foundation, “About Russkiy Mir Foundation: Creation”, available at . 67 Id.

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8  Russia’s “Orthodox” Foreign Policy heritage and culture” by “showcas[ing] vibrant examples of Russian art and culture around the world” in the form of “artistic, musical, literary, and scientific contribution[s]” by ­Russia’s “talented writers, artists and academics spreading and uniting Russian language and culture.”68 The Russian government retains significant ties to Russkiy Mir because it operates as “a joint project of the Ministry of Foreign Affairs and the Ministry of Education and Science and [is] supported by both public and private funds.”69 At the foundation’s 2009 annual meeting, a statement by Prime Minister Putin hailed the “close cooperation established between the foundation and the government.”70 Clearly, this high level of cooperation is ensured by the presence of foreign minister Lavrov, Andrei Fursenko, Minister of Education and Science, and Sergey Vinokourov, Head of President Medvedev’s Office for Interregional and Cultural Relations with Foreign Countries, on Russkiy Mir’s board of trustees.71 In addition to its governmental linkage, the foundation has also developed an increasingly obvious connection with the ROC. The Russian language version of the Russkiy Mir website elaborates no less than 17 main objectives of the foundation (beyond those cited above), including, at the very end of the list, interaction with the Russian Orthodox Church and other religions in promoting the Russian language and culture.72 As an outgrowth of this, much of the content posted to Russkiy Mir’s website is Orthodoxy-driven, consisting of entries seemingly unrelated to the mandate of advancing the Russian language. These stories carry headlines such as: “Russia’s Patriarch Visits Azerbaijan”,73 “Days of Russian Spiritual Culture Kick off in Vatican,”74 and “Patriarch Kirill Interested in Space Travel.”75 At first blush, Russkiy Mir’s mandate entails little or no connection with the promotion of spirituality or religion. As noted, the foundation is ostensibly focused on the seemingly secular task of promoting the Russian language and related teaching programs abroad.76 Moreover, at Russkiy Mir’s inception in 2007, no representatives of the Russian Orthodox Church were included either on the organization’s founding executive staff or board of 68 Id. 69 Id. 70 Russkiy Mir Foundation, The Third Russkiy Mir Assembly: Summary of Results, 9 November 2009, available at . 71 Russkiy Mir Foundation, “Board of Trustees”, available at . 72 Russkiy Mir Foundation, “О Фонде” ["About the Foundation"], available at . There is no parallel reference to the ROC on Russkiy Mir’s English language webpage. 73 Russkiy Mir Foundation Information Service, Russia’s Patriarch Visits Azerbaijan, 26 April 2010, available at . 74 Russkiy Mir Foundation Information Service, Days of Russian Spiritual Culture Kick off in Vatican, 15 February 2010, available at . 75 Russkiy Mir Foundation Information Service, Patriarch Kirill Interested in Space Travel, 2 December 2010, available at . 76 Decree of the President of the Russian Federation on the Establishment of the Russkiy Mir Foundation, 21 June 2007, available at .

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Robert C. Blitt trustees.77 Despite this apparent disconnect, Putin’s NSC from 2000 explicitly foreshadowed the linkage between language and Russia’s “spiritual renewal” put into p ­ ractice by Russkiy Mir: The spiritual renewal of society is impossible without the preservation of the role of the Russian language as a factor of the spiritual unity of the peoples of multinational Russia and as the language of interstate communication between the peoples of the member states of the Commonwealth of Independent States.78 The NSC’s vision demonstrates that the ROC’s connection to Russkiy Mir is not simple kismet, but rather part of a longstanding, long-term vision originally espoused by Putin and continued today under the Medvedev administration: Orthodoxy shall be promoted not only under the banner of an ostensibly more inclusive notion of spirituality or culture, but also as part of the government’s broader effort to safeguard the Russian language. Taking a deeper look at Russkiy Mir’s most recent interactions with the ROC, it becomes obvious that the relationship is intensifying as the foundation drifts away from its core mission of promoting the Russian language and wanders into the realm of endorsing an exclusively Orthodox version of spirituality and Russia. Given this dynamic, Russkiy Mir is a virtual petri dish for examining the explosion of ROC-state cooperation on the international stage, an exercise that is revealing on a number of levels. First, to the extent that Russkiy Mir has undertaken activities falling outside the scope of its government-sanctioned (and financed) mandate, it is technically – if rather ironically – in violation of Russia’s heavy-handed NGO law, and therefore potentially subject to liquidation under the provisions of that law. Second, in light of the government’s intimate connection to the foundation, these activities give rise to a potential breach of the government’s constitutionally mandated obligations towards secularism, church-state separation, and equality among religious faiths. Finally, in light of Russkiy Mir’s emphasis on operations outside of Russia, the foundation – and by implication the government of Russia – serves to advance the ROC’s religious and political interests by disseminating an exclusively Orthodox point of view and cementing the linkage between Orthodoxy and the State. At the end of 2009, Russkiy Mir and the ROC entered into a formal cooperation agreement79 intended to solidify systematic collaboration. This milestone agreement 77 Id. 78 Part IV, National Security Concept of the Russian Federation, supra note 8. 79 Plans for an agreement emerged following an August 2009 meeting between Patriarch Kirill and Russkiy Mir Foundation director Vyacheslav Nikonov. A signing event was held on 3 November 2009, at the Russkiy Mir Foundation’s third annual assembly. Святейший Патриарх Кирилл встретился с руководителем фонда “Русский мир” В.А. Никоновым [Patriarch Cyril met with the head of the “Russian World” foundation], 26 August 2009, available at .

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8  Russia’s “Orthodox” Foreign Policy calls for inter alia “strengthening the spiritual unity of the Russian world,”80 preserving the “spiritual, linguistic and cultural identity” of Russians abroad,81 and promoting structures created by the Moscow Patriarchate overseas82 including the organization of tours to Orthodox pilgrimage sites outside of the Russian Federation.83 The agreement also acknowledges the importance of the ROC’s foreign activities, mandates that ROC representatives will be appointed to Russkiy Mir’s grant-making council and board of trustees, and establishes a permanent working group of ROC and Russkiy Mir representatives to address any practical issues that may arise in implementation of the agreement.84 The actual signing of the agreement was an occasion weighty enough to merit the participation of Patriarch Kirill85 and be scheduled during the foundation’s third annual assembly, an event “attended by nearly a thousand people from 80 countries.”86 In his remarks to the crowd, Kirill shared his views on the future of Russian culture and the Russian world. He explained that Russkiy Mir’s efforts around the world serve as a bulwark against the threat of globalization and the loss of culture, and emphasized that the ROC represents the backbone of the Russian world and serves as a unifying force inside and outside Russia that prevents assimilation and fosters closer ties with the Russian state.87 Notably, Kirill stressed his belief that the ROC was not an ethnic church but rather culturally based, and advocated for use of the umbrella term “countries of the Russian world” to designate all those states that might be home to a significant minority Russian population.88

80 Журналы заседания Священного синода от 25 декабря 2009 года [Holy Synod Journals, 25 December 2009], available at . See also , and Russkiy Mir Foundation, “Agreement on cooperation between the Russian Orthodox Church and the Foundation ‘Russian World’,” available at . 81 Department for External Church Relations of the Russian Orthodox Church, Подписано соглашение о сотрудничестве между Русской Православной Церковью и фондом «Русский мир» [Agreement signed on cooperation between the Russian Orthodox Church and the Foundation “Russian World”], 3 November 2009, available at . Also available at . 82 Russkiy Mir Foundation, Заключено соглашение между патриархом Кириллом и фондом “Русский мир” [Agreement reached between Patriarch Kirill and “Russian World” Foundation], 3 November 2009, available at . 83 An agreement on cooperation, supra note 84. 84 An agreement on cooperation, supra note 558. The working group responsible for managing ROC-Russkiy Mir Foundation relations held its first meeting in April 2010. 85 Low-level delegates from the ROC delivered statements on behalf of Patriarch Alexy II to previous Russia World Assemblies in 2007 and 2008. Russkiy Mir Foundation, See Russkiy Mir Foundation, Ассамблеи русского мира [Russian World Assemblies], available at . 86 The Third Russkiy Mir Assembly, supra note 70. 87 Id. 88 Agreement between Patriarch Kirill and “Russian World” Foundation, supra note 84.

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Robert C. Blitt Russkiy Mir’s newly minted and far-reaching formal alliance with the ROC puts the government in a constitutionally untenable position. In light of its direct financial and political support for the foundation, the government has in essence created and sanctioned a proxy body that represents nothing less than a fusion of Orthodox and state institutions. This chimera, originally tasked with the modest goal of showcasing examples of Russian art and culture, is now a telling embodiment of how gravely secularism and religious equality have deteriorated in Russia’s foreign policy today. Not surprisingly, at least one media source has labeled Russkiy Mir “one of the structural divisions of Russia’s Foreign Intelligence Service.”89 Notably, Vyacheslav Nikonov, the foundation’s director, has a personal connection to Russia’s secret service: According to his official biography, he served as advisor to the director of the KGB in the early 1990s.90 8.3.3

Facilitating an Exclusive Podium for Orthodoxy at the United Nations: ­Supporting the Establishment of a UN Consultative Council on Religions

In 2007, at the urging of the Moscow Patriarchate to have its role at the UN increased, ­Russia’s MOFA “came up with the initiative for establishing a consultative council on ­religions [. . .] to develop recommendations for the settlement of inter-confessional problems in different regions of the world and to help enhance the activities and authority of the UN in questions of the maintenance of security and protection of human rights.”91 During the UN General Assembly’s 62nd session, Lavrov labeled the “spiritual and moral foundations of human solidarity” increasingly vital: “The spiritual values of all world religions make it imperative to achieve inter-civilizational accord and fight manifestations of xenophobia and racism [. . .]. We propose [. . .] establishing under the UN auspices, a special forum – a kind of consultative Council of Religions – for the exchange of views among representatives of major world confessions.”92 89 The same report notes that Russkiy Mir’s executive director was formerly assistant director of the KGB. Alexander Gavrosh, Закарпатського сепаратиста фінансує Москва [Moscow Supports Separatist Transcarpathia], Ukrayina Moloda, 8 November 2009, available at . 90 This information is only available in the Russian language version of the Russkiy Mir website. Russkiy Mir Foundation, “Administration", available at . See also Russia Profile, Who’s Who, available at (entry for Nikonov, Vyacheslav Alexseevich, President of the Polity Foundation). 91 Transcript of Foreign Minister Lavrov, supra note 54. 92 Minister of Foreign Affairs of the Russian Federation, Address By Sergey V. Lavrov, Minister of Foreign Affairs of the Russian Federation at the 62nd Session of the UN General Assembly, New York, 28 September 2007, available at . Patriarch Alexy welcomed the statement. See, Moscow Hopes Initiative to Set up a Consultative Council for Interreligious Cooperation under UN Finds Support, Interfax 3 December 2007, available at .

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8  Russia’s “Orthodox” Foreign Policy Since then Russia has consistently and repeatedly advocated in favor of such a council in a variety of international fora,93 including before the UN Secretary General. As if to confirm how closely the ROC and MOFA operate on the foreign policy level, it was the ROC, rather than MOFA, that set out for Ban Ki-moon “the essence of Russia’s proposal to create a consultative council of religions under the aegis of the UN.”94 According to Lavrov: Russia supports in every way possible all efforts to fit the dialogue of religions into international affairs within the framework of multilateral organizations and forums [. . .]. The Council’s main task would be to establish a wide-ranging inter-religious dialogue, and a dialogue between the representatives of different faiths and political leaders. The presence of such an international interreligious forum is long overdue.95 The desire to establish a religious council has featured prominently as one of Russia’s selling points in its bid to bolster ties with the Muslim world. In 2008, foreign minister Lavrov invited the Organization for the Islamic Conference (OIC) to back Russia’s UN initiative, framing the need for the interreligious council in the context of the “legitimate and growing role of the religious factor in modern-day international relations.”96 Soon thereafter, Saudi Arabia and other Muslim states embraced Russia’s proposal as part of the Fourth Forum of the “Strategic Vision Group: Russia and the Islamic World.”97 The final communiqué issued by the group – which included representatives from the ROC98 – adopted

93 See, Russia’s Foreign Minister Answers Your Questions Exclusively, RT, 30 April 2009, and Minister of Foreign Affairs of the Russian Federation, Transcript of Speech by Minister of Foreign Affairs Sergey Lavrov at the 14th World Russian People’s Council, Moscow, 25 May 2010, (Doc. No. 719-25-05-2010), available at . 94 Minister of Foreign Affairs of the Russian Federation, Visit to Russia of UN Secretary General Ban Ki-moon, 14 April 2008, (Doc. No. 483-14-04-2008), available at . 95 Diplomacy Needs, supra note 40. 96 Points of the address by the Minister of Foreign Affairs of the Russian Federation Mr. S. Lavrov at the XI Summit of the Organization of the Islamic Conference, 13 March 2008, available at . This approach also feeds into Medvedev’s FPC. 97 The Strategic Vision Group was established in 2006 “to broaden cooperation between Russia and the M ­ uslim countries.” The group held its fifth meeting in December 2009. Kremlin.ru, Dmitry Medvedev Sends His Greetings to Delegates and Guests of the Fifth Meeting of the Russia-Islamic World Strategic Vision Group, 21 December 2009, available at . 98 Russia-Islamic World Group Backs Russia’s Proposal to Set up UN Religious Council, Interfax, 31 October 2009, available at . Reportedly, this was the first time an Orthodox Russian priest visited the Saudi kingdom. A Russian Priest Visits Saudi Arabia for the First Time, Interfax, 29 October 2008, available at .

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Robert C. Blitt a recommendation to “support the proposal by the Russian Federation to establish a ­consultative council on religions at the United Nations.”99 In the context of promoting international interreligious dialogue the Russian government routinely excludes representative voices from Russia’s diverse religious communities. According to Lavrov, it is sufficient that Russia’s MOFA maintains close contacts in UN bodies with religious NGOs working in cooperation with the ROC, namely “the International Foundation for the Unity of Orthodox Christian Nations, the World Russian People’s Council, and the Imperial Orthodox Palestine Society.”100 This exclusive subset of dialogue partners signals the government’s endorsement of the view that only the ROC can serve as the legitimate representative for Russian religious consciousness on the international stage. Even within the ostensibly open-ended context of an interreligious dialogue, “nontraditional” religions are excluded, and other so-called non-Orthodox “traditional” faiths must channel their views through the filter of the Moscow Patriarchate. This distortion of Russia’s actual track record in the context of religious freedom, fundamental rights and tolerance is, not surprisingly, echoed by the ROC in its effort to preach the virtues of adopting Russia’s model on the global level. According to Archpriest Vsevolod Chaplin, Deputy Head of the Moscow Patriarchate’s DECR, Russia’s example of inter-religious harmony “is in demand in a world which increasingly understands that it is necessary to respect different civilizations with their religious or secular roots, their laws, rules, social models and political systems.”101 But others are less sanguine about using ­Russia as a model for religious coexistence and tolerance. For example, the US Department of State’s report on religious freedom in Russia in 2010 noted that “religious minorities, in particular Muslim followers of Turkish theologian Said Nursi’s work, Jehovah’s Witnesses, and Scientologists, faced bans on their religious literature and difficulties registering their legal entities” and that the government did not always respect constitutional provisions upholding the equality of all religious groups and the separation of church and state.102 Although Lavrov’s goal of combating manifestations of xenophobia is laudable, the actual direction and makeup of the envisioned council supported by the Russian government leaves much to be desired. In the first instance, it is incongruous at best to label the

99 Recommendation 5, Strategic Vision Group: Russia and the Islamic World, Final Communiqué of the Fourth Forum of the Strategic Vision Group: Russia and the Islamic World (King Abdullah Bin Abdulaziz initiative for interfaith and intercultural dialogue: a new vision for international relations), 29 October 2008, available at . 100 MOFA Information and Press Department, Summary of Remarks by Minister of Foreign Affairs Sergey ­Lavrov at a Meeting with Representatives of Russian Nongovernmental Organizations, 18 February 2010, available at . 101 A Russian Priest Visits Saudi Arabia, supra note 98. 102 US Department of State, International Religious Freedom Report 2010, available at .

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8  Russia’s “Orthodox” Foreign Policy ROC an enemy of xenophobia when the Church itself has failed to meaningfully condemn hostility against Russian minorities, including gays,103 migrants,104 and adherents of other faiths.105 Second, it is evident that the intent underlying this consultative council is to legitimate on the international level the ROC’s discriminatory domestic understanding of “interreligious” dialogue. In other words, before any “dialogue” can commence, minority and “nontraditional” faiths, as well as others, must be left by the wayside or accepted merely as token participants.106 For example, consider the ROC’s decision to break off a 50 year “dialogue” with the Evangelical Church in Germany (ECG) following the election of Bishop Margot Kaessmann as head of the Church Council. As Metropolitan Hilarion noted in an interview: “So far we have had meetings between Heads of our Churches, that is to say, between the Patriarch and the chairman of the Council of the Evangelical Church in Germany. Now such a meeting has become impossible [. . .] a meeting between Patriarch Kirill and Ms. Kaessmann would look like the recognition of female priesthood by our Church."107 Despite her short-lived tenure of four months – Bishop Kaessmann resigned several days after police arrested her for running a red light while intoxicated108 – Metropolitan Hilarion, reiterating the Patriarch’s view, has stated that: [t]he election of Ms. Kaessmann was only the tip of the iceberg of a sort [. . .] we disagree in principle with the liberalization in theology, church order 103 Russian Nationalists Attack Gays, Right Said Fred, and a German Politician, Spiegel Online International, 28 May 2007, available at . P. A. Greenwood, Crucible of Hate, Guardian, 1 June 2007, available at and P. LeGendre, Minorities Under Siege: Hate Crimes and Intolerance in the Russian Federation, Human Rights First, 26 June 2006), available at . 104 J. W. Warhola, Religion and Politics Under the Putin Administration: Accommodation and Confrontation within “Managed Pluralism”, 49 J. Church and State 75, at 77-78 (2007). 105 See, e.g., Z. Knox, Russian Orthodoxy, Russian Nationalism, and Patriarch Aleksii II, 33 Nationalities Papers 533, at 535 (2005). 106 Sergei Lavrov has expressed his conviction that only the “main world religions” can restore the “common moral denominator” underpinning the concept of rights, and that “harmonious development of all humanity is impossible without this.” Minister of Foreign Affairs of the Russian Federation Sergey Lavrov addresses the 15th Assembly of the Council on Foreign and Defense Policy (17 March 2007), Info-Digest, 21 March 2007, at 5, available at . 107 Archbishop Hilarion’s [sic] answers questions from Der Spiegel, 14 December 2009, available at . (The interview was published in Der Spiegel issue No. 51, 2009). Metropolitan Hilarion’s December 2009 letter to the ECG assessing the status of relations between the two churches is available at: Archbishop Hilarion’s letter to Chairperson of the Council of the Evangelical Church in Germany Dr. Margot Kaessmann and head of the Department for Ecumenical Relations and Ministries Abroad Bishop Martin Schindehütte, Interfax, 17 December 2009, available at . 108 See, Germany reacts with understanding to Bishop’s resignation, Deutsche Welle, 25 February 2010, available at and German Church leader Kaessmann admits drunk driving, BBC News, 23 February 2010, available at .

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Robert C. Blitt and morality which takes place in many Protestant communities including the ECG. We should be frank and ask: Is there any sense in conducting a dialogue if it does not bring us closer together?109 At the very least, therefore, continued advocacy of this type of international “interreligious” council on the part of the Russian MOFA represents an attempt to reinforce the discrimination that persists within Russia’s domestic context and further undermine existing international human rights norms governing freedom of religion or belief, which are buttressed by the principles of nondiscrimination and equality. Equally alarming however, an examination of the priority issues to be advocated by such a council signals a larger effort to upend traditional international human rights norms by, inter alia, seeking to promote a prohibition on “defamation” of religion,110 and a retrograde effort to contextualize other existing rights protections in light of so-called “traditional” and “religious” values.111 8.3.4

ROC as Diplomatic Lever

The Russian government, in an effort to restore its lost role as a global superpower, has recruited the Church as a primary instrument for rallying a dubious assortment of states and religious representatives to support a new international order. This new order is premised on the rejection of universal human rights and the revival of relativism, two principles that serve the Church well. Patriarch Kirill has characterized the urgent need to unify the “Russian world” thus: Alone, even the largest countries of the Russian world will not be able to defend their spiritual, cultural, civilizational interests in a globalizing world. I believe that only a united Russian world can become a strong global actor

109 Metropolitan Hilarion of Volokolamsk’s interview to Interfax-Religion portal, 4 March 2010, available at . 110 See, e.g., President Medvedev’s endorsement of the need to combat defamation of religion: Kremlin.ru, Dmitry Medvedev Met with Director-General of UNESCO Koichiro Matsuura and Members of the High Level Group for Interreligious Dialogue under the Aegis of UNESCO Headed by Patriarch Kirill of Moscow and All Russia, 21 July 2009, available at . For more on the challenge presented by the effort to enshrine a ban on defamation of religion, see R. C. Blitt, The Bottom Up Journey of “Defamation of Religion” from Muslim States to the United Nations: A Case Study of the Migration of Anti-Constitutional Ideas, in A. Sarat (Ed.), Special Issue Human Rights: New Possibilities/New Problems. Studies in Law, 56 Politics and Society 121 (2011). 111 Human Rights Watch called the passage of a resolution on traditional values backed by Russia at the UN Human Rights Council “divisive and dangerous” and “a cause for concern.” Human Rights Watch, UN Human Rights Council: ‘Traditional Values’ Vote and Gaza Overshadow Progress, 2 October 2009, available at .

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8  Russia’s “Orthodox” Foreign Policy in international politics, stronger than any political alliances. Moreover, without coordination among state, church and civil society, we will not achieve this goal.112 But the quest for unity transcends just the “Russian world” or near abroad. As Foreign Minister Lavrov and others have reached out to the OIC, and leveraged defamation of religion as a mutual interest, so too has the Moscow Patriarchate sought to curry favor with the Muslim world on the same basis. In a meeting with ambassadors from twenty Arab states, Patriarch Kirill called for Orthodoxy and Islam to become “allies in the battle against the challenges of globalization.”113 The ROC has also held out the prospect of repairing ties with the Vatican and Catholic world at large on the basis of common interests related to the preservation and entrenchment of traditional Christian values. Patriarch Kirill has expressed his hope that this relationship could be harnessed to defend and assert “traditional Christian values in Europe and in the world as a whole.”114 In much the same way that Kirill has called for unity within the Russian World, the Moscow Patriarchate has rallied around unity with Catholicism as a vehicle for: [. . .] propos[ing] to the world the spiritual and moral values of the Christian faith; together we will be able to offer our Christian vision of the family, of procreation, of a human love made not only for pleasure; to confirm our concept of social justice, of a more equitable distribution of goods, of a commitment to safeguarding the environment, for the defense of human life and its dignity.115 In other words, as Russia advances its search for global partners willing to counter the conventional Western assumption that universal human rights are applicable to all, the Moscow Patriarchate busies itself echoing Moscow’s message, eagerly sending out feelers, and generally urging those disenchanted with laws that protect gay rights, freedom of expression, and freedom of religion or belief to “join us.” Evidence of its tireless political efforts to persuade international allies to join the common cause of establishing a “universal common front” to stamp out rampant secularism 112 Patriarch Kirill, Remarks at 3rd Annual Meeting of the “Russian World” Assembly, available at . 113 Patriarch Kirill to Islamic States: More Attention to Christian Minorities, AsiaNews.it, 9 May 2005, available at . 114 Patriarch Kirill Hopes for Broader Dialogue with Catholics, Interfax, 3 February 2009, Johnson’s Russia List, 2009-#22, 2 February 2009. 115 Id.

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Robert C. Blitt is omnipresent. High-level visits by foreign government officials to Russia often include a stop at the Moscow Patriarchate. For instance, in February 2010, Greek Prime Minister George Papandreou traveled to Moscow to discuss NATO and energy cooperation116 with Putin and Medvedev. He also met Patriarch Kirill, who used the opportunity to call on all Orthodox countries to unite in the struggle against globalization: “It is my conviction that in the globalization era we all should be concerned for the preservation of [Orthodox] civilization’s special features and characteristics.”117 Kirill also applauded the Greek ­Orthodox Church’s rejection of a ECtHR ruling banning crucifixes in Italian classrooms, as well as the government’s refusal to remove icons of Jesus Christ from courtrooms and forgo using the gospel for swearing in witnesses.118 Greece characterizes its relations with Russia as “connected with strong bonds of friendship based, among other things, on [. . .] common spiritual and cultural values.”119 In a July 2009 trip to Ukraine, Kirill emphasized a message of religious unity. According to the Patriarch, “the Orthodox of Russia, Ukraine, and Belarus are aware of the importance of the spiritual unity of historical Rus (Russia), which is divided by political borders”120 and must pray for its “unbreakable spiritual and church unity.”121 Despite his assurance that “[t]here is no imperialism here, no domination over others. There is only the clear Orthodox doctrine: the patriarch is everyone’s father.”122 Kirill’s remarks appeared calculated to counter efforts by the Ukrainian Orthodox Church (UOC Kyiv Patriarchate) to gain recognition for its independence from the ROC – a split supported by Ukrainian nationalists and others seeking to distance the country from Russia’s

116 Papandreou, Putin Discuss Economy, Trade and Energy, 874 New Europe, 21 February 2010, available at . 117 Department for External Church Relations of the Russian Orthodox Church, Patriarch Kirill Meets with Greek Prime Minister George Papandreou, 16 February 2010, available at . 118 Патриарх Кирилл надеется, что Россия и Греция будут вместе защищать православные ценности от современных угроз [Patriarch Kirill hopes Russia and Greece will cooperate to defend Orthodox values from modern threats], Interfax, 16 February 2010, available at , and M. Brabant, Greek Church Acts on Crucifix Ban, BBC News, 12 November 2009, available at . See also, Patriarch Kirill Hopes Russia and Greece to Jointly Protect Orthodox Values from Modern Day Threats, Interfax, 17 February 2010, available at . 119 Greek Ministry of Foreign Affairs, Greece in the World, available at . 120 Unattributed interview, Patriarch of Moscow and All Rus Kirill to Izvestiya: “Church Life should be Service", Izvestia, 12 May 2009. 121 Russian Patriarch Calls for Unity with Ukraine, Kyiv Post, 27 July 2009, available at . See also M. Danilova, Russian Patriarch calls for unity with Ukraine, AP, 27 July 2009, available at . 122 C. Bigg, Russian Patriarch’s Visit Creates Storm in Ukraine, RFE/RL, 31 July 2009, available at .

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8  Russia’s “Orthodox” Foreign Policy traditional influence,123 as well as challenge Ukrainian pursuit of closer ties with the West and NATO.124 At least one diplomatic cable released by Wikileaks confirms that the ­Patriarch’s concern reached beyond humble religious unity to advocating on behalf of Russia’s geopolitical interests. U.S. Ambassador to Russia William Burns relayed that the then Metropolitan expressed apprehension over Ukraine’s bid for NATO membership, claiming that such a move could cause a split in that country’s population and create turmoil in Eastern Europe.125 Against this backdrop, remarks by UOC Kyiv Patriarchate Patriarch Filaret to the effect that the Moscow Patriarchate’s presence in Ukraine is “a tool of the Russian state’s politics", and that Kirill’s visit is intended “to promote a political project of integrating Ukraine into Russia, to promote unity under the Kremlin leadership, from which Ukraine, by God’s blessing and the people’s will, broke free in 1991”126 seem less paranoid. Indeed, even as the controversy raged with “scuffles and heated arguments” between pro-UOC Kyiv demonstrators and ROC worshippers, Kirill found time to reiterate the Kremlin’s condemnatory talking point regarding Ukrainian attempts to “falsify” history by seeking international recognition of the Holodomor, a Stalin-era famine that killed millions of Ukrainians, as a crime of genocide.127 In the wake of Kirill’s trip, Medvedev quickly fired off an angry missive to thenUkrainian president Viktor Yushchenko, accusing him of spoiling Russian-Ukrainian relations through his “stubborn” drive to join NATO, Ukrainian efforts at “historical revisionism,” and other policies. Not coincidentally, Medvedev specifically called attention to Ukraine’s “harmful practices of intervention [. . .] in the affairs of the Orthodox Church” and criticized as unfavorable the “conditions that were created artificially on the eve and during a recent pastoral visit to Ukraine by Patriarch Kirill of Moscow and All Russia.”128 123 The UOC controls about one-third of all Orthodox parishes in Ukraine. However, no other Orthodox church has recognized its independence. The Moscow Patriarchate, “which controls about two-thirds of Ukraine’s Orthodox parishes, excommunicated the breakaway church’s leader, Filaret, in 1997.” N. Abdullaev, Kirill Calls for Church Unity in Kiev, Moscow Times, 28 July 2009, available at . 124 Bigg, supra note 122. 125 Patriarch Kirill Spoke Against Ukraine’s Membership in NATO–WikiLeaks, Interfax, 7 December 2010, available at . See also . 126 RIA Novosti, Rebel Cleric Says Patriarch Kirill Plots to Merge Ukraine, Russia, 27 July 2009, available at . See also Itar-Tass, Russian Patriarch’s Visit to Ukraine Getting Increasingly Politicized, 30 July 2009. A contradictory assessment of the visit by Andrei Zolotov, Jr. reasons that “by speaking [. . .] in Ukrainian, by emphasizing his respect for Ukrainian statehood, Patriarch Kirill shows that he is not a patriarch of the Russian Federation and not just the head of the Church of the Russian people [. . .]. It would be wrong today to see the very Ukrainian Orthodox Church of the Moscow Patriarchate as simply a branch of the Russian Orthodox Church in Ukraine.” A. Zolotov, Jr., Kirill on a Mission (Comment), Russia Profile, 27 July 2009, available at . 127 Bigg, supra note 122. For more on Russia’s new Commission to Prevent Falsification of History, see Blitt, One New President, supra note 122. 128 Kremlin.ru, Address to the President of Ukraine Victor Yushchenko, 11 August 2009, available at .

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Robert C. Blitt Due to “the anti-Russian position of the current Ukrainian authorities,” Medvedev’s letter announced his intention “to postpone sending a new Russian ambassador to Ukraine” until a “new political leadership” signaled its readiness “to build relations between our countries,”129 thus making clear the point that any perceived mistreatment of the Moscow Patriarchate will be considered an equal affront to Russia’s secular government. This new leadership appears to have emerged with the February 2010 election of Kremlin-friendly President Victor Yanukovych.130 Indeed, since Yushchenko’s defeat, the Moscow Patriarchate has undertaken several return visits to Ukraine, most notably two back-to-back trips in November 2010, where ROC officials met with both religious and state officials, including the new president.131 At the meeting between Kirill and Yanukovych, the Patriarch heralded the Ukrainian election as having “already been of visible benefit to the people of the country” and thanked Yanukovich for his attention to the needs of the Ukrainian Orthodox Church of the Moscow Patriarchate.132 In an interview with Voice of America, Patriarch Filaret maintained that Russia expects nothing less than the “unification of Ukrainian Orthodoxy and annexation thereof to Moscow.”133 8.4 The Implications of “Orthodox” Russian Foreign Policy Abroad and at Home 8.4.1

Challenging Established Human Rights Norms within the International System

Since President Putin took office, the Russian government has sought to limit the impact of existing international human rights norms at home and abroad. President Medvedev

129 Id. Russian frustration with Ukraine dates back to the 2004 Orange Revolution. 130 L. Harding, Viktor Yanukovych Promises Ukraine Will Embrace Russia, The Guardian, 5 March 2010, available at . 131 Department for External Church Relations of the Russian Orthodox Church, Metropolitan Hilarion of ­Volokolamsk Meets with His Beatitude Metropolitan Vladimir of Kiev and All Ukraine, 16 November 2010, available at and Department for External Church Relations of the Russian Orthodox Church, His Holiness Patriarch Kirill Arrives in Kiev to Celebrate 75th birthday of His Beatitude Metropolitan Vladimir, available at . Kirill also attended Yanukovich’s inauguration. Patriarch Kirill of Moscow to Attend President-Elect Yanukovych’s Inauguration on February 25, The Financial, 22 February 2010, available at . See also P. Korobov et al., Patriarch Kirill Explores a Canonical Territory, RT, 21 July 2010, available at . 132 Department for External Church Relations of the Russian Orthodox Church. Patriarch Kirill Meets with Ukrainian President Victor Yanukovych, 23 November 2010, available at . 133 Patriarch Filaret Advised Patriarch Kirill to Recognize Autocephaly of Ukrainian Church, 10 November 2010, available at .

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8  Russia’s “Orthodox” Foreign Policy has continued this policy and the ROC has devotedly followed suit, at times arguably leading the campaign. According to Foreign Minister Lavrov, the ROC’s treatise On Human Dignity, Freedom and Rights “has substantially contributed to addressing” efforts to tie “criteria for civil rights and liberties” more closely to “the individual’s responsibility to society.”134 The purported message is thus clearly echoed by the ROC and government alike: universal human rights norms are western norms. The existing international system is biased and must account for traditional (religious) values. Two international campaigns sponsored by Russia at the UN are particularly relevant examples here. In the first case, Sergei Lavrov has celebrated the fact that Russian “diplomats and clerics alike are allies”135 in the ten-year effort to prohibit defamation of religion at the UN.136 This ongoing venture seeks to cloak domestic anti-blasphemy measures in the rhetorical legitimacy of international human rights law. Russia’s UN mission consistently has voted in favor of defamation resolutions in the UN General Assembly and Human Rights Council, even going so far as to endorse new restrictions on the right to freedom of expression, despite such limits being unrecognized by the International Covenant on Civil and Political Rights.137 The new norm Russia aspires to install together with the help of the OIC and ROC would provide international justification for the already dubious domestic practice of censuring religious dissenters and minority faiths, as well as atheists and nonbelievers, deemed counter to the dominant, state-sanctioned religious perspective.138 And yet, the effort to advance defamation of religion persists despite the fact that a panel of UN special rapporteurs on human rights has concluded “the difficulties in providing an objective definition of the term ‘defamation of religions’ at the international level make the whole concept open to abuse.”139 Indeed, despite ten years and dozens of resolutions expressing

134 Diplomacy Needs, supra note 40. 135 Id. 136 For a more detailed treatment of the problems associated with banning “defamation of religion,” see R. C. Blitt, Should New Bills of Rights Address Emerging International Human Rights Norms? The Challenge of “Defamation of Religion”, 9 NW. U. J. Int’l Hum. Rts. 1 (Fall 2010). 137 See Para. 9, UN General Assembly, Combating Defamation of Religions, UN Doc. A/RES/61/164, 21 February 2007 endorsing limitations on free expression where necessary for “respect for religions and beliefs.” (and voting record available at ). Compare with Art. 19(3) of the International Covenant on Civil and Political Rights. 138 Joint statement by Mr. Githu Muigai, Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance; Ms. Asma Jahangir, Special Rapporteur on freedom of religion or belief; and Mr. Frank La Rue, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Freedom of Expression and Incitement to Racial or Religious Hatred, OHCHR side event during the Durban Review Conference, Geneva, 22 April 2009, at 2, available at . Not surprisingly, Russia itself has already prosecuted several cases of alleged blasphemy against the Russian Orthodox Church on the basis of incitement to religious hatred. See Blitt, How to Entrench, supra note 2, at 757. 139 Freedom of Expression, id., at 2.

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Robert C. Blitt support for prohibiting defamation of religion, neither the UN General Assembly nor the Human Rights Council has ventured to undertake the task of outlining a workable definition of the offense.140 Coupled with its efforts to legalize an ill-defined prohibition against defamation of religion, Russia also has initiated a broader attack on the universal foundation of human rights law. This second international campaign – which Patriarch Kirill has the distinction of having launched during his address to the UN HRC141 – manifests itself through a concerted effort to make the interpretation of universal human rights subject to “traditional values,” another open-ended and undefined catchall term intended to empower religious relativism. Following Kirill’s controversial speech, the Russian government directed itself to turning words into deeds by drafting an HRC resolution entitled “Promoting human rights and fundamental freedoms through a better understanding of traditional values of humankind.” Although Russia’s first attempt to pass the resolution at the Council’s 11th session faced opposition,142 rather than abandon the effort Ambassador Loshchinin opted to defer consideration of the draft and pledged to press forward at the next session.143 This perseverance paid off several months later when the Council passed the “traditional values” resolution by a recorded vote of 26 to 15, with six abstentions.144 The timing of Russia’s problematic initiative comes at a critical juncture, where the campaign to eliminate the use of “tradition” as a justification for such abusive customs both within the UN and elsewhere has made discernable progress. Russia’s open-ended effort to reinvigorate a religion-driven relativism seeks the inverse by breathing new life into the suspect notion of variable standards, thus threatening not only the coherence of international human rights law, but also the efficacy of the institutions designed to uphold its norms.

140 See R. C. Blitt, Should New Bills of Rights Address Emerging International Human Rights Norms? The ­Challenge of “Defamation of Religion”, 9 N. W. U. J. Int’l Hum. Rts. 1 (Fall 2010). 141 According to Interfax, the “traditional values” resolution was “an outcome of discussions began in March 2008” during the panel on “Intercultural Dialogue on Human Rights.” The UN Human Rights Council Takes a Stand for a Better Understanding of Traditional Values of Humankind, Interfax, 28, October 2009, available at . 142 UN Human Rights Council, Promoting Human Rights and Fundamental Freedoms through a Better Understanding of Traditional Values of Humankind, UN Doc. A/HRC/11/L.1. 143 UN Human Rights Council, Human Rights Council Establishes Mandate of Independent Expert on Sudan for One Year, 18 June 2009, available at . 144 UN Human Rights Council, Promoting Human Rights and Fundamental Freedoms through a Better Understanding of Traditional Values of Humankind, UN Doc. A/HRC/12/21, 12 October 2009, available at .

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8  Russia’s “Orthodox” Foreign Policy 8.4.2

Using International Efforts to Reinforce Adverse Human Rights Situation at Home

Russia’s effort to build currency for the notion of “traditional” religions on the international level, seen through its UNESCO interactions and other activities at the UN, reinforces its existing domestic three-tiered system for distinguishing between Russian Orthodoxy, Islam, Buddhism and Judaism (as other “traditional” faiths), and the so-called “non-traditional” religions. In practice, this pattern legitimates discrimination at odds with the constitutional text and prevents individuals from freely observing their faith. For example, rather than urging or requiring the ROC to be more inclusive in the group it spearheads for interaction with UNESCO, Russia’s government simply endorsed the group as representative.145 Russia’s efforts to promote an international norm prohibiting defamation of religion lend legitimacy to the government’s parallel willingness to prosecute related offenses under the guise of incitement in domestic courts. The ROC continues to be a steadfast proponent of such laws as well as the organization that primarily benefits from its enforcement. For example, government prosecutors sought jail time against Yuri Samodurov, the former director of Moscow’s Andrei Sakharov “Peace, Progress, and Human Rights” Center, and Andrei Yerofeev, an art historian, for “inciting hatred or enmity, as well as demeaning human dignity.”146 The exhibition entitled “Forbidden Art” presented a selection of previously banned artwork. Criminal charges followed as the exhibit allegedly “debas[ed] the religious beliefs of citizens and incit[ed] religious hatred.”147Although supporters of Samodurov and Yerofeev petitioned the UN High Commissioner for Human Rights to intervene in the case on the defendants’ behalf,148 Judge Svetlana Alexandrovna branded the artwork “a public offense to Christianity”149 and found the pair guilty of committing actions aimed at inciting hatred, sentencing each to pay fines totaling $12,000.150 145 Transcript of Remarks, supra note 54. 146 Art. 282, The Criminal Code of the Russian Federation No. 63-FZ of 13 June 1996 (with amendments and addenda to 28 December 2004) (with amendments and addenda to 28 December 2004), available at . The crime makes no allowance for a positive defense on the basis of academic or artistic freedom. 147 A.O. and E.L, What Happens When You Display “Forbidden Art”, The Economist, 24 June 2010, available at . 148 Rights Campaigners Turn to UN Over Trial of Blasphemous Exhibit Organizers, Interfax, 1 July 2010, available at . 149 Forbidden Art-2006 Exhibition Organizers to Pay Fine, RIA Novosti, 12 July 2010, available at . 150 J. Impey, Russians Convicted over Forbidden Art Show, Deutsche Welle, 12 July 2010, available at , R. Boudreaux, ‘Forbidden Art’ Draws a Fine, Wall Street Journal, 13 July 2010, available at , and Russians Convicted and Fined over Forbidden Art Show, BBC News, 12 July 2010, available at .

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Robert C. Blitt The “Forbidden Art” trial, “allegedly instigated by elements within the Moscow Patriarchate,”151 follows on the heels of a similar lawsuit (also targeting Samodurov) for a 2003 exhibit entitled “Caution, Religion!” that featured contemporary Russian artists addressing the issue of rising clericalism.152 In that incident, after an “organized group of self-professed Orthodox believers”153 ransacked the exhibit,154 the state opted to prosecute Samodurov and Lyudmila Vasilovskaya, the exhibit’s curator, for “inciting hatred and enmity,” again under Article 282(2) of Russia’s Criminal Code.155 The investigator in charge of serious crimes for Moscow’s Tsentralniy district police office alleged that ­Samodurov and Vasilovskaya conspired to: [.  .  .] stage an exhibition in Moscow which was clearly aimed at conveying publicly, in a graphic and demonstrable manner, humiliating and offensive views towards the Christian religion in general and Orthodox Christianity and the Russian Orthodox Church in particular [. . .] which incited hatred and enmity and were degrading to the dignity of individuals who belonged to the Christian religion in general and Orthodox Christianity and the Russian Orthodox Church in particular [. . .].156 At trial, the prosecution led testimony from six expert witnesses. Of the six, none had a background in contemporary art. Among their conclusions, the exhibit’s purpose was “to discredit Christianity” through “explicitly insulting and blasphemous”157 works of art. In a bizarre twist, the District Court rejected the defense’s expert witnesses on the basis that the defendant’s actions “undermined the human dignity of believers.”158 Consequently, in the court’s view, allowing the expert testimony would be unconstitutional insofar as it violated the “rights and freedoms of others” and constituted “Propaganda or agitation instigating

151 U.S. Comm’n on Int’l Religious Freedom, Annual Report 2010, at 282 (2010), available at . 152 For a description of further details see Samodurov and Vasilovskaya v. Russia, ECtHR, Application no. 3007/06, decision of 15 December 2009 (partly admissible). 153 Id., at 3. 154 A district court deemed that this did not amount to a criminal offense. Id., at 5. 155 This decision came despite an initial investigation that concluded there was insufficient evidence to show the artists’ requisite intent to publicly display their work. Id. Art. 282 of Russia’s Criminal Code provides that “Actions aimed at the incitement of hatred or enmity, as well as abasement of dignity of a person or a group of persons on the basis of sex, race, nationality, language, origin, attitude to religion, as well as affiliation to any social group, if these acts have been committed in public or with the use of mass media” shall be punishable inter alia by either a fine, compulsory works, corrective works or by “deprivation of liberty” for a term ranging up to five years. The Criminal Code of the Russian Federation No. 63-FZ. 156 Quoted in Samodurov, supra note 152, at 6. 157 Id., at 7-8. 158 Id., at 10.

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8  Russia’s “Orthodox” Foreign Policy social, racial, national or religious hatred and strife.”159 With this imaginative spinning of Russian constitutional law, the court rejected out of hand the ability to raise any meaningful defense, essentially holding that any expert ready to testify on behalf of the defendants was a priori in breach of the constitution. The court convicted the defendants and fined each in the amount of $4,000. On appeal, the Moscow City Court “upheld the judgment in its entirety, reiterating parts of the wording.”160 The European Court of Human Rights declared the application partly admissible. 8.5 Conclusion This chapter calls attention to the growing religionization of Russia’s foreign policy and its ensuing implications for constitutional fidelity and respect for human rights both abroad and at home. Beyond the rhetorical endorsement of Orthodoxy as a cement for Russian nationalism, the government has taken practical steps to incorporate the Moscow Patriarchate’s views and infrastructure in the formulation and promulgation of its foreign policy. When viewed in the context of Russia’s ongoing internal exploitation of church-state separation, the existence of a parallel ROC-state partnership on the international level should come as no surprise. What is surprising, however, is the extent of this partnership and the multiple channels through which it is articulated. This level of enhanced cooperation and partnership comes at the expense of undermining respect for Russia’s constitutional order, which is premised on the fundamentals of secularism, separation of church and state, and equal, nondiscriminatory treatment for all religious groups. The ROC, for its part, has been quick to embrace the government’s invitation into the realm of foreign policy planning as a means of boosting its international status and influence, as well as further entrenching its domestic agenda. In exchange for this privilege, the Moscow Patriarchate has willingly opened up its churches and missions abroad as an ostensibly neutral yet consistent proponent of the government’s interests. Disturbingly, this relationship carries the toxic risk of compromising the Church’s newfound independence and bringing about a return of the subordination of the Russian Orthodox faith to the Kremlin’s political diktats. To be sure, the unfolding relationship described above has fomented a counterintuitive situation whereby a constitutionally declared secular state promotes a particular religious agenda as part of its foreign policy on the global stage. The consequences of this partnership have serious implications on the international level, manifested in

159 Citing Arts. 17(3) and 29(2) of the Russian Constitution. Quoted in Samodurov, id., at 10. 160 Id., at 11.

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Robert C. Blitt efforts to supplant universal human rights norms and legitimate the rationale that certain select religions merit greater influence in the formulation of international rules than ­others. Moreover, these international policies in turn reverberate within Russia’s domestic realm to exacerbate already harmful government actions. In other words, Russia’s neglect of explicit constitutional directives in the foreign policy context compounds the already negative treatment afforded to internal human rights protections intended to safeguard, inter alia, freedom of expression and freedom of religion or belief. Until now, Russia’s policies on the international stage have been met with relative silence from other states and inter-governmental bodies such as the Council of Europe and OSCE. However, given the dire situation within Russia and the potential deleterious impact of its foreign policy, it behooves these actors to rally in defense of Russia’s beleaguered citizens and their discounted democratic will. Such a step will require more vigorously resisting Russia’s attempts to undermine the content and integrity of universal human rights law and a redoubling of efforts to scrutinize and influence change on the domestic front.

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9

Guide to the Perplexed

Navigating through the Labyrinth of Forum Internum and Forum Externum in Canon Law and Public International Law Peter Petkoff 9.1 Introduction The distinction between forum internum and forum externum has been definitive for the articulation of a public/private divide in international human rights law with reference to the different aspects of freedom of religion or belief (belief vs. manifestation). The same distinction of two spheres, this time of ecclesiastical jurisdiction, was originally introduced in Latin canon law. The concept of two forums in international human rights law has been used to demarcate the public and the private domains, protecting the private domain from interference but also providing the opportunity for the limitation of certain forms of manifestation of the private in the public sphere. The two forums in canon law were focused more specifically on the different ways to exercise jurisdiction in each forum and have been used to address the question of how the law could approach matters which are not only within the public or within the private sphere, but partly in the public and partly in the private sphere, so that in penetrating both forums such matters require particular and at the same time interconnected adjudication in each forum. In the context of canon law the coexistence of the two forums required continuous co-responsibility and solidarity in the interaction between these different yet interconnected spheres. In the context of international human rights law the relationship between these two spheres is articulated from the perspective of their distinctiveness. The question has barely been addressed in what sense these two forums constitute spheres of jurisdiction and whether and how aspects of solidarity, co-responsibility and cooperation flow between these two forums. If such notions of solidarity and cooperation are alien to the understanding of the two forums under international human rights law, I will attempt to enquire whether this has created an impoverished understanding of religious freedom. Without intending to present a superficial comparison between two legal systems which have developed and are enforceable in very different ways, the present chapter proposes to explore the legal tools which each system has developed in relation to the two forums and asks whether some of the legal hermeneutics developed by the concept of two

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Peter Petkoff forums in canon law might help us to re-conceptualize the ways in which the two forums are approached in international human rights law. This is not a proposal for an appropriation of legal tools from canon law. It is an attempt to explore the way forum internum and forum externum are perceived in the context of international human rights law and why. A comparison with Latin canon law shows the challenges another legal system has encountered in dealing with the complex domain of forum internum and forum externum and offers strategies for comparison with the strategies adopted in dealing with the two forums under international human rights law. 9.2 Forum Internum and Forum Externum in International Human Rights Law It is almost inconceivable to consider freedom of religion or belief without coming across at least one reference to forum internum and forum externum. The two forums suddenly emerge within the European Convention for the Protection of Human Rights and Fundamental Freedoms’ narrative1 and then are confidently rearticulated in the context of the International Covenant on Civil and Political Rights,2 in numerous reports of the UN Special Rapporteurs for Freedom of Religion and Belief,3 and in Strasbourg and domestic jurisprudence on freedom of religion. It is not quite clear when this dichotomy appears first and why. It is even less clear how helpful it is as a legal tool within the human rights discourse. It is meant to provide a general demarcation of a public-private divide. It is a question worth raising whether this divide does not weaken freedom of religion or belief as a right, since it defines forum internum not as something which is not within forum externum, but as an invisible, almost magical, counterpoint, the radical opposite of forum externum. It is also unclear in what way it is a forum, since almost any externalization of freedom of religion or belief is seen as part of the public sphere. The present chapter explores the forum internum-externum as a legal tool and enquires whether this distinction is helpful in relation to religious freedom adjudication. 1 Art. 9: 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 or observance. 2. Freedom to manifest one’s religion 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. 2 For the development of freedom of religion or belief language in the context of the UN international legal instruments see M. D. Evans, Religious Liberty and International Law in Europe (Cambridge Studies in International and Comparative Law) 172-226 (1997). See also B. Tahzib-Lie, Freedom of Religion or Belief: Ensuring Effective International Legal Protection 44 (1996); B. van der Heijden & B. Tahzib-Lie, Reflections on the Universal Declaration of Human Rights: A Fiftieth Anniversary Anthology (1998); T. Lindholm, W. C. Durham Jr. & B. Tahzib-Lie, Facilitating Freedom of Religion or Belief: A Deskbook (2004). 3 UN Special Rapporteur on freedom of religion or belief, Annual Reports to the Human Rights Council, Commission on Human Rights and General Assembly, available at .

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9  Guide to the Perplexed 9.2.1

Forum Internum and Forum Externum in European Human Rights Jurisprudence

When discussing religious freedom almost every standard text explores the two aspects of this freedom, its public and private spheres, which demarcate the difference between belief and manifestation, and set out a very clear right to be enjoyed by the individual person, whilst subjecting it to a range of potential limitations intended to safeguard the interests of other individuals or a variety of community interests.4 Article 9(1) of the European Convention on Human Rights represents the sphere of ‘inner conviction’ which is absolutely inviolable. It emphasizes that Article 9 primarily protects the sphere of forum internum – personal and religious beliefs, and that “the notion of the State sitting in judgment on the state of a citizen’s inner and personal beliefs is abhorrent and may smack unhappily of past infamous persecutions.”5 The second element of Article 9(1) moves beyond the ‘forum internum’ to address the situation that arises when a person wishes to act in accordance with what they understand their pattern of thought, conscience or religion to mean for them. First, it expressly protects the right of a person to change their religion or belief. Secondly, it expressly recognizes that individuals have the right to ‘manifest’ their religion or belief subject to limitations, provided such restrictions are in accordance with the provisions of Article 9(2). In order to determine what constitutes the forum internum the European Court of Human Rights (the Court) has articulated what it is not by contrasting it to forum externum and manifestation. The Court has made it clear that the state enjoys a broad margin of appreciation in determining how to give effect to its responsibilities as the neutral and impartial organizer of religious life while ensuring the fullest possible enjoyment of the freedom of religion or belief consistent with respect for the rights and freedoms of others. The ways this is done have changed over time, and will continue to do so. [. . .] the meaning or impact of the public expression of a religious belief will differ according to time and context. Rules in this sphere will consequently

4 A number of works examine Art. 9 of the European Convention on Human Rights and other international instruments relating to freedom of religion or belief in some detail in some detail, including, W. C. Durham Jr. & B. G. Scharffs, Law and Religion: National, International, and Comparative Perspectives (2010); Evans, supra note 2; C. Evans, Freedom of Religion under the European Convention of Human Rights (2001); P. M. Taylor, Freedom of Religion: UN and European Human Rights Law and Practice (2005); R. Uitz, Freedom of Religion in European Constitutional and International Case Law (2007); M. D. Evans, Manual on the Wearing of Religious Symbols in Public Areas (2009); T. Lindholm et al., Facilitating Freedom of Religion or Belief: A Deskbook (2004); P. W. Edge, Religion and Law: An Introduction (2006). 5 Kosteski v. the former Yugoslav Republic of Macedonia, ECtHR, Application no. 55170/00, judgment of 13 April 2006, at Para. 39.

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Peter Petkoff vary from one country to another according to national traditions and the requirements imposed by the need to protect the rights and freedoms of the other and to maintain public order.6 Particular approaches at present, or adopted in historical cases, may not necessarily be relevant or appropriate in different periods, in other states and in other contexts, thus reinforcing the notion that the Convention is a living instrument. It is therefore inevitable that the Court take on board common trends and commonly accepted standards since “the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.”7 Since there is no common approach within Europe, “where questions concerning the relationship between State and religions are at stake [. . .] the role of the national decision-making body must be given special importance.”8 Having exercised this latitude in determining the overall context, it follows that “the choice of the extent and form such regulations should take must inevitably be left up to a point to the State concerned, as it will depend on the domestic context concerned,”9 and also that the measures taken “were justified in principle and proportionate.”10 The Court says that in making this determination it “must have regard to what is at stake”11 a question on which parties in dispute are likely to differ greatly. In Leyla Sahin v. Turkey, the applicant argued that she was simply seeking to follow the dictates of her religious beliefs, declaring expressly that “she was not seeking a legal recognition of a right for all women to wear the Islamic headscarf in all places.”12 For the Court, however, what was at stake was “the need to protect the rights and freedoms of others, to preserve public order and to secure civil peace and true religious pluralism.”13 Given this assessment of what was at stake in the case, it is not difficult to see why the Court upheld the validity of the restriction. Determining what is at stake is therefore, crucial to the task of assessing the proportionality of the measure in question and, of course, can only be determined on the facts of each case.14 This approach suggests that, rather than developing comprehensive standards about the dimensions and the jurisdiction of forum internum, the state effectively ‘reshapes’ the public sphere against the background of each particular case. Rather than balancing public and private, the state actually performs a balancing act in the context of the public space. This raises the question whether the relationship between public and private should  6 Leyla Sahin v. Turkey, ECtHR, Application no. 44774/98, judgment of 10 November 2005, at Para. 109.  7 Selmouni v. France, ECtHR, Application no. 25803/94, judgment of 28 July 1999, at Para. 101.  8 Leyla Sahin case, supra note 6, at Para. 109.  9 Id. 10 Id., at Para. 110. 11 Id. 12 Id., at Para. 73. 13 Id., at Para. 110. 14 Evans, Manual, supra note 4, at 87.

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9  Guide to the Perplexed be given greater prominence in conducting this balancing act. The Court already does that to some extent by determining whether something is a belief or simply an opinion. Forum internum and forum externum are also balanced in determining whether a particular belief is protected by Article 9. This suggests that the divide between forum internum and forum externum is not always very clear and that sometimes these two spheres may overlap, thus prompting the state to balance, not only within the public forum, but also partly within the public and partly within the private forum. This distinction between belief and manifestation in Article 9 suggests a clear divide between the public and private sphere of a belief, thus providing certain derogations from freedom of manifestation and none from the sphere of pure consciousness – the private sphere which in a mysterious way contains belief not made public. It does not however establish a clear demarcation between the private and the public sphere. Descriptions of these private and public spheres have suggested that they refer to conscience and manifestation. Forum internum and forum externum thus signify the sphere of conscience and the conscience manifest in public. This suggests that a definition of the ‘public’ domain should be approached in a purposive rather than a literalist fashion.15 The role of the state is to be the “neutral and impartial organizer” of the exercise of various religions and beliefs, this being “conducive to public order, religious harmony and tolerance in a democratic society.”16 The idea of a neutral and impartial organizer is difficult to square with another aspect of the Court’s jurisprudence – a more activist “enforcement” of tolerance – and pluralism ­“orthodoxy.” In describing the First Amendment of the US Constitution as the end of ­Christendom, O’Donovan describes the concept of neutrality as inherently paradoxical. On the one hand the First Amendment was formulated largely by Christians who thought they had the interests of the Church’s mission at heart, and it was argued for (as it still is) on ostensibly theological grounds. On the other it reflects a conception of society constituted from below by its own internal dynamics; government does not form a society, but puts itself at its disposal: The evangelical Christians who helped shape the new doctrine wished to deny government the right to interfere. In the name of King Jesus they proposed to instruct princes that they were dispensable in the Holy Spirit’s work, and to send them to the spectators’ seats.17 According to Article 9 itself, the freedom of religion or belief may be manifested ‘in public or in private’ and restricted only in pursuit of the legitimate aims of preserving certain public goods, including the rights and freedoms of others. For example, in Leyla Sahin v. Turkey

15 Id. 16 Refah Partisi (the Welfare Party) and Others v. Turkey, ECtHR, Application nos. 41340/98, 41342/98, 41343/98, 41344/98, judgment of 13 February 2003, at Para. 91. 17 O. O’Donovan, The Desire of the Nations: Rediscovering the Roots of Political Theology 244-245 (1996).

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Peter Petkoff the Court noted that universities were “public-law bodies by virtue of Article 130 of the ­Constitution, they enjoy a degree of autonomy, subject to State control, that is reflected in the fact that they are run by management organs [. . .] with delegated statutory p ­ owers.”18 Universities were ‘public’ by virtue of the manner in which they were constituted and because of the nature of the function – public education – that they fulfilled. 9.2.2

The Public / Private Divide Revisited

A distinction between the sphere of conscience and the public sphere can be traced back to the theology of Thomas Aquinas. It is probably not before the Kantian synthesis, and particularly the Rawlsian Kantian synthesis of legal theory, that the notion of the public and the private sphere become as distinct as they are in the discussions of the two fora in the context of the International Covenant on Civil and Political Rights discussions. What is characteristic of these discussions is that the sphere of pure conscience is autonomous, and to some extent even sovereign. This is not terribly surprising. From the point of view of autonomy of thought, conscience, and religion, the international instruments of the post-World War II period aimed at preventing persecution due to belonging even where such belonging is not associated with any visible manifestations. In other words forum internum protects the aspect of conscience that remains hidden. Persecution on grounds that somebody is anti-Communist because his family is anti-Communist, or dissident because his family is dissident, is not allowed because the person is protected by the refuge of forum internum. Once the person has come out of this refuge there might be circumstances in which his belief through manifestation could be challenged. The difficulty of this dichotomy of the two forums is that forum internum looks too much like a refuge one may enter and exit without hindrance. It almost suggests that your private autonomy of belief is guaranteed as long as you do not enter the public sphere. It certainly suggests that derogation from freedom of religion or belief manifestation in the public sphere does not affect the private sphere. You are not less free in your private sphere even if your freedom of religion is restricted in the public one. While your entire world in the public sphere might be completely demolished, your private sphere somehow remains intact. This understanding of the two forums is, to some extent, expected in international human rights law. The way in which the treaty level provisions regarding freedom of religion or belief are articulated places much stronger emphasis on the states’ duties in guaranteeing human rights than on the articulation of a sophisticated concept of

18 Leyla Sahin case, supra note 6, at Para. 54.

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9  Guide to the Perplexed religious autonomy beyond the level of personal autonomy. In this context the relationship between forum internum and forum externum in relation to freedom of religion or belief is articulated primarily through the lens of states’ duties rather than through that of religious autonomy. It effectively outlines that the state can under certain circumstances exercise jurisdiction in relation to freedom of religion or belief within the context of forum ­externum, but can under no circumstances exercise jurisdiction in the context of forum internum, defined as free from political coercion, a private autonomous sphere of religion or belief.

9.2.3

The Public / Private Distinction through the Lens of State Obligations

It could be argued that the question about the nature of jurisdiction of these two forums has focused primarily on the limited jurisdiction of the state in forum externum and the absence of jurisdiction in forum internum. In this way forum externum refers to a state’s ‘own sphere’ where the state exercises full jurisdiction but which is limited to specific forms of derogation in relation to freedom of religion or belief. In relation to forum internum the state has effectively no jurisdiction and this forum refers to something constructed as a domain outside of a state’s control. Because the concept of two forums has been articulated primarily through the lens of the state’s duties, the relevant discourse in the context of international human rights law has not addressed the question of whether the scope of forum externum should also be approached through the lens of religion/belief autonomy or not. More specifically, is the relationship between forum internum and forum externum approached differently from the perspective of religion/belief autonomy as opposed to the perspective of the duties of the state? Might such different approaches provide different public/private demarcations? Are such different perspectives relevant from the perspective of international human rights law, and why? The existing international human rights discourse does not address the question of the two forums beyond the existing perspective of the duties of the state and the public/ private divide it introduces. Indeed in some sense it probably should not do so – except that it somehow does. Two assumptions are at work. Firstly, the two forums in human rights law are to be perceived through the perspective of the state and the state has to be aware of the way jurisdiction can and cannot be exercised therein. The difficulty of this presupposition lies in the fact that the state has to define the spheres of forum internum and forum externum, what is public and what is private for the purposes of the state. And different spheres of jurisdiction often view public and private in a different way. In this respect the law of privacy deals with the question of what is private in a different way to the way private international law addresses the question, and focuses on the parties involved rather than the sphere protected. 181

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Peter Petkoff In a similar fashion, in relation to freedom of religion or belief the state does not deal with something given but with something the state has to identify, define, and demarcate. This may involve the state in defining the public and private sphere and the belief itself. And the way such defining will take place will depend on whether it is based on shared understandings of what is public and/or private or whether this is done from separate and, to some extent incompatible, perspectives. If it is the former, the state’s duty will have to address ‘the other’ in the public sphere. If it is the latter, the State will define the scope of ‘the public’ and will allow or refuse access, and establish the terms of such access. I doubt whether the drafters of the Convention intended such a potentially authoritarian role for the state. After all the emphasis on the states’ duties regarding human rights enforcement trumps the State’s duty not to become totalitarian. Yet there appears to be something rather illiberal and authoritarian in the way the public sphere appears in these documents, not so much in the way that it is defined, but by the very fact that both the private and the public sphere are defined beyond negotiation. The common good is defined without much negotiation of the dimensions of common and the meaning of ‘good.’ This social secularity is created on an understanding of society as a quasi-mechanical system incapable of moral or spiritual acts.19 After all, the two fora do not suggest that the law only deals with what can be established in positive terms, externalized and therefore provable. In fact, human rights instruments suggest that they protect, albeit differently, the visible and the invisible. I do wonder, however, whether such a distinction is at all helpful from the point of view of legal reasoning. It presents an impossible division between public and private in an area where, from the perspective of a belief, such a distinction does not necessarily exist and the notion of a private faith removed from the public is inconceivable even in cases of deeply contemplative traditions. There is also a question concerning the relationship between the internal and external forum when the external forum is restricted. Does a derogation, when viewed as a ‘punishment’ in the external forum, have an impact on the internal forum? And what does it mean to restrict the internal forum? To prevent the would-befaithful, would-be-homophobes or would-be-racists from becoming such? Or perhaps it is designed to establish a point beyond which state interference cannot extend? It seems to me that without a notion or the terms of a negotiated shared public sphere and without a shared understanding of the so-called private sphere, such a use of the private sphere becomes merely ornamental, implying that it protects all beliefs but separates such beliefs from their expression in a rather artificial way. While a focus on the belief itself may be legally relevant, as, for example in Ivanova v Bulgaria20 (a forum internum case par excellence) in which a teacher was dismissed because she belonged to a minority 19 O’Donovan, supra note 17, at 247. 20 Ivanova v. Bulgaria, ECtHR, Application no. 52435/99, judgment of 12 April 2007.

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9  Guide to the Perplexed religion, in most cases it trivializes the complex relationship between what we consider the public and the private (and sometimes introduces it as a norm in areas where it is probably absent). The terminology of two fora suggests two areas of adjudication, but the qualifications given to these two fora suggest that one is an area of adjudication and the other is not. This requires additional enquiry into the question of the nature of these two fora, their possible overlap and distinctiveness, and raises the need for a less monolithic understanding of the public and private spheres than existing jurisprudence sometimes suggests. Forum externum is already developed around the notion that not every manifestation in the public square is a form of manifestation for the purposes of Article 9.21 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).22 “The term ‘practice’ as employed in Article 9(1) does not cover each act which is motivated or influenced by a religion or a belief.”23 In a number of employment-related cases the Court decided that there has been no interference with the freedom of religion or belief by requiring the applicants to work at a given time which has prevented them from attending a religious worship during working hours. Their inability to attend acts of worship was a result of choosing to accept a particular employment rather than as a result of a restriction placed upon them.24 The Court took the view that since the applicants were free to take up a different profession there was no interference with their freedom to manifest their religion.25 If the burdens placed on an applicant are particularly onerous, they might amount to a form of pressure which affects their very ability to adhere to the 21 For example, in the case of Kosteski v. the former Yugoslav Republic of Macedonia, supra note 5, the applicant argued that his forum internum had been violated by his being required to prove his status as a practicing Muslim before he could take advantage of the right enjoyed by all Muslims in Macedonia to absent himself from work in order to attend a religious festival. The Court accepted that ‘the notion of the state sitting in judgment on the state of a citizen’s inner and personal beliefs is abhorrent’. However, it went on to say that “[. . .] it is not oppressive or in fundamental conflict with freedom of conscience to require some level of substantiation when the claim concerns a privilege or entitlement not commonly available.” Id., at Para. 39. This reflects the approach taken in cases concerning conscientious objection to military service, and it is obviously appropriate to confirm that those claiming to be manifesting a belief are doing so bona fide. 22 Arrowsmith v. United Kingdom, EComHR, Application no. 7050/77, decision of 12 October 1978, at Para. I.3. 23 Id. 24 X. v. the United Kingdom, EComHR, Application no. 8160/78, decision of 12 March 1981, at Part ‘The Law,’ Paras. 9, 14. See also, Konttinen v. Finland, EComHR, Application no. 24949/94, decision of 3 December 1996. See also, Stedman v. the United Kingdom, EComHR, Application no. 29107/95, decision of 9 April 1997. 25 Pichon and Sajous v. France, ECtHR, Application no. 49853/99, Decision on inadmissibility of 2 October 2001. The Court might also have considered whether their desire not to sell contraceptives amounted to a manifestation at all, or whether it was a stance which was merely ‘motivated’ by their beliefs. See also, Cha’are Shalom Ve Tsedek v. France, ECtHR, Application no. 27417/95, judgment of 27 June 2000 See also, Kalac v. Turkey, ECtHR, Application no. 20704/92, Judgment of 1 July 1997, at Paras. 25, 30. “His compulsory retirement was not an interference with his freedom of conscience, religion or belief but was intended to remove from the military legal service a person who had manifested his lack of loyalty to the foundation of the ­Turkish nation, namely secularism, which it was the task of the armed forces to guarantee.”

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Peter Petkoff pattern of thought, conscience and religion of their choice. Such a degree of pressure could amount to a form of coercion which would be incompatible with the requirements of Article 9(1). Article 9 rights might indeed be violated by ‘provocative portrayals of objects of religious veneration’ and that ‘a state may legitimately consider it necessary to take measures aimed at repressing certain forms of conduct... judged incompatible with the respect for the freedom of thought, conscience and religion of others.26 In light of this, it would seem that the failure of the state to offer the same degree of legal protection ag\ainst the ‘provocative portrayal of objects of religious veneration’ to one form of religion or belief as it offers to another would now amount to a violation of the Convention.27 9.2.4

The Public Sphere and the Question of State Neutrality

In all international instruments dealing with freedom of religion or belief the public sphere is taken as a clearly established and understood concept. In some ECtHR case law there is also the implication that this is a non-negotiable concept. There are certain views which do not agree with the democratic ideal of the Convention. In such cases the role of the state is to protect and to redefine the forum externum in accordance with the underlying ideals of the Convention. It also suggests that in some sense this is not a shared perspective, that what we consider public is in some way already outlined by the Convention. For example some forms of belief will ‘qualify’ for the purposes of Article 9(1). There are some forms of belief that might be considered incompatible with Convention values altogether and so cannot benefit from its protection at all. Article 17 of the Convention28 expressly seeks to prevent its provisions being used to undermine essential Convention values. Although the Court has not used Article 17 to remove the protections offered by Article 9 to believers, this remains possible in appropriate cases.29 This will always be

26 Otto-Preminger Institut v. Austria, ECtHR, Application no. 13470/87, Judgment of 20 September 1994, at Para. 47. 27 Evans, Manual, supra note 4, at 17. 28 Art. 17 provides: “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided from in the Convention.” 29 For example, in Norwood v. the United Kingdom, the Court found that the display of a poster by a member of an extreme right wing party that identified Islam as a religion with terrorism amounted to a “vehement attack on a religious group” was “incompatible with the values proclaimed and guaranteed by the convention, notably tolerance, social peace and non-discrimination” and, as such, could not benefit from the protection of Art. 10, the freedom of expression. Norwood v. the United Kingdom, ECtHR, Application no. 23131/03, decision on inadmissibility of 16 November 2004, at Part ‘The Law’.

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9  Guide to the Perplexed exceptional, however, and the more common situation will be one in which the nature of the belief in question, whilst fully consonant with Convention values, is not of a kind to attract the direct protection of Article 9. Thus it is necessary to consider what is needed to elevate an’opinion’ or an ‘idea’ which might be expressed under Article 10 into a ‘belief ’ which may be manifested under Article 9.30 There is not, however, a one-dimensional understanding of the way the State defines and polices the public sphere. Increasingly the Court has moved in a direction emphasizing State neutrality rather than radical State interference, in order to define the place of religion in the public sphere. This follows a series of cases beginning with Hasan and Chaush v. Bulgaria31 and culminating with a Grand Chamber judgment in Lautsi v. Italy 32 where the idea of the state as an independent, rather than intervening, custodian of religion in the public sphere was promoted. In the last of these cases a fairly new trend of permitting the neutral display of religious symbols has emerged. This is a significant development in the understanding of forum externum from the cases which accepted the concept of a margin of appreciation in protecting established religion (Otto Preminger,33 Gay News 34 and Choudhury 35), in accepted state ideology (Refah36 and Sahin37) because the state defined the scope of such sharing of the public sphere to cases where the protection of religious autonomy has come through the sharing of a negotiated conception of the public sphere. “In democratic societies the State does not need to take measures to ensure that religious communities are brought under a unified leadership.”38 Neutrality and impartiality means that the state ought to have no interest in internal organizational issues unless the results are such as to endanger the public order, health morals or the rights and freedom of others. Short of this, it should refrain from engaging with internal affairs, thus reinforcing the principle of autonomy.39

30 In the Arrowsmith case the European Commission implicitly endorsed the view of the respondent UK ­Government that whilst “ideas” and “opinions” were indeed protected under Art. 10, the use of the term “belief ” in Art. 9 indicated a somewhat higher threshold (Arrowsmith v. United Kingdom, supra note 26). This was confirmed by the Court in the case of Campbell and Cosans v. the United Kingdom where it is said that “the term ‘belief ’ denotes views that attain a certain level of cogency, seriousness, cohesion and importance.” See Campbell and Cosans v. the United Kingdom, ECtHR, Application nos. 7511/76, 7743/76, judgment of 25 February 1982, at Para. 36. 31 Hasan and Chaush v. Bulgaria, ECtHR, Application no. 30985/96, judgment of 26 October 2000, at Para. 78. 32 Lautsi and Others v. Italy, ECtHR, Application no. 30814/06, judgment of 18 March 2011. 33 Otto-Preminger Institut case, supra note 26. 34 X. Ltd. and Y. v. United Kingdom, ECommHR, Application no. 8710/79, decision on inadmissibility of 7 May 1982. See also, Whitehouse v. Gay News Ltd. [1979] AC 617, HL. 35 Choudhury v. United Kingdom, EComHR, Application no. 17439/90, decision on inadmissibility of 5 March 1991. 36 Refah Partisi case, supra note 16. 37 Leyla Sahin case, supra note 6. 38 Serif v. Greece, ECtHR, Application no. 38178/97, judgment of 14 December 1999, at Para. 52. 39 Evans, Manual, supra note 4, at 45.

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Peter Petkoff Evans reminds us that in recent times the Court has increasingly been called on to consider cases of community and individual autonomy and, indeed, a number of the cases previously considered from the perspective of the ‘individual’ might in reality be best viewed from this more community-oriented perspective. The response of the Court, echoing the principle of respect, has been to call on the State to act in a neutral fashion among religions and between religious and non-religious forms of belief.40 The Court has emphasized that the role of the State was not to take sides by endorsing one religious community at the expense of another but to act in an evenhanded fashion, concluding that “a failure by the authorities to remain neutral in the exercise of their powers [. . .] must lead to the conclusion that the State interfered with the believers’ freedom to manifest their religion.”41 The same approach has been taken in cases brought both by individuals and by religious communities. In such contexts “in exercising its regulatory power in this sphere and in its relations with the various religions, denominations and beliefs, the State has a duty to remain neutral and impartial.”42 The State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which they are expressed.43 This is sometimes difficult to reconcile, particularly with reference to cases like Refah and Sahin. But then perhaps we should not be so obsessed about reading ECtHR jurisprudence as common-law case law and try to establish patterns while keeping in mind that these patterns are not necessarily a representation of intellectual continuity from previous cases (even though in practice they may be). First and foremost one should seek to determine in these cases consistent or dissenting patterns in the application of the Convention taxonomy in interpretation of the sphere of protection and justification for derogations, rather than seeking to discover conspiracy theories behind Article 9 jurisprudence. In Leyla Sahin v. Turkey the Court has suggested that States are under a variety of positive obligations with regard to the freedom of religion and belief having “frequently emphasized the State’s role as the neutral and impartial organizer of the exercise of various religions, faiths and beliefs.”44 This is potentially problematic. Most of the cases where the Court considered the question of state interference to some extent take a public order angle that is often easy to understand. The Court, however, has adopted an approach that

40 Id, at 44. 41 Hasan and Chaush case, supra note 31, at Para. 78. 42 Metropolitan Church of Bessarabia and Others v. Moldova, ECtHR, Application no. 45701/99, judgment of 13 December 2001, at Para. 116. 43 Manoussakis and Others v. Greece, ECtHR, Application no. 18748/91, judgment of 26 September 1996, at Para. 47. 44 Leyla Sahin v. Turkey, supra note 6, at Para. 107.

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9  Guide to the Perplexed appears systemic rather than sectarian in dealing with state interference in these cases. The state can interfere where interference addresses the existence of ideology, presupposing that such ideology and an existing state ideology cancel each other. In the ‘sectarian’ Article 9 cases the Court is more likely to take the view that the state endorses existing ideology but interferes by siding either with the official line or with the dissenters. This suggests that since Community of Memory A (as an abstract example) is accepted by the political community, the state’s role as a neutral observer requires that both official leaderships be tolerated. At times, as in Holy Synod,45 the Court has taken this a step further. On certain occasions a state found engaging in unjustified interference is nevertheless expected to facilitate, indeed almost coerce, negotiations between religious communities even when one of the communities is not party to the particular Strasbourg case. Some authors see this as a departure from earlier jurisprudence, which gives margin of appreciation in relation to established religion. One may wonder whether the creation of an ambiguous form of a quasi-established national church alongside a ‘separation clause’ have not resulted in a conclusion that the state cannot have it both ways. It is not surprising that the Court in such cases finds it difficult to contextualize the concept of the neutrality of the state. Obviously it is very difficult to go along with the argument of (found inadmissible by the ECtHR)46 where blasphemy was viewed as treason or Kokkinakis v. Greece,47 the Metropolitan Church of Bessarabia v. Moldova48 and the Bulgaria cases where religion and the state are separate and yet there appears to be a notion of a special relationship between the national church and the concept of modern statehood. In these latter cases the state’s neutrality requires more than the role of an independent observer. Its role here is that of a defensor pacis. Often misunderstood as the state becoming a spectator instead of a participant, the post-Lautsi jurisprudence suggests an engaged neutrality not so much in terms of enforcing ‘public space orthodox’ but a more sophisticated balancing act between religious autonomy and a state’s duties. I do wonder, however, whether the state could perform this double act of spectator and protagonist without a re-defining of the public space and without having to manipulate it within the conventional (as well as Conventional) framework within which it operates. This could easily emerge as a challenge when the special provisions of restricting the forum externum of freedom of religion or belief kick in. Article 15 already permits states to derogate from their obligations under a number of Convention Articles, including

45 Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v. Bulgaria, ECtHR, Application nos. 412/03, 35677/04, judgment of 16 September 2010. 46 X. Ltd. and Y. v. United Kingdom, supra note 38. See also Whitehouse v. Gay News Ltd., supra note 38. 47 Kokkinakis v. Greece, ECtHR, Application no. 14307/88, judgment of 25 May 1993. 48 Metropolitan Church of Bessarabia case, supra note 42.

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Peter Petkoff Article 9, “in times of war or other public emergencies threatening the life of the nation” but only “to the extent strictly required by the exigencies of the situation.” In theory, this could be taken to suggest that in such emergency situations the state might be able to act in a manner which even impinged upon the forum internum – for example, seeking to persuade or coerce individuals to abandon forms of thinking or of belief considered inimical to national security. However, given the primarily personal and private scope of the forum internum, it is difficult to see how such intrusions could ever be ‘strictly required.’49 Article 9(2) is the most significant source of limitation, requiring that limitations be both “prescribed by law” and “necessary in a democratic society,” but with the state enjoying a certain margin of appreciation which in the case of Article 9 is very wide, there being no pan-European consensus about the scope and the nature of freedom of religion or belief. The idea that the state is under a duty to ensure that deeply held views of believers (both religious and non-religious) are both tolerated and respected has the practical effect of expanding the scope of Article 9 quite considerably.50 However, the Court has understood that it is difficult to maintain one’s beliefs and practices in a hostile environment since, as was said in the Chamber judgment in Refah Partisi v. Turkey, “where the offending conduct reaches a high level of insult and comes close to a negation of the freedom of religion of others it loses the right to society’s tolerance.”51 9.3 A New Perspective: Personal and Collective Autonomy The autonomy cases considered by the ECtHR have flagged a link between the understanding of forum internum and autonomy both personal and collective. Personal autonomy was the matrix for the articulation of the concept of freedom of religion or belief. It is therefore not surprising that, while the Court gradually developed a conceptual framework for collective autonomy in the context of freedom of religion or belief, this collective autonomy remained rather under-developed as a conceptual framework. Sometimes collective autonomy was viewed too closely to personal autonomy and forum internum; sometimes it was perceived as an aspect of associational freedom and forum externum. This is not surprising. If the concept of personal (i.e. private) autonomy is a model, it is to be expected that public autonomy may have some features that would on the one hand have the elements of forum internum and forum externum within something resembling parallel jurisdictions. 49 Evans, Manual, supra note 4, at 17. The author also points out that Art. 3 of the Convention prohibits “inhuman or degrading treatment” in absolute terms and is not subject to the limitations of Art. 15 and it is difficult to see how activities capable of coercing a change in private patterns of thought would not fall foul of this provision. 50 Wingrove v. the United Kingdom, ECtHR, Application no. 17419/90, judgment of 25 November 1996, at Para. 52; Murphy v. Ireland, ECtHR, Application no. 44179/98, judgment of 10 July 2003, at Para. 65. 51 Refah Partisi case, supra note 16, at Para. 75.

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9  Guide to the Perplexed On the other hand, in the same way, private autonomy is constituted against the background of the public sphere. Group autonomy is on one level a public sphere. This has generated ECtHR case law which is not easy to reconcile. On one level, the approach of the Court appeals to non-interference into internal religious autonomy; on another, such interference is justified in order to assert Conventional rights. The Convention acknowledges a principle of autonomy, which itself must be understood in the light of the dual nature of Article 9 as both an individual and as a community right.52 [.  .  .] since religious communities traditionally exist in the form of organized structures, Article 9 must be interpreted in the light of Article 11 of the ­Convention, which safeguards associative life against unjustified state interference. Seen in that perspective, the right of believers to freedom of religion, which includes the right to manifest one’s religion in community with others, encompasses the expectation that believers will be allowed to associate freely, without arbitrary state intervention.53 The Court has emphasized that “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 affords.”54 The same approach has been adopted in cases brought under Article 11, in which the applicant bodies claim that it is their freedom of association that has been breached, rather than their freedom of religion as well as all other convention rights application to legal entities, such as the right of access to a court55 and the freedom of expression.56 While in the contest of Article 11 the Court has often referred to the essential role played by political parties in ensuring pluralism and democracy, associations formed for other purposes, including those proclaiming or teaching religion, are also important to the proper functioning of democracy.57 Just as individuals are entitled to have their sphere of inner beliefs – their forum internum – respected absolutely, so likewise is there a degree of enhanced protection for what might be called the forum internum of the associative life of an organization.58 Thus the state

X. and the Church of Scientology v. Sweden, EComHR, Application no. 7805/77, decision of 5 May 1979. Metropolitan Church of Bessarabia case, supra note 42, at Para. 118. Id. Canea Catholic Church v. Greece, ECtHR, Application no. 25528/94, judgment of 16 December 1997, at Para. 41. 56 Murphy case, supra note 50, at Para. 61. 57 Moscow Branch of the Salvation Army v. Russia, ECtHR, Application no. 72881/01, judgment of 5 October 2006, at Para. 61. 58 Evans, Manual, supra note 4, at 32. 52 53 54 55

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Peter Petkoff is not to intrude into what are properly considered essentially internal issues, including among other things matters of internal governance.59 “State measures favoring a particular leader or group in a divided religious community [. . .] would constitute an infringement of the freedom of religion.”60 To verify that the communal life of the organization is beyond scrutiny “the content of the program must be compared with the actions of the associations’ leaders and the positions they embrace.”61 9.3.1

Autonomy, the Principle of ‘Respect,’ and the Protection of Pluralism

The emergence of the principle of ‘respect’ as a substantive aspect of the right takes this further and suggests that any state-sponsored activity which potentially casts a negative light over a particular form of religion or belief would fall within the ambit of Article 9 and so need to be justified in order to avoid violating Article 14.62 In Kokkinakis, emphasizing the responsibility of the state to ensure the realization of all Convention rights, the Court highlighted a different aspect of the duty of the state stemming from the view that “the freedom of thought, conscience, and religion is one of the foundations of a ‘democratic Society’ [. . .] the pluralism indissociable from a democratic society [. . .] depends on it.” It also said that “in democratic societies [. . .] it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected.”63 The Court expects believers to cope with a fairly high degree of challenge to their systems of belief in the pursuit of the more general goals of securing pluralism and tolerance: Those who choose to exercise the freedom to manifest their religion [. . .] cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.64 The role of the state in such cases is to ensure that Convention rights be enjoyed, but also potentially criticized and ridiculed; intervention is called for only when the manner in which such critical views, ideas or opinions are expressed is akin to a “malicious violation 59 Hasan and Chaush case, supra note 31, at Para. 82. 60 Supreme Holy Council of the Muslim Community v. Bulgaria, ECtHR, Application no. 39023/97, judgment of 16 December 2004, at Para. 77. See also Knudsen v. Norway, EComHR, Application no. 11045/84, decision of 8 March 1985. 61 Moscow Branch of the Salvation Army case, supra note 57, at Para. 94. 62 Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, ECtHR, Application no. 71156/01, judgment of 3 May 2007, at Para. 134. 63 Kokkinakis case, supra note 47, at Paras. 31, 33. 64 Otto-Preminger Institut case, supra note 26, at Para. 47.

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9  Guide to the Perplexed of the spirit of tolerance.”65 For example the Court recognizes that it is possible that tension is created in situations where a religious (or other) community becomes divided; it considers this to be one of the unavoidable consequences of pluralism. The role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate one other.66 This approach is not unproblematic since it suggests that the state is not only entitled, but may be required, to exercise a form of oversight over the internal life of religious communities in the interests of ensuring pluralism and tolerance. In Holy Synod v. Bulgaria for example, the Court recommended that the state bring the two rival groups together to settle their differences and reconcile.67 In the Metropolitan Church case the promotion of pluralism seems to have been given enhanced weight when construing the content of the obligation to ensure that “conflicting groups tolerate each other.” The result seeks to support the presence of varied and diverse bodies of thought coexisting and interacting within the broader political community.68 This might be contrasted with the case of the Supreme Holy Council of the Muslim Community v. Bulgaria, in which the Court placed more emphasis on the role of the state as the promoter of tolerance. In that case the Court, whilst reiterating that the state should not favor a particular leader or faction within a divided community, also commented that the state was “under a constitutional duty to secure religious tolerance and peaceful relations between groups of believers” and that [.  .  .] discharging it may require engaging in mediation. Neutral mediation between groups of believers would not in principle amount to State interference with the believer’s right [. . .], although the State authorities must be cautious in this particularly delicate area.69 The Court confirmed a more ‘activist’ approach in the cases where a “political party animated by the moral values imposed by a religion cannot be regarded as intrinsically inimical to the fundamental principles of democracy, as set forth in the Convention”70 and recalled that in its previous case law it had said that [. . .] there can be no justification for hindering a political group solely because it seeks to debate in public the situation of part of the State’s population and to take part in the nation’s political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned.71 65 66 67 68 69 70 71

Id. Serif case, supra note 38, at Para. 53. Holy Synod of the Bulgarian Orthodox Church case, supra note 49. Metropolitan Church of Bessarabia case, supra note 42, at Para. 123. Supreme Holy Council of the Muslim Community v. Bulgaria, supra note 64, at Para. 77. See also 49-51. Refah Partisi case, supra note 16, at Para. 100. Id., at Para. 97, quoting United Communist Party of Turkey and Others v. Turkey, ECtHR, Application no. 19392/92, judgment of 30 January 1998, at Para. 57.

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Peter Petkoff “Religious believers and religious communities are to be welcomed as participants in the public life of the State, including participation in the democratic process should they wish to do so.”72 Where that change in culture of a particular democratic polity may be such to undermine the essence of that particular polity, the answer is once again clear and, in the case of religious groups, the Court has noted that [. . .] in the past political movements based on religious fundamentalism have been able to seize political power in certain States and have had the opportunity to set up the model of society which they had in mind. It considers that, in accordance with the Convention’s provisions, each Contracting State may oppose such political movements in the light of its historical experience.73 With regard to Turkey the Court has said that “the principle of secularism is certainly one of the fundamental principles of the State which are in harmony with the rule of law and respect for human rights and democracy”74 and so, therefore, it considered Turkey entitled to take a range of measures considered to be necessary to preserve that element of the political culture of Turkish democracy – provided always that those restrictions were legitimate and proportionate under Article 9(2).75 9.3.2

The Relationship of the Individual and the Collective Dimensions of Autonomy: Positive Obligations

The absolute nature of the forum internum, the sphere of personal belief, means that the principles which guide the state are not directly applicable to the individual and to the religious community in the same fashion. This is deeply problematic since the notion of collective autonomy seems to be developed from the concept of private autonomy without developing a clear conceptual framework outlining what these two concepts have in ­common and in what way they differ. As a result collective autonomy is articulated per analogiam with personal autonomy. The difficulty of this approach is that it has not defined the nature of collective autonomy, whether the possibility of a collective forum of conscience should be considered in the context of collective autonomy or whether collective autonomy will always be perceived through the lens of forum externum. The via media the Court has developed is that it is not necessary for religious communities to be neutral and impartial in their dealings with others, nor is it for them to foster pluralism and tolerance – though it is of course necessary that they accept a pluralist 72 73 74 75

Evans, Manual, supra note 4, at 51. Refah Partisi case, supra note 16, at Para. 124. Id., at Para. 93. Leyla Sahin case, supra note 6, at Para. 116. Evans, Manual, supra note 4, at 54.

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9  Guide to the Perplexed approach and display tolerance in the context of the pluralistic society of which they form a part. The analogy between individual and collective autonomy and the potential problems such an analogy presents suggest a need for departing from the focus on the physical dimension of the expression ‘public area’ by moving towards a conceptual dimension of a “meeting,” to focus on the idea of the “public” rather than on the idea of “area” or “space” when trying to accommodate concepts such as individual and collective autonomy along with concepts of public and private fora.76 A further issue arises from the positive dimension of state obligations. On a general level, the Court has said that: In determining the scope of a State’s positive obligations, regard must be had to the fair balance that has to be struck between the general interest and the interest of the individual, the diversity of situations obtaining in Contracting States and the choices which must be made in terms of priorities and resources. Nor must these obligations be interpreted in such a way as to impose an impossible or disproportionate burden.77 It is important to bear this in mind when considering what might be required of a state in this regard. Nevertheless, the Court has made it clear that while states must not intrude into the forum internum of the individual, or into the internal life of a religious or belief community, they are under a duty to ensure a level playing field in the contestation of ideas among believers and also between believers and non-believers. The relevant question is whether this only applies in the “public” sphere or whether it also extends to the “private.” There are clearly instances in which the state might not only choose to involve itself but may even be in breach of its convention obligations if it does not take purposive action.78 It is the failure to secure the convention right, as understood and interpreted by the jurisprudence of the Court, which is the relevant factor and the scope of the public sphere or area is ultimately bound up with that question. The development of “positive obligations” and the duty to ensure toleration may carry this a long way into what generally might be considered the “private” arena.79 76 Otto-Preminger Institut case, supra note 26, at Para. 54. 77 Ilascu v. Moldova and Russia, ECtHR, Application no. 48787/99, judgment of 8 July 2004, at Para. 332. 78 Members of the Gldani Congregation case, supra note 62, at Para. 134. Kuznetsov and Others v. Russia, ECtHR, Application no. 184/02, judgment of 11 January 2007. 79 Although not made explicit at the time, this is apparent from the very earliest cases concerning the scope of Art. 9 and the obligation to show “respect” for objects of religious veneration. For example, this is evident from the Otto-Preminger-Institut case quoted above (supra note 26), and also from the subsequent case of Wingrove case, supra note 50, at Para. 63, where the Court rejected the view that the limited distribution of a film in video form through a controlled network reduced the risk of its causing offence, saying that “it is in the nature of video works that [. . .] they can in practice be copied, lent, rented sold and viewed in different homes thereby easily escaping any form of control by the authorities.”

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Peter Petkoff The Court does also recognize that states may take account of the nature of their political structures and their sense of national identity, and that judgments in cases such as Refah Partisi v. Turkey point to the limits of religious influence in the political life of the community. In deciding whether or not to prosecute, the State authorities were entitled to have regard not only to the actual seriousness of the harm caused – which as noted above was considered to be significant – but also [. . .] to the potential for harm inherent in the acts in question.80 Rather than calling for a balance between public and private, it calls for a balancing of interests within the public sphere that reflects both the importance of rights enshrined in Article 9 to both the individual and to democratic society, with the implication that when these interests appear to conflict, a resolution is to be sought which seeks to maximize both, to the extent that this is possible.81 9.4 Forum Internum and Forum Externum in Canon Law When I enquire into the meaning of the two fora in the context of international human rights and canon law, I do not refer to two distinct systems in terms of world views or ethical codes, even though world views and ethical codes might have been at play in the development of the basic grammar of consent in both systems. While the terminology of the two fora most likely emerged in international huma rights law through the discourses of the European Convention on Human Rights, it is interesting to consider why a concept developed by Medieval canon law has been adopted by one of the most influential human rights enforcement systems of the Council of Europe. What has happened in the course of the appropriation by international human rights law of the terminology of these two fora? Is there something in the way this appropriation has taken place that has made the otherwise fluid medieval canon law distinction into a static distinction under international human rights law? The noticeably Latin origin of the terminology used in human rights law took me to the decrees of the Council of Trent (1545 and 1563) where this dichotomy was introduced for the first time and, from there, to modern legal codification of the Catholic Church – the Code of Canon Law of 1917 (CIC/1917) and the Code of Canon Law of 1983 (CIC/1983)

80 Laskey, Jaggard and Brown v. the United Kingdom, ECtHR, Application nos. 109/1995/615/703-705, ­judgment of 19 February 1997, at Para. 46. 81 Evans, Manual, supra note 4, at 26.

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9  Guide to the Perplexed and the Code of Canons of the Eastern Churches (CCEO).82 On the surface all three codes use the distinction in a way similar to that used in international law. While the public forum is easy to identify as the forum of public adjudication, the forum of conscience is a relationship between humankind and God where no human authority can exercise jurisdiction. In contrast with the way this terminology has been appropriated in international human rights law (where forum externum is demarcated as the only sphere where legal intervention can be exercised), in the context of medieval theology and Canon law it refers not to precise jurisdictional boundaries but rather to two interrelated spheres of legal and political authority exercised by the ecclesiastical institutions. In the period when those terms emerged in European legal and theological language the primary locus of the external forum is the ecclesiastical court, while that of the internal forum is the court of penance (forum poenitentiae or forum poenitentiale). In general, the external forum is concerned with public and manifest transgressions of the Church’s law or of divine law, while the internal forum is the court of conscience (forum conscientiae) where even secret crimes and sins are considered, along with manifest sins against God, neighbor, and self. The external forum is both mandatory and contentious: defendants are compelled to appear, and the truth of their case is sought through argument and counterargument. The court of penance is a voluntary forum which can only be entered of one’s own free will, and where the penitent is simultaneously plaintiff and defendant. The external forum follows specific and carefully devised procedures under the supervision of experienced judges, lawyers, and trained personnel, while the penitential forum is more informal and less concerned with procedural details. Nevertheless, both fora administer the same body of law (canon law) and seek to attain the same goal in doing so: to restrain vice and foster virtue in the public sphere. If a widespread and deeply rooted juridical culture can be seen as one of the important legacies of the Middle Ages to our own times, then the creation of that culture owes a great deal to the close and regular contact of all Christians with the legal system and the science of jurisprudence as applied in the Church’s internal forum of conscience and confession. The point remains that this was a true forum in which due process proceedings took place in the full sense, albeit differently from proceedings taking place in the external forum.83 This ‘dialogical’ jurisprudence of forum internum in canon law did not provide an alternative form of legal settlement in the manner of some modern forms of alternative

82 J. Goering, The Internal Forum and the Literature of Penance and Confession, in W. Hartmann & K. ­Pennington (Eds.), The History of Medieval Canon Law in the Classical Period, 1140-1234. From Gratian to the Decretals of Pope Gregory IX, 379 at 380 (2008). 83 Id., at 381-385.

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Peter Petkoff dispute resolution. It was not seen as an autonomous parallel system of distributive justice, as parallel systems of arbitration tribunals are seen today. Instead this articulates a rigorous personal and dialogical engagement with the same normative system shaping the forum externum, not only in the form of contemplation but in a private dialogue with God formalized and articulated in the presence of a confessor. In this sense forum internum in the context of penitence was seen not so much as an intellectual trial, but as a trial behind closed doors as opposed to a public one. The distinctive “I-Thou” engagement with the Other in the internal forum in this context was seen as a precondition for any form of public distribution of justice. Furthermore the relational form of forum internum, where the penitent acts as both plaintiff and defendant, becomes the essential reason for relating to the codes and the norms of forum externum in an intellectually and existentially coherent fashion. The matter may be concluded on the level of forum internum yet still have indirect implications for the penitent’s relationship with forum externum. Sometimes the resolution in the forum internum shapes the peninent’s role and place in the forum externum. The authority of the law is ultimately shaped not so much by the separation, but by the relationship between these forums. What happens in the forum externum cannot be seen in isolation from what happens in the forum internum. The penitential internal forum had its “courts” and personnel in the context of the parish and the parish confessor, but often extended to the level of the Diocese and even the Papal Curia. It had its own procedure and principles of admissibility. Just as entry into the penitential forum was voluntary, so too was the giving of testimony. No outside evidence was admissible in the internal forum; only the free, full, and truthful confession of the penitent was acceptable. The art of producing such a confession was one of the most important skills to be learned by priest and penitent in the later Middle Ages. The ­procedure was concluded by the acts of judgment, absolution and satisfaction.84 In medieval canon law the term forum traditionally referred to a place where justice was administered. Later on, it became associated with a court of justice, becoming a formal term in juridical language, and primarily referring to a court as an institution. In a stricter sense, it meant a sphere of competence. Compared to the way the two fora are discussed in international rights law law, in canon law reference to them articulates the way in which competence is exercised, not so much that certain subject matter falls either in the forum internum or in the forum externum, but that certain subject matter could be partly in one forum and partly in the other. Canon 196 of CIC/1917 says that “the power of jurisdiction is exercised alia [. . .] fori externi, alia fori interni.” The text could be translated as “either [. . .] or, but also as partly [. . .] partly.”85 It is quite clear that in this text the power to judge (potestasi iurisdictionis) is a power both of the external and the internal forum. 84 Id., at 379-404. 85 Code of Canon Law of 1917, Canon 196.

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9  Guide to the Perplexed The text however does not tell us how this jurisdiction is exercised within these fora. According to Mörsdorf, the canon resisted splitting the power of jurisdiction into two different fora with two different effects; this is particularly clear in his point that jurisdiction for the external forum includes the internal one.86 Canon 196 of CIC/1917 also speaks of iurisdictio fori interni, seu conscientiae. Paralleling general use in canonical language, forum conscientiae is here synonymous with forum internum. In this terminology, the pair of concepts forum externum - forum internum parallels an antithesis between the legal and consciential forum. It has been completely overlooked that the ecclesial legal sources, especially the Code, use the pair of concepts predominantly in a sense that is not determined by the antithesis between the legal and consciential fora. The distinction between sacramental and extra-sacramental in the internal forum shows that the distinction between external and internal is not made because of the antithesis between law and conscience, it is rather a demarcation of the ­effective domains of the Church.87 As in the language of international human rights discourse, Mörsdorf considers the ­terminology forum conscientiae as the locus of a direct relationship between a person and God.88 An act performed in any forum, be it internal or external, does not have a various effect on the conscience of the person. The major difference between the internal and the external forum is the absence of a public dimension in the internal forum. The internal forum is ‘not-public’ but nor is it necessarily private either in this discourse. This tripartite distinction between forum of conscience, internal forum and external forum in the context of canon law to some extent redresses the complex relationship between public and private sphere in the way the appropriation of similar language in international human rights law fails to do. The tripartite distinction does not trivialize the areas of public and private and does not make the transfer from the public to private sphere too abrupt. There are aspects of our belief which are not public, but neither are they private either; forum internum serves to display their relationship to both the public and private sphere. The concept allows one the opportunity to consider subject matter which is neither entirely private or public, but partly private and partly public, and which cannot simply be shifted from one sphere to another. In this way the encounter with the other in the private forum becomes paradigmatic to understanding yourself and your place in and relationship with the external forum. 86 K. Mörsdorf, Der Rechtscharakter der iurisdictio fori interni [The Legal Nature of the Iurisdictio Fori Interni], 8 Münchener Theologische Zeitschrift 161 (1957). 87 Id., at 163-164. 88 Canonists like Mörsdorf are of the opinion that the juridical order can only deal with what is visible. The conscience of a person therefore lies outside the canonical domain.

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Peter Petkoff The emphasis of forum internum in canon law is the personal step towards a dialogical situation with the other in order to discover oneself, a forum within which my belief comes into being in dialogue without necessarily entering the public sphere. This dialogical act of judgment stems from a very personal understanding of judgment and government and relates to concepts such as subsidiarity or a ‘minimal state,’ to use Nozick’s terminology. In this context any public sphere is only possible through this personal and dialogical sphere (insofar as it is articulated at all in a clear and distinctive way). The demarcation between forum internum and forum externum in international human rights law treats difference (and particularly in the context of the public/private divide) as a problem but does not deal with the question of why we consider it so. The approach to difference articulated by forum internum and forum externum in international human rights law is ethical, but not ontological: it suggests a metaphysical distance, regulates polices, but does not engage with the difference. To use Jean-Paul Sartre’s terms it created a notion of the Other as our enemy and our “original sin.”89 It presents the proposition that the sphere of forum externum is somehow alien, an ultimate otherness which can only be manifested if it becomes in some sense ‘one of us.’ The question of the ‘Other’ has engaged legal thinkers in areas such as contract law,90 employment law,91 trusts,92 utilities93 and family law.94 In our culture protection from the other is a fundamental necessity. [. . .] We accept the other only insofar as he does not threaten our privacy or insofar as he is useful to our individual happiness. The fact that the fear of the other is pathologically inherent in our existence results in the fear not only of the other but of all otherness. [. . .] Radical otherness is an anathema. Difference itself is a threat. That this is universal and pathological is to be seen in the fact that even when difference does not in actual fact constitute a threat for us, we reject it simply because we dislike it. Again and again we notice that fear of the other is nothing more than fear of the different.95 One could argue that, while the two fora of international human rights law amplify the fear of otherness by containing it within the ‘private’ sphere, the tripartite distinction of 89 J-P. Sartre, Critique de la raison dialectique [Critique of dialectical reason] 205 (1960); J-P. Sartre, L’être et le néant [Being and nothingness] 321 (1943). 90 S. Copp, Developing a Relationally Based Law of Contract: A Question of Good Faith, in P. R. Beaumont & K. Wotherspoon (Eds.), Christian Perspectives on Law and Relationism, 53 at 53-93 (2000). 91 K. Marshall, Employment and Relationism, id., at 93-127. 92 G. Watt, Relationism and the Law of Fiduciaries and Trusts, id., at 127-165. 93 A. Scott, Scripture, Relationism and Contemporary Regulation of Utilities, id., at 165-188. 94 R. Ahdar, Parental Religious Upbringing in a Children’s Rights Era, id., at 189-237. 95 J. Zizioulas & P. McPartlan, Communion and Otherness: Further Studies in Personhood and the Church 39-69 (2006).

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9  Guide to the Perplexed canon law attempts to make these two worlds meet and overcome the fear of “the Other” through the “I-Thou” strategy of the forum internum of canon law. This is not the marginalized private sphere of international law, but rather the sphere where we overcome our nightmares of “the Other” and prepare ourselves to enter the public sphere. In contrast forum internum and forum externum in international human rights law introduce a universe divided on account of difference. Different beings become distinct beings: because difference becomes division, distinction becomes distance. The public and the private become two distinct, divided and distant worlds as belief becomes different from expression. In a similar way, manifestation in the public sphere is demarcated by ‘kettling’ different forms of phobias in the public sphere. This is particularly well manifested by the Office for Democratic Institutions and Human Rights’ (OSCE’s ODIHR) policy of targeting and increasing the list of phobias and tensions shaped by the fear of the Other. This approach does not necessarily address the more intimate question of what makes us relate with one another or prevent us from doing so. Furthermore by generating an ever-expanding list of phobias such an approach creates something of an Ottoman millet system where the more groups of people receive legal recognition from the state, the more others will seek recognition because they are not yet recognized. The OSCE approach in the area of phobias focuses on an ever-expanding list of types of persecution as a form of their containment, avoiding the question of the nature of such divisions, but only attempting to contain them. One can see that this containment approach also dominates the travaux preparatoires of the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the Declaration. The problem with this approach is not that it lacks the intention to explore the roots of the divisions and heal them (which it probably does); the real problem is that it does not go beyond the generation of recognized forms of persecutions, ever expanding by the very nature of such lists, since there are always other groups out there who feel persecuted and discriminated against by the very fact that they have not been included on a list. The paradox of this list of phobias which it is supposed to combat is that it does not destroy the boundaries, does not reduce the distance from the Other but reaffirms the boundaries and multiplies the distance. In such an approach Otherness and parallel worlds are not seen as an opportunity but as a problem. Buber, Zizoulas and Lévinas have from very different angles made the powerful argument that Otherness is not something we need to isolate as a problem to lock up and forget about.96 Otherness is something with which we have to engage dialogically. Transferred to the discussion about forum internum and forum externum the otherness of forum internum under international human rights law does not make sense and is impossible without a relationship to 96 M Buber & W. A. Kaufmann, I and Thou (1970); E. Lévinas & R. A. Cohen, Time and the Other (and Additional Essays) (2003); E. Lévinas & N. Poller, Humanism of the Other (2003).

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Peter Petkoff forum externum. Private is very difficult to articulate conceptually outside of its relation to public and public cannot distinguish itself from private unless it engages fully with the meaning of private. This engagement makes those different aspects, manifestations of mutually dependent being, difficult to separate as different worlds. It is not surprising that from a theological perspective there is probably no such thing as private, at least not in an ontological sense. What we tend to call private can only assert itself as such in the public sphere and what we call public can only assert its boundaries as different from those of the private in a dialogue. In a sense those distinctions do not simply build fences, but articulate different modes of being dialogically and in this way help each aspect to understand its unique self in its relationship to the Other. In some sense public/private otherness is constitutive of unity, being not moral or psychological, but ontological. In the same way we cannot say what each Person is; only who He is. We cannot say what public or private is. And yet we seem to be prepared to explore whether something is public or private, whether it is part of the forum internum or the forum externum (of international human rights law) – except that without the tripartite distinction which canon law sometimes introduces we have no dialogical facility to help us to see how these fora relate to one another or how to overcome their divisions. Each person, as well as each sphere or domain, are different not by way of difference in qualities but by way of simple affirmation of being who (s)he/it is, what or who they are. From this perspective different domains are inconceivable outside of their relationship with one another. The relationship between these two domains generates the possibility of the personal freedom they promise. This affirmation of the complex dialogical relationship between personal, private and particular and the public and the universal, between forum internum and forum externum is powerfully articulated by John Zizioulas. The Person is an identity that emerges through relationship; it is an “I” that can exist only as long as it relates to a “Thou” which affirms its existence and its otherness. If we isolate the “I” from the “Thou,” we lose not only its otherness but also its very being; it simply cannot be without the other. This is what distinguishes the person from the individual. Personhood is inconceivable without freedom; it is the freedom of being other. [. . .] Freedom becomes identical with love. We can love only if we are persons, allowing the other to be truly other and yet be in communion with us. If we love the other not in spite of his or her being different but because they are different from us, or rather other than ourselves, we live in freedom as love and in love as freedom. The other is a condition of our freedom. Freedom is not from but for something other than ourselves. This makes the person ecstatic, going outside and 200

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9  Guide to the Perplexed beyond the boundaries of the self. But this ecstasis is not to be understood as a movement towards the unknown and the infinite; it is a movement of affirmation of the other.97 This reaffirmation of the “I/Thou” rather than an “I/It” opposition describes a sphere of imaginative sympathy, a departure from the blindness and the marginalism of the public and private sphere articulated under international human rights law. In this context it is almost inconceivable to think or articulate the ‘private’ in isolation as if we, blinded, fail to notice it. This dialogical approach makes the narrative about public and private not a narrative of two spheres of parallel and isolated existence, but a deeply existential dialogue, a meeting rather than a home: No community should ever be allowed to think of itself as universal. All communities, including the largest, should have to serve the end of equal, reciprocal relations between their own members and the members of other communities. One could put it in this way: it is essential to our humanity that there should always be foreigners, human beings from another community who have an alternative way of organizing the task and privilege of being human, so that our imaginations are refreshed and our sense of cultural possibilities renewed. [. . .] The act of recognition and welcome, which leaps across the divide between communities and finds on the other side another community, which offers the distinctive friendship of hospitality, is a fundamental form of human relating.98 The appeal for a more dialogical understanding of the relationship between forum internum and forum externum by reference to the way the two fora are understood in medieval canon law must not be reduced simply to a theological or canon-law corrective of the twofora theory in international human rights law. The way the Western theological tradition has seen the two forums in different periods and through the lens of different theological schools reveals trends not that dissimilar from those introduced in the adoption of the two forums terminology in Article 9 of the Convention. After all it was Thomas Aquinas who put an end to the use of the notion of the two fora as technical legal tools and introduced the antithesis between external appearance and internal actual being, and the distinction between legal and moral forums. This was the first major project which moved the formalized dialogical situation of the penitential forum into the sphere of the forum of conscience, effectively introducing a dichotomy which anticipates the way we articulate the two fora in internation al human rights law today.

97 Zizioulas & McPartland, supra note 95, at 39-62. 98 O’Donovan, supra note 17, at 268.

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Peter Petkoff Similarly, canonists prior to Aquinas did not use precise terminology when referring to the different fora. Sometimes terms such as forum poenitentiale referred to what the Church did in the process of penance, in contrast to God’s unseen rule and the forum iudiciale. Sometimes the alternative terminology of lex fori was used in contrast with lex poenae. At times these distinctions were used to demarcate the two fora as we do today, yet sometimes they were used to designate different procedures, and again at other times they were even used to articulate notions of parallel jurisdictions. References to the two fora meant very different things in different contexts and appeared primarily as broadly defined but actively deployed legal tools within the arsenal of the canonists. At the time, there was no clear-cut division between penitential and juridical practice, and some authors, in making a distinction, must have thought that the distinction consisted of there being two domains of one whole. The distinction dealt with two ways of operating in the Church as a religious institution. The contrast between law and morals became relevant in demarcating two spheres of competence as a basis for assigning cases. Developing rules of law and rules of morality had radicalized the difference between two distinct fora. The distinction between penitential and juridical practice presupposes that the juridical understanding of crime is differentiated from the ethical (moral) understanding of sin. Thomas Aquinas had a great influence on the development of terminology. In Summa Theologica he asks whether the lex humana is obligatory for people in foro conscientiae.99 In this context forum conscientiae becomes synonymous with iudicium conscientiae and conscientia itself. Human law and conscience, or in more general terms, legal and consciential fora are for the first time radically contrasted. Along with the terminological change, Aquinas also proposed a terribly important change in his doctrine of power. In Aquinas’ time, the dialogical reconciliation with the Church was replaced by the indicative form of the absolution of sins. This meant that the forum poenitentiale was removed from the juridical domain of the Church. In the Thomist synthesis, while in the consciential forum a case is decided between a person and God, in the judicial external forum a case is decided between human beings. This has ultimately contributed to deny the juridical character of the active power to bind and to release in the forum poenitentiale.100 At the Council of Trent (1545-1563) the bishops were granted faculties to dispense with hidden irregularities and suspensions not in the forum contentiosum. The faculties for dispensation and absolution were also granted outside the sacrament of penance: Accordingly it was perceived that forum internum (or forum conscientiae) was not identical with forum poenitentiale, but meant a juridical effect both 99 Summa Theologica II, q. 96 a. 4 100 Mörsdorf, supra note 90, at 169.

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9  Guide to the Perplexed in sacramento and extra sacramentum, with the particularity that the act of ­jurisdiction in the internal sphere had no effect in foro externo.101 In this way forum internum became a counterpart of forum exterius or externum in a way similar to the way similar to the intellectual strategies through which the two forums in international law are deployed to demarcate public and private sphere.102 Another important canon which helps to understand an evolution of the concept is Can. 202, § 1 CIC/1917 dealing with the exercise of the power of jurisdiction.103 This canon says that an act of ordinary or delegated jurisdiction granted for the external forum is also effective in the internal forum, but not vice versa. An act placed in the external forum by virtue of jurisdiction granted for the external forum is also effective in the internal forum, but an act placed in the internal forum has no effect in the external forum. The terminology used non autem e converso could mean that the act has effect, but only in the internal forum. This introduces an interesting legal tool, a distinction between “effect” or “non-effect” of the same act with regards to a belief in conscience and to the quality of a binding positive legal act. Mörsdorf argues that the subject matter of the internal and external fora are essentially the same, and that it depends on the individual case whether something is dealt with in the internal or the external forum. What is secret and is expected to remain so can be resolved within the internal forum, but if something is public or might become public, it should be dealt with in the external forum. In both fora, however, the effect of the act is that the case is decided on substantive grounds.104 An example in canon law would be a dispensation from marriage impediment in the internal forum. The legal obstacle has vanished, and the marriage cannot later be declared invalid (presuming of course that proof of the acquired dispensation is given). However, the impediment dispensed in the internal forum still appears wrongly as “something not dispensed with” in the external forum. The same principle applies for the absolution of an excommunication. A person is excommunicated, having received absolution in the internal forum: he is no longer an excommunicated apostate as far as the internal forum is concerned, but may appear as such as far as the external forum is concerned. The legally binding act of the internal forum is not to be contested, but may be out of sync with the relevant legal act within the external forum.105

101 K. Mörsdorf, Forum, 2 Sacramentum mundi 345 (1967). 102 The term forum internum was used because it “was more accurate than forum conscientiae, with its various senses, as a term embracing both the sacramental and the non-sacramental domain.” Id., at 345. 103 Code of Canon Law of 1917, Canon 202, § 1. 104 M. Wijlens, Theology and Canon Law: The Theories of Klaus Mörsdorf and Eugenio Corecco 45-46 (1992). 105 Id.

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Peter Petkoff 9.5 Conclusion: A Tripartite Division and Its Implications for International Human Rights Law The understanding of the internal forum (sacramental or non-sacramental) seems to introduce a tripartite rather than a dual distinction between internal and external or, as we are used to describe it, public and private. The internal forum integrates the nonadjudicated aspect of forum of conscience (pax cum Deo) and the adjudicated aspect (a dialogical I/Thou relationship) which may or may not be projected into the sphere of public reasoning (Can. 872 CICl917). Pax cum Ecclesia as a constituted and efficacious sign (res et sacramentum) becomes a sacramental cause of the pax cum Deo. The sacramental sign is primarily concerned with bringing the sinner back into the bosom of the Church, which, canonically speaking, is an act of jurisdiction on the part of the Church whereby the sinner is legally restored to ecclesiastical fellowship and to enjoyment of all his rights as a member of the Church. In this context the solid notion of a private/public divide becomes less visible. The normativity of forum internum becomes relational. My peace with my neighbor within the forum poenitentialis is constitutive for my peace with God (forum conscientiae). My responsibility to my neighbor is firstly articulated in the forum internum and only then (and only potentially) in forum externum. The two fora become not a place, but a meeting, where both parties, or indeed both worlds, participate in a responsible fashion. The historical development of the distinction between the external and the internal forum in canon law shows that the relevance of the distinction in fora is not founded on the antithesis of law and conscience. The distinction lies in the different ways the power of jurisdiction can be exercised: The distinction between penitential and judicial practice and the later classification in acts within and outside the sacrament of penance has only one purpose: to eliminate or at least to lessen friction between the human person and society.106 These two spheres are considered as one, especially through the prescription that one who has gravely sinned, whether in secret or in public, may not approach the common eucharistic table (forum externum) until he has been absolved from his sins in the sacrament of penance (forum internum). In this context forum internum is not merely an opportunity to create a dialogical situation between forum internum and forum externum. Adjudication in forum internum has to be taken into account in forum externum. Unless actions are legitimized in forum internum they cannot take place in forum externum. In this context 106 Id.

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9  Guide to the Perplexed canon law does not give us a very clear understanding how this takes place in all cases, but at least makes it clear that it is very difficult to consider any subject matter in forum externum without considering the relevant subject matter in forum internum. Compare this to the ways in which judges have developed particular techniques to determine the content of forum internum in cases where they have to determine whether the plaintiff or defendant have genuinely believed, and this aspect of forum internum has determined their choice of actions in forum externum. The argument for the autonomy of forum internum in international human rights law presents a concept of potentially ‘irresponsible’ autonomy, rather than engaged and engaging autonomy which looks more like sovereignty and commands non-interference. The two fora in canon law do not present such a divide, but focus to a greater extent on articulating how the two fora interrelate. The two-fora language in international human rights law introduces a Rawlsian forum externum of public reason and removes everything considered outside of public reason to the “autonomous dumpsite” of forum internum. The use of the terms forum internum and forum externum in modern Roman Catholic canon law has set a minefield which has perhaps determined to some extent the ways we speak of the public/private spheres outside of canon law. The distinction between the consciential and legal forum in canon law is clearly unhelpful. An analysis of the relevant texts suggests that the distinction between the internal and the external forum has always been very practical, it being a function of the public nature of the case whether something is dealt with in the internal or the external forum. Acts administered in either forum might have legal effect. There is no doubt that in this respect forum conscientiae is incorrectly applied in the CIC/1917 because the forum of conscience touches the relationship between a person and God, and this relationship is outside the realm of legal intervention. Naturally the obvious question at the end of all this is why we need to know the ways in which canon law regards the two fora. This is a very good question. It is for the same reason we use international human rights to adjudicate in the area of freedom of religion or belief – they are just there. There appears to be a parallel train of thought representing legal reasoning using technical terms of international human-rights usage, but in a very different way. Perhaps these different trains of thought might be irreconcilable. I nevertheless cannot help thinking that the less permeable distinction between forum internum and forum externum in international human rights law has somehow undermined freedom of religion or belief as an individual right by reducing forum internum to a forum of conscience. The areas that spring to mind are the rights of parents to educate their children or other acts of conscientious objection. Is there something about shared humanity that does not simply belong to the sphere of public reason and public policy, and which cannot be articulated merely through the concept of conscience alone? Is there an act of a shared humanity which trumps the concept of freedom of religion or belief, and takes the form of a meeting taking place partly within forum internum and partly within forum externum? 205

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