Dirk Ehlers, Henning Glaser (Ed.)

State and Religion

Between Conflict and Cooperation

1. Edition 2020, ISBN print: 978-3-8487-8000-6, ISBN online: 978-3-7489-2392-3,

Series: CPG Series of Comparative Constitutional Law, Politics and Governance, vol. 5

Bibliographic information
State and Religion Dirk Ehlers | Henning Glaser (eds.) Between Conflict and Cooperation Nomos CPG Series of Comparative Constitutional Law, Politics and Governance 5 CPG Series of Comparative Constitutional Law, Politics and Governance Edited by the German-Southeast Asian Center of Excellence for Public Policy and Good Governance Vol. 5 BUT_Glaser_8000-6.indd 2 26.11.20 14:17 Dirk Ehlers | Henning Glaser (eds.) State and Religion Between Conflict and Cooperation Nomos BUT_Glaser_8000-6.indd 3 26.11.20 14:17 The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available on the Internet at ISBN 978-3-8487-8000-6 (Print) 978-3-7489-2392-3 (ePDF) British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN 978-3-8487-8000-6 (Print) 978-3-7489-2392-3 (ePDF) Library of Congress Cataloging-in-Publication Data Ehlers, Dirk / Glaser, Henning State and Religion Between Conflict and Cooperation Dirk Ehlers / Henning Glaser (eds.) 597 pp. Includes bibliographic references. ISBN 978-3-8487-8000-6 (Print) 978-3-7489-2392-3 (ePDF) 1st Edition 2020 © Nomos Verlagsgesellschaft, Baden-Baden, Germany 2020. Overall responsibility for manufacturing (printing and production) lies with Nomos Verlagsgesellschaft mbH & Co. KG. This work is subject to copyright. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. Under § 54 of the German Copyright Law where copies are made for other than private use a fee is payable to “Verwertungs gesellschaft Wort”, Munich. No responsibility for loss caused to any individual or organization acting on or refraining from action as a result of the material in this publication can be accepted by Nomos or the editors. Onlineversion Nomos eLibrary BUT_Glaser_8000-6.indd 4 26.11.20 14:17 Preface The relationship between state and religion has been a core problematiqué of societal ordering throughout the history of mankind and subject to con‐ tinuous philosophical, legal and political reflections and debates across all civilizations from ancient times to today. The present, 5th volume of CPG’s Series of Comparative Constitutional Law, Politics, and Governance aims to contribute to the ongoing discussion on this proble‐ matiqué. It gathers 20 papers addressing conceptual questions, approaches in international law as well as country-specific problems of state-religion relations. The countries presented in this book allows for a broad compa‐ rative perspective and include China, Croatia, Germany, India, Italy, Iran, Japan, Mexico, Poland, Spain, Singapore, Switzerland, and Taiwan. Particular thanks are, first and foremost, owed to the authors for their time and efforts to make this collection possible. Their analyses and re‐ flections from a broad variety of vantage points are most appreciated. Furthermore, this publication was only made possible due to the con‐ stant support of CPG’s work by the German Foreign Ministry, the Federal Foreign Office, the German Academic Exchange Service (DAAD) as well as the CPG-forming universities of Frankfurt am Main, Münster and Pas‐ sau in Germany and Thammasat University with its Faculty of Law being the host of CPG. To all of them we extend our gratitude. For support in editing the manuscript we thank Dr. Duc Quang Ly, Jan Lorenzen, Daniel Grünewald, Sandra Blechschmidt, Marie Freitag, Char‐ lotte Wolff and Carla Ingenhorst. Bangkok, January 2020 Dirk Ehlers and Henning Glaser 5 Table of Contents Restructuring the Field: Religion, Political Order, Constitution 11 Henning Glaser Religion and State: A Hegelian View on the Sources of Normative Order in Society 69 Bart Labuschagne Human Rights and Freedom of Religion: Secular Statehood as a Condition for Religious Truth 101 Otto Depenheuer The Political Problem of Religious Liberality 121 Karsten Fischer Religion and National Identity in Modern Western Societies: Theological Reflections on a Political Problem 157 Johannes Zachhuber Analysis of the Amendments to Articles 24 and 40 of the Political Constitution of the United Mexican States: Implications for Public Policies of Religious Diversity Management 181 María Concepción Medina González The State and Religious Communities: Their Relationship and its Development in Germany 207 Dirk Ehlers Should Criminal Law Protect Against Religious Defamation? Some Reflections on the Applicability of Sec. 166 of the German Criminal Code and the Current Situation in Germany 223 Robert Esser 7 How Law Incorporates Religious Communities: A New Look on State-Religion Relationships Explained by Using the Example of Switzerland 245 René Pahud de Mortanges Islam in Italy: A Religion Under Construction 265 Alessandro Ferrari Law and Religion in Italy: A new Model of Civil Religion? 299 Silvio Ferrari Religion and the State: The ‘Lautsi’ Case of the European Court of Human Rights About Crucifixes in Italian Class Rooms 315 Andreas Follesdal Political Community and Religion in Croatia: Thorny Path Towards Partnership 331 Slavica Banić State and Religion in Spain 361 Javier Martínez-Torrón Religious Neutrality and its Enemies: The Polish Experience 405 Wojciech Brzozowski Situating Indian Secularism and Hindu Nationalism 423 Ronojoy Sen Cultivating Co-existence Through Control and Cooperation: ‘Secularism with a Soul’ and the Singapore Model of Regulating Religious Freedom and Maintaining Religious Harmony 453 Li-ann Thio The Legal-Formal Status of Religions in China 477 Andre Laliberte Table of Contents 8 Democratic Prophets and Priests During Taiwan’s Democratization 507 Cheng-Tian Kuo Yasukuni Shrine and the Politics of Religious Freedom in Contemporary Japan 535 Yijiang Zhong The Protection of the Existence and Identity of Religious Minorities Under the United Nations Legal Framework: Between the Group- Centered and Person-Centered Approaches 563 Rodrigo Vitorino Souza Alves List of Contributors 593 Table of Contents 9 Restructuring the Field: Religion, Political Order, Constitution Henning Glaser Introduction Since the dawn of human socialization, religion has impacted the realm of politics and law. Religion can evolve as either a serious challenge to, or as a stabilizing factor for, the state and political order. As one of the primor‐ dial forces of socialization, religion might thus define, support or disturb a society’s political order – or even all of these at once. Every modern con‐ stitution has, therefore, to define the place religion is supposed to take. Any legal system will set up a framework to accommodate and regulate the expressions and effects of religious faith and practice where they affect the public order. The present book deals with these mutual influences and entanglements of the religious and the political from a variety of perspectives, including the philosophical, political, historical, legal and theological. The single chapters are arranged according to two focal points. The first chapters are dealing predominantly with religion as a source of impulses affecting so‐ cial cohesion and the normative fabric and identity of public order in both positive and negative terms. The others focus rather on religion as a sub‐ ject of a given political order’s regulatory challenges and responses. These latter articles address the concrete arrangements by which political com‐ munities envision and regulate the role of faith and religion according to means of the respective normative and political frameworks. Given the scope and depth of the collected papers, this introduction merely aims to provide some preliminary and complementary thoughts on this broad and complex field rather than to introduce the individual papers. To this end, I shall begin by attempting a rough outline of the epistemic field – how we might perceive the meanings and phenomena that these sparse terms ‘religion’ and ‘politics’ address and what patterns dominate their interactions. This will be followed by some thoughts pertaining to the role of reli‐ gion as both a source and a subject of the political order. A. 11 Structuring the Epistemic Field To reflect on the role of religion as a source or a subject of the political order, it is helpful to briefly set forth the central terms and concepts used, and the basic patterns through which these relations between religion and politics materialize. The political realm, which is also termed the ‘legal-political sphere’ in this book, refers simply to that domain of social order that comprises the interrelated and overlapping phenomena of political power and public or‐ der, state and constitution, and law in general. However, the question of which phenomena the term ‘religion’ is supposed to refer to in the present context is much more complicated. As a starting point, ‘religion’ has been defined by Tillich1 as a world‐ view that is dealing with a group’s “ultimate concern”, thereby providing a set of narratives, norms, symbols and practices derived from or related to a supposed reality or truth of sacred, supernatural, otherworldly, or transcen‐ dental nature.2 Behind all attempts to briefly say what religion essentially is, remains, however, a bewildering range of phenomena that might not all fit under this definition whereas they all display a greatly varying impact on the public order. It is therefore instructive to review at least some basic conceptions and dynamics of religious forms and expressions. I shall strive to distinguish between types of religion and faith on the one hand, and different dynamics within a given religion or system of faith on the other. The Complex World of Faith and Religion To comprehend the broad range of religious thought and practice, its im‐ pact on the political, and the ways how the political sphere might respond to this impact, it is helpful to first gain a basic perspective on religions’ variety (for the different impact of Catholicism, Protestantism, or Islam on the political realm, see Labuschagne’s account on Hegel and Fischer in B. I. 1 Tillich, Dynamics of Faith, 1957, p. 5. 2 See Labuschagne, “Religion and Order: Philosophical Reflections From Augustine To Hegel On The Spiritual Sources Of Law And Politics,” 2009, p. 73; Taylor, Va‐ rieties of Religion Today, 2002, with a reference to William James’ lecture “The Will to Believe”. Henning Glaser 12 this volume). It is also important to not essentialize religious experiences, and to take the different possible experiences, expressions and manifesta‐ tions of religiosity within one and the same religious system or communi‐ ty of faith into account. At first glance, focusing on the great diversity among and within reli‐ gious systems might appear banal. However, introducing some structural aspects of this diversity is revealing and helpful for developing viable per‐ spectives on the role of religion as a source and subject of the political or‐ der. Different religions, with their patterns of faith, and religious senti‐ ments and practices, can be distinguished by a number of criteria. These include the way they define the sacred, absolute or otherworldly; and the way they envision the nature and content of the respective revelations through their representations, ethical demands or ritual practices. It is sug‐ gested here that one criterion among the others stands out: the quality of a religion’s ultimate point of ontological reference. This single criterium – the conception of ultimate reality in ontological terms – shall be intro‐ duced and developed as a far-reaching epistemic foundation on which large parts of the ensuing discussion will unfold. There are two qualities of this ultimate ontological reference that have to be distinguished. The first ontological mode a religion refers to is an otherworldly, supernatural or sacred reality that is still conceived as an ex‐ tension of the mundane or vice versa. Such a perception of ultimate reality often entails a homology – a fundamental unison between apparently dis‐ tinct ultimate and mundane orders. Corresponding beliefs of a pantheon or an afterlife that brings one close to the divine remain principally compre‐ hensible for the human mind. Throughout man’s socialization, religion has formed according to this model with the otherworldly reality not being ontologically separated from the mundane, being represented for instance by divine forces of nature, homologous deities and spirit beings communicating with the humans. These instances of the supernatural, otherworldly or sacred are perceived as participating in this world, and thus open to human comprehension, communication or even manipulation. Such notions and systems of reli‐ giosity can be organized with varying scopes as conceptions of cosmic or‐ der, ancestral, animistic and shamanistic cults of smaller groups but also entire states and larger societies or cultural communities. However, much more significant for the contemporary world are reli‐ gions of the other type, defined by a totally different conception of reality. These religions have their ultimate point of reference in a transcendent re‐ Restructuring the Field: Religion, Political Order, Constitution 13 ality. It is incommensurable and incomprehensive from any mundane per‐ spective, and genuinely disconnected from the immanence as the mundane reality of this world. And while the radical schism that ontologically di‐ vides the spheres of being might be bridged by prophecy and revelation, radical difference will nevertheless remain in principle according to this worldview. Belonging to these historically much younger religions based on the on‐ tological discovery of transcendence – the great religions of transcendence – are for instance Hinduism, Buddhism, Judaism, ancient Greek philoso‐ phy, Zoroastrian Iran, Christianity, and, finally, Islam.3 The discourses, norms and institutions that follow in the wake of the respective discoveries of the transcendent have deeply transformed the way the individual, soci‐ ety, power structure, and cosmic order are perceived within the particular religious frameworks. The distinction within the ontological reference of a given religion is the most important for our discussion. It is thus a distinction according to the basic syntax and semantics of ultimate worldviews, so to say. Within those religions based on their reference to transcendence it has to be fur‐ ther distinguished between the different conceptions of the transcendent reality and its relation to the immanent reality. Comprehending these vi‐ sions of transcendence and the ensuing differentiations and doctrinal con‐ ceptions is indispensable to fully understanding the relation between polit‐ ics and religion since the religions of transcendence emerged. In all its different articulation, this transcendent worldview is, first of all, rooted in the historic discovery of transcendence which is as much a watershed moment as it is a relatively late discovery in the course of hu‐ man civilization. Generally, this discovery of an ontological gap between the mundane and the transcendent reality implies a normative subordina‐ tion of the former to the latter. This triggered a radical reflection and prob‐ lematization of all dimensions of the established state of the mundane real‐ 3 Examined in more detail the picture is much more differentiated. While early Hin‐ duism, Judaism and Greek philosophy had strong immanent characteristics, philo‐ sophical Confucianism displays notions of transcendence albeit of much weaker impact than those of the theistic systems. Given that the distinction between the two major types of religion and worldview is an ideal-typical one that is accompanied by flowing transitions in reality, classifications can thus be disputed. For the current perspective, Confucianism is however not counted as fully belonging to the second type of religion or worldview. For Hinduism it might be discussed in how far it gained its ‘transcendent’ character in response to Buddhism within its tradition. Henning Glaser 14 ity.4 As a consequence, fundamentally new conceptions of the person emerged, along with reformulations of social, political, and cosmic orders. This civilizational process was accompanied by the birth of new cultures of intellectuality, discourse, and knowledge. Different levels of legal order were introduced, in conjunction with new ethical notions pertaining to hu‐ man relations and community building that were based on the human con‐ dition itself. Wherever this revolutionary process took shape, the different conceptu‐ alization of the fundamental tension between the transcendental and the mundane order resulted in powerful institutionalizations that, driven by new types of intellectual elites, were supported by a strong desire to re‐ shape the mundane reality in light of the respective transcendental vision.5 Consequently, strong tendencies developed to constitute collectivities dis‐ tinct from the existing “primordial, ethnic, local, political or religious col‐ lectivities”. These new collectivities were, ultimately, defined by a univer‐ salistic standard on basis of norms that claimed to express a universal truth as derived from the respective transcendental vision. In other words, the various emerging visions of transcendence became the point of origin for entirely new intellectual and societal dynamics so profound, encompassing and strong that they could transform large parts of social life, human agen‐ cy and the course of history. This highly transformative civilizational process took place in several civilizations in a time frame that is often dubbed the “axial age” in refer‐ ence to Karl Jaspers.6 It manifested for example in the above-mentioned religions and worldviews. Common denominator of the civilizational breakthroughs that occurred along similar patterns in these contexts is, to underline it again, the emergence of a new vision of transcendence. As 4 See Eisenstadt, “The Axial Conundrum between Transcendental Visions and Vicis‐ situdes of Their Institutionalizations,” 2012, pp. 278 f. Before Eisenstadt initiated a broader academic movement to discuss the axial age Karl Jaspers had noted that during the axial age, “the spiritual foundations of humanity were laid simultaneous‐ ly and independently in China, India, Persia, Judea, and Greece. And these are the foundations upon which humanity still subsists today.” Jaspers, The Way to Wis‐ dom: An Introduction to Philosophy, 2003, p. 98; see also Jaspers, The Origin and Goal of History [1949], 1953. 5 See Eisenstadt, “The Axial Age Breakthroughs – Their Characteristics and Ori‐ gins,” 1986, pp. 1 ff. 6 See Jaspers, Vom Ursprung und Ziel der Geschichte, 1953; Joas, “The Axial Age Debate as Religious Discourse,” 2012, pp. 9 ff. Restructuring the Field: Religion, Political Order, Constitution 15 Benjamin Schwartz stated: “[I]f there is nevertheless some common un‐ derlying impulse in all these ‘axial’ movements, it might be called the strain towards transcendence […] a kind of critical, reflective questioning of the actual and a new vision of what lies beyond.”7 Starting from their common denominator, the foundational reference to a transcendent reality, the most notable differences among the religions of transcendence derive from their greatly varying visions of transcendence and their conceptualization of the relation between the mundane and the transcendent order. A central implication of this point of origin is the attitude towards the mundane reality. Long before the axial age theory became rehashed and substantiated under the guidance of Eisenstadt in the course of the 20th century, Max Weber had already suggested an ideal-typical range of these attitudes spanning from an affirmation of the world over notions of ‘world adaption’ and ‘world escape’ to total world rejection.8 A world-rejecting and world-escaping attitude might be found in a sim‐ plifying assessment in particular in the Buddhist vision of transcendence while that of Islam and Judaism remain essentially ‘world accepting’. For the latter, the mundane order is created and positively shaped in the light of transcendence and thus ontologically regarded as unequivocally posi‐ tive as God’s creation. The Buddhist vision of transcendence on the other hand, aims lastly at escaping a ‘treacherous’ mundane order that in‐ escapably suffers from an unresolvable ontological deficit. The middle-ground between these extremes is occupied by the Chris‐ tian vision of transcendence. It reconciles in its origin a ‘world denying’ notion with the mission to transform the mundane reality in both its escha‐ tological deficiency and potential. The Christian vision shares the Bud‐ dhist hostility towards the mundane reality in its origin but, instead of aiming to escape it, induces a strong inclination to continuously reshape the mundane reality in a permanent eschatological strive. The Christian vi‐ sion might therefore be qualified as concomitantly world-sceptic and world-shaping rather than world escaping. This decisive quality that evolves from central features of the Christian vision of transcendence ensures a maximum of transformative potential whose impact on the Western process of civilization can hardly be overes‐ 7 Schwartz, “The Age of Transcendence,” 1975, pp. 3-5. 8 Weber, Gesammlte Aufsätze zur Religionssoziologie 1, 1988, p. 554; Schluchter, Re‐ ligion und Lebensführung, Bd. 2, 1988, pp. 62 ff. Henning Glaser 16 timated. Up to date, its transformative spin is still unfolding, even though in largely derived and indirect ways. Conceptually, it has been constituted – among other features of the later dogmatization of the Christian dis‐ course of transcendence – by its pronounced eschatological horizon that is spanning from God’s creation of the world over the original sin to God’s incarnation and sacrifice at the cross to his resurrection and announced re‐ turn at the end of times. Moreover, there is the foundational conception of human dignity as a consequence of having been created as an imago Dei, the ethics of the Sermon on the Mount and the double commandment of love. These ethics are eschatologically deeply charged and accompanied by the consequent devaluation of the mundane and its traditional social structures9 combined with a permanent strive towards a utopian replace‐ ment by voluntary associations that were defined in terms of their eschato‐ logical mission to unfold a certain functional differentiation.10 Moving away from the immanent/transcendent dichotomy, a series of tensions exist within the ‘transcendental’ camp itself. The first lies be‐ tween theistic and rational forms of transcendent religions. Theistic ap‐ proaches confine their ideas of ultimate truth to a belief in gods, supernat‐ ural beings, revelations, and prophecy. But, the term ‘religion’ is frequent‐ ly extended to forms of faith in ultimate truths that are related to purely rational, yet nevertheless eschatologically charged conceptions of a claimed inner-worldly utopian truth of absolute provenance. Often, these secular, utopian visions of the world display a certainty in their ultimate point of reference that is similar to the transcendental vi‐ sions of sacral truth, and have similarly advanced claims regarding laws of nature, and humanity’s destination within the course of history. Like their sacral counterparts, these secular utopian visions are supposed to tran‐ scend any conflicting, man-made norms and practices. Examples of these ‘secular religions’ include secular humanism, communism, and neoliberal‐ ism. Secular humanism, in particular, emerged with the enlightenment and 9 Radical early Christian thought that would emerge as part of especially of the monastic and evangelic thrust within the Christian discourse on transcendence de‐ manded of Jesus’ followers for instance to renounce home and family, property and protection (Mt 8:20, Lc 14:26, Mt 6: 25, 5: 38 ff.). See also Kippenberg, “The Role of Christianity in the Depolitization of the Roman Empire,” 1986, p. 268. 10 These artificial associations defined themselves by social functions as evidenced most impressively in the various monastic orders. Other examples of such asso‐ ciates are the guilds, municipalities or universities. Restructuring the Field: Religion, Political Order, Constitution 17 forms the conceptional core of Western liberal democracy. All these worldviews provide secular conceptions of an ultimate truth, albeit an in‐ ner-worldly one. They encompass visions of a utopian future, a distinct code of universalistic ethics, fundamental norms and governance princi‐ ples, and a comprehensive set of orthodox interpretations, symbols and narratives of their core vision. The ultimate truths claimed by these sys‐ tems of believe may be class struggle, universal civil rights and represen‐ tative democracy, or the market principle, respectively. What they share with religions of transcendence is the assumption of a fundamental gap be‐ tween the absolute truth and the inner-worldly reality and their inherently discursive, eschatological nature that finds its expression in ongoing at‐ tempts to interpret (and reinterpret) the ultimate truth in its doctrinal form. Apropos for this discussion, secular humanism and communism may both be regarded as secular surrogates of important aspects of the Christian dis‐ course on transcendence (apparently different Fischer in this volume), the assumption of additional sources of their emergence and substance notwithstanding. A second tension arises with the inevitable shifting of discourse. The original core visions of both sacral and secular ‘religions’ remained prone to constant adaption in response to the shifting socio-political realities and diverging interpretations of competing conceptions. These discourses on ultimate reality could eventually develop new interpretations of the core vision or split up in competing conceptions based on the initial core vi‐ sion. Ensuing tensions between these competing interpretations could ei‐ ther be captured and integrated within the dominant discursive streams, leading to new institutionalization, or they could eventually transgress the line delimitating the orthodox consensus from heresy. This, then, could lead to the creation of competing orthodoxies or heterodox systems. The latter were either suppressed by the dominant discourse, subjected to ex‐ tended periods of mutually afflicted violence, or emerged as entirely new denominations that coexisted with the dominant discourse.11 Often, com‐ peting interpretations and accentuations could be contained within the 11 Christian conceptions of transcendence are for example the catholic or evangelical one, the former based on the eschatological centrality of the institutionalized Holy Roman Church, the latter on the common priesthood of all believers. Not any more part of the original vision of transcendence are the various forms of Christian Gnosticism that go beyond the fundaments of the Christian dogma. Henning Glaser 18 frame of orthodoxy, even if at the price of continuing tensions that could have shaping effects on the future course of the overall discourse. One last differentiation that shall be highlighted pertains to the practical manifestations of transcendental religions among their believers. Regular‐ ly, all of the lofty conceptions and doctrinally pure discourses of transcen‐ dence coexist with interpretative and practical adaptions that are much more reminiscent of pagan notions of the sacred realities than of the origi‐ nal visions of transcendence they claim to serve. In daily life, the way a given axial religion’s vision of transcendence is actually translated into religious practice will differ greatly from one be‐ liever, and even one institution, to the other. If doctrinally ‘pure’ orienta‐ tions toward the respective core vision of transcendence would be consid‐ ered a more original version or ‘high form’ of that religion, there are regu‐ larly also more or less vulgarized notions of belief and religious practice within the respective community of believers that constitute what could be called a ‘folk religious’ level. The latter focuses more on magic and ritual‐ istic aspects of religious activity than the ethical demands and doctrinal purity and might incorporate different elements of the symbolic and ritual universe of other religions than the more original versions do. Notably, such notions or orientations within axial religions such as Christianity or Buddhism should not be conflated with folk religions even if both share a similar phenomenology. Notably, such folk-religious orientations claim a significant share of actual religious life in most contemporary societies with strong axial religions, and often exert distinct political influence as well. They might appear either as instances of the religious mainstream, or deviant cults, sometimes within the grey zones of orthodoxy, sometimes beyond. Often, they contain some remnants of older religiosity that sur‐ vived after having seemingly been supplanted by official practice. In many societies officially dominated by axial religions strong influences are actu‐ ally attributed to the stars, spirits, semi-deities, and to all forms of fortunetelling and magic rituals. In many Buddhist, Christian, Hindu or Islamic societies, these representations of the otherworldly are still considered to represent or invoke powerful forces that can be mobilized to forge al‐ liances or to make political decisions. Occasionally they develop a grave impact on the development of political life.12 12 As much as the Romans took it often dead-serious to discover whether the gods would favor a war or a certain time and place for a battle, a journey, or building project as much do elites in Asia and Africa often seek all forms of otherworldly Restructuring the Field: Religion, Political Order, Constitution 19 While most assessments of the politics-religion nexus focus on the re‐ spective ‘high forms’ of religious life, all articulations and shades of a so‐ ciety’s religious practice have therefore their significance. Often, the folk dimension appears at least partly intertwined with the high form of a given religious spectrum – sometimes undermining its core assumptions, and sometimes concomitantly contributing to its very relevance. Scholars like Peter Brown or Mary Douglas have pointed out how much folk-religious elements of socio-religious practice are, indeed, not only intertwined with high-religious ones but also respond to essential needs of the given soci‐ eties, in particular, as Peter Brown shows, with regard to the society’s le‐ gal-political dimensions.13 Things are, however, even more complicated. After all, most contempo‐ rary societies experience not only the coexistence of numerous – often shifting and competing – doctrinal and attitudinal notions within the frame of a given orthodoxy. They must countenance also the coexistence of en‐ tirely different systems of faith and belief. This coexistence may greatly affect – and even define – the status of legal-political sphere in the respec‐ tive society. One might think historically of the changing role Christianity played in the Roman Empire, or the religious wars of Early Modern Euro‐ pe, and their impact on modern state building and the emergence of the in‐ ternational system of states. Generally, it might be said that tensions between essentially different religious denominations and identities can easily relate to the integrity of societal core values, especially if different axial discourses are competing. In contemporary societies, such tensions often significantly resonate, in‐ deed, with the given political or constitutional process. One might think of the challenges secular Western societies encounter with growing Islamic minorities, especially those adhering to more radical interpretations of Is‐ lam (with different notions Pahud de Mortanges, A. Ferrari, S. Ferrari) or, more general, of the tension between adherents of secular and religious advice in the most auspicious affairs of the state exemplified for instance by mili‐ tary commanders seeking the advice of fortune tellers and astrologers before start‐ ing a coup or a revolution. See for example Phongpaichit and Baker, “The Spirits, the Stars and Thai Politics,” 2008, at ~ppasuk/ spiritsstarspolitics.pdf. In fact, the extent to which such folk-religious elements and practices frequently influence politics in a majority of countries seems rather underestimated than accurately conceived by many Western observers. 13 Brown, Society and the Holy in Late Antiquity, 1982; Douglas, Natural Symbols: Explorations in Cosmology, 1996. Henning Glaser 20 constitutional identities. Examples for challenges of an established public order by newly emerging religious dynamics can be found in Europe in countries such as France, Spain (Torron) and Turkey, in Latin America (Gonzales), or Asia (Laliberté and Thio). This aspect is related to one last factor, the waning or surging relevance of religion within the given society. Both can be observed today. The wan‐ ing appeal of some religious identity-offers in many Western societies may be accompanied for instance by a revival or surge of the identity-offers of other religions. In the contemporary world, both trends have been identi‐ fied, the end of religion or at least a relative decline (Zachhuber) as well as a forceful return of religion that some identify as the dawn of a post-secu‐ lar age (Alessandro Ferrari). While Fischer stresses the power of seculariz‐ ation in terms of the modern political order in this volume, Ran Hirschl observed that “it is hard to overstate the significance of the religious re‐ vival in late twentieth- and early twenty-first-century politics.”14 Both trends do actually not only coexist but coexist most relevantly for the po‐ litical order often in one and the same society. Religion and the Political This leads back to the complex relation between the religious and the le‐ gal-political sphere of society. Basically, this relation shall be contemplat‐ ed here in line with the suggested perspectives above envisioning religion as a source of the political order (which also comprises the state), and or as a subject of the state’s regulatory challenges and efforts. The relation between the two realms of politics and religion are mani‐ fold and varied. While some ancient cults of state can hardly be separated from the political structure at all, Western modernity’s conception of reli‐ gion and politics as two clearly separated functional societal systems marks the other extreme (see Luhmann15 and also Fischer). In between these extremes lies a vast and highly dynamic field defined by multiple, mutual influences, and by ways to link politics and religion to each other. Modes of interaction range from intimacy and interdependence, through indifference, to distance and hostility. All these possible modes could, II. 14 Hirschl, Constitutional Theocracy, 2010, p. 1. 15 See for instance Luhmann, Introduction to Systems Theory, 2013. Restructuring the Field: Religion, Political Order, Constitution 21 moreover, coincide in the same system. For most societies, it can be said that religion and politics are inextricably intertwined, to a certain degree.16 After all, politics can shape, or at least influence, the form and substance of the religious discourse, doctrine and institutions, while religious devel‐ opments and discourses can shape the evolution, performance and impact of politics, law, and state. As Labuschagne points out, there is as much a religious dimension to politics as there is a political dimension to reli‐ gion.17 What has to be stressed here is the fact that the more the respective reli‐ gious discourses actually refer to a transcendental reality or display an axi‐ al potential in their discursive dynamics, the more relations between polit‐ ics and religion become increasingly complex and dynamic. After all, the axial notion will always claim to supersede the interests and norms of the state in case of conflict. At the same time, it can also exert great leverage on the formation of some of the state’s core structures, norms and institu‐ tions. The range of possibilities regarding how given axial dynamics relate to the public order differ markedly. Generally, in Christian, Buddhist or Islamic contexts for example, the political power might simply respect the religious realm’s integrity, try to employ its dynamics as a powerful source of social disciplining, or consid‐ er it as a fount of adverse influences. Consequently, the state might end up in challenging, containing or repressing these religious dynamics as well as attempting at other occasions to manage, nurture, and employ them. The Christian discourses and doctrines aiming at implementing the original vision of transcendence have been especially engaged in the en‐ deavor to reconcile the complexities of the relations between the religious and the political sphere that have, for the longest time, been so fraught with irreducible tension and volatility. The Church Authors’ discourses of 16 See Thomas Mann in his 1,207-page tetralogy “Joseph and His Brothers,” claim‐ ing that the believe in a fundamental separation of religion and politics would mis‐ take the essential indivisibility of the world whose both spheres [politics and reli‐ gion] would speak each other’s language as complementary parts of the world in its entirety (quoted from Jan Assmann, Herrschaft und Heil. Politische Theologie in Altägypten, Israel und Europa, 2000, p. 15). Insofar, Mann reiterates a point al‐ ready made by Hegel that „it has been the monstrous blunder of our times to try to look upon these inseparables as separable from one another, and even as mutually indifferent.“ Hegel, Enzyclopedia, § 552, quoted from Labuschagne, “Religion and Order,” p. 88. 17 See ibid., p. 71. Henning Glaser 22 the Christian vision of transcendence during the formative decades and centuries of its Catholic version are a case in point. Origenes, for instance, explained to the schismatic Donatists18 that the state is not in the church but the church in the state which it needs in order to be protected and to enable a Christian life at all.19 Depenheuer’s chapter in this book might well be read along those lines, too. Origenes has, however, also formulat‐ ed an essentially different, much more radical notion, which in fact, repre‐ sents his major dogmatic stance on this matter. Here, Origenes describes the nations of the mundane world not as manifestations of an eschatologi‐ cal category but manifestations of an order of a falling away from the di‐ vine order. In his radical turn to the eschatological, Origenes ultimately re‐ fuses the mundane political order’s legitimacy and embraces even the pos‐ sibility to engage in an outright conspiracy against the state’s law for the sake of eternity.20 – While Depenheuer cannot but understand this point of view from a religious perspective, as a constitutional scholar he takes the side of the state highlighting that the state cannot subscribe to such a stance. Augustine argues in a similar direction as the radical Origines, albeit with a slightly more moderate stance towards the state. In his De Civitate Dei, he reiterates that the temporal and the eternal dimension of society re‐ main separated even if coexisting and interacting within the mundane or‐ der in which God incarnated in form of his son Jesus, the Christ. Augus‐ tine accepts a political reality that strives towards the City of God whose demands, however, eventually supersede those of the city of man which he ultimately also refuses as a category of its own right in case of conflict.21 Notably, it is the axiomatic centrality of the incarnation in the Christian vision of transcendence which makes the relation of state and religion so precarious, especially in the Western historical experience. After all, it is hardly possible to claim that the mundane reality has not deeply been 18 The Donatists were a rigorist wing of the Christian Church in North Africa who aimed to purge out the ‘faulty’ Christians who had handed over their holy scrip‐ tures to the Roman authorities during the persecutions of the Christians. Eventual‐ ly, the Donatists were expulsed from the Church for heresy. 19 Origenes, “De schismate Donati,” 2,3 in: PL 11, 1000A. 20 Origenes, “Contra Celsum,” I 1 GCS Origines 1 (ed. Koetschau), p. 56; see also Ratzinger, Die Einheit der Nationen. Eine Vision der Kirchenvater, 2005, pp. 41 ff. 21 Augustine, De Civitate Dei, V 16, p. 149; V 19, p. 155. The devaluation of the city of man, the state, is accompanied by the emphasis of the universalistic category of humanity (Augustine, De Civitate Dei, V 17, p. 150). Restructuring the Field: Religion, Political Order, Constitution 23 touched by the transformative reality of the incarnation and Christ order to follow his evangelic example. Historically, the enormous impact of the es‐ chatological dynamic and its relevance for all attempts to conceive and shape the mundane political order is reflected throughout the Medieval and Early Modern periods. Some examples are the Gregorian revolution, the Investiture Conflict, and the rise of the Fraticelli. Also, the series of heterodox evangelical movements within the Catholic Church around Eu‐ rope since the High Middle Ages was consistently centered at the question of how to reestablish a spiritual life within or beyond the reach of the tem‐ poral realm of political power, often identified also with the Church itself. All these movements and disputes are witness to the ongoing struggle to delineate the spiritual and the temporal realms within one and the same mundane reality for which both claimed supreme relevance. Echoes of this struggle still resonate in the Christian world wherever the voice of faith is raised against political power, even if with much less impact than before, and without being manifested in doctrinal attempts to redraw the lines of demarcation compared with the Medieval and Early Modern periods. What seems certain is that the attempt to find a conceptional arrange‐ ment of the complex relations between state and religion has been one of the constant themes of political philosophy and practice in Europe over the centuries. Notably, this struggle has left a regular pattern in the history of thought concerning the central question of how to normatively conceive the public order in general. Essentially, these enduring debates always im‐ plied the normative opposition between the law and prudence of the ‘city’ on the one side and a claimed universalistic truth of transcendental provi‐ dence and its higher law on the other. This fundamental opposition shall be pointed out in more contemporary settings below. Religion as a Source of the Political The role of religion as a source of the legal-political order is a complex matter that is discussed in various ways, from different perspectives and with different attitudes. Some of the most central issues and perspectives shall be briefly introduced in the following section. Key questions pertain to the relevance of the religious factor for the political and to political theology as an epistemic concept. Concerning political theology, after some thoughts on political theology in general, the concept is discussed in two regards. C. Henning Glaser 24 First, the outlines of a general theory of normative order will serve as a broader conceptual frame for different possible configurations of political theology and the religion-politics nexus. This perspective helps to ap‐ proach analytically the basic tensions between state and religion as an in‐ herent potential of all post-axial political orders but also extends to fre‐ quent tensions between the interests of the state and constitutional core values. Closely related to the general theory of normative order, the second per‐ spective on political theology scrutinizes two opposing points of view of how to conceive the relation between religion and politics practically. On the Relevance of the Religious Factor The contributions in this volume consider the factor ‘religion’ with quite different notions. Fischer, for instance, analyzes religion rather as a nega‐ tive factor where it comes to the shaping of the modern European state and its law. Focusing on the processes of secularization, Fischer highlights the delimitation from the realm of religion, the consequent prioritization of the political over the religious and thus devaluation of the religious factor in the political realm as a major driver that makes the modern state. In this perspective, the Western democratic polity has its roots not in a historical experience that is shaped by the Christian discourse of transcendence and its institutionalization, but in the “Greek discovery of politics” as an au‐ tonomous affair of the political community on secular terms.22 Under the conditions of the Western constitutional state, “politics and religion are [therefore] fatefully tied to one another and each is the other’s nemesis”. The opposing notion is represented by Labuschagne who stresses the constructive influence of religion on the political fabric or, in his words, a “more positive, optimistic view on the spiritual infrastructure of society.” Labuschagne exemplifies this view through a detailed analysis of Hegel’s I. 22 Among the many scholars who stress the Greek impact on the Western processes of socialization and political formation see only Freeman, The Greek Achievement: The Foundations of the Western World, 1999, and Bruce Thornton, Greek Ways: How the Greeks Created Western Civilization, 2000. See for a particular signifi‐ cance of a claimed Roman experience in creating a secular system of governance based on the “autonomous principles of judicial reasoning and an explicit state‐ ment of the law” Roger Scruton, The West and the Rest: Globalization and the Ter‐ rorist Threat, 2002, p. 22. Restructuring the Field: Religion, Political Order, Constitution 25 view “on the sources of normative order in society” which appears throughout his philosophical work on state, religion, law, and history. Pro‐ viding a “Hegelian perspective on religion, law and state today” Labuschagne highlights that it is not only the state which is central for the course of history but also, and even more important, religion. According to his reading of Hegel, it is in fact religion that is providing the spiritual infrastructure of societal order in which the respective nation‐ al spirit manifests in form of the state. Interestingly, Hegel differentiates the ways in which this influence manifests depending on the question if a religion mediates a true concept of God, which implies a strong normative bias that should not be a surprise given the historical context of his work. In this sense, Hegel favors the protestant creed as ethically superior to oth‐ ers as a provider of freedom. This point, however, is questioned in Fisch‐ er’s remarks on the authoritarian side of Protestantism. Similarly, for Hegel, the Catholic or the Islamic creed support a negatively perceived notion of servitude in the people that will also find its way in the respec‐ tive concretizations of law and state in his account.23 In any case, for Hegel, religion is a general requisite for the formation of the individual consciousness and a corresponding national spirit that will realize itself in law and state which it enables and shapes. Alexis de Tocqueville has provided a similarly momentous account on the crucial role of the religious factor for the political order in his 1835 work ‘Democracy in America’. He observed that religion, although no of‐ ficial part of America’s secular political system, was nothing else than the first of America’s political institutions by virtue of its indirect effects upon political life.24 If we presume that religion does indeed exert a more or less discrete influence on the realities of the legal-political order, in line with authors like Hegel and Labuschagne or Tocqueville respectively, two crucial challenges evolve in the contemporary world. First, it might be asked whether and to what degree the factor religion is setting a necessary condition concerning the development of those deep 23 Although Hegel is more explicit on Catholicism also note Labuschagne’s reference to Hegel’s remark on Islam in his ‘Philosophy of History’. See Labuschagne, “Re‐ ligion and Order,” p. 89; Hegel, Philosophy of History, 2004, p. 358. Similar, Ul‐ rich Haltern, a German constitutional scholar, provides a detailed and differentiat‐ ed account on protestant and catholic emanations of political theology. See Ulrich Haltern, Was bedeutet Souveränität?, 2007, especially pp. 24-75. 24 See Tocqueville, Democracy in America, 2004, p. 305. Henning Glaser 26 structures of a given society that nurture the normative and institutional fabric of a democratic liberal political order. The practical point in Labuschagne’s account is then: “How democratic institutions, rule of law, and protection of human rights should function against a religious and cul‐ tural background that did not give birth to these institutions at the first place, is one of the most pertinent and difficult questions societies deal with nowadays, especially in the (Middle) East.”25 The underlying as‐ sumption here is that liberal-democracy develops in its certain relation with a Christian influenced historical experience. In this context it is interesting to have a look at Kuo’s text on the Tai‐ wanese democratization project. In his article on “Democratic Prophets and Priests during Taiwan’s Democratization,” he stresses both the odds for Taiwan’s chances for a smooth and successful democratization with re‐ gard to the country’s countervailing Confucian tradition,26 as well as what he sees as one of the significant factors that eventually enabled the transi‐ tion: the country’s “democratic prophets and priests.” While the Confucian tradition in Kuo’s account is a factor to sustain au‐ thoritarian governance, he traces the democratizing impulses for demo‐ cratic transition in Taiwan to some Buddhist and especially Christian groups that established key conditions for change. In this, he refers espe‐ cially to the Presbyterians and particular Buddhist organizations as en‐ ablers of democracy. Noteworthy in this regard, Kuo distinguishes be‐ tween the direct shaping impact of the Presbyterians and the merely com‐ plementary and indirect supporting role of the Buddhist notion. Concern‐ ing the latter, he stresses concepts of human rights, peaceful transition and cooperation. Concerning the Christians Kuo highlights the importance of elections in the Presbyterian framework of participation and governance as well as an inclination to evoke human rights discourses in highly political contexts like the question of Taiwan’s sovereignty. Consequently, Kuo suggests we appreciate a positive relationship between religion and democracy in the Taiwanese case. Similar to Labuschagne, he highlights a 25 See also Tocqueville, Democracy in America, II, p. 23, who, highlighting a nexus between Christianity and democracy, predicts that the introduction of democracy might not fare well in Islamic countries. 26 Francis Fukuyama, “Confucianism and Democracy,” 2005, pp. 42-55, who also refers in a similar way, as Kuo does, to the different input provided by Christianity (pp. 51 f.). Restructuring the Field: Religion, Political Order, Constitution 27 significant contribution of the democratic theology of certain Christian or‐ ganizations to a smooth and sustaining transition to democracy. The second contemporary challenge concerning the religious factor for political life to mention here is the coexistence of distinct religious de‐ nominations which are sending essentially different impulses in terms of their influence on the political order within one and same constitutional framework. Alessandro Ferrari and Pahud de Mortanges are dealing with this question regarding Muslim minorities within the Italian and the Swiss framework respectively. A. Ferrari, focusing on Islam as one of Italy’s two dominant minority religions, describes the difficulties of the state and those of the various Is‐ lamic representations to manage Islam’s role within the established consti‐ tutional framework as a significant ‘other’ in cultural terms. In Italy, Mus‐ lims encounter a state and a society with which it neither shares a colonial heritage – as it is the case in Belgium, France or England – nor a history of state-managed immigration from a single state with a majority Muslim population – as it is the case with Turkish immigrants in Germany. Pahud de Mortanges describes a similar problem for the Swiss constitutional sys‐ tem which finds itself similarly in distress where it has to deal with chang‐ ing societal realities regarding the impact of certain notions of Islamic reli‐ giosity under the precepts of globalization, migration, and an increasing politicization of Islam. Political Theology as an Epistemic Concept and its Discontents This all leads back to the general question of how to envision the role of religion as a source of the legal-political order more generally, starting with the concurrence of the two basic postures towards the factor religion, the positive and the negative. To repeat, the negative view in context of the secularization thesis stresses the absence of religion in the autonomous realm of politics as a necessary condition of the Western constitutional state. The opposing positive view holds that religion represents a signifi‐ cant constructive factor for the development of the normative-institutional fabric of the political order in general and the political order of the West‐ ern constitutional state in particular. Both views are considered here as justified and not mutually exclusive. The exploration of the complex question of whether religion proved to be a positive or negative factor for the emergence of the modern political II. Henning Glaser 28 order of the West is leading to the central term ‘political theology’ which has been used by Carl Schmitt to describe a certain form of positive conti‐ nuity of the religious influence. The idea of political theology has been ap‐ plied in many ways from Varro in the first century BC, to Spinoza in the 17th century, and then to Carl Schmitt and Eric Voegelin in modern times. The term has been used descriptively as well as prescriptively, often, how‐ ever, without much reference to a more substantiated concept of how to imagine the interface of religion and the political. Here, I suggest making use of the term ‘political theology’ to denote a given prescriptive or analytical approach to conceive a concrete interface of the religious and the political in historical, social, political or legal con‐ texts. As indicated above, one of the most visible among the numerous mod‐ ern references to ‘political theology’ has been made by Carl Schmitt. With the famous dictum that “all significant concepts of the modern theory of the state are secularized theological concepts,” Schmitt pointed to the sig‐ nificance of the deep structural influences of the religious on the legal-po‐ litical sphere.27 He refrained, however, to give a more differentiated and substantial analysis of the exact trajectories and crystallizations he in‐ voked with the formula.28 27 Carl Schmitt, Politische Theologie. Vier Kapitel zur Lehre von der Souveränität, 2009, p. 43. 28 Schmitt employs his account on “Political Theology” essentially in favor of his central ideological account of decisionism, thus a political concept directly op‐ posed to liberal democracy. This finding is interesting for it exemplifies how dif‐ ferent religious impulses can be conceived and have impacted on the political. If Schmitt argues affirmatively in favor of Catholic political theology of decisionism this only reinforces the claim that the Catholic conception of the original Christian vision of transcendence entails very different threads that have coexisted in great tension from the onset. All too often these interpretations have manifested in het‐ erodox notions and violent oppression or longstanding constitutional disputes within the Church, manifested for instances in the conciliar movement. Even after these tensions led to great schism of Western Christianity in the age of the refor‐ mation, several interpretations and denominations continued to coexist within the protestant tradition with sometime strongly diverging preferences for notions of hierarchical ecclesiology and evangelical ethics of egalitarian provenance. Schmitt, who often referred to conservative political thinkers of the 19th century such as de Maistre, Bonald or Donoso Cortes who, like him, tried to contain the advancement of the different notions of secular humanism and socialism, thus lim‐ its the scope of his political theology to only one aspect and its normatively driven interpretation where he takes recourse on political theology. Under different signs, Restructuring the Field: Religion, Political Order, Constitution 29 Two earlier scholars who laid much of the groundwork of constituting a coherent research paradigm to explore what is denoted here as political theology without using the term, however, were Otto von Gierke and Max Weber. Gierke’s monumental work explored the continuity of certain forms of associations in the Western formation of society by which the natural bonds of society were deliberately replaced. These free deliberate associations were strongly influenced by Germanic legal traditions, Ro‐ man law, and Christian discourses. In fact, the development of these asso‐ ciations was deeply intertwined with those of Western constitutional thought, including central questions regarding representation, collegiate sovereignty, the distribution of authority, legitimacy, consent, or resis‐ tance, to name just a few.29 Gierke thus provided an immensely valuable contribution to the study of those structures at the interface of religion, law and politics Schmitt denoted with his use of ‘political theology’. Worthy of note, and likely one of the reasons why Gierke is rarely men‐ tioned in deliberations under the label of political theology, is the fact that he does not focus solely on the Christian impact on the development of law and political thought.30 Instead, by focusing on the normative and in‐ stitutional infrastructure of artificial associations, he investigated a central phenomenon of Western socialization characterized by the coalescence of several normative, conceptual and institutional developments that interact‐ ed, amalgamed, and developed in a likewise complex historical context. Here, the emergence and development of these deliberate, free asso‐ ciations with their tremendous impact on Western constitutional thought was nevertheless heavily influenced by Christian political theology, which Fischer meets the same result as Schmitt when he also stresses a negative relation between liberal democracy and religion while Fischer, contrary to Schmitt, is im‐ plicitly arguing in favor of liberal democracy. That Schmitt’s account on a political theology of decisionism actually draws on a long discursive line of Catholic theol‐ ogy has been impressively exemplified by Ernst Kantorowicz, “Mysteries of the State: An Absolutist Concept and its Late Medieval Origins,” 1965, pp. 381-398. 29 See for instance Tierney, Religion, Law, and the Growth of Constitutional Thought 1150-1650, 1982, pp. 103 ff. 30 Carl Schmitt, however, has indeed extensively referred to Gierke. Concerning his study on political theology, see Schmitt, Politische Theologie, pp. 31 ff. In another central work, the ‘The Concept of the Political’, Carl Schmitt also referred to Gierke’s work and likeminded scholars in France and England influenced by him such as Léon Duguit and Harold Laski. See Schmitt, The Concept of the Political, 2008, pp. 40 ff. Henning Glaser 30 manifested time and again during the long process of the practical repro‐ duction and doctrinal differentiation in the socialization and political orga‐ nization within the European historical experience. A similar impression to that of Gierke is offered by Max Weber, who also put great emphasis on the religious factor for the development of civi‐ lizational pattern and developments without limiting his focus on the top‐ ic. In the introduction to his seminal study on The Sociology of Religion, Weber famously identified a distinctly occidental process of civilization that he described as unique in its form and features compared to other civi‐ lizational processes. The characteristic pattern of this process that coher‐ ently shaped all significant elements of society and human achievement Weber rooted ultimately yet not exclusively in the occidental religious identity whose most fundamental manifestation, he claimed, is a certain form of rationality. While Weber’s approach is sometimes criticized for its claim of a Euro‐ pean Sonderweg to modernity, it well recognizes the fact that every cultur‐ al trajectory based on an axial batter is capable of producing its own re‐ markable civilizational impact. Weber’s political theology of the ‘West’ should be seen in particular as just one extrapolation of a general paradigm of ‘multiple modernities’, each of them special due to the re‐ spective substance of the different visions and conceptions of transcen‐ dence as Eisenstadt and his fellows pointed out.31 Despite groundbreaking work of scholars such as Gierke, Weber, Voegelin, Kantorowicz, Löwith, Eisenstadt and many others, political the‐ ology remains a challenging concept, as Clifford Geertz claimed, for the modern times under extended conditions of secularity: The political theology […] of the 20th century has not been written, though there have been glancing efforts here and there. But it [the political theology of the 20th century] exists – or, more exactly, various forms of it exist – and until it is understood […], a great deal of public life of our times is going to remain obscure. The extraordinary has not gone out of modern politics, how‐ ever much the banal may have entered; power not only still intoxicates, it still exalts.32 Geertz, however, focuses on a particular dimension of political theology, one that resonates with Weber’s concept of charisma, which seems quite 31 See Eisenstadt, “Multiple Modernities,” 2000, pp. 1-29. 32 Geertz, “Centers, Kings, and Charisma: Reflections on the Symbolics of Power,” 2000, p. 143. Restructuring the Field: Religion, Political Order, Constitution 31 limited given the above-mentioned studies. What might instead be ex‐ plored through the lens of political theology in historical perspectives are all civilizational threads and influences that have been developed in the in‐ terface of politics and religion. Arguably, these continue to nurture vibrant intuitions within the societal fabric that conditions and impacts on the deep structure of state and law. This does not necessarily imply a positive relationship, or exclusively religious roots of such influences at all, as Gierke and Weber have already shown. Actually, political theology de‐ notes deep structural influences in which manifold factors coalesce with a significant input of religion and unfolding on a broad range of evolution‐ ary levels, evolving in several lines of development and developing differ‐ ent dynamics. Political Theology and Normative Order On that basis, the role of religion as a source of the political order shall be approached from two related perspectives, one descriptive, the other pre‐ scriptive. First, the religious factor will be linked analytically to a general theory of normative order that distinguishes particularly two essentially different, yet co-existing notions of normative order in general. Second, two pre‐ scriptive paradigms and their arguments and agendas on the role of reli‐ gion in the realm of politics will be derived from this ontological distinc‐ tion. The Conceptual Frame: A Theory of Normative Order In terms of normative order, the axial discovery of transcendence resulted in the emergence of universalistic normative orders that were character‐ ized by the claim that such an order applies to everyone – to humankind as such. Historically, this was a remarkable novelty of weighty conse‐ quences, especially in case of the Christian discourse on transcendence and its secular derivatives, as the corresponding universalistic morality be‐ came encoded into law. The universalistic normative orders whose secular humanist version would eventually spread and sweep around the world with great impact, however, only represent one of the younger notions of normative order in III. 1. Henning Glaser 32 the development of human socialization. As the older forms of normative order were not replaced by the universalistic ones but continued to coexist and interact with the new approaches – as much as the mentioned folk reli‐ gious and pagan notions do in context of the axial religions – it is instru‐ mental to take a broader view on the syntax of normative order in general. Overall, three fundamental notions of normative ordering or ‘classes’ of norms – the ‘particularistic’, the ‘central-integrative’ and the ‘universa‐ listic’ – are distinguished according to their primary scope. These classes are named for their claimed normative reach. In an evolutionary perspec‐ tive, these classes of norms represent three emerging levels of normative ordering. As a result, they coexist in varying modes of interaction and bal‐ ance in every modern legal-political order, all being inhabited by, and ex‐ posed to, manifestations of all three of them. The actual locus and relative weight of these representations of order within the normative fabric of a given society will, however, vary significantly in intertemporal as well as comparative perspectives. Historically, the different classes of norms or notions of normative or‐ der respectively emerged in stages over the entire span of human social‐ ization, with the particularistic orders as the first and the universalistic or‐ ders as the last ones taking shape. This process of emerging normative or‐ ders corresponded with the development of new forms of social formation and the ultimate definition of the political community. The emergence of the first, the particularistic layer of normative order goes back to the beginnings of the homo sapiens if not beyond, with fami‐ ly and kinship as its nucleus. Based on this nucleus, other forms of social‐ ization and (proto)political formation emerged. They all were derived from the basic model of the family producing an anthropologically ubiqui‐ tous set of constructive pattern and normative dispositions. Other forms of social formation that evolved from family and kinship by emulating these structural and normative patterns include clans and tribes, patron-client-re‐ lationships, friendship networks and alliances, as well as artificially creat‐ ed ties of kinship based on fiction. The second evolutionary layer of the development of the present forms of normative order is marked by the emergence of early (proto-)states that politically integrated several particularistic groups that were otherwise not linked by the primordial ties of family and kinship and their mentioned derivates. Eventually, the third layer of normative order followed after the axial discovery of transcendence. The ensuing idea of collectives governed by Restructuring the Field: Religion, Political Order, Constitution 33 universalistic norms were based on radically different conceptions of hu‐ man agency, as well as a new dynamic of questioning, disrupting, and re‐ defining knowledge and social structures, starting with the nature and role of the self within this order.33 The gradual emergence of these three layers of normative order, in cor‐ respondence with the related stages of social-political formation, is of spe‐ cial interest here with regard to the second and third layers of normative ordering, namely the central-integrative and the universalistic orders. They shall be described briefly below. Second-level normative orders are defined by the state, whose essence and rationale it is to serve as the central-integrative unit of the political that remains irreducible to the particularistic layer of ordering and its rep‐ resentations. It is this political order’s, thus the state’s rationale to consti‐ tute, provide, and maintain a common space of peace and safety, symbol‐ ized and reinforced by its own laws and cults, beyond those of the particu‐ laristic groups. Even if the state develops from the domination of one of these particularistic groups adopting its laws and cults as those of the state, the latter change their meaning and impact in the moment they apply to outsiders not linked to the original group by means of the ‘law of the fami‐ ly’. However, no power of this state or grade of domination by a ruling group, is sufficient to control the inevitable persistence of particularistic groups and norms, to fully subdue their continuous challenge to the state’s claim of political and normative supremacy. The ensuing, inherent and in‐ evitable tension between first and second orders follows from both classes of orders’ primary rationales. While the alien who is not pacified by means of an alliance – originally through marriage as Levy-Strauss has pointed out – is an enemy to the particularistic group, the state claims peace within its borders as a prime condition that is applying to everyone within. While the particularistic group is governed by the ‘discriminative pref‐ erence of the respective own and close’ as one of its core principles, the state claims to apply its laws to all subjects on terms basically irrespective of relations on the particularistic level of ordering. The state that grew out of, and comprises, particularistic groups in this sense cannot get rid of 33 Eisenstadt, “The Axial Breakthroughs – Their Characteristics and Origins,” pp. 1-4. Henning Glaser 34 them though. Although constantly challenged, the state is also frequently dependent on them and their cooperation. For the state, this condition is permanent and irrefutable. Irrespective of all its efforts, it will face the centrifugal forces of first order formations continuously permeating the public sphere as long as it consists of human beings organized by the primordial ties of family and kinship. These forces are, after all, constantly evolving from a social condition that the state cannot abandon without undermining its own very substance. This has two consequences. First, the state finds itself in a position where it is dependent on achieving a certain equilibrium in dealing with the countervailing forces and interests emanating from the particularistic sphere of ordering. This produces an ensuing mode of interaction that is best described as an ever-shifting relation of competition, cooperation and conflict which, as such, forms a constant within the state’s order. On the other hand, this inescapable condition is constantly provoking the state’s very raison d’être: the integration of all societal groups and in‐ dividuals in its unit of peace, security and safety. It thus forces the state to always warily preserve its integrity as one of its primary objectives and supreme duties. This results in a systemic ambiguity on the side of the state. On the one hand, the majesty of law, if not the provision of equal justice by means of law, proved to be one of the most convincing currencies of the state’s sym‐ bolic capital. On the other hand, the power and reach of law made, an‐ nounced and enforced by the state proved also to be too challenged and institutionally too weakly supported to rest on solely. Therefore, the state’s ultimate and supreme norm remains its interest to preserve its integrity and to enhance its power and influence in order to increase the chances of its survival by any means necessary. This inherent logic of the central-inte‐ grative political unit is nothing less than a depiction of what later became the reason-of-state. Together with the closely related concept of sover‐ eignty, it is the arguably most significant illustration of the central-integra‐ tive notion of normative ordering, which acts as a constant condition and expression of statehood. Despite the rhetorical prominence of the ‘state of exception’ in justify‐ ing the reason-of-state – be it where it is overtly implemented or where its covert operations are drawn to the light –, the reason-of-state represents an inherent form and regular disposition of political ordering: rather than being something exceptional that reaches outside legal orders for their inspiration, reason of state is generally built into the institutional struc‐ Restructuring the Field: Religion, Political Order, Constitution 35 tures and deeply embedded within the everyday working life of the modern state.34 The third layer of normative ordering has already been alluded to briefly above. It has been a relatively recent development, arising with the ‘axial breakthroughs’ that started to emerge in the 8th century BC. The revolu‐ tionary assertion of a fundamental gap between the mundane and the tran‐ scendent order spurred the mission to reshape, or at least adjust, the old world in light of the new transcendent order.35 Based on this imperative, the various religions of transcendence established novel codes of univer‐ salistic ethics that did not address particularistic groups or single states but the whole of mankind. At the same time, they all displayed more or less radical and entrenched notions against the ‘law of the family’, most ag‐ gressively in Buddhism and Christianity. Generally, the long axial moment brought about the arguably most transformative “revolution […] in the realm of ideas and their institutional bases which had irreversible effects on several major civilizations and on human history in general.” Its overall effect on the formation of normative order is the lasting emergence of universalistic orders (third-order formations) that competed and strongly interacted with the established first- and second-order forma‐ tions in their claim to supersede them. At the same time, the societal mani‐ festations of the axial dynamics were shaped and influenced by similar paradoxical entanglements as those that have been described above for the relation between first- and second-order formations (see Depenheuer). Whereas different manifestations of the normative orders of first and second degree display a largely similar architecture and basic principles, third order figurations develop very different structures and normative concretizations following from their foundation in very different visions and conceptions of transcendence as outlined above. The different visions of transcendence and the different layers of nor‐ mative ordering in general produce different forms of political theology. The political theology of a central-integrative unit and its cult – as Varro described it for Rome – is a totally different thing compared to the politi‐ cal theology of any axial religion or derivative worldview given alone the 34 Poole, Reason of State: Law, Prerogative, and Empire, 2015, pp. 4 and 6. 35 Eisenstadt, “The Axial Age Breakthroughs – Their Characteristics and Origins,” pp. 1 ff. Henning Glaser 36 entirely different dynamic concerning the perception of the individual, the societal discourse and its institutional manifestations. This difference in terms of political theology explains diverging assess‐ ments of the political sphere in ancient times. Taking a perspective on po‐ litical theology that is informed by the highly dynamic interactions be‐ tween the spiritual and worldly representations of power in the European Medieval or Early Modern periods, it might indeed appear justified to in‐ dicate the existence of a secular realm of politics for ancient Rome or Greece (see Fischer for Greece). This observation might however be ques‐ tioned as the political realm in ancient times was well permeated with preaxial notions of religious meaning in both cases, only that the correspond‐ ing political theology was one of a very different nature and dynamics than those of the middle ages. These ‘pagan’ forms of ancient religious‐ ness and political theology were in fact largely state supportive, more con‐ trolled by, and conforming with, the interests of the state. The state of the ancient times could carefully nurture, protect and employ the integrity of this political theology as a matter of the reason of state as evidenced by the trial against Socrates. While not autonomy of the political sphere in a modern sense, a different form of political theology is thus the sign of the relations between religion and politics in ancient times in Rome and Greece. This points to a crucial aspect of the modern discourse. Today, political theology as a normative, prescriptive argument is still shaped through the tension between two camps each favoring another priority in the relations between second-order and third-order norms. On the one side, there are those who favor a principled priority of the state as a second-order forma‐ tion, somehow resembling the ancient version of political theology in the style of Varro. On the other side stand those who emphasize the autonomy and higher truth of normative formation of the third-order, be they sacral or secular in nature. Depenheuer, for instance, discusses in this volume the tension between the state as a central-integrative unit of peace and security and the ‘axial’ morality of the papal encyclical ‘Caritas in Veritate’. Doing so, he refers extensively, even though implicitly, to the tension between second- and third-order formations in general. This tension represents one of the most important and recurring problems of constitutional theory and practice, es‐ pecially in the context of Western constitutionalism which epitomizes sec‐ ular humanism as the most prevalent third-order formation in contempo‐ rary law and politics. Here, the tension is, however, more pressing than be‐ Restructuring the Field: Religion, Political Order, Constitution 37 tween the political mission of the state and the mere morality of a religious community like the Christian Church. The line between tensions within the political realm and the political and the religious realm are, however, often fluid. This is the case in many Muslim majority countries where the constitutional position of Islam and, thus, the borderline between politics and religion remains blurred. While these states often aim to somehow discipline and control the dynamics re‐ lated to Islam, they find themselves challenged by movements driven by more autonomous versions of political Islam claiming to refer to a truth that transcends the authority of the state. The fact that these axial dynam‐ ics cannot easily be redirected towards the realm of the state and its claim to ultimately control them is one of the central challenges of numerous states in the Middle East, Africa, South Asia and South East Asia that are trying to cope with this unruly potential by means of appeasement, coopta‐ tion, control and repression. It seems that these attempts increasingly fail to deliver in countries that were formerly regarded bastions of constitu‐ tional supremacy over religious matters such as Turkey or Indonesia. In the new millennium, these states, their institutions and elites, seem to be less and less capable to prevent a creeping Islamic transformation of secu‐ lar or religiously neutral constitutional core values as they once were adopted in wake of national independence. Ironically though, Turkey’s leader Erdogan, who came to power on the ticket of political Islam muting the laic commitment of Turkey’s state ideology, increasingly emphasizes policies in line with consequent second-order thought and practice after having dismantled secular constitutional core values. A similarly increasing impact of political theologies that stress third-or‐ der identities over second-order interests can be observed for political Buddhism in Myanmar and, albeit to a lower degree, Sri Lanka. In other countries with a dominant Buddhist population such as Cambodia and Thailand the political potential of Buddhism has – with some notable ex‐ ceptions – been largely controlled or appropriated by the state. The Prescriptive Reference to Matters of Political Theology: Politicals versus Universalists The discussion above now brings us to a second and closely related aspect pertaining to the role of religion as a source of the political order, the question of how this relation is perceived and pursued on prescriptive 2. Henning Glaser 38 terms. It seems fair to say that pursuing a certain role of religion in the realm of political power in post-axial times has been shaped by a limited set of basic perspectives that can be traced back to the normative theory outlined above. Based on an ideal-typical view, these perspectives can be viewed as two poles bounding a broader spectrum each. At the one end of this spectrum, one finds those who stress that the pub‐ lic order is shaped by, and ultimately directed toward, a universalistic measure that originates from a transcendent or absolute reality. Where this is put forward as an argument, such a universalistic standard would, in case of conflict, even supersede the mere laws and interests of the state. Notably, such a supreme universalistic standard can also represent the sec‐ ular notions of political theology, especially (liberal) secular humanism and socialism. At the other end of the spectrum stand those who primarily focus on the interests of the concrete public order – the state they are living in, the ‘po‐ lis’ or the ‘city’ as, for example, the neocons like to label it often. They place the integrity, stability and security of the state as the central-integra‐ tive unit of the political ahead, which they see as the ultimate goal to pur‐ sue. For them, the interests of the city trump all others, potentially super‐ seding any countervailing moral or legal norm in case of conflict. In this volume, the terms ‘universalists’ and ‘politicals’36 are used to denote the proponents of these two extreme positions in perceiving public order and governance in general and the interface of politics and religion in particular. Universalists align themselves in other words ultimately with third-order, politicals with second-order norms. In terms of political tech‐ ne and the ultimate normative orientation, universalists and politicals will favor entirely different approaches to the same empirical reality. This re‐ sults in diametrically opposing normative dispositions toward the role of religion, and in fact, any third-order formations including those based on secular universal core values of the constitution, vis-à-vis the state. 36 The term politicals is loosely inspired by the historical designation politiques which is used for sixteenth and seventeenth century intellectuals, jurists and power elites in France who put the strength, success and well-being of the state above all else, including especially the ideological demands of the warring religious faiths in the age of the religious wars. This faction of political pragmatists called the politi‐ ques were in favor of a strong government, predominantly led by national security concerns and a ‘prudence’ or reason of state that trumped their personal allegiance to a certain faith as most prominently exemplified by Henri IV of France. Restructuring the Field: Religion, Political Order, Constitution 39 Depenheuer’s chapter in this book can be read as a forceful argument in favor of the positions of the politicals in regard of both sacral and secular universalism. In fact, Depenheuer prominently represents a notable strand of German constitutional theory that is inclined to put forward the interest of ‘state’ as argument against the values of ‘constitution’ if necessary, – much in line with the principled tension between politicals and universal‐ ists in general. This tension does not typically result in refuting the respec‐ tive other’s values and principles entirely, but only one’s preferences in cases of conflict. Practically, the two ideal-typical perspectives often coexist and inter‐ twine to a certain degree. Nevertheless, ultimately, one of the two points of view will always be regarded to ultimately dominate the other. Often, the antagonism between the two points of view relates to critical junctures in the development and reproduction of the overarching public order, and represents defining conflicts over foundational decisions and hegemoni‐ cally adopted, upheld and contested collective identities that are based ei‐ ther on one or the other opposing core values. The Universalists The universalists’ stance concerning the role of religion in the political realm varies according to the kind of universalism in question. Especially in Western contexts, it has to be differentiated between secular and sacral universalists. In the Western context, the most relevant are the secular uni‐ versalists who orient themselves towards secular humanism regarding lib‐ eral democratic constitutions. This type of constitutionalism manifests as a basic structure consisting of mutual reinforcing features like popular sovereignty, representative democracy, civil and human rights, and the rule of law. Secular universalists in Western settings would perceive these constitutional core values as the ultimate measure of how to execute politi‐ cal power in general, and with regard of the role of religion within the public order in particular. Secular universalists would naturally not condone that the countervail‐ ing claims and interests made on behalf of the state as the central-integra‐ tive unit of the political would guide or even trump the normative direc‐ tion set by these core values. The essence of their ‘constitutional faith’ is that these core values form the supreme and ultimate rallying point of the public order and its reproduction. a) Henning Glaser 40 For the universalists of secular Buddhist provenance, religion is mostly a matter of individual freedom. Universalists would especially condone various forms of reservations based on their strive to ensure the fundamen‐ tal right to religious liberty in both a positive and a negative sense, as long as it does not impinge on the freedom of others, or upon secular constitu‐ tional core values in general. Universalists would especially condone vari‐ ous forms of reservations based on conscience and faith – much in the tra‐ dition of the Augustinian reservatio mentalis. However, where religious values clash with the demands of personal freedom or other constitutional core values, secular universalists might en‐ counter great difficulties to find a consistent stance, which is often the case when faced with more assertive manifestations of Islamic faith. Even if secular universalists are generally inclined to argue in favor of freedom and greater leniency in cases of diverging displays of identity in the public realm, they will have great difficulties to reconcile their faith in secular humanism with an Islamic universalism if the latter is interpreted in ways that clash with precepts of secular constitutional faith, such as the equality of men and women or the fundamental freedoms of those not adhering to Islamic faith. Here, the universalists might partly converge in their policy approach with the politicals who normally argue in favor of a stronger se‐ curitization of the constitution and more forceful demands to ensure social cohesion.37 But, as a rule, secular universalists will encounter the role of religion in and for the political realm first of all as a problem of constitutional theory, constitutional law and constitutional faith. Compared to the politicals, they 37 A typical example for the opposing discursive preferences of the politicals and secular universalists in general is the question of torture for the sake of state secu‐ rity. While secular universalists tend to emphatically reject any remedy to security threats that contravenes the human dignity, the politicals would be more flexible. For them, torture could, under certain circumstances, be acceptable to safeguard the integrity of public safety and security, even irrespective of existing norms of universalistic morality and law, especially under the conditions of Western consti‐ tutionalism as being shaped by secular humanism. The complex entanglements of both ideal-typical positions manifest, however, in the ticking-bomb scenario. Here, the argument is raised that torture is used precisely to safeguard the human dignity of the victim by sacrificing that of the perpetrator who has it still in his hands to end the torture by ending the threat to the victim. Here, a classical position of the politicals is developed by an argument that aims at the core values of the univer‐ salists. Restructuring the Field: Religion, Political Order, Constitution 41 would rather accept the dynamic role of any faith as a sort of free societal radical, easier tolerate differences and require less adaption as long as di‐ vergence is not directly affecting constitutional core values too greatly. In states less or not essentially influenced by Western constitutional core values, the universalists are often those in opposition to the hegemon‐ ic state of affairs, be it on behalf of a secular or a sacral universalism. In countries with a majority Muslim population, sacral universalists are often in sharp opposition to the hegemonic forces representing the state. In South-East Asia, secular universalists who are calling for a more promi‐ nent place for their version of constitutional faith have considerable diffi‐ culties overcoming the established power structures dominated either by politicals or sacral universalists or both. This is case for instance in In‐ donesia, where secular humanists’ demands for minority rights of the LGBT community clash with strong representations of the sacral univer‐ salists and politicals over the question if human rights should be interpret‐ ed in light of Islamic faith and opposing Western human right claims. This last point leads us to a fuller description of the politicals. The Politicals Generally, the politicals are inclined to represent the more conservative end of the ideological spectrum. Their highest concern is maintaining the integrity of the state as the central-integrative political unit. They care supremely about the state’s internal harmony, internal and external securi‐ ty, and oftentimes aim also at sustaining the might and glory of the state. Politicals are inclined to refer in their decisions and preferences lastly to a ‘friend and foe’ distinction, per Carl Schmitt. Regarding the religious, the politicals’ focus on its effect in terms of the internal cohesion of the central-integrative unit. Ultimately, modern politicals still hold a similar position on religion that Varro took in the Roman Empire: they condone a political theology under the precepts of the state’s interest to bind society together and reinforce conservative values. They reject all divisive reli‐ gious dynamics as much as they deny any universalistic normative order to supersede the interest of the state in principle. Practically, politicals appear in very different shades ranging from per‐ sonally religiously committed advocates of the primacy of the state to reli‐ giously completely indifferent disciples of an absolute reason-of-state ap‐ proach that welcome any instrumentalization of the religious for the mere b) Henning Glaser 42 interest of the state. One of the most coherent, consequent and influential representations in the sense of this latter extreme can be found in Ameri‐ can neoconservatism. This comprehensive theory of government which exerts a remarkable influence on the world’s most powerful country, where religion is general‐ ly referenced significantly stronger in political affairs than in European countries,38 exhibits a particularly pointed understanding of the role of re‐ ligion but also for the public order. In the US, neoconservatism wields enormous influence over the conser‐ vative intellectual movement within the Republican Party but also beyond. Its sweep creates in fact a “trickle-down effect on the [entire] political cul‐ ture” reflected in a significant “influence on both major parties” as claimed by Norman Podhoretz, one of the neocons’ foremost intellectual leaders.39 Be that as it may, the strategic agility, conceptual determination, intellectual engagement, forceful political networking and outreach make their ‘neo-‘ version of conservativism so remarkably influential – some‐ how similar to the ‘neo-version’ of liberalism.40 The neocon movement took its initial inspiration from Leo Strauss.41 Based on his philosophy of governance, they developed a view on religion that is deeply embedded in a philosophy of governance which is derived from a distinct ontology. Strauss and the neocons have found their inspira‐ tion insofar particularly in and, so to say, merged Plato and Machiavelli.42 38 Even a liberal democrat like John F. Kennedy, to put that in a nutshell, famously said in his inaugural address of January 20, 1961 that “the rights of man come not from the generosity of the state but from the hand of God.” See Bellah, “Civil Re‐ ligion in America,” 1967, pp. 1-21. For the role of religion in the US see also Bauszus, “The Religious Aspects of the Founding of the American Republic: A Design of Religion and Reason,” 2009, pp. 335-362. 39 Norman Podhoretz quoted in Thompson and Brook, Neoconservatism: An Obitua‐ ry for an Idea, 2010, p. 15. 40 Like the neoliberals, neocons know how to work in the backyard of power, know when to either openly play or skillfully conceal their influence. 41 Although Leo Strauss had to leave his home country Germany as a Jew for the US after Hitler’s rise to power, he was close to the German Conservative Revolution‐ aries and in many respects a soulmate of Carl Schmitt whom he attempted to intel‐ lectually aid to defeat liberal democracy. 42 See Thompson and Brook, Neoconservatism, pp. 128, 138 and 146. Concerning Plato, the neocons’ interest is particularly focused on the Plato of the ‘Republic’. See for Plato on this matter Bilski, “Plato’s Political Ontology: On the Nature of Man and Regime,” 2009, pp. 54 ff. Restructuring the Field: Religion, Political Order, Constitution 43 Reminiscent of the Gnostic experience, the neocon’s ontology is based on the assumption of an unbridgeable chasm between a perfect transcen‐ dental sphere of Platonic ideas and the imperfect, ever-changing reality of this world.43 The mundane reality is shaped for them by contingency, men’s inherently evil nature, and permanent conflict within and between the political communities.44 Accordingly, the neocons find themselves locked in a world of constant Machiavellian flux of political ascent, de‐ scent and decay.45 In this world, the ‘city’, the neocon’s favored denota‐ tion for the state, is the ultimate point of orientation, the pivotal entity within this disappointing reality. Transcendent ideas are, on the other side, not sought to govern this world’s affairs, but rather the inner-worldly realities of expediency, neces‐ sity, and force or, to put in a single term: the reason of state.46 Neocons base their definition of the public function of religion on this ontologically derived philosophy of governance. Although the ensuing art of statecraft places a high value on religion, the political theology the neo‐ cons pursue stands in total opposition to that of the universalists. The epis‐ temic pivot of the neocons’ comprehensive concept of ontology, politics and religion again taps into a quasi-gnostic dualism. It manifests in a sharp distinction between two levels of ontological and political knowledge that generates an esoteric elitism as sharply opposed to both the egalitarian na‐ ture of the Christian revelation and the normative precepts of liberal secu‐ lar humanism. Derived from the epistemic distinction between an exoteric level of knowledge accessible for the ordinary man and an esoteric level of knowledge available only for the sages, the neocons endorse two moral and political standards that essentially define their political theology.47 43 See ibid., p. 123. 44 Notably, the Straussian statesman has to “arbitrate between competing factions in the city” for which he needs the integrative effects of religion and nationalism as an accompanying civic religion. The observation that the statesman has to manage the competing and centrifugal forces within the city describes the very condition of second-order figurations or the central-integrative unit of the political as point‐ ed out above. See Thompson and Brook, Neoconservatism, pp. 129 f., see also pp. 144 f. 45 See Kristol, Review of “Persecution and the Art of Writing by Leo Strauss,” 1952, p. 394. 46 See Thompson and Brook, Neoconservatism, pp. 156 ff. 47 See ibid., pp. 146 ff., 152 f., 154 ff., 159 f. Henning Glaser 44 It is the mission of the neocon leaders – the philosopher and the states‐ man enlightened by him –, to cope with the world’s imperfection and im‐ permanence that only their eyes can penetrate. While regulating the condi‐ tion of the ordinary people who are trapped in this imperfection, the neo‐ con leaders are supposed to be lastly unconstrained by the rules of inferior men and to hover above ordinary morality and laws.48 While the masses have to be tightly disciplined and directed, the statesman’s success de‐ pends on the ability of “looking away from first things, principles, […]; and looking towards last things, fruits, consequences, facts.”49 – not the elusive realm of the ought, but the hard facts of being, dictate his law of action. Accordingly, Irving Kristol’s ‘First Law’ of statecraft requires the statesman to be ready to abandon “one’s avowed principles” and to act ac‐ cording to what the moment demands.50 At the same time, to govern the ‘city’ and regulate the lives of the ordinary men, the statesmen need to create and maintain a public order that meets the requirements of the im‐ perfect and shifting condition of reality.51 This implies the need to keep the ordinary people in check through social engineering and disciplining for which the neocons regard religion to be one of the most efficient tools. This art of statecraft and its politics of religion shall be explained in some more detail. Starting point is the practical need to govern ordinary men and women by a morality that suits their condition of ignorance and that aligns the individual’s primary identity and self-interest with a love for the ‘city’.52 The recipe for a functional morality that binds together and directs the ordinary people comprises the classical conservative virtues, especially “fidelity, loyalty, piety” for the ‘city’.53 To instill such a morali‐ ty religion is one of the most powerful tools along with a military valor and a warrior ethos, patriotism, and nationalism.54 The point of these po‐ litics of civic virtue is to make the ordinary man believe in targeted noble 48 See ibid., p. 125. 49 See James, “What Pragmatism Means,” 1948, pp. 144 f. 50 Kristol, “When It’s Wrong to Be Right,” March 24, 1993: “There are occasions where circumstances trump principles. Statesmanship consists not in being loyal to one’s avowed principles (that’s easy), but in recognizing the occasions one’s prin‐ ciples are being trumpeted by circumstances […].”. 51 See Thompson and Brook, Neoconservatism, p. 123. 52 See ibid., p. 125. 53 See ibid., p. 123. 54 See ibid., p. 160. Restructuring the Field: Religion, Political Order, Constitution 45 ideas in order to discipline and control his destructive impulses towards society, and to instill a sense for duty and self-sacrifice.55 The politics of religion are of particular importance in this context as they provide hope and fear as the central tools of governance most effectively.56 In this view, Strauss’ reference to religion in antiquity can be applied timelessly to the present: Religion as reverence for gods breeds deference to the ruling class as a group of men especially favored by the gods and reminiscent of the gods. And vice versa, unqualified belief will dispose the people not to believe in what they are told by venerable men. The ruling class will not be able in the long run to elicit this kind of deference if it does not contain man, and especially old men, who are venerable by virtue of their piety.57 Instilling public faith and virtue as well as hope and fear, a benevolent de‐ ception is the statesmen’s duty.58 To serve the ‘city’, the statesman must nurture, manage and protect the ‘city’s’ inherited institutions and the con‐ ventional system of belief and morality to which the ordinary man must adhere.59 The leaders must either create the ordering myths that inform this morality or cultivate those that already exist.60 They themselves, how‐ ever, do not have to share the faith in these ‘public truths’. Overtly, the leaders are thus decisively “pro-religion even though they themselves may not be believers”, with some of the most famous neocon thinkers defining themselves as “pro-religion atheists”.61 To them, God might be an illusion 55 See ibid., p. 160; see also Depenheuer, “Das Bürgeropfer im Rechtsstaat,” 2007, pp. 75-100. 56 See Thompson and Brook, Neoconservatism, pp. 160 ff. 57 Strauss, “Liberalism Ancient and Modern,” p. 100, quoted from Thompson and Brook, Neoconservatism, p. 127, fn. 34. 58 See ibid., p. 123. In this regard, the neocons draw not only on Machiavelli but also on the Platonic conception of the noble lie and its impact on civil religion in Pla‐ to’s Republic. See Bilski, “Plato’s Philosophical Ontology,” pp. 54 ff. The freefloating absence of any traditional moral boundaries concerning the leaders is one of the outstanding characteristics of the neocon version of conservatism and the position of the politicals, besides the particular ontological foundation and gnostic dualism of the neoconservative persuasion. 59 See Thompson and Brook, Neoconservatism, p. 127. 60 See ibid., p. 124. 61 Irving Kristol quoted from Thompson and Brook, Neoconservatism, p. 160: see also Ledeen, Machiavelli on Modern Leadership: Why Machiavelli's Iron Rules are as Timely and Important Today as Five Centuries Ago, 1999, p. 109; Lord, The Modern Prince, p. 65; see also Machiavelli, The Prince, chapter 18. Henning Glaser 46 but one they understand to be essential for the task to governing the mass‐ es. The underlying nexus of epistemic dualism, Gnosticistic esoterism and elitism, philosophy of governance, art of statecraft and politics of religion is perfectly formulated by Irving Kristol: If God does not exist, and if religion is an illusion that the majority of men cannot live without […] let men belief in the lives of religion since they can‐ not do without them, and let the handful of sages, who know the truth and can live with it, keep it among themselves. Men are then divided into the wise and the foolish, the philosophers and the common men, and atheism becomes a guarded, esoteric doctrine […]. It would indeed become the duty of the wise publicly to defend and support religion, even to call the police powers to its aid, while reserving the truth for themselves and their chosen disciples.62 It is, to underline that again, no transcendent idea or absolute normative standards of third-order provenance but ‘city’ as the primary unit of social and political reality which forms the ultimate rallying point in the neo‐ cons’ endeavor to govern. Many of the brightest and most influential minds on the American right buy into this project which, as a corollary, regards the Enlightenment – central to the emergence of secular human‐ ism, and itself arguably a derivative of the Christian discourse of transcen‐ dence – to be nothing less than the original sin of modern times. Religion in this system, to put it from another perspective, is not sup‐ posed to be transformative but to preserve and mobilize the ‘city’ under the inescapable condition of imperfection. For the same end, the leaders enjoy the widest possible latitude in shaping the ever-changing realities by means of the reason of state.63 The acceptance of what the ‘city’ essential‐ ly is – and the understanding that there is no sense in attempting to impose any normative vision of the good on its deficiency, or even ‘a best regime’ in order to eschatologically transform it – defines both the prominent place of religion as a tool of governance as well as its strict limitation on merely functional terms. Finally, it has to be reiterated that the neoconservative point of view represents only the most vocal and radical version of a broad range of dif‐ ferent conceptions that seek to subordinate universalistic normative stan‐ 62 Kristol, Reflections of a Neoconservative: Looking Back, Looking Ahead, 1983, p. 300. 63 See Thompson and Brook, Neoconservatism, pp. 164 ff. Where moderation does not work however, the leaders have to apply “all manner of nastiness” and might even have “to enter into evil” in order to keep ordinary men and women on track of neocon governance. See Ledeen, Machiavelli on Modern Leadership, pp. 89 f. Restructuring the Field: Religion, Political Order, Constitution 47 dards ultimately to those of the ‘city’, the central-integrative unit of the political. Typically, this view includes a determined preference of the lat‐ ter’s integrity over individualistic liberalism. Both major ideal-typical stances, those of the universalists and those of the politicals, shape not only the respective political agendas – even if sometimes in discrete and implicit ways – but also the epistemic point of view where an intellectual perspective is directed at the discussion of po‐ litical theology. In fact, it makes a great difference for the analytical inves‐ tigation of the problem of political theology, whether one is inclined to take a stance closer to the position of the politicals or the universalists when perceiving the interface of religion and politics. While politicals are inclined to focus more pragmatically on the immediate stabilizing or dis‐ ruptive effects of the religious factor, universalists tend to pay more atten‐ tion to the deep structural influences in terms of normative substance and institutional crystallization.64 Civic religion versus constitutional faith The conceptual differences between politicals and universalists become especially clear with regards to the concept of ‘civil religion’, a term coined by Rousseau.65 For the politicals, civil religion, or civic religion as c) 64 The single ‘structural’ factor in the history of religions to which the politicals of neoconservative provenance pay greater attention seems to be the enlightenmentinduced secularization. For them, the Enlightenment’s call on “unaided reason” that “could accept no authority above itself” and its “promise to strip bare and ex‐ pose the lies of throne and altar” meant nothing else than a dangerous “assault on the forces […] that had for centuries been the moral and cultural glue holding vari‐ ous societies together.” This, and the Enlightenment’s underlying equalizing as‐ sumption are, in many neoconservatives’ view, therefore deceitful if not fatal de‐ constructions. Much in line with Rousseau’s conviction that full knowledge must remain the preserve of a small minority, they believe that “the light of reason de‐ stroys the sacred and the transcendental; it undermines the belief of ordinary man in the immortality of souls, of an afterlife, and of divine punishments, all of which are necessary for them to bear […] life in this world. Reason […] shatters every‐ thing that gives meaning to the lives of ordinary people; it undercuts their belief in everything that unites and brings order to society.” See Thompson and Brook, Neoconservatism, pp. 66 and 79. 65 See Rousseau, Social Contract, Book IV, Chapter VIII. For an influential earlier assessment, see Bellah, “Civil Religion in America,” pp. 1-21. From the perspec‐ Henning Glaser 48 they often call it, is a crucial complement to the positive inclinations asso‐ ciated with religion as a source of the polis’ stability. For them, civic reli‐ gion is neither a substitute for religion on sacral terms, nor is it related to the constitutionally enshrined principles of secular humanism.66 When Irv‐ ing Kristol refers to the “holy trinity” of the American civil religion as formed by the ‘[American] Flag, the Declaration [of Independence], [and] the Constitution […]”67, the Declaration and the Constitution are arguably rather addressed as symbolic points of reference for the crucial sentiments of patriotism and nationalism than as actual references to discursively shaped and deliberated supreme values of the political or constitutional core values. Similarly, when Samuel Huntington refers to the US civil reli‐ gion, the “American creed,” as a necessary condition to secure a sufficient degree of social and political cohesion,68 he stresses the effect rather than the principle. This ‘creed’ does not necessary represent an unquestionable substantial norm to be deliberately reproduced, but merely operates as a functional tool. Finally, for the politicals, civic religion is about merging religion and nationalism,69 which follows from the essence of governance and statecraft which they see ultimately as a form of “soul-craft”.70 The universalist stance differs markedly. Here, constitutional core val‐ ues form the heart of civil religion. They are the exclusive and ultimate point of reference of public faith. This constitutional faith is, thus, the faith in the constitutional order itself as largely defined in Western constitution‐ alism as a third-order figuration in terms of secular humanism. Constitu‐ tional faith in this sense does not complement the constitutional order but reinforces it in another dimension of acknowledgment and effect that is adding up to the technical legal one. tive of the terminology suggested here, Bellah conflates however, political theolo‐ gy and civil religion. 66 From the point of view of the politicals, civic religion is especially important where the cause of religion is weakened, not compelling enough or lost. Moreover, civic religion is supposed to create a unifying rallying point for state-supportive sentiments of those societies which are conditioned by great religious diversity. Here, it is often reinforced by constitutional guarantees that would prevent the es‐ tablishment of a sufficiently homogenous religious base. 67 Kristol, “The Spirit of ’87,” 1987, p. 5. 68 Huntington, America’s Politics: The Promise of Disharmony, 1981, pp. 22 f. 69 Thompson and Brook, Neoconservatism, p. 86. 70 Ibid., pp. 167 and 169. Restructuring the Field: Religion, Political Order, Constitution 49 Such a constitutional faith easily clashes with the politicals’ under‐ standing of civic religion as evidenced in one of the landmark decisions of the US Supreme Court, the decision West Virginia State Board of Educa‐ tion v. Barnette, a case decided during World War II. Sanford Levinson qualifies this decision as one of “the great testaments” of “constitutional faith” in American constitutionalism, which, at the same time, decisively refuses the politicals’ understandings of civic religion. In this case, a child who was a member of the Jehova’s Witnesses was punished for refus‐ ing to enact [….] the pledge to the American flag at the beginning of the pub‐ lic-school day, as requested by state law. The Supreme Court reversed the child’s suspension from school, with Justice Jackson writing one of the most quoted sentences in all constitutional law: ‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox, in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or deed their faith therein.’71 The stance formulated by Justice Jackson (and condoned by Sanford Levinson) is quite the opposite of what the politicals stand for. While the latter strive for homogeneity in terms of social cohesion by means of civic religion, Justice Jackson makes the case for acknowledging the negative freedom of any individual to refuse any demonstration of a public creed. The individual enjoys the natural right to refrain from joining the symbolic ritual of the American civil religion, the “American Creed,” on which grounds whatsoever as guaranteed by the secular Constitution. The essence of universalists’ constitutional faith is that it credits and respects the autonomous orientation of the individual, that it embraces the emanci‐ pating, transcending impetus of the constitutional promises of secular hu‐ manism whose negative freedom precludes any order to subscribe to an‐ other creed than that chosen by it. These very values protect it from the unifying claims of a cult of the state as many politicals like Strauss or Var‐ ro emphatically condoned it. Other politicals, many European conservatives for instance, would ar‐ gue in favor of more cohesive and assertive politics of national culture vis- à-vis Islamic civic culture, for example concerning Islamic dress codes for women. 71 Levinson, Constitutional Faith, 1988, p. 101. Henning Glaser 50 Religion as a Subject of the Political Religion as a subject of the political order, or the legal-political order to be more precise, refers to the broad area of concrete frameworks, arrange‐ ments and practices by which the political communities regulate their rela‐ tion with the religious domain. In this sense, ‘political community’ means not only the state but also other legal-political frameworks such as the European Convention on Human Rights (see Follesdal, Ehlers) or the United Nations’ Legal Framework on the protection of the rights of reli‐ gious minorities72 (Souza Alves). On the level of the state, the sister domains of law and politics intersect in the constitution, which is point of reference of most of the contributions dealing either with European, or North American, or Asian states. Addi‐ tionally, Esser provides an account on the German penal law with regard of the criminal protection against the defamation of religion. All these legal-political frameworks are ultimately influenced by inter‐ ests, forces and considerations that can often be broken down to some gen‐ eral perspectives on religion as a source of public order as presented above, especially the particular impact of ‘axiality’ in the politics-religion interface – the three-layered theory of normative order and the opposition of universalists and the politicals concerning the politics of religion. On a more concrete level, the different legal-political frameworks can be distinguished and assessed on the basis of some typological considera‐ tions as a starting point. Typological Approximation Despite the inevitable shortcomings and blind spots of all typologies, an overall classification of state-religion relations is helpful to assess the range of possibilities as they are reflected by those chapters of this volume that are dealing with religion as a subject of the legal-political order. To facilitate a comparison of possible approaches to regulating faith and reli‐ gion, three typologies with strong resemblances by Dirk Ehlers, Pahud de D. I. 72 See especially the International Covenant on Civil and Political Rights of 1966, and the Declaration on the Rights of Persons Belonging to National or Ethnic, Re‐ ligious and Linguistic Minorities of 1992. Restructuring the Field: Religion, Political Order, Constitution 51 Mortanges, and Cécile Laborde provided or mentioned in this volume shall be combined in one model providing three broad categories. A first category of separation is defined in the accounts of Pahud de Mortanges and Ehlers by the absence of any constitutional relation estab‐ lished between the state and the religious communities. Laborde distin‐ guishes, slightly differently, two forms of separation, a militant and a more moderate separation. The category of militant separation features secular‐ ist states with outright anti-religious and suppressive tendencies that offi‐ cially support a skeptical view of religion and provide inadequate protec‐ tions of religious freedoms. An example would be the People’s Republic of China (Laliberté, see also Banic’s recourse on Yugoslavia). For a long time, Mexico has also followed this model, but has since developed a more accommodative stance towards religion as presented by Gonzales in this volume. With the constitutional reforms of 1992 and 2013, and the derogation of several anti-clerical provisions from Mexican constitutional and plain law allowing religious communities to obtain eventually legal personality, for example, Mexico has shifted to the separation category featuring states with a more moderated separation that have protections of religious freedoms, but no provision of any administrative, financial or other support by the state. This category accommodates that form of West‐ ern constitutionalism that enshrines different laical arrangements such as in France, Turkey, or Mexico but also Japan. A second category of subordination is characterized in Pahud de Mor‐ tanges’ approach by the subjugation either of the state by a religion, such as in Iran or, vice versa, in cases where states authoritatively instrumental‐ ize a state religion. This corresponds with Laborde’s model of states which adopt a particular religion or orthodoxy as a state religion and therefore provide only inadequate protection of religious freedoms, discriminating against members of other faiths or those having no religion at all. Simi‐ larly, yet slightly more broadly, Ehlers provides the model of an alliance between the state and a particular religion. He does not refer to an alliance on equal terms though, but implies that the state aligns itself with a partic‐ ular religion that it somehow subdues, imposing a sort of control while controlling or suppressing the other religions on even more rigid terms. Examples would be Turkey after the Islamic transformation of the laically Kemalist state or Malaysia’s attitude towards a state sponsored and con‐ trolled Islam. A third category of cooperation finally is based in Pahud de Mortanges’ account on free and equal relations between independent and autonomous Henning Glaser 52 partners with the state recognizing a positive social function of religion. Ehlers speaks here of a “mediating model” that combines separation with some sort of cooperation on more liberal and equal terms concerning the different religions. This is very similar to Laborde’s category of secular states that complement an adequate protection of religious freedoms with some degree of state support of religious communities, concerning for ex‐ ample religious education and other forms of support with countries such as Germany (Ehlers, Esser) or Switzerland (Laliberté) as examples in case. Especially interesting within this category are those states that feature ‘special relations’ to a particular, prominent religion without subduing this or other religions while basically fostering cooperative relations with the other religions as well, albeit on a relatively lower level. Examples in this volume are Croatia (Banic), Poland (Brzozowski), Spain (Torron), and Italy (S. Ferrari, Follesdal). To complement this broader model of the constitutional arrangements regulating the relations between state and religion, I shall define three ide‐ al-typical tendencies of societal development that have historically influ‐ enced the modern secular state’s relation towards religion especially in Western countries. A first type is characterized by a long tradition of largely homogeneous historical experience based on the adherence to a single dominant confession or religion that is reflected by present-day constitutional identity such as in Croatia, Italy, Ireland, Poland, Spain, Russia or the Scandinavian countries. A second tendency is defined by historical experiences of a notorious plurality of Christian denominations in absence of a clearly dominating faith. Here, the notion of a tension-ridden plurality is balanced by the shared experience and reference to basically the same Christian roots. Moreover, these different religious communities share the deep-structure, underlying cultural trajectories and normative-institutional outfit that has developed as part of a larger European civilization. Western societies of this type appear in at least two subtypes though, one represented by the US and another by Germany and Switzerland for instance. In Germany, the cuius regio, eius religio concept of the 1555 Treaty of Augsburg resulted in a greater compartmentalization of confessional groups and a particular role of state authority as a guarantor of the organi‐ zation of religious life. Religious freedom is here traditionally very much Restructuring the Field: Religion, Political Order, Constitution 53 also the freedom of and state support for organized religiosity.73 The US experience builds however on the foundational adherence to the individu‐ al’s religious liberty and freedom of self-organization. As a freedom of a multitude of religious groups from the state it resulted historically in an autonomous and comparatively amorphous religious sphere disconnected from the state. A third ideal-typical tendency in the formation of Western secular states emerged as result of distinct ideological splits within a given society be‐ tween sacral and secular conceptions of political theology. Here, the de‐ velopment of constitutionalism was historically exposed to deeply en‐ trenched and continuous struggles between groups committed to a homo‐ geneous religious identity, such as Catholics, and those committed to athe‐ ism or militant agnosticism on basis of a secular political theology of radi‐ cal, progressive or socialist provenance. Sub-types can be distinguished by an eventual constitutional crystalliza‐ tion in terms of a hegemonic establishment in form of a strict separation or a compromise on terms of a special relation between the state and the dominant religion. Both sub-types are often still defined by the presence of the underlying division though, with France and Mexico as example on the one hand and Croatia, Poland, Spain, and Italy on the other. Today, the historic dividing lines seem to be frequently blurred though, for instance when both, the French secular and sacral political theology are confronted with what they perceive as the impositions of an Islamic political theology. Here, the laical separation seems to be accompanied by notions of a disguised special relation between the state and the predomi‐ nant religion. This, at least, is the observation of Cécile Laborde who sees “French national republicanism” in danger to culturalize republican values whereby the allegiance to the French “catho-laïque” culture, becomes the guiding particularism that besets French republicanism where laical stan‐ dards are applied differently in context of Catholic or Islamic expressions of faith respectively.74 When Laborde argues that the ban on the hijab in schools cannot be defended on grounds of French constitutional core val‐ ues, that, contrary, the “liberal, difference-blind ideals of equality and im‐ 73 See for state-religion relations in Germany, besides Ehlers in this volume, also Gerhard Robbers, “Religious Freedom in Germany,” 2001, pp. 643-668. 74 Laborde, “Virginity and Burqa: Unreasonable Accommodations? Considerations on the Stasi and Bouchard-Taylor Reports,” 2008, at Virginity-and-Burqa-Unreasonable.html. Henning Glaser 54 partiality” should be applied more consequently instead of emphasizing national identity, she also offers a casebook example of the opposition be‐ tween universalists and politicals.75 Starting from these typological reflec‐ tions some further observations shall be developed. Dealing with the ‘Böckenförde Dilemma’: ‘Special relations’ in European Constitutionalism One of the most influential assessments of the conditions of European sec‐ ularism comes from Ernst-Wolfgang Böckenförde. The German constitu‐ tional court justice and scholar noted the constitutional impossibility of maintaining by duress the empirical conditions for a constitutive influence of a Christian political theology under the normative pretext of secular lib‐ eralism. This famous ‘Böckenförde Dilemma’ reads as follows: The liberal secularized state lives by prerequisites which it cannot guar‐ antee itself. […] As a liberal state it can only endure if the freedom it be‐ stows on its citizens takes some regulation from the interior, both from a moral substance of the individuals and a certain homogeneity of society at large. On the other hand, it cannot by itself procure these interior forces of regulation, that is not with its own means such as legal compulsion and authoritative decree. Doing so, it would surrender its liberal character and fall back […] into the claim of totality it once led the way out of, back then in the confessional civil wars.76 Böckenförde acknowledges first a formative influence of Christianity on Western modernity and its legal-political structure that is in alignment with a broad and settled scholarly discourse going back to intellectual gi‐ ants like Weber and others. Not so clear is the second assumption by which he explicitly refers to Hegel (see Labuschagne). Two interpretations are possible. Not so different from the politicals, Böckenförde could be understood to focus on a religiously derived morality and social cohesion necessary to sustain the state. Or he could be interpreted as pointing to the need of a sustaining Christian identity to nurture secular constitutional thought and practice on a more subtle basis. This would imply the II. 75 Laborde, Critical Republicanism. The Hijab Controversy and Political Philoso‐ phy, 2008, p. 14 at 18 (quotation). 76 Böckenförde, “Die Entstehung des Staates als Vorgang der Säkularisation,” 1991, p. 112. Restructuring the Field: Religion, Political Order, Constitution 55 question if a society whose fundamental conceptions are shaped by a par‐ ticular religion can reproduce a secularized version of this worldview without being somehow in touch with the original religious influence or whether constitutional faith alone can produce enough energy to sustain the deep structure state and law are resting on. This is what Laborde rec‐ ommends when she rejects both identity politics and affirmative actions to understand constitutional core values as the ultimate answer for the question of how to ensure a good society. Böckenförde on the other hand, is at least as much a universalist too, as he refuses to trade constitutional liberty against the public interest in morality and social cohesion. Somehow resonating these scholarly thoughts in form of a practical strategy to brace oneself against the elusiveness and inevitability captured in the Böckenförde dilemma are those state constitutions that establish ‘special relations’ with a particular religion or denomination that is seen to reflect national identity or to ensure social cohesion in a particular way. This leads back to the typology presented above. As so many constitutional states are going this way, it might be consid‐ ered to denote a typological category of secular states that are constitution‐ ally built on the explicit or implicit acknowledgment of a particular reli‐ gion as a decisive source of their social cohesion or constitutional identity without being illiberal concerning the religious freedom in general. Be‐ sides the European examples presented in this volume, Thailand and In‐ donesia are Asian examples. A general distinction concerning secular states that feature a ‘special re‐ lation’ with a single religion pertains to the mode by which this preference is established. Is it openly acknowledged or disguised by constitutional law, predominantly accepted or significantly contested in legal and soci‐ etal discourse, for instance? Altogether four European constitutional sys‐ tems that establish special relations between the state and the Catholic Church are covered in this volume, two Southern European countries, Spain and Italy, as well as two formerly socialist countries, namely Croatia and Poland. A striking case of these special relations is the Republic of Croatia. Here, special relations between the state and the Catholic Church have been established by four concordats between Croatia and the Holy See. They have emphasized the “irreplaceable role of the Catholic Church in the education of the Croatian people, its historical and present role […] as well as the appreciation that the majority of the Croatian citizens affiliates to the Catholic Church” (Banic). As a consequence, the Catholic Church Henning Glaser 56 enjoys a considerable special status concerning its legal status, financial support, and autonomy from the state in comparison to all other religions and denominations albeit religious freedom is generally provided (Banic). The other Eastern European country with a special relation to the Catholic Church is Poland. This relationship goes even beyond consistent‐ ly strong support for Catholicism and corresponding special relations on the state-church level, but also embodies the deep entanglements of faith and national identity in context of a struggle for independence, similar to the Irish case. Accordingly, the dominant constitutional discourse ac‐ knowledges the commanding position of Catholicism within the religious structure of the country. Brzozowski’s rather critical assessment of this special relationship in this volume reflects, however, the fact that the dif‐ ferently accentuated special relations between secular European states and particular religious denominations, while often reflecting a hegemonic mainstream, regularly also have their opponents who prefer a focus on secular constitutional core values in line with Laborde. Slightly less pronounced than in Croatian and Polish constitutional law, Spain is also establishing its own special relations with the Catholic Church. In Spain, similar to Croatia and Poland, Catholicism still exerts an “enormous” influence on social life (Torron), which is also reflected by the Church’s moral authority within the public realm. Like in the other countries, this manifests in direct interventions of the Church in the public discourse on political questions (Torron). In terms of constitutional law, this impact and influence is limited though, given the country’s violent history of divisiveness over the role of religion for the political order. Al‐ though the Spanish Constitution explicitly denounces the establishment of a state religion in its article 16, it also compels public authorities to take into account the “religious beliefs of the Spanish society” and “to maintain the consequent relationships of cooperation with the Catholic Church and the other denominations.” This formulation might be read as reflecting both a sense of special appreciation for Catholicism as well as the con‐ sciousness of the highly divisive character of state-religion relations that forbids a too explicit embrace of Catholicism. According to Torron in this volume, the provision should be understood as “a recognition of the fact that Catholicism was part of the ‘religious beliefs of the Spanish society’.” While the Spanish Concordat with the Holy See confers a superior legal status to the Catholic Church in comparison to that of the other religions, the constitutional court enforced a strong notion of equality when ac‐ knowledging the legal status of some other religious communities. Restructuring the Field: Religion, Political Order, Constitution 57 A last example of the European states that exhibit a special relationship with a single religion is Italy. The Italian Lautsi case, which is discussed in the papers of Follesdal and S. Ferrari in this volume, serves as an impres‐ sive example for the Italian state’s exercise to indeed stand against the elu‐ siveness captured in Böckenförde’s dilemma, as it might seem to be rein‐ forced by the European Convention on Human Rights’ protection of (neg‐ ative) religious freedom. While Follesdal’s paper focuses on the decision of the European Court of Human Rights in Lautsi, S. Ferrari analyzes the decision of the Italian Council of State in the same case. In both instances, the case deals essen‐ tially with the Italian state’s claim that the display of crucifixes in public schools has to be understood as a justified dissemination of Italian societal values (for a similar case in German constitutional law see Ehlers). Folles‐ dal’s criticism of the court’s recognition of a margin of appreciation in the Lautsi case, is interestingly contrasted by the rather affirmative assessment of the arguments brought forward by Italy in S. Ferrari’s assessment. He considers the decision of the Italian Council of State from 2006 as a “lucid attempt to express in legal terms” the affirmation of the actual importance of a particular religion for the society. In this line, he seems to condone the argument of the dissemination of the cross as a “protective umbrella” that extends to other religions as well, with a notable reservation though: “as long they are not in competition with the Catholic” one. For both the Council of State and S. Ferrari, the public dissemination of the cross re‐ flects a positively impacting presence of religiousness in the public sphere that serves as a nurturing ground for the fundamental principles and values on which social cohesion is founded. The argument that the Christian cross had become one of the secular values of the Italian Constitution resonates with the assumption of a struc‐ tural continuity between the Christian and the secular-humanistic political theology, the claim that the symbolic crystallizations of this structural con‐ tinuity serve to essentially express and reproduce it and the presumption of an inner relation between sacral and secular political theology on the level of the societal deep structure. In all four constitutional contexts characterized by a special relationship between state and religion, the respective politics of religion can hardly be reduced to the ideal-typical positions either of the universalists or the po‐ liticals, but rather display a strong affirmation of a political theology that is at least aware of what both positions would care of. Henning Glaser 58 Confucian/East Asian Constitutionalism: Politicals, Non- and Anti- Universalists Another interesting issue covered in this volume are the alternative ver‐ sions of what might be called ‘Chinese’ secularism for which Laliberté, Kuo, and Thio give fascinating accounts on Singapore, China and Taiwan respectively. In both regional and cultural perspectives, their contributions are complemented by Zhong’s piece on Japan. The remarkable difference in how these four systems encounter and manage the factor ‘religion’ can be read in a coherent way against the background of what has been said above on the role of religion as a source of political order. Singapore’s “secularism with a soul”, to start with Thio’s contribution, offers the example of a rarely pure constitutional manifestation of the pos‐ ition of the politicals, albeit not that of neoconservative provenance. She derives the baseline structure of her argument from a common observa‐ tion: “Caesar and God remain in an uneasy relationship, sometimes part‐ ners and, at other times, antagonists.”77 What Thio describes, and what might at a first glance appear as a paradox, is however, that in Singapore ‘Caesar’ always condones the political theology of the politicals and never that of the universalists78, – especially not under the condition of ethnic and religious plurality in a rather small and densely populated political community. As much as the state appreciates religion as an instrument to bind soci‐ ety together, to reinforce national values and to reach out to the individu‐ als and groups, it also fears religious contestation among its citizens or di‐ rected against itself. Consequently, the city state is generally wary of all ‘axial’ dynamics; not only in form of Christianity and Islam, but also of secular universalistic systems of belief such as secular humanism or com‐ munism. While this brand of secularism does not deny its citizens the right to privately adhere to universalistic religions, it is keen to stay aware of and even participate in the management of these religions’ internal affairs. Markedly different is the militant secularism of the People’s Republic of China (PRC). Among all four Asian forms of secularism, the PRC brand is the most assertive. Whereas the current Chinese socialism does III. 77 Thio, “Constitutionalism and Religious Diversity in Singapore,” 2015, p. 233. 78 That does not imply that ‘Caesar’ is against a universalistic faith but that he does not accept this faith as a public rallying point that supersedes his will within the public realm. Restructuring the Field: Religion, Political Order, Constitution 59 not prohibit every notion of religiosity, the socialist party state exercises a strict hegemony over any, even slight, institutional notion of religious faith (Laliberté). All institutionalized religious groups are subjected to a tight regime of state control and state managed religiosity that regulates them increasingly rigidly by law and party discipline. Those groups that are considered to even possibly defy the state’s claim of definitional supremacy and control, be they of Buddhist, Muslim, Christian or other provenance, are met with relentless suppression. This is especially true for Uighur Muslims and ‘evil cults’ like Falun Gong. The predominant reason why a seemingly harmless cult such as Falun Gong moved into the party states’ firing line are arguably not merely its exercise techniques and the moral discipline of its disciples but especially its ability to move the mass‐ es as a salvationist, partly apocalyptic, movement under charismatic lead‐ ership. In general, the Chinese socialist state’s control and repression expresses different strands of the character and development of public order in Chi‐ na. One strand evolves from what can be called the socialist ‘political reli‐ gion’, a distinct, encompassing this-worldly view of history, society, and politics that claims absolute superiority and supremacy of its Maoist or‐ thodoxy and is reinforced by a socialist hostility towards the superstitious as it also lies at the cradle of Mexican laicity (Gonzales). While the first strand is a militantly secular universalist orthodoxy, the second strand of the state’s antipathy towards religion is an anti-universal‐ ism that reflects the sacralization of the state as a second-order formation that claims to govern the souls of its subjects. Two historical experiences resonate in this anti-universalist notion. One is the more recent memory of devastating upheavals with distinct religious notions. All too often, these at least religiously ‘colored’ rebellions, uprisings, and civil wars were driven in part by third-order visions that emerged as a dialectical response to the failure of the imperial state (Laliberté).79 This often-mentioned ex‐ 79 Examples are the White Lotus Rebellion (1794-1804), the Miao Rebellion (1795– 1806), the Eight Trigrams Uprising (1813), the Taiping Rebellion (1850-1864), the Qian Rebellion (1854-1873), and the Boxer uprising (1898-1900), all of them showing signs of millenarianism or notions of salvation. They are accompanied by a series of Muslim rebellions such as the Red Turban Rebellion (1854–1856), the Panthay rebellion (1856–1873) the Tongzhi Hui Revolt (1862–77), or the Dungan Revolt (1895–96). In terms of a secular universalist world-view, one might also count the Cultural Revolution (1966-76) in this list. Henning Glaser 60 perience explains a deep-seated caution towards all uncontrolled univer‐ salistic visions that is aligned with a particular appreciation of the state’s dignity as the (second-order) central-integrative unit of the political. Underlying and even more important however, as the second historical experience is the long and pervasive influence of Confucianism. Although philosophical Confucianism has displayed some axial notions it has to be distinguished from Confucianism as a state ideology that developed the greatest influence on the Chinese socio-political universe. The latter ele‐ vated essentially a refined version of the ethical and religious notions of the ‘law of the family’ to become the imperial cult of state and was thus dominated by the amalgamation of first- and second-order structures. With the exception of this Confucianism as a state cult, the imperial state of the third latest dynasties is already characterized by what Laliberté observes for the socialist party state, that its moral basis is radically detached from any established religion. In comparison, both China and Singapore reject universalistic religious notions; but Singapore pursues the political theology of the politicals while China does not rely on any notion of religiousness beyond the com‐ munist party cult and its Maoist orthodoxy. The third study on Chinese secularism in this volume deals with the Taiwanese case which is totally different from both the Singaporean and that of the Chinese People’s Republic. It manifests in a cooperation model that allowed for the development of autonomous religious dynamics of ax‐ ial provenance that would exert a significant effect on the transformation of the political order in direction of secular Western constitutionalism (Kuo). With a certain unwanted irony, Kuo’s account on the Taiwanese secular state80 seems to confirm that the angst of axial dynamics in China and Singapore is somewhat justified, at least if Kuo is right and a political theology on the basis of third order dynamics was indeed responsible for a liberal-democratic transformation Western-style that leaders in Singapore and China consider to be detrimental to the common good in their coun‐ tries. 80 See also Kuo, Religion and Democracy in Taiwan, 2008. Similar dynamics as those described by Kuo for Taiwan have also been experienced in South Korea. See for example Shik, “The Progressive Christian Church and Democracy in South Korea,” 1998, pp. 437-465; Hong, “Evangelicals and the Democratization of South Korea since 1987,” 2009, pp. 185-233. Restructuring the Field: Religion, Political Order, Constitution 61 The fourth and last contribution on Asian political theology is Zhong’s paper on Japan. He analyses the legal-political dispute over Prime Minis‐ ter Koizumi’s annual visits of the Yasukuni Shrine81 – a major Shinto holy site supposed to contain the spirits of two million Japanese soldiers, among them a number of convicted war criminals – and the handling of the corresponding complaints by the Supreme Court. The Yasukuni Shrine dispute points to a late reaffirmation of a political theology based on Shin‐ to (State Shinto) that challenged the secular Japanese Constitution’s com‐ mand to implement what could be termed a moderate separation model.82 This political theology centered at Shinto is interesting for its non-axial quality. Interestingly, in their search of a firm and comprehensive basis of legitimacy and cohesion for the new state, the architects of the Meiji Restoration reflected initially the possibility to adopt a state ideology linked to Christianity, Buddhism or Confucianism but eventually refused all these options in favor of Shinto. Especially Christianity was refused precisely because its ‘axial’ nature as pointed out forcefully by Inoue Tet‐ sujirō, for instance, who clearly understood the nature of universalistic ax‐ ial dynamics and emphatically rejected them as a reference for the design of an imperial political theology. A clear choice against transcendental dy‐ namics that the state would not be able to fully control, the Meiji reform‐ ers turned instead to the idea of an organicistic state modelled after the family and based on Shinto. On this fundament, they created a state cult that would serve everything a neocon could wish for including the firm nexus of loyalty towards the government, patriotism, nationalism, military virtues and a sense for self-sacrifice. Much in opposition to the Taiwanese experience for instance, the Meiji elevation of Shinto as a central element of its state ideology resembles Singapore’s preference for a non-axial political theology that represents the ideal-typical position of the politicals on the politics of religion. 81 Prime Minister Koizumi’s visit was not the only one by a Japanese Prime Minister. Especially, Prime Minister Shinzo Abe, member of the revisionist lobby organiza‐ tion Nippon Kaigi, has also visited the Shrine. All these visits were, however, claimed to be of private nature. 82 While apologists have argued that Shinto is no religion, imperial Meiji scholars who adopted State Shinto as a political theology did so precisely to found the Em‐ peror’s lineage from the Sun Goddess and thus the claim to be a divine being, whereas Shinto practice also comprises the belief in spirit beings. Even if no axial religion, Shinto arguably is therefore a form of religion (see also Zhong). Henning Glaser 62 From this perspective, Koizumi’s visit of the Yasukuni Shrine repre‐ sents an interesting notion of a ‘non-axial’ political theology that reflects a broader stance both in Asia as well as among neo-conservatives. Constitutional Change and Contestation A last aspect to ponder pertains to the dynamics of constitutional change and contestation that can easily blur typological lines and, in particular, secular constitutional identities. Especially where the world is “as furious‐ ly religious as it ever was” or “in some places [even] more so than ever”, as Ronojoy Sen quotes Peter Berger83 in his account on Indian secularism, a number of secular states experience ongoing attacks on the increasingly brittle walls they had once forcefully erected between the state and reli‐ gion. The nationalist Hindu challenge to India’s secularism (Sen) is, how‐ ever, only one example of a larger trend. Ran Hirschl, who is a keen observer of this trend in contemporary con‐ stitutionalism, sees even a new kind of legal and political order emerging that he calls ‘constitutional theocracy’. Without referring only to theocrat‐ ic states in the formal sense of the word, countries like Iran, for example, Hirschl describes the amalgamation of “two of the most important phe‐ nomena in late twentieth- and early twenty-first-century politics – the tri‐ umph of constitutionalism as the prevalent form of governance and the re‐ turn of religion to the world political stage […].”84 To a varying degree, this trend seems to affect an increasing number of countries that managed it to uphold their secular constitutions for decades. In the Islamic world, where it gains a particular momentum, this trend becomes especially visi‐ ble with the transformation of a formerly strictly laical country such as Turkey or the ongoing attempts to reinterpret the Indonesian constitutional basic structure of Pancasila as an affirmation of an Islamic state.85 The above-mentioned case of the Japanese Yasukuni Shrine case is another, al‐ beit moderate, move in this direction, where the Supreme Court stopped IV. 83 Berger, “Securalism in Retreat,” 1996/1997, p. 3. 84 Hirschl, Constitutional Theocracy, p. 241. 85 See for Indonesia the contributions in Tim Lindsey and Helen Pausacker (eds.), Religion, Law and Intolerance in Indonesia, 2016; Machmudi, “The Development of Political Islam in Indonesia,” 2015, pp. 237-248; for Turkey see İnceoğlu, “Constitutional Conflict and the Idea of a New Constitution,” 2015, pp. 159-180. Restructuring the Field: Religion, Political Order, Constitution 63 short before declaring the Prime Minister’s visit of the shrine unconstitu‐ tional despite a clear constitutional ban of any engagement of the state with religious activities (Zhong). In Europe, the global surge in resorting to a more assertive understand‐ ing of religious identity has been particularly critical in dealing with Is‐ lamic minorities. As A. Ferrari points out for Italy, the right to religious freedom is increasingly subordinated “to more […] securitarian versions of civic cohesion and public order” while the perception of Islamic chal‐ lenges to a secular consensus has led “to a crisis of religious freedom as a unified, specific and high standard right.” Similar to Laborde for France, A. Ferrari observes nothing less against this background than a “crisis of religious freedom as a unified, specific and high standard right.” On a global level, one might even see a general crisis of Western consti‐ tutional identities that coincide with a rise of more vulgarized forms of the old counter-discourses to Western dominance in terms of values and ulti‐ mate norms of governance. This is not to denounce lock, stock, and barrel all non-secular visions of good governance and the common good. The claim of Pakistan’s founder, Muhammad Ali Jinnah, in a 1946 speech, that democracy would be in the very blood of the Muslim who presumed a complete equality of man still resonates as sound reminder to some of the repressive systems in the Is‐ lamic world that are lacking any viable legitimacy among their citizens. Those representations of Islam that are presently particularly vocal in the public sphere seem, however, often to be dominated by rather vulgar‐ ized forms of faith and practice. In many countries with a majority Muslim population, the rigidity of the corresponding demands is often inclined to conflict with secular constitutionalism, especially where they aim at rewriting constitutional core values in light of their religious interpreta‐ tions. An example in case is again Turkey. Here, it is licit nowadays to dis‐ cuss on state TV slavery and sexual intercourse with minors as religiously condoned practices at prime time. Only few years ago, something like that would have been completely unthinkable under the Kemalist precepts of the Turkish constitution. The social acceptability of such debates under‐ lines how much religious identities are shifting and how strong these shifts can impact on constitutional identities as well. After this section on religion as a subject of the legal-political order has started with a typological approach to the constitutional frameworks regu‐ lating the relations of politics and religion, this introductory chapter is thus Henning Glaser 64 closed with a reminder of some of the current dynamics that make the top‐ ic of this volume so interesting. Bibiography Assmann, Jan, Herrschaft und Heil. Politische Theologie in Altägypten, Israel und Eu‐ ropa, München: Carl Hanser, 2000. Augustine, De Civitate Dei: Book V, ed. Patrick Gerard Walsh, Oxford: Aris & Phillips, 2009. Bauszus, Detlev David, “The Religious Aspects of the Founding of the American Re‐ public: A Design of Religion and Reason,” in Religion, Politics and Law: Philoso‐ phical Reflections on the Sources of Normative Order in Society, ed. Bart Labuschagne and Reinhard Sonnenschmidt, Leiden: Brill, 2009, pp. 335-362. Bellah, Robert, “Civil Religion in America,” Daedalus (“Religion in America”) 96, 1 (1967): 1-21. 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Henning Glaser 68 Religion and State: A Hegelian View on the Sources of Normative Order in Society Bart Labuschagne Introduction During the last few years, public debate has been filled with discussions on the role of religion in society in relation to the state. For a long time, the standard-view on this role has been that modernisation and secularisa‐ tion went hand in hand with each other and that with the gradual advance‐ ment of society, religion would wane in the long run, and finally disap‐ pear. Freedom, equality, social cohesion and adherence to political institu‐ tions would be self-supporting, and would all flourish, independent from any worldview or religion. Democracy, human rights, the rule of law, all these concepts were thought to function properly in any culture, no matter what the religious background of the population was. However, things turned out very different from these liberal dreams. Religion manifested it‐ self as a tough phenomenon, especially since the ‘revolt against the West’ and the insurgence of Islamism worldwide. Ours is a time of great up‐ heaval, fragmentation, and people seeking for certainty. Religion is on the fore of the agenda and we have to understand and come to terms with it in order to understand the way normative order in society is generated and reproduced. A very similar period in human history, a period of rapid changes of the social and spiritual infrastructure of society, occurred in the end of the 18th and the early 19th Centuries. The Enlightenment, Aufklärung in Germany, at its height, in the aftermath of the French Revolution, when new liberal ideals swept over the European peoples, and traditional forces proved to be more resilient than anticipated. What occurred in Europe back then can still be perceived today on a world scale. For that reason, it can be very inspiring to study and try to understand a great thinker who has tried to grasp the spirit of that age. G.W.F. Hegel, the author who coined the very A. 69 task of philosophy as the comprehension of its own time in thoughts,1 is a philosopher who is nowadays increasingly (re)valued for his keen insights and thorough understanding of the nature of man, history and society.2 There is almost no other thinker who has had such an extraordinary sharp eye for, and a deep insight in the close and complicated relationship that religion, politics and law have with each other. There is an unmistak‐ able correlation between what people believe in, on the one hand, and what is considered as just and good by them, on the other hand. Religion has, in one way or another, some influence on societal order, law and the state of a country. Hegel pushes his point even so far, as he dares to main‐ tain: “A people that has a bad concept of God has also a bad state, bad government, and bad laws.”3 With this, he suggests that there might also be a positive connection between religion, and law and state: that if a peo‐ ple does have a good concept of God, it will also have a good state, a good government and good laws. But is it really so? The answer to this question shall be the guiding line of this contribution. It is a line along a path with numerous sideways and loose ends that cross over the fields of the sci‐ ences of religion, of politics, of law and jurisprudence. However, it is a route that is always philosophical in nature. Several sub-questions emerge with it. Apparently, Hegel differentiates between religions that mediate a true concept of God, and others that don’t. Seemingly, he assumes that there are true and false religions. On what grounds is this distinction based? Where does Hegel derive this from, and is it correct? Furthermore, what is a good state, what are good laws, what is justice? Hegel presupposes also here a qualitative criterion: there are good and bad states. Again, the questions can be asked: on what grounds is this difference based? Where does he derive this from, and is it correct? It will be clear to the reader that Hegel finds the answer to these sub-questions on the truth of religion and of law and state ultimately in philosophy. It is in philosophy, in thought therefore, where we can discov‐ er the criteria by which we can discern the true, just and good religion 1 Hegel, Elements of the Philosophy of Right, 1991, Preface, p. 21. 2 One of the leading present-day philosophers of religion, society and politics, Taylor (e.g. in his monumental A Secular Age, 2007), is deeply immersed in Hegel’s phi‐ losophy; see his 580 pages counting monograph Hegel, Cambridge: Cambridge University Press, 1975. Hegelian themes and approaches can be found throughout his work since then. 3 Hegel, Lectures on the Philosophy of Religion, 2007, p. 452. Bart Labuschagne 70 from the untrue, unjust and bad one; as well as those criteria of the just state. On first sight an unheard-of and exceedingly pretentious enterprise, that sets the bar for modern readers quite too high. Do we really dare to come along with this kind of thinking that demarcates true from false reli‐ gions, and a good state from a bad one? To what extent indeed is good governance in need of such ultimate justification? Our present-day intuitions and prevailing ideas are tuned in a much more modest key. Nowadays we are not really inclined to differentiate sharply between true and false religions. Religion is considered primarily as a private matter, protected by all kinds of human rights and the princi‐ ples of separation of church and state, and of religious neutrality of the state. What for one person is the absolute religious truth, does not have to be so for the other. Should not in a tolerant society several truths co-exist peacefully side by side? And are not law and state – that is: the regulation of external relations between people in society – the result and product of mutual and democratic deliberation according to parliamentary procedures under the rule of law? We tend to measure the quality of good governance by the extent to which actual practice approaches this ideal of free, un‐ hampered deliberation.4 A good state is a state in which deliberative democracy is enabled to flourish, with a free press and media, and free ex‐ pression of opinions, and in which the truth is not monopolised. But does this suffice? Is this all that is needed to generate a free society? What then do religion and state have to do with each other in God’s name? The one is after all a matter of private concern, of conscience, in which no one else has anything to say. And have not all religions become a private issue, and are no longer object of attention and concern from the government? The idea that all religions amount to the same thing more or less, and have nothing to do with the way we organise society normatively, is nowadays generally accepted, as well as the notion that religion has nothing to do with the common and fundamental values that enable living peacefully with each other. Law, state and politics are based on rationally acceptable principles, and the outer bond which they provide can function well, on the basis of the enlightened self-interest of each citizen who is primarily interested in the enforcement of the law. But is this all enough? Is society not also a community of shared values? 4 Very much in line of Habermas’ Between Facts and Norms. Contributions to a Dis‐ course Theory of Law and Democracy, 1996. Religion and State 71 These very same questions were heavily debated during Hegel’s life‐ time, the period of the late Enlightenment and Romanticism, of the French Revolution and the Restoration, from the 1790’s unto the 1830’s. This is a very important period in which many of our own contemporary ideas and ideals of the organisation of society were settled, also with regard to the place of religion in it. All during his working lifetime, Hegel intensely ad‐ dressed the questions regarding religion in relation to society and the state. His ideas were not written down in one single monograph, but are laid down in numerous publications, scattered over many years. They reflect a great deal of continuity and coherence, but also discontinuity and chang‐ ing nuances. It must be noted, however, first of all, that Hegel answers these questions very differently from the way we nowadays would tend to answer them. Where we now would be inclined to diminish and maybe to underestimate the role of religion for people in society, Hegel definitely did not. Religion is inescapable for providing social cohesion and moral infrastructure for society, and the importance of religion here can hardly be overestimated. In this contribution, the ideas of Hegel, their meaning and their rele‐ vance for today will be addressed critically.5 In section B we will start with an analysis of some of the writings of the young Hegel, comprising the years 1790-1800 when he was in his twenties. These manuscripts were never published by Hegel and became known to us only after publication by Hermann Nohl, under the title Hegels Theologische Jugendschriften (Tübingen, 1907).6 They demonstrate a keen and sensitive understanding of the value of religion for the ethical fabric of society but still lack philo‐ sophical argumentation. In the next section C we will focus on the more systematic place of religion in society, according to Hegel’s philosophical scheme that has come to maturity in his middle age, where he discusses 5 Literature on this subject is recently booming in the English-speaking world: Lewis, Religion, Modernity, and Politics in Hegel, 2011; Nuzzo (ed.), Hegel on Religion and Politics, 2013, and many others. See also: Labuschagne and Slootweg, Hegel’s Philosophy of the Historical Religions, 2012, and Labuschagne, “Godsdienst en de grondslagen van recht en staat bij Hegel,” 2014, pp. 45-80 (in Dutch). It is this last contribution that provided much material for the present chapter here. Earlier publi‐ cations on this subject can be found in solid German scholarship, for example in the works of Herbert Scheit, Ernst-Wolfgang Böckenförde, Walter Jaeschke, Andreas Arndt and many others. 6 These texts were (partly) translated in English and published as Hegel, Early Theo‐ logical Writings, 1948, and some others as Hegel, Three Essays 1793-1795, 1984. Bart Labuschagne 72 the foundations of the state in the hearts and minds of the population, their sittliche Gesinnung (ethical disposition) towards the commonwealth. The famous text that we will be studying and commenting is the long Anmer‐ kung (remark) to § 270 of the Grundlinien der Philosophie des Rechts (Berlin, 1821).7 It is in fact a short treatise on the relationship between re‐ ligion and state, viewed from his philosophy of law. Hegel stresses the im‐ portance of religion for state and society, but doesn’t seem to care much about what kind of religion people adhere to, as long as it is any religion. The following paragraph (D.) will deal with the view of the older Hegel, in the final phase of his thinking, which shows remarkable shifts and nu‐ ances. The text we will be discussing here is § 552 of the final version of the Enzyklopädie der Philosophischen Wissenschaften (Berlin, 1830).8 In it, Hegel is no longer indifferent as to what kind of religion people should adhere to, but is explicitly positive about Protestant Christianity and nega‐ tive on Roman Catholicism. We will see how Hegel’s view has developed over these years, in particular how these changes should be understood and evaluated for our purposes of coming to terms with the role of religion today. And finally in the conclusion in section E, we will draw some fur‐ ther lines to the present day and ask ourselves what Hegel still has to offer to our understanding of the value of religion in society in relation to the foundations of law and state. Is it really true that a bad concept of God leads automatically to a bad state, a bad government and bad laws? If this would be indeed the case, then we should be very worried about our age in which secularisation and religious pluralism run rampant, which contain all various kinds of concepts of God or the divine, and have serious con‐ cerns about the impact that would have on the moral foundations of law and state. Or is a different, more positive conclusion possible? The young Hegel: In Search of a Contemporary Civil Religion for the Modern State Already in the very first (unpublished) writing of Hegel that has come down to us, dated around 1793 and 1794, and that has received the title Fragmente über Volksreligion und Christentum – later known as ‘The B. 7 Hegel, Elements of the Philosophy of Right. 8 Part III of Hegel’s Encyclopaedia, in which this paragraph is located, is translated as Hegel’s Philosophy of Mind, 2007. Religion and State 73 Tübingen Essay’ and ‘The Berne Fragments’ – he comes to speak about the very problem that occupies us here.9 Hegel started writing this essay during the final months of his stay as a student in the Tübinger Stift and continued writing after he had been hired as a private tutor to the children of a rich family in Bern, Switzerland. Trained as a theologian and philoso‐ pher, he did not write it in this professional capacity but more as a social theorist who explores how a people’s religion, in fact a civil religion, could function as a social glue that could provide social cohesion in a dis‐ integrating and fragmenting society. His intended audience was not pro‐ fessionally trained philosophers, but he had a much wider, literary audi‐ ence in mind. In this period he saw himself as a Volkserzieher, an educator of the people, very much in the spirit of Gotthold Ephraim Lessing with his Nathan der Weise. In these fragments, Hegel investigates the extent to which religion en‐ ables a people to foster shared intuitions and motivations that can keep a complex but free society together. This would require a civil religion that drives people to act in accordance with practical reason. What Hegel means with practical reason are the requirements of the moral law, formu‐ lated by Immanuel Kant as the Categorical Imperative: act only according to that maxim whereby you can, at the same time, will that it should be‐ come a universal law.10 A popular translation is the Golden Rule: one should treat others as one would like others to treat oneself. We can of course establish with practical reason what people should do and not do, but most people in fact do not act out of sheer sense of duty. That is why auxiliary motives are necessary for these people, and here Hegel sees an important part played by a civil religion, that is: to deliver psychologically effective motives for moral behaviour.11 Religion consists according to Hegel not only of arid knowledge of God and his characteristics, our relationship with him and how we should stand in the world (this is what he calls ‘objective religion’), but is also some‐ thing of man’s heart and how it pertains to our thought and feelings and to the determination of our will (this is ‘subjective religion’). The duties peo‐ ple have and the laws of a nation that need to be complied with can re‐ ceive a greater emphasis and can impress us more when they are repre‐ 9 See Hegel, “The Tübingen Essay,” 1984, pp. 30-58; “The Berne Fragments,” 1984, pp. 59-103. 10 See Kant, Grounding for the Metaphysics of Morals, 1993, p. 30. 11 See Hegel, “The Tübingen Essay,” pp. 59-103, pp. 31-32. Bart Labuschagne 74 sented as divine commandments in religion. Religion supplies morality, in particular the motives for ethical behaviour, with a new and elevated Schwung (momentum), and stems the tide against the power of sensual passions in a particular and effective manner. A civil religion like that would stimulate our behaviour, by instilling in people from young age on‐ wards, by means of ceremonies, stories and habituation, these collective convictions, thereby intermingling them with the loom of human feelings, and binding them to what effectively propels human behaviour.12 It is ulti‐ mately, in Hegel’s words, not about the folding of the hands or the bowing of the knees and the heart for the sacred, but it reveals its presence by the way it suffuses the entire scope of human inclination and makes its pres‐ ence felt everywhere (without the soul being directly conscious of it). It for a great part moulds our feelings that are necessary for being able to practice virtues like love for one’s neighbour, but also for being delivered from feelings of envy for example.13 In order to be able to fulfil its role of effectively providing social cohesion for society, this civil religion should of course respect the freedom of conscience and essential elements of the freedom of exercise of religion. It should advance the ethos of society, but not impose from above one particular faith, or exclude beforehand that a plurality of (private) religions can exist next to each other. Individual lib‐ erty is something definitely to be respected.14 Hegel marks out different roles for a civil religion like this on the one hand, and for the actual, historically developed private religions on the other hand. For the latter he has the creation and education of a small elite of very dedicated believers in store. These private religions – and Hegel has in particular the Christian denominations in mind – serve therefore a totally different purpose. The moral excellence that is cultivated in them is something for groups who are voluntarily composed on the basis of free choice of faith. It would lead to moral tyranny to impose these high moral standards on the population as a whole. Therefore it would even be coun‐ terproductive to try to do so. A good Volksreligion is aimed conversely to the moral cultivation of the population as a whole towards a certain mini‐ mum standards, not the formation of ethical adepts or an elite of sages. Trying to mould everyone’s character towards these high demands is to 12 See ibid., pp. 59-103, pp. 32-33. 13 See ibid., pp. 59-103, pp. 35-36. 14 See Hegel, “The Berne Fragments,” 1984, p. 79. See also extensively Lewis, Reli‐ gion, Modernity, and Politics in Hegel, pp. 25-27. Religion and State 75 confuse a civil religion, which is relevant for everybody, with what should be relegated to a private religion.15 The big question is of course how such a Volksreligion exactly should look like. In the rest of the ‘Tübingen Essay’ Hegel tries to find an answer, systematically exploring this stubborn field. First of all, its central tenets should be based upon generally acceptable practical reason. A civil reli‐ gion does not demand from people that they accept unreasonable things. Any religion that asks from people to sacrifice their intellect will not con‐ vince people in the long run. What the creed teaches, should at least be accessible for common understanding.16 Moreover, man’s imagination, the heart, and the senses must not go away empty-handed in the process of constituting such a folk, civil religion. Although it can be considered a high ideal (pace Kant) that people are morally motivated by respect for duty alone, fact is that for most people non-moral incentives are indispens‐ able as motives for moral behaviour. Love is of course one of the most im‐ portant, but it can also be tradition, trust, the feeling of being recognised and being part of something greater, etcetera. Ceremonies play an impor‐ tant role here, according to Hegel who dwells in this regard on music, fes‐ tivals, games and so on. These are forms and practices that are able to touch the heart and move the breast pre-eminently.17 And finally, civil reli‐ gion needs to be constituted in such a way, that all of life’s needs, includ‐ ing public and official transactions, are bound up with it. It is obvious that Hegel has the classical Greek polis-religion in mind here, where numerous festivals structured public life, ethics and social cohesion in the city-state. They permeated people’s entire life and enabled them to feel they were a moral, political, and social unity.18 This ‘Tübingen Essay’ poses the problem in a very clear manner and points in directions where solutions might be found. Nevertheless, Hegel has not very concrete suggestions as to how this all relates to the actual, 15 See Hegel, “The Tübingen Essay,” p. 50; Lewis, Religion, Modernity, and Politics in Hegel, p. 28. 16 See Hegel, “The Tübingen Essay,” pp. 49-52; Lewis, Religion, Modernity, and Po‐ litics in Hegel, pp. 28-29. Not only does Hegel here join Kant, but also Rousseau in his idea of a civil religion, as proposed in book IV, chapter 8 of his Du Contrat Social, 1762. 17 See Hegel, “The Tübingen Essay,” pp. 54-55; Lewis, Religion, Modernity, and Po‐ litics in Hegel, p. 30. 18 See Hegel, “The Tübingen Essay,” pp. 55-58; Lewis, Religion, Modernity, and Po‐ litics in Hegel, pp. 31-32. Bart Labuschagne 76 existent religions. To what extent can for example Christianity be a suppli‐ er for this civil religion? Or do we need to look for and find the sources for it somewhere else? These were the very questions that Hegel addressed in another fragment from this period, one of the ‘Berne Fragments’ that were written in Bern in 1794, in which he shows himself very critical of the role of Christianity in this respect. Instead, he focusses on a greater ap‐ preciation of the role of history and tradition. The state has a great interest in people obeying wholeheartedly the laws of the country, without being forced or pushed to do it. Christianity originated initially as a private reli‐ gion, as a religion in which the moral perfection of the individual stands at the forefront. Hegel analyses Jesus’ advise to sell all one’s possessions and give the proceeds to the poor. When we imagine this being put into effect as a rule of conduct for even a small community or a humble village, it yields consequences so absurd that we cannot conceive its extension to a larger populace. For Hegel, this image of perfection that Christ erects car‐ ries within itself the proof of how much Christ in his teaching had in mind the cultivation and perfection of the individual human being and how little it can be extended to a society as a whole. Such behaviour cannot be ex‐ pected from ordinary citizens in order for the state to function properly. When perfectionist ideals are enforced on a whole society, tyranny will be the consequence. The history of Christianity clearly demonstrates this, ac‐ cording to Hegel. Not only in Catholicism with (forced) confession, ex‐ communication and the ban but also in Protestantism the tendency to con‐ trol man’s inner thoughts and feelings was pervasive.19 How important is religion for morality? Is moral goodness only attain‐ able through faith (in Jesus Christ e.g.), or is it universally attainable inde‐ pendent from religion? In the ‘Berne Fragment’ Hegel struggles with these questions, and it is remarkable how he consequently puts the demands for a peaceful and free society first and foremost. And when we focus our at‐ tention to this, we discover that Christianity overreaches this aim morally. Hegel tries instead to dwell on the notion that a population should be made accustomed to cordial social ties, with the help of historically grown tradi‐ tions, with folk tales, legends, stories, music, festivals, and all kinds of in‐ stitutions etc. in order to strengthen the ethos of a free state and society. Christianity has no role here, according to Hegel, in this phase of his 19 See Hegel, “The Berne Fragments,” pp. 69-75, 79‑80; Lewis, Religion, Modernity, and Politics in Hegel, pp. 33-34. Religion and State 77 thought.20 It is clear that Hegel is still looking for a suitable candidate as a provider for this civil religion. The answers he now is exploring and ex‐ perimenting with steer him right into the waterways of emerging Romanti‐ cism, what would later in the period of the Restoration, after 1815 make furore as romantic nationalism. In this later period, Hegel would distance himself from these tendencies fiercely. This quest for an appropriate source for this civil religion is further ex‐ plored by Hegel in several other unpublished texts from this period. Dur‐ ing his stay in Frankfurt, also as a private tutor, he wrote several Entwürfe über Religion und Liebe (1797/98)21 in which love is increasingly allotted the role as a source for religion, morality and social cohesion as well. In love, all kinds of opposites can be elevated and solved: between duty and inclination, between ‘me’ and the ‘other’, between object and subject etc. It should be noted that Hegel also experimented with other concepts that could fulfil this reconciliatory task, like ‘life’ and ‘spirit’. But he conclud‐ ed here that ‘love’ is the philosophical key to open the wells of normative order in society. Especially in a text titled Der Geist des Christentums und sein Schicksal, which he wrote in Frankfurt between 1798 and 1800, Hegel elaborated on this idea extensively.22 Although lack of space here prevents us from discussing this important text at length, we will neverthe‐ less devote some words to it in order to understand how Hegel’s thought developed itself towards what was published in his mature works early in the 19th century.23 According to Hegel, love constitutes a category beyond morality, even beyond the division between ‘is’ and ‘ought’. Where duty and virtue pre‐ supposes a division and a tension between the ‘self’ (even in the au‐ tonomous morality of Kant, there is always a part in ourselves that is in control and a master in command, and a part that is obedient, the servant), love annihilates and elevates this separation, by enabling that which is to 20 See Hegel, “The Berne Fragments,” pp. 80-92; Lewis, Religion, Modernity, and Politics in Hegel, 2011, pp. 36-37, 42-44. 21 Unfortunately, these were not translated into English. I refer to the original source in German: Hegel, “Entwürfe über Religion und Liebe“, in Frühe Schriften, Werke 1, 1971, pp. 239-254. 22 See Hegel, “The Spirit of Christianity and its Fate,” 1948, pp. 182-301. 23 According to Jacques Derrida, Glas. Que reste-t-il du savoir absolu?, 1974, p. 78, this work contains the matrix of Hegel’s mature philosophical system. Thomas Lewis is more reticent: he notices that Hegel’s engagement with love is more like a stepping-stone to his later, systematical work. Bart Labuschagne 78 be done according to duty or virtue, to be done entirely voluntarily and out of ourselves, namely out of love. Kant would argue that this would amount to acting out of inclination, even though love is a good one. Hegel ignores this point and maintains that with love a category is introduced that moves us beyond these kinds of oppositions and strains that split us and break us up.24 Love not only unites our inner divided self, but also an‐ nihilates the alienation between people, and the rift between man and the world, subject and object. It makes that we see and appreciate the totality and coherence of the world, of man and his place in the larger unity of so‐ ciety.25 What then is exactly the role of love in keeping society together? In ‘The Spirit of Christianity’ Hegel describes how in early Christianity peo‐ ple formed communities tied together by bonds of love. Christians lived in small congregations refrained from private property, and shared their pos‐ sessions with each other and ate their daily meals together. What we in fact see in these early communities is not the germ of a general and uni‐ versal people (‘mankind’), but on the contrary an intrinsically limited fel‐ lowship that stands in contrast and separation to the rest of the world, and therefore is definitely not universal. For larger society, private property is indispensable for some kind of order in society, where people are strangers to one another. In the end, Hegel has no other option than to abandon the idea of love in the strong sense that is deeply religiously motivated as a source of social cohesion in larger society. Social coherence does not have to entail that people entertain these strong bonds of love with one another. A different, but not inferior kind of love is sufficient for that. And here comes the role of religion into play again, because religious language, im‐ ages and stories are indispensable for expressing and communicating a more general human benevolence and consideration. This kind of human, mutual affability is embodied and opened up for the heart and mind in im‐ ages, representations and inspiring stories, like that of the Good Samaritan (Luke 10: 25-37), in fact a story of simple human solidarity and brother‐ hood. All this opens up the way for Hegel’s greater appreciation of the role of religion for societal order than in his earlier writings.26 24 See Hegel, “The Spirit of Christianity and its Fate,” 1948, pp. 210-217. 25 Hegel, “Entwürfe über Religion und Liebe“, p. 246; Lewis, Religion, Modernity, and Politics in Hegel, p. 48. 26 See for a thorough discussion Lewis, Religion, Modernity, and Politics in Hegel, pp. 33-34, 51-53. Religion and State 79 It is in exactly this light that Hegel investigates the ‘spirit’ of the actual historical religions, more in particular the spirit of Judaism on the one hand and the spirit of Christianity on the other. Studying this spirit of a re‐ ligion is tantamount to analysing the attitudes of believers, as these are symbolized in religious representations and practices, to the degree that they actually can contribute to this very human, brotherly benevolence. No longer is the concept of love the reference point par excellence for social cohesion and moral order in larger society, because true love can only re‐ ally flourish in small communities. For larger society, we have to rely – besides law of course – on some form of religion. However, religion in some ‘light version’, as benevolent mutual human solidarity, supported by Biblical stories, images and corresponding moral attitudes. It is this intu‐ ition that will prove to have a lasting importance in Hegel’s later, mature philosophical thought, to which we will turn our attention right now. State and Religion in Hegels Grundlinien der Philosophie des Rechts (1821) In a long Remark of more than thirteen pages to § 270 of the Elements of the Philosophy of Right, Hegel explains how the relationship between state and religion should be understood in the light of his philosophy of law.27 He does this in the final, third section of the third part of this book, where the state is discussed. What is exactly a state? How does Hegel conceive the state? And how does the state relate exactly to religion? In answering these questions, we must first of all keep in mind what Hegel has to say in this book in the first place. In short: law (in the broad sense as ‘right’) and state serve the purpose of the realization of human freedom. They embody the way by which we humans give freedom an objective existence and by which the consciousness of freedom, which is at the same time human self-consciousness, becomes real. “[T]he system of right is the realm of actualized freedom, the world of spirit produced from within itself as a second nature.”28 The state is the institution of all social institutions that enable this realization on a national level in a concrete way and protects this freedom. For Hegel, the state is more than just the political organiza‐ C. 27 Hegel, Elements of the Philosophy of Right, Preface, § 270 Remark, pp. 291-304. 28 Ibid., p. 35. Bart Labuschagne 80 tion of society. It comprises common characteristics of a people, as it is expressed in its culture, civilization, and its spiritual and ethical con‐ sciousness. The principle of the modern state, as Hegel saw this emerging in the modern, post-Napoleonic age, has an enormous strength and depth, precisely because it allows individual freedom to flourish, and at the same time bringing it back to substantial unity and so preserving this unity in the principle of subjectivity itself.29 The individual can completely be himself in the family and in civil society and blossom and develop his tal‐ ents in all directions while being at the same time assimilated in a larger whole and connected with reasonableness – so that he can be better pre‐ served in the end. In this way, a unity of universality and particularity is realized; individual and society are mediated with each other. This unity is realized on two specific levels, on the one hand objec‐ tively, in the actual constitution, the institutions of the state, laws, regula‐ tions and the like.30 On the other hand subjectively, that is by the support‐ ive political disposition and the trust that is put in the government by the citizens. This can be indicated as constitutional patriotism, love of one’s country, in the most common and simple meaning of the word as political virtue: my confidence that my individual subjectivity is in good hands and safeguarded by the state. This is often a matter of unconscious habit, like the possibility to walk safely on the streets by night. This habit of living in safety has so to speak become a second nature, and we scarcely stop to think that it is solely the effect of specific stately institutions.31 But it is nevertheless a form of consciousness. In short, the state is a form of con‐ scious universality that enables particularity to participate in it, which is formed (gebildet) in a specific way. And this is exactly the point where re‐ ligion comes into play, because what people believe in, where they have their heart, is of paramount importance to the quality of the foundations of the state.32 Religion is discussed and scrutinized with regard to this func‐ tion only. It is not analysed to the extent that it has also a different function or meaning for itself or something else. Hegel has done that in other 29 See ibid., p. 282. 30 See ibid., §§ 265, 266 and 269, pp. 287-288 and 290 Addition, where the constitu‐ tion is indicated as something organic, an organism. 31 See ibid., § 268, Addition, p. 289. 32 See ibid., § 270 and Remark, pp. 290 ff. Religion and State 81 works, for example in the Phenomenology of Spirit (1807) and in the Lec‐ tures on the Philosophy of Religion (1821-1831).33 It is typical for Hegel that he does not conceive the relationship be‐ tween religion and the state in simplistic, contradictory terms. Neither that state and religion should have nothing to do with each other (as secularist tendencies nowadays suggest), nor that state and religion are essentially one (as reactionary, restorative forces in the 19th century proclaimed un‐ der the banner of an alliance between throne and altar). In Hegel’s view, state and religion are both united and separated. This calls for an explana‐ tion. The two are one with regard to their content. Both share one and the same foundation, i.e. the absolute. But each relates in his own peculiar way to the absolute, to the truth. In the state, the truth that it is the realiza‐ tion of freedom comes to the fore. In religion, absolute truth is mediated and experienced not in the way it is done in philosophy, where it is pre‐ sented in the mode of conceptual understanding, but as intuition, feeling and representational cognition. So is for example the unity of infinitude and finitude, of the human and the divine believed, represented and felt in the symbolism of the divine incarnation in Christ, and not understood as such. According to Hegel, Christianity is the truth of religion, because it is the religion of freedom and of the unity of the divine and the human. God appears here as the Father, not as some strange, remote, mere transcendent reality, compared to whom man is only a tiny creature. He also is the Son, in Christ – and the Holy Spirit, who moves and inspires in mysterious ways. We must keep in mind that other religions that have a different con‐ cept of God and the divine also have another image and idea of the abso‐ lute and how the state is to be conceived. This all entails that the absolute is present in religion and the state in very different ways. The point in which they converge is where for man his ultimate disposition and deepest loyalty are situated. Faith perceives everything from the view of what God demands from us, and therefore has a binding force that permeates the totality of life. The state and its laws acquire legitimacy and are obeyed wholeheartedly from this perspective only when they are represented and experienced as in accordance with the 33 Hegel, Lectures on the Philosophy of Religion, 2007, p. 452, and Lewis, Religion, Modernity, and Politics in Hegel; Nuzzo (ed.), Hegel on Religion and Politics; Labuschagne and Slootweg, Hegel’s Philosophy of the Historical Religions, and Labuschagne, “Godsdienst en de grondslagen van recht en staat bij Hegel,” pp. 45-80. Bart Labuschagne 82 divine. True religiosity and a positive attitude towards the state and its laws can go very well together, according to Hegel. Hence, he denounces the position that proclaims that only by turning one’s back on the earthly world and politics one can be truly religious. The consequence for human behaviour is such advice as ‘To the righteous, no law is given’, that can lead to dangerous fanaticism. “Those who ‘seek the Lord’ and assure themselves, in their uneducated (ungebildete) opinion, that they possess everything immediately instead of undertaking the work of raising their subjectivity to cognition of the truth and knowledge of objective right and duty, can produce nothing but folly, outrage, and the destruction of all eth‐ ical relations.”34 On the contrary: a true believer in the eyes of Hegel rec‐ ognizes in the state and its laws that which constitutes his substantial free‐ dom, which is the activity of the spirit, of self-consciousness of freedom. There is no dual truth; neither can there be a conflict between thought and faith. Freedom, the infinite dignity of man, and the unity of universality and particularity are in the centre stage of both. Now that religion in this way comprises the foundation of ethical life and the character of the state (as if they originated from a divine will) it is at the same time only their foundation, and from this point onwards they diverge. They need to be separated strictly and consequentially. While spirit provides itself in the state an external reality and unfolds itself in the organisation of relations in society, it remains in religion in one’s inner self and conscience. Religion and state are distinguished from each other as internality from externality. From this follows, on the one hand, that the state is incompetent in religious matters. The state has no saying in and has nothing to do with this sphere of inwardness and the personal convic‐ tions of its citizens, at least when they take no hostile stance towards the legal and ethical order. The latter belongs to the domain of the state. On the other hand, it can be inferred that religion has no competence in mat‐ ters of the state. The system of laws, the rights and duties that citizens have towards one another and towards the state are not subject to religious authority. The state cannot impose one particular religion on its citizens, and religion lacks the rational thinking and organising that is needed to regulate social and political life. From the belief that we are all children of 34 Hegel, Elements of the Philosophy of Right, § 270 Remark, p. 294. Religion and State 83 one heavenly Father cannot be inferred how society should be rationally ordered in detail. Religious conviction is from a totally different order.35 Although the state cannot prescribe the citizens what they should be‐ lieve or not, Hegel nevertheless requires that citizens be members of some congregation, “since religion is that moment which integrates the state at the deepest level of the disposition [of its citizens].”36 What community they belong to is of no importance as long as they are members of any community they please, for the state can have no say in the content of reli‐ gious belief in so far as this relates to the internal dimension of representa‐ tional thought.37 A liberal state which is strong because its organisation is fully developed can adopt a more liberal attitude in this respect. It may even completely overlook individual matters which might affect it, “or even tolerate communities whose religion does not recognize even their direct duties towards the state (although this naturally depends on the numbers concerned).”38 Hegel is thinking about Quakers and Anabaptists who refuse military service. Instead, a compensating duty can be imposed. Anyway, freedom of religion cannot be invoked in order to tolerate practices within religious communities which are contrary to the rights and duties of any citizen in a nation. On the other hand, it is of course also the duty of the state to provide the religious community with every assis‐ tance and protection in the pursuit of its religious end.39 Finally, Hegel dwells upon the paramount importance of the Reforma‐ tion and the falling apart of the old Catholic world in a plurality of congre‐ gations. Hegel contends that this has in the end, after all been a very favourable situation, both for the state as for religion itself. The modern state, which keeps the banner of freedom high, owes its existence in the first place that it is not connected to a specific church or belief. The mod‐ ern state can exist only against a backdrop that is religiously plural in character. Not only Catholics and Protestants should have equal rights and freedoms; Jews as well should possess full citizenship with all entailing rights and freedoms, simply because they are human beings in the first 35 Ibid., pp. 292-293. 36 See ibid., p. 295. 37 It is to be noted that precisely on this point the later, older Hegel will differ from view. 38 Hegel, Elements of the Philosophy of Right, p. 295. 39 See ibid. Bart Labuschagne 84 place and not just members of a specific people of religious community.40 The distinguishing feature of the modern state is that is does not directly identify itself with a specific religion, although Christianity is the carrier of the principle on which the modern state is founded. Although the state does not comprise of the highest or the absolute, it represents nevertheless the highest instance on the level of ‘objective spir‐ it’ and has its roots in ‘absolute spirit’. In the state, the absolute is present to the extent that the ethical idea of freedom becomes reality. What be‐ comes reality in the state is not something arbitrary or capricious, as if his‐ tory is only filled with mere chance and luck, but is self-consciousness it‐ self, becoming real as something universal that is known and thought. In a way, the state itself is also a product of religion, also because the state can‐ not be conceived as something entirely independent of a history of salva‐ tion and divine engagement with the world, according to Hegel.41 Hegel can be very easily misunderstood and misread,42 as if he divinised the state. The only thing he contends is that the process by which the state re‐ alises human freedom gradually more adequately is a means by which God interacts with the world.43 To sum up: although state and religion share a deep and common foun‐ dation with each other, which in practice pertains mainly to the disposition that citizens have towards political life in the state, each one of them has its specific, demarcated domain in which the other has nothing to say. Hegel posits himself on a moderate pluralistic standpoint and draws the 40 See ibid., § 209, p. 240. With this contention, Hegel went directly against the grain of current regulations of the German Federation (Deutscher Bund) that all citizens be members of one of the three officially recognized denominations. 41 See ibid., § 258, Addition, p. 279, where we can read in the English translation: “The state consists in the march of God in the world”, which is not an accurate translation of the original German that reads “Es ist der Gang Gottes in der Welt, dass der Staat ist” – therefore we should translate that as “it is the march of God in the world, that there exists a state – something entirely different from what the translation suggests: it suggests that everything a state is and does, is the result of divine providence, but Hegel means to say here that it is God’s will that there is a state that realizes the human potential of freedom. 42 For example, due to translational errors mentioned in the previous note. 43 This theme is exposed extensively in Hegel’s Lectures on the Philosophy of Histo‐ ry. See for an excellent commentary Hodgson, Shapes of Freedo: Hegel’s Philoso‐ phy of World History in Theological Perspective, 2012. A very readable introduc‐ tion, also to Hegel’s philosophy as such, is provided by Houlgate, Freedom, Truth and Histor: An Introduction to Hegel’s Philosophy, 1991. Religion and State 85 line of what has to be tolerated along fanaticism with which is frowned upon ‘normal’ and day-to-day ethical duties that citizens have towards one another and the state. If religion is involved in this fanatic fervor, then Hegel has no mercy. It might be an interesting question what Hegel would have thought of the very opposite of fanaticism: indifference and quietude. Of course, fanaticism of which Hegel speaks forms a direct threat to the foundations of the state, but the (actual) question can be raised whether present tendencies towards indifference or even hostility towards the abso‐ lute (maybe caused by still rising secularization, at least in Western Euro‐ pe) nevertheless poses a danger, although more indirect and less explicitly. Questions like these will be discussed in the final paragraph (E.) of this contribution. But first we have to turn our attention to the views of the old‐ er, even more mature and developed Hegel, as we come to the fore in his work of around 1830, only shortly before his sudden death in 1831. Religion and State in the later Hegel: The Encyclopaedia of 1830 As noted in the introduction above, Hegel’s ideas on the relationship be‐ tween religion, law and state have only developed and blossomed fully in the final and most mature phase of his life and work. These ideas are ex‐ posed in several works dating from that period, for example his Lectures on the philosophy of religion, the Lectures on the philosophy of history (both only published after his death) and the third edition of the Encyclo‐ paedia of the Philosophical Sciences, published in 1830. Due to lack of space to dwell extensively on all these works, we will concentrate on Hegel’s published work, the Encyclopaedia. With this, we obtain a good overview of Hegel’s final outlook on our subject and we can see where and why nuances have occurred. Although Hegel’s Encyclopaedia was published in 1830 as a concise summary of his philosophical system as a whole, and part of it is dedicat‐ ed to the philosophy of law and state (under the title of ‘Objective Spir‐ it’),44 the treatment of the relationship between religion and state herein D. 44 Hegel’s Encyclopedia of the Philosophical Sciences consists of three parts: 1) Logic – metaphysics and epistemology etc. 2) Nature – physics and organics etc. and 3) Spirit – subjective spirit (anthropology, psychology etc.), objective spirit (law, ethics, politics and the state) and absolute spirit (art, religion and philoso‐ phy). Bart Labuschagne 86 differs from that in the Elements of 1821. To start with, the systematic place where this analysis is made is very different. Instead of treating it in an introductory text where the general principles of the state are discussed, it is placed at the very end of the entire part of Objective Spirit, after the state, international law and the philosophy of history, in a long Remark to § 552, comprising about 11 pages. Situating the problem right on the bor‐ der between objective and absolute spirit, between finite existence and in‐ finity, sheds clear light on how we should deal with it. Right on this spot the transition is made philosophically from actual, finite existence (dis‐ cussed in Objective Spirit) to infinity as it comes to the fore in art, religion and philosophy (Absolute Spirit). It is in this very paragraph where the re‐ lationship between the infinity of art, religion and philosophy and the fini‐ tude of actual social, political and historical existence is brought to com‐ prehension. How is the sphere of objective spirit anticipated by an abso‐ lute spirit? In what way does absolute spirit determine what happens in objective spirit? Right in the focus of these kinds of questions Hegel’s considerations of religion in relation to the state take place. Similar to the Elements where religiosity is associated with people’s ethical disposition, here also their moral attitude and the way they stand in the world and perceive society and state stand central. “Ethical life is the state drawn back into its substantial interior, while the state is the develop‐ ment and actualization of ethical life, but that the substantiality of ethical life itself and of the state is religion. According to this relationship, the state rests on the ethical disposition, and this rests on the religious disposi‐ tion.”45 The right religious disposition emerges only from ethical life when it becomes conscious of the free universality of its concrete essence. The ethos of a free society is rooted in a religious disposition towards free‐ dom, an ethos that religiously embraces and endorses freedom. Ethical life is so to speak divine spirit as indwelling in consciousness, in the actual presence of self-consciousness as a people and the individual members of that people as a whole. “[T]his self-consciousness retreating into itself out of its empirical actuality and bringing its truth to consciousness, had in its faith and in its conscience only what it has in the certainty of itself, in its spiritual actuality. The two are inseparable; there cannot be two sorts of conscience, a religious conscience and an ethical conscience, differing 45 Hegel, Philosophy of Mind, (1830) 2007, p. 251. Religion and State 87 from it in substance and content.”46 According to Hegel, it is up to the re‐ ligious content to corroborate ethical life in its functioning in empirical re‐ ality. For self-consciousness, religion is the basis of ethical life and the state. On this point, Hegel holds pertinently the view that man is a thor‐ oughly religious animal, and that what man believes in is crucial for how he perceives morality, social and political life. In what follows, Hegel dissociates himself explicitly from his own standpoint in the Elements of 1821 that religion is only the foundation of the state and that the two of them depart from one another from that point onward and should be considered separated from each other. “It has been the massive error of our times to want to regard these inseparables as sepa‐ rable from one another, in fact even as mutually indifferent. The view tak‐ en of the relationship of religion and the state has been that the state al‐ ready exists for itself in some other way and from some force or power, while religion is the subjective affair of individuals and had to be added, perhaps as something desirable only for strengthening the state, or is even a matter of indifference, since the ethical life of the state, i.e. rational law and constitution, stands firm for itself on its own ground.”47 The idea that law and the state can be something self-supporting, and can be obeyed on‐ ly on the basis of rational insight of the people, is vehemently rejected by Hegel. Reasonable law and a reasonable constitution cannot stand on their feet alone: a spirit of free consciousness is indispensable for them, and this can only be found in religion, in what people deeply believe in and put their faith, trust and heart in. In the Lectures on the Philosophy of Religion (of 1831) Hegel is even more clear about this: “Religion is knowledge of the highest truth, and this truth, defined more precisely, is free spirit. In re‐ ligion, human beings are free before God. Because they make their will conform to the divine will, they are not opposed to the highest will but in‐ stead have themselves within it. (…) The state is simply freedom in the world, in actuality. What essentially matters here is the concept of freedom that a people bears within its self-consciousness, for the concept of free‐ dom is realized in the state. (…) There is one concept of freedom in reli‐ gion and state. This one concept is the highest concept that humans have, 46 Ibid., p. 251. 47 Ibid. Bart Labuschagne 88 and it is made real by them.”48 Obviously, Hegel is no longer indifferent towards what religion they adhere to, as long as they confess to any reli‐ gion of their choice, like he maintained back in 1821. The Hegel of 1830 takes a much more critical stance towards the kind of religion people be‐ lieve in. When a religion lacks this spirit of freedom and self-conscious‐ ness, people can fall prey to a form of spiritual slavery, of a kind that posits itself rigidly in opposition to self-conscious spirit. It is here where Hegel speaks very critical words about Roman Catholicism, and if we lis‐ ten closely and carefully – and ‘read between the lines’ that appear as ap‐ palling at first sight – we can easily extend this criticism to other kinds of religions and worldviews that keep people in spiritual servitude and under‐ stand why that is indeed the case. The essence of Hegel’s criticism on Roman Catholicism is demonstrat‐ ed by his critical treatment of the consecrated host. In the host, “God is presented to religious worship as an external thing. (In the Lutheran church, by contrast, only and solely in the faith, i.e. in the annihilation of the externality of the host, and in the faith, i.e. in the spirit that is at the same time free and self-certain, only then is the host first consecrated and exalted to God in his presence.) From that first and supreme relationship of externality flow all the other external, hence unfree, unspiritual and su‐ perstitious relationships [among Roman Catholics].”49 Hegel mentions several examples of these, like the distinction between an estate of the laity which receives knowledge of divine truth (as well as the direction of people’s will and conscience) from outside, i.e. from another class, the es‐ tate of the clergy. Laity does not itself gain possession of that knowledge in a spiritual way only, but essentially needs an external consecration for it. And there are more examples: for instance the style of praying, “firstly just moving the lips by themselves, then spiritless in that the subject fore‐ goes the direct approach to God and asks others to pray for him; address‐ ing devotion to miracle-working images, even to bones, and expecting miracles from them; in general, justification by external works, a merit which is supposed to be gained by actions, even supposed transferable to others, etc. – all this binds the spirit under a self-externality, by which the concept of spirit is misconceived and perverted in its innermost core, and 48 Hegel, Lectures on the Philosophy of Religion, p. 452. The next sentence here in the text is the quote cited in footnote 3: “A people that has a bad concept of God has also a bad state, bad government, and bad laws.” 49 Hegel, Philosophy of Mind, p. 252. Religion and State 89 right and justice, ethics and conscience, responsibility and duty are cor‐ rupted at their root.”50 Hegel’s main objection to Catholicism is that it conflicts with what he regards as a central feature of modern ethical life, namely individual self-consciousness and individual freedom and autono‐ my.51 According to Hegel, corresponding to such a principle and to this devel‐ opment of spiritual unfreedom in the religious sphere there can only be a legislation and constitution of legal and ethical unfreedom, and a condition of lawlessness and ethical depravity in the actual state. He sharply con‐ trasts the sacredness as it is experienced and symbolized in the Catholic world, especially in monasticism where the vows of chastity, poverty and obedience are cast, with Protestant ethics in which sacredness is some‐ thing entirely inward and a matter of conscience, as it comes to the fore in this (long) quote: [T]he divine’s spirit self-introduction into actuality, the liberation of actuality to spirit, means that what in the world is supposed to be holiness is displaced by ethical life. Instead of the vow of chastity, only now does marriage rank as the ethical, and, therefore, the family as the highest condition in this aspect of humanity. Instead of the vow of poverty (corresponding to which, embroiled in contradiction, is the merit of giving away one’s goods to the poor, i.e. en‐ riching them) what counts is the activity of acquisition by one’s own intellect and industry, and honesty in this traffic and use of wealth, ethical life in civil society. Instead of the vow of obedience, what matters is obedience to the law and the legal arrangements of the state – an obedience that is itself genuine freedom, because the state is one’s own reason, self-actualizing reason: ethi‐ cal life in the state. Only so can right and morality then obtain.52 This (albeit hyperbolic, but rhetorically effective) contrasting between sa‐ credness of the monastic life and civil life is indeed telling. A free legal order is incompatible with a religion of unfreedom. Making laws in a country is useless when people’s religion stands in the way of wholeheart‐ edly obeying these laws. Principles of lawful freedom can only be abstract and superficial, and political institutions derived from them must be for themselves untenable, if the wis‐ dom of these principles misunderstands religion so grossly that it is unaware that the principles of the reason of actuality have their ultimate and supreme 50 Ibid. 51 See Inwood, “Commentary to Hegel’s Philosophy of Mind,” 2007, p. 611. 52 Hegel, Philosophy of Mind, p. 253. See. Inwood’s succinct commentary on pp. 613-614. Bart Labuschagne 90 verification in the religious conscience, in subsumption under the conscious‐ ness of absolute truth.53 It is therefore according to Hegel to be considered a folly of modern times to alter a system of corrupt ethical life, its political constitution and legislation without changing the religion, to have made a revolution without a reforma‐ tion, to suppose that with the old religion and its sanctities a political constitu‐ tion opposed to it can have internal peace and harmony, and that stability can be procured for the laws by external guarantees, e.g. so-called chambers, and the power given them to determine the budget and the like.54 And finally, “it is in fact the most profane, the supreme contradiction to want to bind and subject the religious conscience to a worldly legislation that it regards as a profanity.”55 Hegel concludes that only in the principle of the mind that is aware of its essence, is in itself abso‐ lutely free, and has its actuality in the activity of its liberation, is the absolute possibility and necessity to be found for state power, religion, and the princi‐ ples of philosophy to coincide, for the reconciliation of actuality in general with the mind, of the state with the religious conscience as well as with philo‐ sophical knowledge, to be accomplished.56 And finally, [I]n the Protestant conscience the principle of the religious conscience and of the ethical conscience becomes one and the same, – the free mind aware of itself in its rationality and truth. The constitution and legislation, as well as their operation, have as their content the principle and the development of ethical life, which proceeds, and can only proceed, from the truth of religion, when this truth is established as the original principle of ethical life and there‐ by becomes actual as such. The ethical life of the state and the religious spiri‐ tuality of the state are thus firm reciprocal guarantees.57 In short, Hegel suggests that in order for a free society and a legal order based on liberty to exist and function properly it is necessary that it is pro‐ tected from within against decline and corruption by letting it root in a spirit of Protestantism. In order to uphold a free state based on the rule of law, one needs honest, incorruptible Protestant citizens, to paraphrase Hegel in summary. Whether this implies that all citizens actually should 53 Hegel, Philosophy of Mind, p. 253. 54 Ibid., p. 254. 55 Ibid. 56 Ibid., p. 256. 57 Ibid. Religion and State 91 be members of Protestant congregations, is not explicitly clear in Hegel’s texts. He is more concerned about fostering a spirit of Protestantism as an ideal-typical attitude and state of mind that is led by an inner understand‐ ing and awareness of right and wrong and is not commanded by any exter‐ nal, empirical authority. It is this attitude that moreover leaves room for secularity’s and worldliness’ own right. Paradoxically, a state founded on such Protestant principles is a state that does not depend on a specific con‐ fession, but can leave room for a plurality of religions. In other words: Hegel is more concerned for a cultural Protestantism, an attitude that can be embraced across all religions by everyone. Could this cultural Protes‐ tantism then be the ultimate candidate that Hegel has elected as the provider for modern societies and states of the so desperately needed civil religion? In the final, concluding paragraph we will elaborate this question further, when we shall try to formulate some observations on the relevance of Hegel’s views on the relationship between religion and state for our present age. Conclusion: A Hegelian Perspective on Religion, Law and State Today In the aftermath of the dramatic developments of the French Revolution and Napoleon’s transformation of the European continent, a time that is characterised by the dwindling of old certainties and growing social frag‐ mentation, Hegel tried to conceptualise and develop a contemporary no‐ tion of freedom that should benefit not only law and state, but religion it‐ self as well. Not only he wanted to put freedom central in his political and legal thinking, but in theology as well. At the same time however, he had a sharp eye for the conditions under which very diverse and pluralist soci‐ eties can and should be held together. In Hegel’s century, religion was seen as a much more self-evident and taken-for-granted foundation of so‐ ciety and state. Hegel amended this restorative, romantic and nationalistic notion by claiming that the state has indeed a rational foundation, but is in need of religion for its legitimacy and efficacy. What a population believes in, where it puts their trust, their treasure and their heart in, is of influence on how they perceive the authority of law and state. In Hegel’s eyes, reli‐ gion is of decisive influence on man’s character formation, especially dur‐ ing our young age, and influences deeply our moral intuitions, disposi‐ tions, and how we stand in and look at our individual life itself and our living together in society. The role of religion in the formation, education E. Bart Labuschagne 92 (Bildung) and cultivation of our consciousness is considered by Hegel of much greater importance than the formal position that religion takes as an institutionalised manifestation as ‘church’ in society in relation to the state.58 Moreover, the state is in Hegel much more than just the external organi‐ sation and institution that enables peaceful living together as society, but is also the expression of the common meaning of who we are as society and what is important for us. A vital and vigorous state expresses the import of who we together deeply are: free creatures whose freedom should be re‐ flected, embodied and protected in our legal and political institutions. What is symbolized in religion as representations, feelings, rituals and cer‐ emonies is what is realised in the state in political and legal structures: there is after all only one concept of freedom in religion and state, as stat‐ ed by Hegel. Therefore, we can indeed never be really free in a state when we consider the state as the greatest enemy of our liberty. It is for this rea‐ son that religion has such a great significance for our cultivation of a prop‐ er civic disposition.59 This does of course not entail that Hegel demands from citizens a mere blind trust and a servile obedience towards the state. If we understand him properly, we should realise ourselves that our essence is characterised by free spirit, and that we can and may entrust (as we do in faith as well) the realisation and blossoming of it to the instance that embodies this spirit. Faith in God and faith in political institutions run in a certain sense parallel to each other and reinforce one another as well. Not only can our individual liberty flourish better, also the state will func‐ tion more properly, because it is supported from within and among the citizens. When a discrepancy exists between what law and state require from their citizenry on the one hand, and what their deepest convictions teach them on the other hand, law and state cannot have much meaning. After all: “Religion is the sphere in which a nation gives itself the defini‐ tion of that which it regards as the true.”60 This insight of Hegel has far-reaching implications. As discussed above, Hegel strongly inclines towards favouring a moral, civic disposi‐ tion of mind that is moulded by Protestant Christianity as the spiritual in‐ frastructure of modern, liberal democracies. He is very critical towards the 58 See Lewis, Religion, Modernity, and Politics in Hegel, pp. 232-234. 59 See ibid., pp. 234-235. 60 Hegel, Lectures on the Philosophy of History, p. 50. Religion and State 93 spiritual attitudes of Catholicism, but for example that of Islam as well.61 In these two religions, individual liberty and a corresponding personal re‐ sponsibility do not constitute its highest values, nor will states that fit with these religions be likely to uphold these values. Religions characterised by a spiritless servitude and submission62 can never comprise a fertile ground for free, democratic states, according to Hegel. It is of great importance that we bear this in mind when we investigate what Hegel could offer to‐ day for our understanding of the role of religion in society in relation to law and the state. Of course, he could never have expected that the reli‐ gious landscape in the world, especially in Europe, would change as dras‐ tically as it did during the last two centuries. From a thorough Christian world, Europe has secularised drastically and has become a religiously very pluralistic social order, maybe even in some strata of society a hedo‐ nist and materialist society. In other parts of the world, in the wake of the decolonisation, and what is called the revolt against the West, we witness a resurgence of religious movements rooted in (Middle) Eastern parts of the world, e.g. (radical) Islam, Hinduism and others. Tensions between (post-)colonial legal and political superstructures, and the underlying reli‐ gious infrastructure – often fuelled and brought to the fore due to democratisation-processes that unleashed them – are a wide-spread phe‐ nomenon. How democratic institutions, rule of law and protection of hu‐ man rights should function against a religious and cultural background that did not gave birth to these institutions in the first place is one of the most pertinent and difficult questions societies deal with nowadays, espe‐ cially in the (Middle) East. When we would look at these problems from our Hegelian perspective and apply this way of thinking and looking, I think two very different and even contrary conclusions are possible and philosophically defendable: a pessimistic and an optimistic one. I will start elaborating on a more pessimistic outlook and paint with dark colours (‘grey in grey’)63 a world in decline that maybe has nothing to believe or hope in. But finally, I will dwell on a more optimistic position and ex‐ 61 See recent scholarship e.g. Thompson, “Hegel, the Political, and the Theological: The Question of Islam,” 2013, pp. 99-118, and Dudley, “The Active Fanaticism of Political and Religious Life: Hegel on Terror and Islam,” 2013, pp. 119-132. 62 The literal meaning of ‘Islam’ is submission. 63 As philosophy does, according to Hegel in the Preface of the Elements of the Phi‐ losophy of Right, p. 23. “When philosophy paints its grey in grey, a shape of life has grown old, and it cannot be rejuvenated, but only recognized, by the grey in Bart Labuschagne 94 pound a more hopeful and positive conclusion that will conclude this con‐ tribution not in a minor, but in a major key. Looking with a Hegelian view at our present societies, the conclusion first at hand would of course be that the spiritual infrastructure of liberal democracies is in a very bad situation. Protestant Christianity is already many years on the wane, and only a small percentage of the population consider themselves protestant, with the exception maybe of the Scandina‐ vian countries. Secularisation has raged thoroughly through European countries, and growth of protestant denominations is rare, albeit Pente‐ costalism is very much alive in Africa. The rest of the world is dominated either by Roman Catholicism, Islam or indigenous religions – and some by other ideologies that have the status of a political religion. The chance that viable liberal democracies will flourish against these religious and cultural backdrops is in the eyes of Hegel very slight of course. Two dan‐ gers threat the spiritual infrastructure of these societies: nihilism and mate‐ rialism on the one hand, which is the result of the fact that people (espe‐ cially in Europe) have no traditional faith any longer and have come to embrace hedonism and greed for money and wealth instead.64 And on the other hand there is the danger of fanaticism, in all its various forms, Islam‐ ic and non-Islamic; and of course in its most acute form: as terrorism. Faced with these latter dangers, efforts have been made to install and in‐ troduce liberal democratic forms in states like Afghanistan, Iraq, and since the so-called Arab Spring, as well in Libya, Egypt and so on. These turned out to be massive failures,65 in some of these states fuelling civil wars and eventually even leading to the establishing of an Islamic State that calls it‐ self a Caliphate. This recent development would have been no surprise at all for a Hegelian spectator, who would understand that peoples in the Is‐ lamic world are best governed by a form of state that suits the Islamic faith best. Despotism is the most adequate form of government for an Is‐ lamic society, would his conclusion be, because believers who see God as a remote, uncompromising and harsh being who simply has to be obeyed grey of philosophy; the owl of Minerva begins its flight only with the onset of dusk.” A culture’s philosophical understanding reaches its peak only when the cul‐ ture enters its decline, explains Allan Wood in his “Editorial Commentary,” on p. 392. 64 A recent movie of Martin Scorsese, The Wolf of Wall Street, exemplified this type of man brilliantly. 65 Except maybe for only one state that seems to do reasonably well, Tunesia. Religion and State 95 and with whom no discussion is possible are best ruled by a despot to whom one also merely has to submit and not question his authority. Intro‐ ducing democracy in the Islamic world only leads to the fatal degeneration of the forms of state, already described by Plato in his Republic: a weak and corrupt democracy leads to anarchy, strife and civil war, which ensues finally in a tyranny.66 Proof of it can be read in every day’s newspapers and seen on television each and every day. Do not the only vital, long last‐ ing and stable democracies worldwide have their origin in North-Western Europe, where – not surprisingly – Protestantism has always been the dominant religion? Trying to introduce democratic institutions in other parts of the world is asking for a recipe for disaster, according to this view. And ongoing secularisation in the West will eventually erode democracy there as well in due course. This utmost critical and even gloomy perception of the present world and the state of affairs regarding religion, society and state leaves no room for hope or any perspective for improvement at all. Soothed by this glum‐ ness one could easily lean back comfortably, nostalgically and even lazy – and become a rabid cultural pessimist, complaining that everything was better in the old days, that doom is near and that the world is coming to its end, unless we all convert to the only one and true God. Does this really have to be our conclusion? Is this the cul-de-sac we end up finally? Is this philosophically the only outcome of our Hegelian viewpoint on today’s troubles? I think not. There are other possible readings of today’s tenden‐ cies that have plausible philosophical credentials as well and may on good (even Hegelian) grounds even be preferred. It was Hegel himself who ulti‐ mately held an optimistic view on the course and telos of world history as “none other than the progress of the consciousness of freedom.”67 Let us by way of an alternative, more optimistic conclusion draw this line a little further in this direction and see where it brings us. The image of present society might look very different when we are able to see several elements in it that could be interpreted as cultural protestant, be it in a secularised form. Present-day individualism, with its emphasis on personal responsibility for your own life, happiness and the meaning of your life, can undoubtedly be regarded as a heritage of cen‐ turies-long leading Protestantism that has imbued North-West European 66 See Plato, The Republic, Books 8 and 9, 1987, pp. 311-335. 67 Hegel, Lectures on the Philosophy of History, p. 19. Bart Labuschagne 96 culture. With the spreading and the internationalisation of this personal at‐ titude, going hand in hand with the wish to live in a liberal democratic regime that protects this way of life by means of human rights and the rule of law, especially among younger generations worldwide, we can see a new ethos emerging. Parallel to this development, we see a general rise of the level of education, a decline of illiteracy, the result of steady emanci‐ pation and education-programs. With it, new (social) media has led to a forum for many to express and unite themselves, has led to increased po‐ litical awareness and a willingness to stand up against corrupt and tyranni‐ cal regimes. Alongside this, a companying and very personal spirituality is rising, fed by a religious cosmopolitanism that has eye for the fact that the sacred can be found and expressed in many ways, as long as the personal responsibility for each’s choice for one’s life is respected. The uniqueness of each and every individual is something very deeply believed in, as well as the high value of personal freedom. All this seems to engender a deep commitment to an ethos of freedom, which is not only claimed for oneself, but also mutually granted to others. All this are but a few tentative and highly impressionist brush-strokes depicting a more positive, optimistic view on the spiritual infrastructure of society. Of course, tendencies in the various parts of the world do not all point in this direction. Younger generations can choose very different and even contrary ideals, as can be seen in the Islamic world where many join the Jihad of IS. But also in the hearts and minds of them, a very personal decision was made to do so, and it is always possible that they choose oth‐ erwise (as some do when they grow more mature and have become wiser). Taking personal responsibility seems everywhere the bottom-line. It is the question how everybody can be convinced that it takes a liberal state and society that best embodies this freedom. The task of philosophy here is taken to its limits and should not be overstretched.68 Which of the two conclusions discussed just above should be preferred, remains of course up to the critical reader. It is nevertheless hoped that Hegel’s keen insights will keep our attention focused on the way personal faith interacts with so‐ ciety’s ethical regime. 68 See above note 63, on the flight of the Owl of Minerva at dusk. Philosophy can only try to understand its own age, and not predict the future. Religion and State 97 Bibliography Derrida, Jacques, Glas. Que reste-t-il du savoir absolu?, Paris: Galilée, 1974. Dudley, Will, “The Active Fanaticism of Political and Religious Life: Hegel on Terror and Islam,” in Hegel on Religion and Politics, ed. Angelico Nuzzo, New York: SUNY Press, 2013, pp. 119-132. Habermas, Jürgen, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Cambridge: Polity Press, 1996. Hegel, Georg Wilhelm Friedrich, Early Theological Writings, tr. T. M. Knox, Chicago: University of Chicago Press, 1948. Hegel, Georg Wilhelm Friedrich, “The Spirit of Christianity and its Fate,” in Early Theological Writings, tr. T. M. Knox, Chicago: University of Chicago Press, 1948, pp. 182-301. Hegel, Georg Wilhelm Friedrich, Frühe Schriften, Werke 1, ed. Eva Moldenhauer and Karl Markus Michel, Frankfurt am Main: Suhrkamp, 1971. Hegel, Georg Wilhelm Friedrich, “Entwürfe über Religion und Liebe,” in Frühe Schriften, Werke 1, ed. Eva Moldenhauer and Karl Markus Michel, Frankfurt am Main: Suhrkamp 1971, pp. 239-254. Hegel, Georg Wilhelm Friedrich, Three Essays, 1793-1795, tr. Peter Fuss and John Dobbins, Notre Dame: University of Notre Dame Press, 1984. Hegel, Georg Wilhelm Friedrich, “The Tübingen Essay,” in G. W. F. Hegel, Three Es‐ says, 1793‑1795, tr. Peter Fuss and John Dobbins, Notre Dame: University of Notre Dame Press, 1984, pp. 30-58. Hegel, Georg Wilhelm Friedrich, “The Berne Fragments,” in G. W. F. Hegel, Three Es‐ says, 1793‑1795, tr. Peter Fuss and John Dobbins, Notre Dame: University of Notre Dame Press, 1984, pp. 59-103. Hegel, Georg Wilhelm Friedrich, Elements of the Philosophy of Right, ed. Allen Wood, Cambridge: Cambridge University Press, 1991. Hegel, Georg Wilhelm Friedrich, Lectures on the Philosophy of History, 1956, tr. John Sibree, Mineola: Dover Publications, 2004. Hegel, Georg Wilhelm Friedrich, Hegel’s Philosophy of Mind, tr. William Wallace and Arnold V. Miller, revised by Michael J. Inwood, Oxford: Clarendon Press, 2007. Hegel, Georg Wilhelm Friedrich, Lectures on the Philosophy of Religion, Vol. 1, Intro‐ duction and The Concept of Religion, ed. Peter Hodgson, Oxford: Clarendon Press, 2007. Hodgson, Peter C., Shapes of Freedom. Hegel’s Philosophy of World History in Theo‐ logical Perspective, Oxford: Oxford University Press, 2012. Houlgate, Stephen, Freedom, Truth and History. An Introduction to Hegel’s Philoso‐ phy, London: Routledge, 1991. Kant, Immanuel, Grounding for the Metaphysics of Morals, tr. J. W. Ellington, Indi‐ anapolis: Hackett, 1993. Labuschagne, Bart, and Timo Slootweg, Hegel’s Philosophy of the Historical Religi‐ ons, Critical Studies in German Idealism, Vol. 6, Leiden: Brill, 2012. Bart Labuschagne 98 Labuschagne, Bart, „Godsdienst en de grondslagen van recht en staat bij Hegel,“ in Hegels godsdienstfilosofie en de monotheïstische religies. Een actuele confrontatie, ed. Bart Labuschagne, Timo Slootweg and Rico Sneller, Antwerpen: Garant 2014, pp. 45-80. Lewis, Thomas A., Religion, Modernity, & Politics in Hegel, Oxford: Oxford Univer‐ sity Press, 2011. Inwood, Michael J., “Commentary to Hegel’s Philosophy of Mind,” in Hegel, Philoso‐ phy of Mind, tr. William Wallace and Arnold V. Miller, revised by Michael J. In‐ wood, Oxford: Clarendon Press 2007. Nuzzo, Angelica (ed.), Hegel on Religion and Politics, New York: SUNY Press, 2013. Plato, The Republic, books 8 and 9, tr. Desmond Lee, London: Penguin Books, 1987. Rousseau, Jean-Jacques, Du Contrat Social, Amsterdam, 1762. Taylor, Charles, Hegel, Cambridge: Cambridge University Press, 1975. Taylor, Charles, A Secular Age, Cambridge: The Belknap Press, 2007. Thompson, Kevin, “Hegel, the Political, and the Theological: The Question of Islam,” in Hegel on Religion and Politics, ed. Angelico Nuzzo, New York: SUNY Press, 2013, pp. 99-118. Wood, Allan, “Editorial Commentary,” in Georg Wilhelm Friedrich Hegel, Elements of the Philosophy of Right, ed. Allen Wood, Cambridge: Cambridge University Press, 1991. Religion and State 99 Human Rights and Freedom of Religion: Secular Statehood as a Condition for Religious Truth Otto Depenheuer* “Caritas in veritate” from a Constitutional Perspective To commentate on a pontifical social encyclical from a secular perspective and to contrast it in a constitutional and legal way appears to be a daring and multidisciplinary undertaking. For this reason, it seems to be an inap‐ propriate approach relating to the studied object at first glance. But not on‐ ly the honorable invitation has led me to ignore such concerns. The consti‐ tutional perspective on a social-ethical sign-posting also promises a large gain of knowledge: both disciplines – the constitutional law and social ethics – refer to the identical substratum, that is to say they refer both to the people united in the state and have the same function, namely the good order of society. However, the epistemological starting point and the ordering perspec‐ tive of social ethics differ fundamentally from those of constitutional law. The modern and necessarily secular constitutional law must not be based on the religious conviction of the individual. Faith is constitutionally legit‐ imate for the individual, religiously essential and theologically necessary: but these beliefs create commitment only for the believers. Anyone pursu‐ ing and promoting political concepts of order based on the Christian belief in revelation will, at best, persuade only those members of a not merely religiously fragmented society, who share the same religious premises and contents. In contrast, constitutional law is necessarily secular, equally to the modern state. It acts from the assumption of the – also religious – het‐ erogeneity of humans and claims to be ethically acceptable to all citizens in a similar way, regardless of their religions or other characteristics. Therefore, constitutional concepts of order have to be so convincing, that A. * Translated from German by Till Karrer. 101 they don’t only persuade the “men of good spirit”, but reach a “people of devils” – alluding to a famous dictum of Immanuel Kant.1 From the perspective of a modern state and the constitution, social ethic justifications based on religious or ideological truths are legitimate but rel‐ ative: every human is free to stick to them, to stand up for them and to promote them with convincing arguments. But they do not legitimate any generally binding claim of validity on their own. Religious convictions and social ethic derivations are only able to prevail in the relativistic and democratic discourse by majority deci‐ sions. The basic principle of modern constitutional law is: auctoritas non veri‐ tas facit legem.2 Apart from that, beliefs of all content are constitutionally legitimate and supportable positions, but without any obligation for those, who do not share them. Statehood as a Condition for Fundamental Rights Furthermore, the difference between a social-ethical and constitutional ap‐ proach is that social ethics have to convince people, whereas the public law – which relies on conviction and acceptance of the citizens as well – in borderline cases, could be carried through resistance based on the “state monopoly on the use of force” (Max Weber). This difference is reflected in the terminology of our subject: Human rights are based on an idea, but fundamental rights are guaranteed by the State. This simple sentence demonstrates the difference between the social-ethical and constitutional approach particularly clearly. Opposed are an anthropologically substanti‐ ated ethic, which takes the human nature into account, and an institutional B. 1 This formulates exactly the constitutional problem of order, cf. Immanuel Kant, Zum ewigen Frieden [1795], VIII, p. 336: “The problem of building a state is, even if it sounds hard, even for a people of devils (as long as they have any sense) solv‐ able and is as follows: ‘One have to put a mass of reasonable beings – who all de‐ mand general laws for their maintenance – in order and arrange them with their constitution in a way, even though they are all in favor of exempting their selves from the general laws they demand, that they hold back their private and competi‐ tive attitudes enough so they succeed with their public conduct, as if they would not have any competitive private attitudes’.“ (Translation) 2 Thomas Hobbes, Leviathan, Kap. 26. Otto Depenheuer 102 point of view on human rights, which first of all asks for the conditions of their legal reality. While invoking human rights fulfills especially political-appellative functions, fundamental rights have a concrete guaranteeing institution as well as a locatable recipient: the State, which guarantees the fundamental rights against itself. On the other hand, human rights are not legally en‐ forceable in this way. This relation between legally non-binding human rights and legally binding fundamental rights is reflected in Article 1 of the German Basic Law: in paragraph 2, the people commit to the “invio‐ lable and inalienable human rights”. In paragraph 3, the human rights are transformed in fundamental rights and bind the “legislation, executive power and jurisdiction as direct right”. The bottom line is: If human rights are guaranteed by the State, this means they transform into legally binding and legally recoverable fundamental rights, and their justification changes: the ideas, which they emerged from, become the philosophical back‐ ground of a from now on solely secular guarantee by positive constitution‐ al law. Effectively working statehood becomes a condition for the possibility of legally effective human rights in the shape of fundamental rights. By contrast, the encyclical presupposed a steady state of the community with‐ out making it a subject of discussion. For this reason, the encyclical is quasi blind for the institutional conditions of legal freedom. But concept and reality of the modern state are based on the maintenance of peace. On‐ ly under this precondition, fundamental rights can “come to life”. The peacefulness of the social circumstances is the first and indispensable con‐ dition for the possibility to discuss freely and decide democratically about the good order of society. Although the encyclical broaches the issue of peace again and again, it does not frame this aim consistently in an institu‐ tional structure. But in framing the human rights constitutionally and thereby guaranteeing their effective validity lies the constitutional chal‐ lenge. The state function of peacekeeping has structural preconditions and legal consequences, which each social-ethic discussion about the human rights has to presuppose if it wants to be heard in the secular discussion about the good order of society. Neither can one have human rights without a state, nor can one have the peacekeeping function of the state, unless one accepts the crucial elements of state structure, which includes the constitutionally guaranteed funda‐ mental rights. The history of legally codified and state guaranteed human Human Rights and Freedom of Religion 103 rights is diversely interwoven with the development of the modern state. Hereinafter, these origins of the modern state shall be outlined.3 Structural Elements of Modern Statehood The modern state owes its development to the surmounting of competitive universalistic truth claims, i. e. the neutralization of the religious question of truth in the course of the secularization.4 Rise, triumph and success of the idea of fundamental rights and democ‐ racy – the freedom of the individual of self-determination and collective co-determination5 – replace the one clerically managed religious truth, which used to frame politics and law and was broken by the Reformation. Even more explicitly: the idea of freedom required the triumph of the sec‐ ular state over the religious truths and the disempowerment of their pro‐ tagonists: the truth was pushed off the throne, so that the freedom of the individual could prevail. This tremendous process can be seen as a story of state success, but also can be described as a story of religious decline. However, the free, secular and constitutional statehood is the result. This process of secularization evolved in three steps. The Road to the Secular State The Holy Roman Empire of the German Nation originally took its unify‐ ing strength out of the fact that it was a – in the fashion of Aritstotle – “so‐ cietas perfecta”: a sacred order, which embraced all aspects of life and was religious and secular-political at the same time. Emperor and Pope were not representing the religious order on the one hand and the secular order on the other hand, but holders of different offices of the one “res publica C. I. 3 See Depenheuer, “Wahrheit oder Frieden. Die fundamentalistische Herausforderung des modernen Staates,” 1999, pp. 5 ff.; also Hillgruber, Staat und Religion, 2007, pp. 67 ff.; Ladeur and Augsberg, Toleranz – Religion – Recht, 2007, pp. 55 ff., 59 ff. 4 See for the following: Böckenförde, “Die Entstehung des Staates als Vorgang der Säkularisation,” 1967, pp. 75 ff.; Schlink, “Zwischen Säkularisation und Multikul‐ turalität,” 1997, pp. 306 ff.; Gärditz, “Säkularität und Verfassung,” 2010, § 5. 5 See Isensee, “Grundrechte und Demokratie – Die polare Legitimation im grundge‐ setzlichen Gemeinwesen,” 1981, pp. 161ff. Otto Depenheuer 104 christiana”. This concept of unity was dissolved in particular by theology, which was developing into a rational science, and worked out the separa‐ tion of religious and secular power. The increasing theoretical indepen‐ dence and the separation and competition of the two subsystems state and church also included a real potential of conflict between them. Actually, the hermeneutic disputations and the resulting critical questions led to di‐ vergences over the content of the revelation. Even though the pontifical lectureship was able to assert itself for a while against Luther's posting of his theses in 1517 and the postulation “sola scriptura” – that relevant inter‐ preter be the believer himself – the unity of the Catholic faith broke and discharged in the religious and confessional civil wars of the 16th and 17th century.6 The secular state first served the religious participants and their claim of truth totally. This self-conception was reflected exemplarily in the vow of Ferdinand II. of Austria when taking power in Styria: “Rather rule over a desert, rather eat bread and water and go begging with wife and child or get one’s body cut in pieces, than tolerate injustice against the church or heresy.”7 All participants of the conflict – Catholics, Lutherans and Re‐ formists – agreed on this consequent but bloody and brutal logic of truth. The religious conflict became a political battle and was as merciless and total as it was uncompromising as a religious one. Thereby, large parts of Europe tumbled in decades of massacres and large regions were depopu‐ lated. It is this which unintentionally and unconsciously provided the rea‐ son for the practical breakthrough of the theoretical idea of a modern, i.e. sovereign and secular state. The outcome of this crisis could only be the deprivation of power of the religious authorities. For this purpose, an ab‐ solutely safe point beyond the hermeneutic disputations regarding the ve‐ racity of revelation texts had to be found, i.e. a truth, independent of cul‐ ture and religious denomination that all men can agree with, regardless of their culture, religion, nation or people. This secular truth was about the peace and the absolutistic and the secular state was the administrator of this truth.8 Thomas Hobbes, the great theorist of this emancipation of the 6 See Depenheuer, “Auf dem Weg in die Unfehlbarkeit? Das Verfassungsbewußtsein der Bürger als Schranke der Verfassungsgerichtsbarkeit,” 1997, pp. 485 ff. 7 Quote from Burger, “Multikulturalismus im säkularen Rechtsstaat. Eine zivilisati‐ onstheoretische Grenzbestimmung,” 1997, p. 177. Translated from German. 8 For the de-Christianization of the concept of state: Quaritsch, Staat und Souveräni‐ tät, 1970, pp. 293 ff. Human Rights and Freedom of Religion 105 secular authority from the religious one, proceeded thereby from a straightforward, formal and outward term of peace, which did not focus on living in truth, but on the silencing of weapons.9 Only the state as a sovereignly deciding and ordering force is able to guarantee this peace as the end of the bellum omnium contra omnes. Since then, the modern state is the neutral instance that is above the arguing religious conflict parties. Finally, after the French revolution, the state totally stops being in charge of religion and church. Religion becomes a private matter of the individual and thereby, the development of the secular modern state is structurally finished. Over many decades, the Catholic Church refused the modern world.10 The Catholic Church did not complete its Aggiornamento on real‐ ity of secular statehood until the second Vatican Council declaration on re‐ ligious freedom (“Dignitatis humanae“) in 1965. Peace instead of Truth The “truth” of the secular state lies in peacekeeping. But the state cannot argue with a transcendent truth anymore, only with a transcendental one, focused on the formal and procedural conditions of a peaceful and free co‐ existence of the citizens. It consists of the governmentally guaranteed cat‐ egorical open-endedness of the political process, the results of which have to be accepted by everybody in the interest of peace. The ideologically neutral state contents itself with this penultimate truth of rationality, to be not obliged to take sides at the end. The state renounces last findings in principle: not because of epistemological skepticism, but of commonsense conviction. In the name of its absolute mission of peace, it limits its function on guaranteeing equal freedom to everybody on the same condi‐ tions of peace. The justification of the modern state is its rationality. Therefore, it is in‐ dependent of culture or confession and for this reason it is superior to oth‐ er kinds of knowledge – narrative ones as well as hermeneutic ones – inas‐ II. 9 See Isensee, “Staat und Verfassung,” 2004, § 15, marginal nos. 61 ff.; Böckenförde, “Die Entstehung des Staates als Vorgang der Säkularisation,” 1992, pp. 105 f. 10 See Isensee, “Die katholische Kritik an den Menschenrechten – Der liberale Frei‐ heitsentwurf in der Sicht der Päpste des 19. Jahrhunderts,” 1987, pp. 138 ff. Otto Depenheuer 106 much as all men have to be able to realize the rational truth of statehood.11 As an abstract and formal truth, it unites people by the civilized peace: whereas concrete cultures and religions divide people, the civilized state unites them by providing and guaranteeing the possibility of a peaceful life together. The basis of this state order of peace is the state monopoly on the use of force: it prevents the citizen from the private enforcement of his or her supposed rights. Only the state dispenses “justice” by and in his courts, only the state enforces this justice effectively on the basis of the state monopoly on the use of force and therefore only the state is able to guarantee constitutional freedom in legal practice. Thus, the fundamental rights found their recipient in the state – freedom against the state – as well as their guarantor – fundamental rights accorded by the state. However, there is no historic necessity reflected in the triumph of the modern state, but its secularism remains vulnerable just as all types of achievements of civilization. The rejection of a truth binding everyone for the benefit of an order of peace for all citizens is neither a logical nor a historical necessity; it developed historically coincidentally in Europe, but it cannot be proved rationally or universally as “true”. Solely the historical experience of most bloody wars and the thereby saturated conviction of the value of peace give reasons for the secularity of the modern state as the institutionalized priority of peace within. In shape of Islamic funda‐ mentalism, this conviction is questioned theoretically and politically in principle. Its plea for the absolute applicability of religious truth without any compromise rejects the European answer in the form of the modern state and its order of peace. And indeed, the European debates of the 16th century are now repeated globally in the 21st century and again with mili‐ tary background music. And in fact: there are few logical reasons for a re‐ ligious truth revealed by God and the transcendental hope of salvation as‐ sociated therewith to shy away from earthly challenges and threats. That is the root for a latent and at any time refreshable martyrdom, which does not fear death because its belief promises eternal salvation in the hereafter. To understand the stress ratio between state and religion, one has to under‐ stand the plausible logics of both systems. But the logic of religious truth and the logic of secular statehood are fundamentally opposite and not transferable into each other. State power still rebounds from religious con‐ victions: precisely because religion deduces its truth “not from this 11 See Depenheuer, “Wahrheit oder Frieden,” pp. 19 f. Human Rights and Freedom of Religion 107 world”, the state cannot defeat it. The state faces an opponent which it does not understand, fights it using all means that are incompatible with the religious sphere and fights against a reality that lies beyond its power: the otherworldly salvation.12 In light of the actual challenges of religious fundamentalism, the mod‐ ern state is called upon to assert itself. Precisely because it should be viewed as an institutionalized rejection of a material foundation of itself in a religious truth, the liberal constitutional state cannot escape the logic of contrary “secular truth”. Also the truth of the secular state is not able to compromise. Its function as a guarantor of peace is not under discussion, is non-negotiable and not open to compromise, as long as the modern state wants to maintain its fundamental values – human dignity, freedom, democracy and constitutional state – against hostilities.13 So, the liberaldemocratic basic order as a well-fortified democracy protects the openness of its decision-making procedure, the constitutional freedom to arbitrari‐ ness and the relativity of democratic majority decisions. This logic dresses up in a paradox: No freedom for the enemies of peace, respectively no tol‐ erance for intolerance.14 The Modern State from a Constitutional and Social Ethical Perspective The social encyclical caritas in veritate says nothing explicit about these institutional preconditions of the modern state; it presupposes them. That is not without danger for the logical coherence of the line of argument: the benefits of the modern state – secularism, internal peace, state monopoly on the use of force, freedom and democracy, rule of law – are not avail‐ able without paying the price for it. One cannot make theoretical and prac‐ tical peace with the modern state without affirming its structural conse‐ quences. So the effective guarantee of fundamental rights presumes a gen‐ eralized construction of statehood (1.). Moreover, the legal and practical guarantee of freedom against the state are only available for the price of a lack of content of these – defensive – rights. Given positive expression as D. 12 See Depenheuer, 2008, pp. 940 f. 13 See Depenheuer, Selbstbehauptung des Rechtsstaats, 2007. 14 For an overview: Becker, “Die wehrhafte Demokratie des Grundgesetzes,” 1992, § 167, marginal nos. 46 ff. Otto Depenheuer 108 fundamental rights, the human rights as a defensive freedom abstain from giving contents regulation of how to use the freedom, but rather release – for the sake of the freedom of the individual – a relativism of individual freedom and democratic majority decision (2.). Claim of Universality and Bindingness In democracy, state, constitution and law are carried by all state citizens, legitimate and binding for all. In this respect, the constitutional perspec‐ tive differs clearly form the social ethical perspective of the encyclical. Under constitutional law, “the problem of state-building […] is solvable even for a people of devils”.15 Neither is the goodwill or participation of “men and women of good will”16 necessary, nor could contradictions of the modern society be solved only by relegating to “love”17. Constitution‐ ally, social conflicts have to be handled within legal procedures and have to be decided in accordance with the solely binding law. Democratically legitimized public officials are constitutionally obliged to perceive their legally given competences dutifully and in accordance with the democrati‐ cally legitimized law. As a moral solicitation and ethical dictum, the confi‐ dence in men’s goodwill as well as the appeal to love and ethos may pro‐ vide helpful orientation to the individual by meeting its obligations. But they provide no license to cover up democratic legitimation and obedience in office as well as legally defined limits of competence.18 But they be‐ come important for the individual bearer of fundamental rights by provid‐ ing hints, assistance and suggestions for the right use of liberty. I. 15 Kant, Zum ewigen Frieden. 16 Caritas in Veritate (CV) 57, at icals/documents/hf_ben-xvi_enc_20090629_caritas-in-veritate.html. 17 So the guiding principle and the whole characteristic style of the encyclical, e.g. “Charity is at the heart of the Church’s social doctrine.” (CV 2.). 18 For the idea and term of the state office, see Depenheuer, “Das öffentliche Amt,” 2005, § 36, marginal nos. 26 ff. Human Rights and Freedom of Religion 109 Constitutionally Legitimized Relativism But above all, the concept of freedom in the declarations of human rights of the Church differs strikingly from the one of the fundamental rights of the German Basic Law. The secular idea of individual freedom as an atti‐ tude towards life and type of thinking became more and more dominant for the political theory since the Italian renaissance and the German refor‐ mation.19 Jakob Burckhardt got to the heart of this radical change of think‐ ing:20 While the medieval human understood himself “only as a race, peo‐ ple, party, corporation, family or some other general form”, now his awareness of his personality – different from all others and to be clearly distinguished from them – awakens. The principle of individuality perme‐ ates all ways of life, the moral as well as the social life. Towards limits and laws of all sorts, the modern human has the “sense of own sovereign‐ ty”. He determines autonomously whether he commits to traditional bonds, assumes them or remodels them rationally ever since. The dictum attributed to Martin Luther from his speech on the imperial diet in 1521 in the city of Worms – “Here I stand. I cannot do otherwise.” – is representa‐ tive for the self-confidence of the individual that sees itself sovereign, that does not accept the institutionalized lectureship of the church and the het‐ erogeneous truth claim any more. The person becomes the last and no longer questionable element of secular life, freed from all social and reli‐ gious implications. Therefore, human dignity also became sacrosanct in the secular state and the human rights were not at free disposal any more.21 The sovereign freedom of the individual against every kind of – governmental, clerical or otherwise social – paternalism let the idea of freedom became a defensive and meaningless “freedom from”, a freedom to arbitrariness. A society, which is in in a progressive differentiation,22 accrues from the non-coordinated actions of these sovereign individuals, leading to a predominance of relativism in the complex world in the II. 19 For the history of individual-mechanistic theory of state, see with further refer‐ ences Depenheuer, Solidarität im Verfassungsstaat [2001], 2009, pp. 241 ff. 20 See Burckhardt, Die Kultur der Renaissance in Italien [1859], 1976, pp. 123 ff., 128 ff. 21 See Isensee, “Menschenwürde: die säkulare Gesellschaft auf der Suche nach dem Absoluten,” 2006, pp. 173 ff.; Depenheuer, “Tabu und Recht – ein Problemaufriß,” 2003, pp. 7 ff.; Depenheuer, “Die Kraft des Mythos und die Rationalität des Rechts. Einführung,” 2009, pp. 7 ff. 22 Summary analyses: Luhmann, Die Gesellschaft der Gesellschaft, 1997. Otto Depenheuer 110 present tense,23 sets the individual to growing impositions in dealing with his life. The Impositions of Modern Age: Life in Distinction But what remains of the concept of meaningful and positive liberty in this modern and extremely differentiated world? Could there still be a compre‐ hensive truth, encompassing all parts of life, which gives orientation to the individual in a world of relativism and which fills the defensive freedom with positive content? Two problems must be treated separately with re‐ gard to these obvious questions, which additionally are the basic social problems of western constitutional statehood: firstly, the relation between legally guaranteed defensive freedom against the state and the existential longing for positive realization of this freedom by the individual and thus about the question, what the individual should do with his freedom to live a life in accordance with his human dignity (V.). Secondly, how the vari‐ ous religious groups in their function as signposts handle with their differ‐ ent claims of truth whereas truth conceptually knows no compromise and no plurality of equal truths (VI). Religious Truth under Secular Statehood Truth as a Fundamental Right The fulfilment of constitutionally guaranteed freedom is not and cannot be objectively predetermined in the modern and liberal constitutional state. In fact, the fulfilment of freedom falls to the individual citizen. Liberal free‐ dom gives the individual the freedom to search, to find and to live his own – subjective – truth of faith, in particular in the “fulfilled truth rooting in 3. E. I. 23 See Girard, “Das Christentum ist allen anderen Religionen überlegen,” 2005: “The in our days so obvious predominance of relativism has its roots partly in the chal‐ lenges of our age. A society in that live so many people is inevitably heteroge‐ neous. You have to hold balance between the various religions and do not take sides. Each religion must be seen of the same value. Even if you are no relativist you have to sound like one, or even act like one.” (translated from German.). Human Rights and Freedom of Religion 111 the transcendental.”24 “This includes the individual's right to orientate his or her whole conduct to the teachings of his or her faith and to act in ac‐ cordance with his or her inner religious convictions.”25 Although these subjective truths of the individual bearers of fundamental rights are only “possibilities of thinking”, they create “the reality of existence” (Viktor E. Frankl). Whoever found his truth in this way knows that “truth will make him free” (Joh. 8, 32). However, this is Moreno longer the state-directed constitutionally liberal “freedom from”, but the freedom from the adversi‐ ties of earthly life with regard to eternity. Insofar as the individual has not the good fortune to grow into a reli‐ gious world with its values and meanings through education and socializa‐ tion in family, school and friends, state guaranteed liberal defensive “free‐ dom from” means a double imposition to each human. On the one hand, he or she could become desperate by reviewing the variety of religious and other offers of meaning and liberal options of emancipation. He or she has to decide, without being empirical and positively sure, whether his or her decision of faith is true. He or she rather has to transform to match his or her decision of truth, bearing in mind that it was him or her who subjec‐ tively committed to this truth. His or her concrete faith only roots in its subjectivity and is therefore not objectively predetermined, but could be revised by an actus contrarius at any time. Any faith is and remains a risk for the people – and many shy away from the commitment to truth and therefore submit to the dictatorship of relativism. Risk of Dictatorship of Relativism In the reality of the western states, the defensive “freedom from” gains a new and quite questionable meaning: to a large extent, freedom is not ex‐ ercised any more in the way of deciding your options of freedom and questions of meaning on your own responsibility, but instead consists of the conscious and intended non-decision, consists of keeping open to as many answers as possible: you enjoy and perpetuate your freedom to de‐ cide freely by not making a decision. In fact you keep your options open to all potential partners as long as you do not marry, but you run the risk of II. 24 CV 56. 25 BVerfGE 32, 98 (106 f.). Otto Depenheuer 112 never realizing your freedom practically at the same time, of never filling the abstract freedom with real life.26 This constant keep-all-options-open, this consicous non-decision-making for the sake of a misunderstood free‐ dom misses not only the practical fulfillment that is laid-out in each option of freedom, but also could degenerate into the "dictatorship of relativism”, of which the pope has been warning repeatedly for a long time.27 Liberal freedom does not only provide the individual with the freedom to search, to find and to fulfill the freedom. It also expects the decision to faith from the beneficiary of freedom, which fulfills and therefore con‐ sumes this freedom, so he or she will be literally “able to move moun‐ tains”. The fact that there is constitutionally and epistemologically no more objective truth constitutes no title for the individual to handle all truths equally and to remain banal and superficial. In fact, one has to com‐ pletely devote oneself to something, to stand up for it unconditionally, to totally offer oneself as a person to another person or a cause. The respon‐ sibility of human beings towards themselves demands to devote oneself to a position and to bring it fully committed to the very end.28 Although the subjective truths of the humans are – once again – only “possibilities of thinking”, they created “the realities of existence” (Viktor E. Frankl) in the past and the present. And in fact: the most important testimonies of men in the world are regularly “possibilities of thinking that became reality”, pet‐ rified proofs of religious faiths of prior generations. Beijing's Temple of heaven, the Pyramids of Giza or the Cologne Cathedral are magnificent proofs of lived faith and men’s longing for the lost paradise. They give us an example of how much creative power religious truth is able to generate and it also gives us a notion of the truth on the basis of which they were created. 26 A compromise in-between decision and non-decision votes for a temporary and at any time revocable option: so the spouse becomes the temporary life companion. 27 A dictatorship of relativism arises that acknowledges nothing as final and accepts as last measure only the own Ego and its cravings, so Ratzinger, “Pro eligendo Pontifice,” 2005, translated from the German edition. 28 So Girard, “Das Christentum ist allen anderen Religionen überlegen”. Human Rights and Freedom of Religion 113 No Freedom against the Truth Legal, state guaranteed defensive freedom may not remain abstract to it‐ self, but aims at practice. This means to freely choose one option without alternative. The once made decision forms the basis of the subjective truth of the individual and is therefore – at least temporarily – consumed. Logi‐ cally, there is no more subjective “freedom from” towards this taken deci‐ sion of truth: freedom comes true in the concrete decision and is the oppo‐ site of relativism: those who decide freely are henceforth immunized against the impositions of relativism. The Church and the Plurality of (Un-) Truths To channel the arbitrariness of constitutional practice of freedom, to give behavior influencing values and perspectives of orientation, that is the no‐ blest task for the social agents family, school, university and last but not least the religious groups. But the diversity of existing and constitutionally legitimized religious groups leads them to a dilemma. Seing themselves as administrators of religious truth, they compete with other agents of truth. This means the biggest challenge imaginable to each religious group. Be‐ cause truth, especially a truth revealed by God, is logically not prepared to comprise. But how does the own truth get along with the others’ simulta‐ neously supported truth, which therefore only could be an untruth? How could an intermediary way be found from “the one truth” that is not open for relativism or compromise to the simultaneous postulate of religious freedom? Doesn’t the own claim of truth necessarily get relativized by the state-guaranteed recognition of the “truths of others” or by the own selfconception, at least “darkened”? According to the logic of the modern state, the answer lies in a fundamental differentiation of the question. From the perspective of the modern state, all religious groups have free‐ dom of action on the one hand. They may live their truth, promote it and missionize, but only within the frame of the constitution, particularly by respecting the law of peace. However, violence is not a justifiable way to proclaim faith in the modern state. But on the other hand, each religious group has the right to argue and to practice their claim of truth and the supremacy deriving therefrom in accordance with their self-conception. Also Caritas in veritate clearly phrases the claim of supremacy of the Catholic truth: “Religious freedom does not mean religious indifference III. F. Otto Depenheuer 114 and does not imply that all religions are equal.”29 So in the modern state, there is a kind of distribution of tasks and power between the state and re‐ ligious groups in the domain of religious truths: the churches may uncom‐ promisingly proclaim and exemplarily act out their belief in their truth in accordance with their religious freedom, but the state expects them all – and forces them if necessary – to mutually exercise tolerance towards oth‐ er religious and ideological communities and to renounce violence. 30 Guiding Principles The modern state as guarantor of fundamental rights 1. The modern secular state finds its mission in maintaining peace be‐ tween the citizens. In the maintenance of peace lies the only and nonnegotiable “truth” of the secular state. Apart from that, religious and other truths become pluralized by fundamental rights and democracy in a liberal community. 2. Idea and shape, justification and legal effectiveness of fundamental and human rights are derivations from the development of modern secular statehood. They are the significant expression and the engine of a pro‐ cess of differentiation of the society, unbroken to this day. The frag‐ mented society as well as the “dictatorship of relativism” are unrefus‐ able consequence of a liberal community. 3. Individuals are the only possible and permissible components of a state order of compulsion in a liberal community, fundamental rights and democracy the mode of its effectiveness. The common good is deter‐ mined formally by majority decision, the fundamental rights release formal freedom of arbitrariness. The state law knows ethical obliga‐ tions only as – legally, i. e. reinforced, not enforceable – constitutional expectations. I. 29 CV 55. 30 To the precondition of peace of the human rights and religious missions, see. De‐ penheuer, “Risiken und Nebenwirkungen menschenrechtlicher Universalität,” 2009, pp. 98 ff. Human Rights and Freedom of Religion 115 Religious freedom and the risk of the truth 4. The concept of truth has split up – parallel to the development of secu‐ lar statehood – into a scientific-positivistic and a historical-interpretive and humanities concept: the latter is about the reply to needs of mean‐ ing (“The truth will set you free” [John 8, 31]), the other about empiri‐ cal proven knowledge. 5. From a constitutional point of view, religiously based statements of truth are nothing else than – constitutionally legitimate – exercise of freedom of religion and speech. The following applies: “Freedom guar‐ anteed by human rights opens the path to the personally found truth of the individual”. 6. Liberal defensive “freedom from” given by the state leaves the crucial human questions of life and truth unanswered. While the state does not want to or is not allowed to answer these questions, the religious groups must answer them – thanks to the religious freedom, of course in competition with other religious and ideological groups. 7. To answer questions of meaning is an imposition for the individual that he or she cannot overcome. He or she has to choose an objective truth subjectively, without being sure about it in an empiric-positivist way. Each decision of faith is not prescribed objectively, but roots in its sub‐ jectivity. 8. An alternative strategy of many people in liberal states is the non-deci‐ sion, i. e. to keep open to as many options as possible. To keep open to the relative answers to the eternal questions – that is exactly what the pope’s campaign against the dictatorship of relativism aims at. It is cor‐ rect: whoever keeps open to everything never receives the following: fulfilment. Freedom means to choose freely and responsibly one option (truth), but at one’s own risk. 9. Whoever chooses one truth is not free anymore towards this truth. Ful‐ filled freedom binds. The person’s right and the plurality of truths 10. The state has no problem with the variety of religious truths; it has an indifferent attitude towards them. It supports religious groups if and as far as they are compatible with its structure, accept the state’s right for final decision and the relativism of democracy and fundamental rights, II. III. Otto Depenheuer 116 fill the constitutional expectations with content and abstain from any use of violence. 11. From a historic perspective, religions always struggled with the vari‐ ety of other (un-) truths. In particular missionary truth claims hold conflictual implications. In fact, truth is not open to compromise by it‐ self. 12. To maintain the own clerical truth claim whilst postulating the reli‐ gious freedom of the individual means a permanent and difficult to en‐ dure challenge. Acceptance, tolerance and appreciation of other (un-) truths bears the risk to relativize and “obscure” the own truth claim. 13. In light of this dilemma, the function of the church is – in competition with others – to give the individuals the more convincing guidance in overcoming the “dictatorship of relativism”. So on the one hand, the churches are allowed to postulate and live their truths without any compromise. 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Was konstituiert die Verfassung?, Wiesbaden: Sprin‐ ger, 2009, pp. 7-23. Depenheuer, Otto, “Risiken und Nebenwirkungen menschenrechtlicher Universalität,” in: Menschenrechte als Weltmission, ed. Josef Isensee, Berlin: Duncker & Humblot, 2009, pp. 81-100. Depenheuer, Otto, “Staat – Kirche – Gesellschaft,” in Handbuch der Katholischen So‐ ziallehre, ed. Anton Rauscher, Berlin: Duncker & Humblot, 2008, pp. 935-956. Depenheuer, Otto, “Tabu und Recht – ein Problemaufriß,” in Recht und Tabu, ed. Otto Depenheuer, Wiesbaden: Springer, 2003, pp. 7-23. Depenheuer, Otto, “Wahrheit oder Frieden. Die fundamentalistische Herausforderung des modernen Staates,” in Essener Gespräche 33 (1999): 5-35. Depenheuer, Otto, Selbstbehauptung des Rechtsstaats, 2nd ed., Paderborn et al.: Ferdi‐ nand Schöningh, 2007. Depenheuer, Otto, Solidarität im Verfassungsstaat. Grundlegung einer normativen Theorie der Verteilung [2001], 2009. 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Isensee, Josef, “Grundrechte und Demokratie – Die polare Legitimation im grundge‐ setzlichen Gemeinwesen,” Der Staat 20 (1981): 161-176. Isensee, Josef, “Menschenwürde: die säkulare Gesellschaft auf der Suche nach dem Absoluten,” Archiv des öffentlichen Rechts 131, 2 (2006): 173-218. Isensee, Josef, “Staat und Verfassung,” in Handbuch des Staatsrechts, ed. Josef Isensee and Paul Kirchhof, Bd. II, 3rd ed., Heidelberg: C.F. Müller, 2004, § 15, pp. 3-106. Kant, Immanuel, Zum ewigen Frieden [1795]. Otto Depenheuer 118 Ladeur, Karl-Heinz, and Ino Augsberg, Toleranz – Religion – Recht, Die Herausforde‐ rung des »neutralen« Staates durch neue Formen der Religiosität in der postmoder‐ nen Gesellschaft, Tübingen: Mohr Siebeck, 2007. Luhmann, Niklas, Die Gesellschaft der Gesellschaft, Frankfurt am Main: Suhrkamp, 1997. Quaritsch, Helmut, Staat und Souveränität, Frankfurt am Main: Athenäum, 1970. Ratzinger, Joseph, “Pro eligendo Pontifice,” L’Osservatore Romano, April 22, 2005 (German edition). Schlink, Bernhard, “Zwischen Säkularisation und Multikulturalität,” in Recht und Recht: Festschrift für Gerd Roellecke zum 70. Geburtstag, ed. Rolf Stober, Stutt‐ gart: Kohlhammer, 1997, pp. 301-316. Human Rights and Freedom of Religion 119 The Political Problem of Religious Liberality Karsten Fischer* Introduction The following contribution seeks to shed light on the problematic relation‐ ship between politics and religion in its historical, systematic, and norma‐ tive aspects. To this end, I will reconstruct the process of secularization with regard to its importance for a liberal understanding of politics (B). I will then further specify the political problem of religious liberality as the pre-condition of democratic and constitutional states (C). Finally, from this perspective, I will offer a brief survey of the political ethics of some of the major world religions (D). The Liberal Logic of the Secularization Process For some time now it has been fashionable to question the rise of the state as a process of secularization1 and instead to brand the modern seculariza‐ tion process – understood as an increasing autonomy of politics in relation to religion – as a myth that merely reflects the European desire for a Son‐ derweg. But this view, prominently represented in the work of José Casanova,2 is difficult to reconcile with the historical record. For the peaceful resolution of religious conflicts through legally regulated adver‐ sary proceedings is an essential achievement of the state’s monopoly of power, and its beginnings are linked directly to the establishment in 1495 of the Imperial Chamber Court by the German King, and later Emperor, A. B. * A large portion of the following remarks is based on thoughts expressed in Fischer 2009. I thank Matthias Hansl, Sebastian Huhnholz, Astrid Séville, and Yannick Bassler for their pertinent suggestions. 1 See Böckenförde, “The Rise of the State as a Process of Secularisation,” 1991. 2 See Casanova, “The problem of religion and the anxieties of European secular democracy,” 2008, pp. 63-74. 121 Maximilian I.3 This movement toward juridification was continued in 1555 in the Peace of Augsburg, the first step toward the development of the modern secular institutional territorial state which came into being by detaching the state from the medieval political order based on personal re‐ lations (Personenverbandsstaat), a process completed by the Peace of Westphalia.4 The process is closely linked to the successive development of religious and ideological neutrality which played an essential role in the later emer‐ gence of the liberal-democratic constitutional state. Such neutrality is di‐ rectly related to the real progress of the religio-political itself, which was therefore no longer a mere exercise in tolerance, as it was in the Edict of Nantes in 1598 and generally in the Age of Reformation. The concept of tolerance implied that the other party was in error and tolerance was exer‐ cised in order to diminish the potential for conflict.5 Neutrality is not toler‐ ance. It suspends a priori the question of truth as one incapable of being solved, and as one that does not need to be solved. It does not merely treat questions of faith in this manner but also all questions concerning truth. In religio-philosophical terms, neutrality means that in principle one takes an agnostic attitude – and it is precisely this stance that constitutes the demo‐ cratic moment. The consciousness of this moment has deep roots. From the time of the Greek discovery of politics6 democracy has meant the institutionalization of a benign attitude toward the errors that take place in acts made among the contingencies of the profane world. In fifth century BC Greece, poli‐ tics was understood for the first time to be a matter entirely subject to the decisions of free citizens. From that time on, traditional or transcendental references were dispensed with and considered to be non-political. It now became possible to rigorously examine the problem of domination from the standpoint of the idea of freedom whose only limitation stems from the fact that legal political decisions are made by the autonomous acts of citi‐ zens themselves. This discovery of politics led to a new kind of legal 3 See Voßkuhle, “Religionsfreiheit und Religionskritik – Zur Verrechtlichung religiö‐ ser Konflikte,” 2010, p. 537. 4 See Mayer, “Die Ausbildung der Grundlagen des modernen deutschen Staates im Hohen Mittelalter,” 1974. 5 See Steiger, “Neutralität in Religionssachen,” 1978, p. 352; see also: Forst, Tolerati‐ on in Conflict: Past and Present, 2013. 6 Meier, The Greek Discovery of Politics, 1990. Karsten Fischer 122 thought which emancipated itself from the supposed sensibilities of the gods and from such archaic practices as blood revenge. This was clearly demonstrated in 458 BC, three years after the over‐ throw of the Athenian aristocratic council, the Areopagus, when Aeschy‐ lus’ Oresteia was first performed. The tragedy narrates how the Athenian general Agamemnon, who in order to appease the gods sacrificed his daughter Iphigenia, is murdered for the deed by his wife Clytemnestra when he returns in triumph from the Trojan War. In turn, Agamemnon’s son Orestes kills his mother; an act for which he is pursued relentlessly by the Erinyes, the goddesses of revenge. With the appearance of the goddess Athena, Aeschylus’ Oresteia becomes the “polis myth”7 that, for the first time, opposes the traditional moral faith and belief in divinity with a pagan form of the rule of law. “The old law, with its implacable insistence on punishment, is severe and terrible.”8 To the Erinyes’ demand to observe the unquestioned validity of the old law, Athena replies that the question to be decided is too difficult for the gods to decide alone and that the case must be brought before a broader assembly, even if this means relativizing the hierarchy of gods and humans. In this democratic process Orestes is finally expiated. The prerequisite for the “clearly more liberal”9 new law is Aeschylus’ awareness of the relativity of legal norms including those of divine provenance. This leads to the empowering of the democratic citi‐ zenry to make its own law or – to put it in modern terms: The citizens can claim to be the authors of all valid norms that affect them. Such a change was part of the profoundly disturbing and painful process which eroded faith in convictions that had long been taken for granted and whose ulti‐ mate validity had seemed unimpeachable.10 The insight into the “awareness that in political decision making a dis‐ tinction must be made between validity and truth”11 was related to the pro‐ cess of democratization in 462/461 BC and passed down in the political art of Greek tragedy.12 In this regard, and in order to limit religious claims to truth and validity, we find in the Greek discovery of politics not merely a “consciousness of ability” as an historical equivalent of the modern idea 7 Ibid., p. 122. 8 Ibid., p. 100. 9 Ibid. 10 See Meier, Athens: A Portrait of the City in Its Golden Age, 2000. 11 Meier, The Greek Discovery of Politics, 1990, p. 107. 12 Meier, The Political Art of Greek Tragedy, 1993. The Political Problem of Religious Liberality 123 of progress,13 but the first secularization avant la lettre. Insofar as the dis‐ covery of politics – understood as the citizens’ right to make autonomous decisions on questions of validity – originated at the same time that the first democratization took place, it is easy to see that there is a systematic connection between democracy and secularization. Of course, it is well known that for a long time this development re‐ mained an historical episode since the authoritarianism of Christian politi‐ cal theology that continued into modernity stood in the sharpest possible contrast to ancient Greece’s “culture of freedom”.14 Naturally, the me‐ dieval annihilation of ancient Greece’s proto-liberal understanding of po‐ litics was not merely the result of the idea that worldly rulers reign by the grace of God and its orientation to Paul’s statement in Romans (13:1) that rulers are ordained by God and that therefore when a tyrannical ruler ap‐ pears it is a sign of the sinfulness of his subjects. For the speculative bold‐ ness of the Middle Ages was intended to explore God’s possibilities to the fullest, not humankind’s.15 That is why under medieval conditions there was no need to understand liberal politics; indeed in the literal sense of the word, there was even no understanding of politics. Until the scholastic re‐ ception of Aristotle the concept of politics did not appear in medieval sources.16 However, by the middle of the 11th century, the fragile tension between the worldly imperium and the spiritual sacerdotium had become a smol‐ dering presence that in 1076 burst into flame in the so-called Investiture Controversy. The solution worked out in the Concordat of Worms in 1122 provided the impulse for long-term changes in the idea of order, which came close to producing an unintended disenchantment of the world.17 Al‐ though on the surface it seemed that the Concordat of Worms confirmed the supremacy of the church and limited the power of kings to worldly matters, at the same time it created the prerequisites for the autonomy of secular statehood.18 In accord with George Spencer-Brown’s (1994) postu‐ 13 See ibid., p. 208. 14 Meier, A Culture of Freedom: Ancient Greece and the Origins of Europe, 2011. 15 See Blumenberg, “‘Nachahmung der Natur’. Zur Vorgeschichte der Idee des schöpferischen Menschen,” 1981, p. 83. 16 See Struve, “Regnum und Sacerdotium,” 1993, p. 189. 17 See Weinfurter, Canossa. Die Entzauberung der Welt, 2007, p. 187. Böckenförde, “The Rise of the State as a Process of Secularisation,” 1991, pp. 28 ff. 18 See Struve, “Regnum und Sacerdotium,” 1993, p. 235. Karsten Fischer 124 late that in drawing a distinction, the creation of preferences within the framework of the distinction is less important than the fact of the distinc‐ tion itself, the result of the Concordat of Worms had the effect of renewing the consciousness that worldly affairs constitute an independent realm of human action that is endowed with its own logic. Thus, scholasticism could build on the Aristotelian understanding of politics, something that was radicalized in Marsilius of Padua’s 1324 trea‐ tise Defensor pacis “into a full-scale attack on the hierocratic system”.19 In opposition to the medieval tradition, Marsilius raised the modern question concerning the prerequisites for the establishment of legitimate rule. And he answered with the no less modern view that it is established by means of legislative due process for which responsibility resides in all citizens or in a majority.20 This further opened scholasticism to historicopolitical reality and to an understanding of the concerns of the conditio hu‐ mana that had been regained at the time of Thomas Aquinas.21 In turn, this led to the desacralization of political thought that, in the long term, proved to be the prerequisite for the Protestant doctrine of the two kingdoms.22 But the Reformation plunged Europe into schism and, as a result, into bitter civil wars that were not originally religiously motivated. However, denominational differences fanned the flames. This was equally true for the French Wars of Religion, the Eighty Years’ War between Spain and the Netherlands, and for the Thirty Years’ War which has entered into Euro‐ pean collective memory as the worst war up to that time. Its end, brought about by the Peace of Westphalia in 1648, is synonymous with the emer‐ gence of the modern institutional territorial state which is characterized by its monopoly in four key areas: It is sovereign in the sense of having monopoly powers of coercion, on legislation, on the levying of taxes, and in the power to remain above and neutral toward religious claims to truth and validity. In this way religion was dismissed from its role at the center 19 Wilks, The Problem of Sovereignty in the Later Middle Ages: The Papal Monarchy with Augustinus Triumphus and the Publicists, 1963, p. 143. 20 See Marsilius de Padua, Defensor Pacis, 1522, Cap. XIII. 21 See Böckenförde, Geschichte der Rechts- und Staatsphilosophie. Antike und Mit‐ telalter, 2006, p. 245. 22 Prodi, Eine Geschichte der Gerechtigkeit. Vom Recht Gottes zum modernen Rechtsstaat, 2003, p. 49. The Political Problem of Religious Liberality 125 of politics and given the status of a private world-view that the state con‐ trols to see that it exercises its social role in an acceptable manner.23 It is in this sense that the rise of the state as a process of secularizati‐ on24 is to be understood. However, it can be demonstrated that the concept of secularization was already present in the French canonical disputes of the 16th century. Therefore, it does not originate from the negotiations that led to the Treaty of Westphalia during which the French emissary in Münster, Henri II d’Orléans, Duke of Longueville, used the concept sécu‐ lariser in 1646 to designate – and protest against – the transfer of Church property into worldly hands, nevertheless, the effectiveness of the concept first began in 1648.25 The further development toward a world-immanent legitimation of po‐ litical rule took place in small steps. For it was not liberal constitutional‐ ism and the renewal of democracy during England’s Glorious Revolution in 1688/89 that first broke with medieval Christian political theology. In‐ deed, the political theories of Absolutism had aimed at making any reli‐ gious legitimation of political order and praxis superfluous; viewing them as seeds that might flower into civil war. This position is explicitly stated in the works of Thomas Hobbes who believed that the European civil wars, if not religiously or denominational‐ ly motivated, were prolonged by religious motives. Nor did he see the wars as historically contingent phenomena that had merely accompanied the Reformation, but as the Reformation’s necessary consequence. At the beginning of Behemoth, Hobbes therefore sees a problem with translating the Bible into national languages: For after the Bible was translated into English, every man, nay, every boy and wench, that could read English, thought they spoke with God Almighty, and understood what he said, when by a certain number of chapters a day they had read the Scriptures once or twice over. And so the reverence and obedience due to the Reformed Church here, and to the bishops and pastors therein, was cast off; and every man became a judge of religion, and an interpreter of the Scriptures to himself.26 23 See Grimm, “Der Staat in der kontinentaleuropäischen Tradition,” 1987. See also Grimm, Souveränität. Herkunft und Zukunft eines Schlüsselbegriffs, 2009. 24 Böckenförde, “The Rise of the State as a Process of Secularisation,” 1991. 25 See Conze, Strätz, and Zabel, “Säkularisation, Säkularisierung,” 1984, pp. 792, 801 ff. 26 Hobbes, Behemoth or The Long Parliament, 1990, p. 21. Karsten Fischer 126 This destroyed reverence for and obedience to the clergy and gave “colour to the late rebellion”.27 In other words, it contributed to the execution of King Charles I in 1649. If it be lawful then for subjects to resist the King, when he commands any‐ thing that is against the Scripture, that is, contrary to the command of God, and to be judge of the meaning of the Scripture, it is impossible that the life of any King, or the peace of any Christian kingdom, can be long secure.28 However, if political theology that was now seen to encourage civil war was to be replaced by an inner-worldly theory of government and civil or‐ der, one cannot say that the latter first came into being with Thomas Hobbes’ contractually legitimized justification of the absolutist Leviathan. Jean Bodin’s equally absolutist theory of sovereignty had already rested on the foundation of the post-Westphalian order that had inaugurated the modern era. And if one shares Luhmann’s view on the unfolding (Entfal‐ tung) of paradoxes in the history of ideas as the motor of the progress of ideas,29 Bodin’s theory is of the greatest interest in the attempt to under‐ stand what subsequently took place. In Les Six livres de la République Bodin formulated his famous defini‐ tion of sovereignty as une puissance perpétuelle et absolue, sans restriction de temps ou de conditi‐ on: Elle consiste à pouvoir donner loy à tous en général, et à chacun en parti‐ culier, sans le consentement d’autruy, n’en recevoir de personne.30 The elements of this definition that legitimize political rule establish that the sovereign ruler, in contrast to the ruler in the Middle Ages’ state based on an association of persons (Personenverbandsstaat), is no longer tied to a metaphysical corrective like the lex divina or to any other elements of traditional political legitimacy. To express Bodin’s concept of sovereignty in Max Weber’s categories, it is rational-legal authority. In relationship to the tradition the sovereign is free: He is entirely exempt from the laws of his predecessor, but absolutely bound by his own. Otherwise, with this freedom, he would be a tyrant. But fostering tyranny was no part of Bod‐ in’s intention – tyranny has no need of theory. Bodin’s concept of 27 Ibid., p. 49. 28 Ibid., p. 50. 29 See Luhmann, “Tautologie und Paradoxie in den Selbstbeschreibungen der moder‐ nen Gesellschaft,” 1997. 30 Bodin, Les six livres de la République, 1583, p. 142. The Political Problem of Religious Liberality 127 sovereignty aims to establish the rule of law. He equates sovereignty with legislation. In other words, sovereignty finds its concretization in legis‐ lative monopoly. And here, for the first time, we find this form of the con‐ cept of state authority. The essence of sovereignty is legislative sovereign‐ ty. Thus, Bodin would have found the concept of the Rechts-Staat tauto‐ logical, since for him sovereign statehood, or state sovereignty, is consti‐ tuted in the function of creating law (Rechtsetzungsfunktion). In this re‐ gard, Bodin’s absolutist concept of sovereignty marks an early step toward the rule of law. It attempts to prevent religiously motivated civil wars by relying exclusively on the binding nature of formal laws as the ultimate measure, and no longer relies on a faith in legitimate resistance in the name of God. In modern terms: For Bodin, there is no legitimacy beyond legality; a fact that shows that Schmitt’s attempt to claim Bodin and Hobbes as his predecessors was a blatant attempt to try to disguise his own totalitarianism.31 We see that, in its genesis, the concept of sovereign‐ ty is implicitly anti-clerical. To this extent, it constitutes the, at first glance, seemingly counterintuitive alliance between absolutism and liber‐ alism that was further developed in the “pre-liberal” aspect of Hobbes’ re‐ ligio-political approach in the distinction made between private fides and public confessio.32 This alliance declares religion to be a private matter and thus defuses its explosive power. Just as Hobbes’s later concept of sovereignty, Bodin’s concept aimed to strengthen state power absolutely in order to dominate the conflicting sects. The fact that Bodin had no intention of legitimizing tyranny but rather intended to bind the sovereign by his own laws, is also rooted in the para‐ dox of his idea of sovereignty, namely, that limited power is more potent than limitless power.33 This paradox can be resolved if one looks at Bod‐ in’s concept of sovereignty neither from the perspective of the sovereign himself, nor from the perspective that looks toward the sovereign. Nor should one think of the sovereign in terms of persons – as was done in 20th century totalitarianism and is still done in today’s neo-authoritarian‐ ism. Rather, one must look at sovereignty as an institution that is an at‐ tribute of the state in its entirety. Viewed in this way, sovereignty is in‐ tended to eliminate the arbitrary acts of individuals – i.e. of ruling persons 31 See Fischer, “Hobbes, Schmitt, and the Paradox of Religious Liberality,” 2010. 32 See Holmes, Passions and Constraints: On the Theory of Liberal Democracy, 1995, p. 131. 33 See ibid., pp. 108 ff. Karsten Fischer 128 – for the modern territorial state is no longer an association of persons as the state of the Middle Ages was. If sovereignty were an attribute of the ruler as a person, instead of the office, it would be subject to the person’s arbitrariness. But according to Bodin, the sovereignty of the state as a po‐ litical institution is above individual arbitrariness and in no way subordi‐ nate to the individual ruler. The ruler has an obligation to legality, even when this obligation cannot be externally enforced – a problem first solved by modern liberalism. According to Bodin, sovereignty is an un‐ limited power but, paradoxically, one that also governs the individual who exercises it. Of course decisions can be reversed, but then they are new de‐ cisions. And in this respect they are anything but arbitrary since they are made according to a methodological procedure. Thus, sovereignty means the unity of state authority in a limited terri‐ tory in which the traditional rival sources of law such as customs and mores are excluded. Only these conditions make it possible for such a sovereign state to arbitrate denominational controversies in which the dis‐ puting parties call upon other sources of legitimacy than that of the state’s institutional law. The unfolding of the paradoxical structure of the absolutist conception of sovereignty became the driving force in the concept’s historical devel‐ opment. For, if Bodin’s concept of sovereignty had been the legitimation of tyranny, what would tyranny be? Like anything else, arbitrariness can only be conceived when it is differentiated from something else, and its opposite is obligation. What then is the unity in the distinction between ar‐ bitrariness and obligation in which the unity of the political system must lie? This question leads directly to the concept of the rule of law. But the demand on the sovereign that he subjects himself to the law was not con‐ ceivable before the end of the 17th century. To bind oneself was viewed as a contradictio in adiecto; only contracts could bind. But if the sovereign were to bind himself by contract he would bring an end to his sovereignty. This point can also be seen in Hobbes’ theory of the social contract to which the sovereign is not a partner but the one who benefits from the contract; he is the third party that cannot be held to account for any al‐ leged breach of contract. But in order to insure that his laws will be obeyed, the sovereign must limit his own authority, and to this extent it may be said that limited sovereignty is more potent than unlimited: Bodin overcomes his own injunction against self-binding by claiming that constitutional precommitments, institutional constraints that cannot be waived on an ad hoc basis, are vehicles of royal freedom – strategies by which The Political Problem of Religious Liberality 129 sovereigns may most effectively assert their authority. Applied imaginatively to a democratic sovereign, this important argument eventually became the ba‐ sis of the modern theory of liberal constitutionalism.34 This solution opened the gate to liberal constitutionalism which, by refor‐ mulating the contractual argument, overcame its early absolutist form. And it demonstrates the correctness of Habermas’s statement “that there is a conceptual or internal relation, and not simply a historically contingent association, between the rule of law and democracy”.35 In this way, Bod‐ in’s paradox of sovereignty, that the sovereign cannot be subject to anyone else, yet is still bound, is overcome, and it is this idea that constitutes the rule of law. It is related to a new idea of differentiation that distinguishes between legal obligation and the control necessary to insure that the obli‐ gation is fulfilled. In this way, the theory of sovereignty is extended to the democratic idea of the sovereignty of the people. For now those who rule – and under the conditions of democratic rule we must use the plural – constitute such a large majority (whose members are always replacing one another), that it can be internally differentiated in order to make possible the division of state power. This is Locke’s argument, and especially, Montesquieu’s, whereby the latter – with his great example always before him, England’s constitutional monarchy – takes the decisive step beyond Locke toward the rule of law. If the differentiation of state authority into legislative and executive branches would have been unthinkable for Bodin and Hobbes, the theorists of sovereignty in the early modern period, Mon‐ tesquieu now introduces a third element, the independent judiciary whose power extends to the control of political decisions. From now on political decisions can be appealed, i.e. they are subject to judicial review. In this way, in modern society, politics and law can be differentiated as functional systems of the same rank and the principle of princeps legibus solutus ceases to exist. Legislation is now, and remains hereafter, what it was in the classical concept of sovereignty, an act of the supreme political author‐ ity, but now the reverse is also true: politics is bound by law. 34 Ibid., p. 152. 35 Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, 1998, p. 449. Karsten Fischer 130 Here we find both the real and the historical core of secularization theo‐ ry36 long before and independent of Napoleon’s 1803 decree and the adop‐ tion of the concept in the same year in the legal language of the Final Re‐ cess of the Reichsdeputation. At the center of secularization we find the explosiveness that religious claims to truth and validity have for a democ‐ racy; for were they to be pursued consequently they would not only rule out the possibility of democratic control but would cancel each other. In so far it was terrible, but logical, that the break-up of the long standing unity of faith in Europe brought bitter religious wars in its wake and that the emergence of the institutional territorial state drew the fire of religious conflict to itself. For then, the politically organized state asserted that reli‐ gious claims to validity must be placed under the caveat that they present no danger to public order. In this way, the liberal state of Occidental modernity took charge of religious conflicts and transformed them into the legal question of the legitimate exercise of freedom – itself limited where it clashed with the legitimate exercise of the freedom of those of other faiths. Previously, these conflicts had affected politics “only” indirectly, but in the form of religiously fueled civil wars all the more violently. Then, the liberal state – the long-term product of these conditions – be‐ came a party to the conflict by asserting its claim to ideological neutrality and by trying to establish its authority. Thus, the liberal-democratic consti‐ tutional state is not merely a result of secularization37 but also a heritage of Europe’s religious civil wars. For this reason it is still in danger today of being targeted as the enemy by groups with comprehensive religious demands based on claims to truth and validity who oppose the state with the same fervor with which they opposed each other in the pre-modern era. Under the conditions of modernity such groups are termed ‘funda‐ mentalists’, a concept that also reveals the current issue’s deep historical dimension: The charge brought by fundamentalists of every kind, that the liberal state is blasphemy, is itself an index of the reality of secularization; otherwise the anger of the fundamentalists would be pointless. Therefore, the conditio sine qua non for the fruitful coexistence of reli‐ gious groups within, and with, the liberal state is the development of reli‐ 36 See Gorski, “Historicizing the Secularization Debate: Church, State, and Society in Late Medieval and Early Modern Europe, ca. 1300 to 1700,” 2000. See also Schlögl, Alter Glaube und moderne Welt. Europäisches Christentum im Umbruch (1750-1850), 2013. 37 See Böckenförde, “The Rise of the State as a Process of Secularisation,” 1991. The Political Problem of Religious Liberality 131 gious liberality in the sense of a voluntary willingness on the part of com‐ munities of faith to accept the primacy of democratic political decisions over the truth and validity claims of world-views, and thus to tolerate the convictions of rival religious communities. Especially the monotheistic re‐ ligions of revelation, based on their comprehensive claims to truth, find it difficult in principle to accept the primacy and autonomous logic of demo‐ cratic politics, and their acceptance came about only under particular his‐ torical conditions. For democratic politics have their roots elsewhere; in the Greek discovery of politics based on the political autonomy of the hu‐ man being, the person who understands herself as a free citizen and whose sovereignty alone decides on the allocation of legitimate political power. Whether God or Satan will rule is not what is at stake, and that makes politics less ‘interesting’, less dangerous, hence less exciting than it might otherwise be. Denying God’s authority in political life is a shorthand phrase for making politics safe for human beings doomed to unending disagreement and con‐ flict.38 In this respect, it is not just true in ancient Greek history but also in accord with a trans-historical logic that every act of democratic politics is an act of secularization. Their binding nature for all is the product of a procedure that takes place under the auspices of equality and transparency; it is these that insure that responsibility can be accorded to the makers of decisions and that the decisions can be enforced. Thus, democratic rule is legitimate to the extent that those subject to it can hold the rulers accountable, and based on the reversibility of power relations, can also change decisions. Under the democratic conditions of liberal modernity, politics and reli‐ gion are fatefully tied to one another and each is the other’s nemesis. For it is a characteristic of functional social differentiation that each functional sub-system takes itself for the whole, and in this sociological megaloma‐ nia religion and politics are closely related. But the function of politics is “to maintain the capacity for making binding decisions for the collective” through the medium of power.39 However, through its medium of faith, re‐ ligion guarantees the “determinability of all meaning in the face of life’s experience which points to the indeterminable.”40 If, against the logic of functional differentiation, these functions are short-circuited we are con‐ 38 Walzer, “Drawing the Line: Religion and Politics,” 1998, p. 305. 39 Luhmann, Die Politik der Gesellschaft, 2000, p. 84. 40 Luhmann, Die Religion der Gesellschaft, 2000, p. 127. Karsten Fischer 132 fronted with religio-political pathologies, the dangerous anti-modernism of which has been observed now for the last one hundred years: At one extreme end, totalitarian political religions lay claim to quasi-religious meaning in decisions that bind the collective. But the democratic will of the people has no need of ‘meaning’, it is not a means but an end – therein lies its freedom. At the other extreme end, we find the various forms of fundamentalism, each with its claim that politics should make binding de‐ cisions for the collective under the auspices of a religious meaning. The need to reach a balance between these extremes was concisely formulated by Michael Walzer: Politics separated from religion in this extended and qualified sense – that all the crusaders, religious or secular alike, are denied the sword (but allowed to fly their banners) – is an open-ended conflict over interests and values among people who understand that they have to co-exist with one another. [...] We have to set ourselves against the closure that God’s name, again and again, has licensed – but also against every other kind of closure, licensed by any of the secular substitutes for God’s name. Only someone who has never experi‐ enced, or who can’t imagine experiencing, the dangers of politics gone bad, could possibly complain about that.41 It would therefore be wrong to consider the process of secularization as one in which religious meaning was completely lost. In this erroneous as‐ sessment, radical enemies of religion and critics of secularization theory, which misunderstand its nature, or deliberately attribute religious enmity to its representatives, meet – les extrêmes se touchent! Finally, not only does the modern liberal state threaten to use its monopoly on coercion but, beyond that, it is also true that “the autonomy of politics increases simulta‐ neously with the autonomy of religion.”42 To put it pointedly, religious convictions are to be treated as individual private views and therefore re‐ stricted, but precisely for that reason they are also to be protected against any form of political influence. In this constructive result of secularization for both parties – for the official state relationship toward religion and the corresponding dimension of religiousness that follows from it – we find one of the main differences of liberalism to previous regimes. In this perspective, modern secularization can be understood as the pro‐ cess of establishing a status of equality among functions within a function‐ ally differentiated modern society. In modern society, politics, law, econo‐ 41 Walzer, “Drawing the Line: Religion and Politics,” p. 305. 42 Holmes, Passions and Constraints: On the Theory of Liberal Democracy, p. 207. The Political Problem of Religious Liberality 133 my, science, religion, art and other social subsystems are at work, each ac‐ cording to its own binary coded functional logic. In the pre-modern world, “religion and society were indistinguishable.”43 In modern society, both religion and politics are only two social function systems among others. There is no longer total social inclusion such as there was in pre-modern society – a society which, at least nominally, represented the entire popu‐ lation in a community of the faithful. This, of course, is the condition that fundamentalist and totalitarian political movements want to re-establish. Under modern conditions it is valid to say: Today, religion does not protect one against inflation, nor against an undesired regime change, nor against a love relationship growing stale, nor against the scientific refutation of one’s theories. Religion cannot jump in and do the work of other functional systems.44 Thus, on the one hand, the liberal and democratic constitutional state op‐ poses religious encroachments that violate the individual pursuit of happi‐ ness in the sense intended by the American Declaration of Independence. On the other hand and in order to protect against tyranny, the state empha‐ sizes its own functional artificiality of being an entity created by contract the role of which is in no way to be inflated ideologically or morally. The guarantee of liberality lies in limiting the state to proper procedures and institutional protections. Thus, pluralism is guaranteed wherever the ideo‐ logically neutral state is defended against religious claims to exclusion and closure. It is also defended by the fact that every goal set by the state is made under the reservation that it not violate an individual’s right to freely choose his or her own convictions or the right to religious freedom. At an early date, these points were established by the United States Supreme Court which underlined their importance: [I]f there is any fixed star in our constitutional constellation, it is that no offi‐ cial, high or petty, can prescribe what shall be orthodox in politics, national‐ ism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.45 The model to separate politics and religion which was developed in mod‐ ern liberal constitutionalism and made in the interest of religious freedom, 43 Luhmann, “Die Ausdifferenzierung der Religion,” 1993, p. 259. 44 Ibid. 45 US-Supreme Court, West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). Karsten Fischer 134 limits the power of both religion and politics. It views political tyranny and the hardening of religion in the pursuit of domination as two sides of the same coin. Likewise, religious freedom and political freedom are in‐ separable; both culminate in the concept of civil liberty. With the unfolding (Entfaltung) of Bodin’s paradox of sovereignty, the successively emerging liberal self-limitation is again linked to a paradox. For, in the interest of liberality, the secular state that confines itself to its functional political institutions, must refrain from trying to influence the social morals of its sovereign, the people. Indeed, it must refrain from even trying to find out the state of their moral views, for this would come close to trying to control them. At the most, the liberal state can try to ad‐ minister homeopathic doses of its social and moral resources. The paradox of the liberal state is that it apparently needs the binding powers of the tra‐ ditional world-views that were guaranteed by religion, but at the same time it had to pacify and limit religion to private conviction in order to es‐ tablish itself.46 Here, with this so-called Böckenförde paradox, the early modern peri‐ od’s paradox of sovereignty which led to the transformation of Bodin’s theory returns in a changed form. This is not as much an irony of history as a demonstration of the importance of the role that the unfolding of para‐ doxes play in the history of political ideas. Like the power of the early modern period’s absolutist sovereign, the power of a democracy’s sovereign people requires a limit placed on its power to act; and this in the interest of insuring its ability to engage in practical politics. This limita‐ tion is the constitution: “Citizens need a constitution, just as Ulysses need‐ ed to be bound to his mast.”47 Just as Ulysses was able to enjoy the song of the sirens without having to suffer the sorrows of a deadly shipwreck only by having himself tied to the mast, the experiment of democratic freedom also needs to take security measures. These consist in making sure that, by means of constitutional statutes, the democratic society’s core moral norms are taken out of the hands of the democratic majority’s power to act upon them.48 Thus, one paradox is answered in the unfolding of the next: “Democracy means that the people rule. Over whom? Over the peo‐ ple, of course.”49 Constitutionalism responds with a form of the act of 46 See Böckenförde, “The Rise of the State as a Process of Secularisation,” 1991. 47 Holmes, Passions and Constraints:On the Theory of Liberal Democracy, p. 135. 48 See ibid., p. 163. 49 Luhmann, Die Politik der Gesellschaft, p. 353. The Political Problem of Religious Liberality 135 Ulysses that one might call the ‘paradox of intangibility’ (Unverfügbar‐ keitsparadox): The liberal constitutional state opposes any transcendental legitimation of social order and political domination. It does not view them as being subordinate to divine determination but rather as emerging from the will of those subject to political domination, and therefore as ob‐ jects of practical action. This state of affairs is mirrored in the fact that all laws, up to and including the constitution, are made by the sovereign peo‐ ple’s democratically elected representatives. But then, this procedure and its principle institutional expression are made absolute and removed from the people’s power to act upon; and precisely in order to prevent any pos‐ sible return of the religious postulate that such elements are reserved for the divine sphere. Thus, out of the political will creating a constitution in which the right to fashion all elements of the world-immanent factual and symbolical order is proclaimed, emerges the second order paradox that not all matters are within the people’s power to act upon. This solution is also intended to solve the problem of cohesion that is alleged to plague the lib‐ eral order: “The rule of law […] is the great mucilage that holds society together.”50 As the result of the paradox regarding the things that are not within the power of the people to determine, one might indeed call the concept of constitutional democracy an “oxymoron”51 because the basic norms are beyond the power of the people’s will to act upon. The logical and norma‐ tive advantage of the “‘auto-paternalism’”52 that is found in the constitu‐ tional paradox of aspects that cannot be changed by the people is that no one can voluntarily agree to surrender his right to voluntariness, and that therefore, “to preserve voluntariness, voluntariness itself must be restrict‐ ed”.53 The result for the relationship between politics and religion is that the ideologically neutral and liberal-democratic constitutional state profits from the fact that the scarce resource of ‘meaning’ is not within the power of the state to determine. It is constituted and re-produced outside the state and codified in the sphere of transcendence. And, for its part, religion profits from the fact that the question of power is treated in the political 50 US-Supreme Court, Papachristou v. City of Jacksonville, 405 U.S. 156, 171 (1972). 51 Holmes, Passions and Constraints. On the Theory of Liberal Democracy, p. 136. 52 Ibid., p. 174. 53 Ibid., p. 176. Karsten Fischer 136 system and its limits set by law. In this way, religion enjoys the state’s le‐ gal protection against political persecution and the pretensions of totalitar‐ ian political religions and avoids the dysfunctional temptation of trying to substitute – or of mistaking – its own sphere of faith for that of politics. Let us take a closer look at this win-win-situation54 in systematic perspec‐ tive. Demands of Liberal Constitutionalism Even if the religio-political win-win-situation is theoretically convincing, proven historically and consequently without alternative, it is still imperti‐ nent to the truth and absolutist claims of monotheistic revealed religions. For being compelled to differentiate between politics and religion presents a permanent challenge to religious conviction. From the standpoint of a neutral position, both realms are viewed as two different forms of social action. In this way, religion is denied its traditional priority that once in‐ cluded social meaning, metaphysical mission, scientific truth, and political praxis. All the more, the liberal-democratic constitutional state is in need of “complementary life forms”,55 especially on the part of those whose earli‐ er conflicts with each other, and with the collective order, contributed de‐ cisively to the rise of the state as a process of secularization.56 Such a complementary approach can be found in the prerequisites that led to the development of religious liberality in the just described sense of the term: the voluntary willingness of communities of faith to accept the primacy of democratic political decisions over their world-views’ claims to validity and to tolerate rival religious faiths. It is therefore necessary for the pious to interpret God’s law religiously and morally and, precisely in the discur‐ sive arguments about the truth of various religions, recognize that, in the long run, only an autonomous state of the rule of law can guarantee the arguing groups’ free, legal, and peaceful life of coexistence.57 For the sus‐ picion that, in the last instance, the secularized western state derives its C. 54 Stepan, “Religion, Democracy, and the ‘Twin Tolerations’,” 2000. 55 Habermas, Erläuterungen zur Diskursethik, 1991, p. 25. 56 Böckenförde, “The Rise of the State as a Process of Secularisation,”. 57 See Graf, Moses Vermächtnis. Über göttliche und menschliche Gesetze, 2006, p. 87. The Political Problem of Religious Liberality 137 strength from the inner forces and binding powers that religious faith com‐ municates to the state’s citizens, means that religious citizens of every provenance must acknowledge that the liberal secular state provides the opportunity for freedom and that it is their responsibility to maintain it.58 This places a far reaching demand on the development of systems of in‐ terpreting religion: within the medium of religious language itself, the difference between the mundane order and the religious ethos must be es‐ tablished, and thus the constructive notion of the legitimate and freedomserving secularity of the state must be affirmed.59 The members of reli‐ gious communities must therefore learn to limit themselves to their own articles of faith, i.e., they must learn to distinguish between what in a lib‐ eral democratic, and therefore ideologically neutral, state can be consid‐ ered valid for everyone, and what can be considered valid only for a spe‐ cific community.60 This paradoxical requirement of an internally self-im‐ posed limitation on religious claims and symbol systems, in the form of the genuine religious insight that the state must not be allowed to be reli‐ giously determined, sensitizes against any possible essentialist and a-his‐ torical notion of a supposed principle compatibility – or incompatibility – in the relationship of democracy and liberality to religion.61 However, one can hardly suppose that the conditions of religious liber‐ ality depend exclusively on internal religious developments.62 Rather, in view of the historical record, what is called for is that attention be paid to the process of exchange between politics and religion whose positive – or negative – experiences have an influence on both sides’ potential for liber‐ ality. On the political side of this question we find the religio-political gover‐ nance structure of the free and democratic constitutional state which we may characterize – with reference to Abraham Lincoln’s famous praise in his Gettysburg Address of 19 November 1863 of “government of the peo‐ ple, by the people, for the people” – as governance of religions, governan‐ ce by religions and governance for religions. The vanishing point of this threefold constellation is found in the voluntary religious liberality de‐ scribed above. In view of the necessary regulatory components of a gover‐ 58 See Böckenförde, “The Rise of the State as a Process of Secularisation,” pp. 45 ff. 59 See Graf, “Einleitung,” 2013, p. 39. 60 See ibid., pp. 39 ff. 61 See ibid. 62 See ibid., p. 43. Karsten Fischer 138 nance of religions, as we find, for example, in the prohibition of unconsti‐ tutional fundamentalist activities, the acceptance of the democratic caveat is a necessary condition for a governance for religions being able to be ex‐ tended to a governance by religions, such as we find in the German consti‐ tutional rights of religion. These rights have now been extended to the Is‐ lamic communities of faith and allow them to make their own program of instruction in schools and to establish Islamic theological faculties at state universities. In such a way, on the one hand, religio-political governance practices induce complex reciprocal processes and thus positive, resp. neg‐ ative, political incentives for religious liberality; on the other hand, reli‐ gious communities acquire experience ranging from the repressive governance of religions to the autonomy-supporting governance by religi‐ ons, all the way up to the liberal governance for religions. This demonstrates that it is precisely the functional separation of polit‐ ics and religion that allows church and state to work together to accom‐ plish common tasks.63 The specific pre-condition for this achievement is the ideological neutrality of the liberal democratic constitutional state.64 Naturally, such a state has a minimal tendency toward hegemony, insofar as the liberal democratic rule of law must, at the very least, require that the framework it creates, and thus the fundamental order of values it upholds, be accepted.65 In this regard it places faith in a force of transformation.66 “Thus, by definition, the democratic and liberal state’s neutrality cannot be absolute”; instead “the state […] takes the side of equality and autonomy, allowing citizens to choose their life plan and mode of life.”67 The liberal constitutional state must watch over the return of religiosity, administer it in a secular way, and remain neutral.68 From this perspective, the widespread notion that liberalism turned religion into a private matter and intended to marginalize it in the public realm is a misunderstanding. 63 See Graf, Götter global. Wie die Welt zum Supermarkt der Religionen wird, 2014, p. 102. 64 See Patten, “Liberal Neutrality: A Reinterpretation and Defense,” 2012. 65 See Galston, Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State, 1991, p. 3. 66 See Macedo, “Transformative Constitutionalism and the Case of Religion: De‐ fending the Moderate Hegemony of Liberalism,” 1998. See also Woodberry, “The Missionary Roots of Liberal Democracy,” 2012. 67 Maclure and Taylor, Secularism and Freedom of Conscience, 2011, pp. 16 ff. 68 See Dreier, Säkularisierung und Sakralität. Zum Selbstverständnis des modernen Verfassungsstaates, 2013, p. 112. The Political Problem of Religious Liberality 139 Quite the opposite is true; in a pluralistic and democratic society, it is en‐ tirely legitimate and desirable that religious communities attempt to exer‐ cise political influence. What is essential is that they remain open toward the results of such an attempt, and that no claim be made that the right to take such influence is based on being in possession of divine truth.69 Cécile Laborde has therefore distinguished aptly between “four idealtypical models of the public place of religion”:70 (A) Militant Separation: Inadequate protection of religious freedoms; official support and promotion of scepticism or atheism by the state; secularist antireligious state. (B) Modest Separation: Adequate protection of religious freedoms; no official support of religion(s) by the state; no public funding of religious education and no state aid to religious groups. (C) Modest Establishment: Adequate protection of religious freedoms; offi‐ cial support of religion(s) by the state; public funding of religious education and state aid to religious groups. (D) Full Establishment: Inadequate protection of religious freedoms; official support and promotion of religious orthodoxy by the state; theocratic anti-sec‐ ular state. Models (A) and (D) are unacceptable to political liberalism, but liberalism is “potentially compatible” with both models (B) and (C) “(or any inter‐ mediary model)”.71 Not only in view of the highly desirable and manifold civil society ac‐ tivities preformed by religious communities, for example the caritative ones, but also with regard to their political engagement, the distinction be‐ tween public and private functions is sometimes misunderstood because these functions are confused with the distinction between the state and so‐ ciety:72 religious communities are as free as any other social group to en‐ gage in political activity in the public and social sphere; but such activity must be distinguished from a collective political activity that claims to be 69 See Böckenförde, “Der säkularisierte, religionsneutrale Staat als sittliche Idee – Die Reinigung des Glaubens durch die Vernunft,” 2011, p. 86. 70 Laborde, “Political Liberalism and Religion: On Separation and Establishment,” 2013, p. 68. 71 Ibid., p. 69. See now in more detail Laborde, Liberalism’s Religion, 2017. 72 For this idea I am indebted to Professor Rainer Schmalz-Bruns (University of Hannover). Karsten Fischer 140 binding for everyone and which, in the liberal democratic constitutional state, is reserved for elected institutions. Whily pre-conditionally accepting this caveat, a fortiori, further re‐ search is urgently necessary in order to examine and to more closely deter‐ mine the reciprocal relationship between political structures of incentives and religious dispositions. This calls for comparative studies of the politi‐ cal conditions of religious liberality. Following, I will outline some initial thoughts on such a project. The Political Ethics of World Religions The starting point for such an investigation can be found in the work of the Protestant theologian Ernst Troeltsch. In a manner analogous to Max Weber’s famous question, why did capitalism develop originally only in the Occident, Troeltsch asked why liberalism has remained a Western dis‐ covery. Like Weber, who sought and found the answer to his question in the economic ethics of the major world religions, Troeltsch addressed their political ethics. Support for this perspective can be found in the religio-philosophical reflections of Jürgen Habermas who, after initial skepticism, now thinks that he “can lend an unproblematic meaning to Böckenförde’s theorem”:73 “For, as a constitutional democracy, it depends on a mode of legitimation founded on convictions.”74 In view of this requirement, Habermas calls on citizens of secular con‐ viction to join with their fellow citizens who hold religious convictions in order to translate the language of religious meaning into a language acces‐ sible to all.75 With this reasonable postulate, Habermas hopes to make it possible for religious experience, with its potential for solidarity, to be‐ come a part of the process of societal self-interpretation. To this end, he has offered a memorable description of the process of secularization: “Secularization functions less as a filter separating the contents of tradi‐ tions than as a transformer which redirects the flow of tradition.”76 In keeping with the liberal tradition, Habermas writes: D. 73 Habermas, Between Naturalism and Religion: Philosophical Essays, 2008, p. 110. 74 Habermas, “An Awareness of What is Missing,” 2010, p. 20. 75 See Habermas, Between Naturalism and Religion. Philosophical Essays, p. 132. 76 Habermas, “An Awareness of What is Missing,” p. 18. The Political Problem of Religious Liberality 141 The truth contents of religious contributions can enter into the institutional‐ ized practice of deliberation and decision-making only when the necessary translation already occurs in the pre-parliamentarian domain, i.e. in the politi‐ cal public sphere itself.77 The concept of translation is at the heart of Habermas’s religio-theoretical extension of discourse ethics. It replaces the liberal concept of conflict-shy gag rules which were meant to “preclude [the] cooperation-shattering de‐ bate of emotionally charged issues.”78 For his part, Habermas defends “Hegel’s thesis that the major world religions belong to the history of rea‐ son itself.”79 In this way, Habermas departs from the liberal position, at least insofar as it fails to impute a rationality postulate to religions, but rather treats religions – for their own protection – as private matters that are to be spared the test of any criteria of reason. Habermas’s partial correction of the liberal model may well be justified and have a future. Still, it is not immediately clear why liberalism that was a rival of the major world religions for hundreds of years should trust its former enemies, or indeed grant them credit for rationality. Thus Haber‐ mas’s religio-philosophical reflections also culminate in the question con‐ cerning the conditions of religious liberality, and Habermas indicates his intuitive feeling for this problem when, with regard to “religious con‐ sciousness”, he places his hope in a “modernization from within”.80 Encouraged in this way by Habermas, when looking at the comparative examination of the major world religions’ political ethics by Troeltsch, one sees that there is reciprocity between, on the one hand, political incen‐ tive structures resp. modes of conduct and, on the other hand, genuine reli‐ gious dispositions resp. forms of reaction. Thus, until the Second Vatican Council, Catholicism held the ideologi‐ cally neutral liberal state for apostasy, the fall from faith, because the Catholic idea of the unity of morals and law was incompatible with Kant’s principle distinction between morality and legality and the idea of an indi‐ vidual’s right to self-defense against the state. Reflections on the liberal potential of natural rights under Pope Leo XIII did not arise from that fact that “there is no obstacle in principle to an autonomous foundation of 77 Habermas, Between Naturalism and Religion. Philosophical Essays, p. 131. 78 Holmes, Passions and Constraints: On the Theory of Liberal Democracy, 1995, pp. 10, 202 ff. 79 Habermas, Between Naturalism and Religion. Philosophical Essays, p. 6. 80 Ibid., p. 311. Karsten Fischer 142 morality and law [...] from the Catholic side, which is congenial to the lu‐ men natural.”81 Rather, this development came directly from the insight that communism was a far more dangerous enemy than liberalism.82 But when the Second Vatican Council’s Pastoral Constitution Gaudium et spes expressly recognized human rights, including religious freedom and the constitution, as constituting the foundation of modern statehood, it did so on the basis of the so-called differentiation thesis in number 76 of the Pas‐ toral Constitution according to which the political community and the church are “autonomous in their respective spheres of activity.”83 This new position was undoubtedly indebted to the positive experience that the Catholic Church had made in the United States with liberal religious poli‐ cy and governance – an experience John Courtney Murray S.J. communi‐ cated to the Second Vatican Council.84 But Protestantism has its problems with liberal democratic constitution‐ alism either. For Calvinism “is related not with modernity but with mod‐ ernization, that is, with the process far more significantly than with its out‐ come.”85 For this reason, Calvinism tends to overemphasize the political, indeed to the point of institutionalizing a theocratic or Christocratic com‐ monwealth86 which is the very opposite of the liberal model. Complemen‐ tary to this ambivalence, Lutheranism stands for the peerless nadir of a re‐ ligiously connotated authoritarianism as well as, in its two-kingdom-doc‐ trine, for a liberal moment that amounts to an “anarchy of the inner man”.87 With this position, worldly affairs can be relativized and acknowl‐ edged to be an independent realm with its own dignity. Thus, with regard to Protestantism, the findings concerning liberality are ambivalent. 81 Ibid., p. 102. 82 See Uertz, Vom Gottesrecht zum Menschenrecht. Das katholische Staatsdenken von der Französischen Revolution bis zum II. Vatikanischen Konzil (1789-1965), 2005. 83 Tanner, The Church and the World: Gaudium et spes, Inter mirifica, 2005, p. 58. 84 See Hooper, Bridging the Sacred and the Secular: Selected Writings of John Courtney Murray, SJ, 1994. See Murray, We hold these Truths: Catholic Reflec‐ tions on the American Proposition, 2005. See also Weigel, “Catholicism and Democracy, The Other Twentieth-Century Revolution,” 1990. 85 Walzer, The Revolution of the Saints: A Study in the Origins of Radical Politics, 1965, pp. 18 ff. 86 See Graf, Der Protestantismus. Geschichte und Gegenwart, 2006, p. 44. 87 Graf, “Der Protestantismus,” 2007, p. 116. The Political Problem of Religious Liberality 143 If one enlarges this cursory and comparative overview beyond the Western Christian denominations one finds an anti-liberal position in Or‐ thodox Christianity;88 a problem that, fatally, was one of the most underes‐ timated in the eastward expansion of the European Union.89 Characterized by its ethnic orientation and organization and endowed with a strong apoc‐ alyptic strain, Orthodox Christianity, due to its so called principle of sym‐ pathy with the state, continues to have difficulty distinguishing between the realms of the sacred and the profane, and thus between religion and politics. This rules out the possibility of constitutionally limiting political and ecclesiastical power. In his revealing book, Politische Theologie in der griechisch-orthodoxen Kirche, Dimitrios Kisoudis renews this anti-lib‐ eral tradition with reference to Carl Schmitt and finds that the current ene‐ my of the Greek Orthodox Church is constitutional law the insistence of which that state and church observe human rights is an outgrowth of West‐ ern theology.90 Konstantin Kostjuk finds the root of this attitude of Orthodox Christian‐ ity in the fact that it is far more oriented to authoritarian Platonism than to more liberal Aristotelianism.91 This is of particular interest because here we find agreement between Orthodox Christianity and Islam, for the polit‐ ical dimension of Islam’s reception of ancient Greek thought was strictly Platonic. In the first instance, this can be attributed to the simple fact that no Arabic translation of Aristotle’s Politics existed while there were trans‐ lations of both Plato’s Politeia and Nomoi. For this reason, “few were aware of the difference” between Platonic and Aristotelian political phi‐ losophy.92 Thus, Ibn Rušd wrote a commentary on all of Aristotle’s works except Politics; in the political sphere we find instead a commentary on Plato’s Politeia.93 And Ibn Sīnā noted in his discussion of the three practi‐ cal sciences, ethics, economics and politics – a division based on Aristo‐ 88 See Anderson, “Sovereignty vs. liberalism: some Russian Orthodox responses to democracy and pluralism,” 2013. 89 See Olteanu and de Nève, Eastern Orthodoxy and the Processes of European Inte‐ gration, 2014. 90 See Kisoudis, Politische Theologie in der griechisch-orthodoxen Kirche, 2007, p. 114. 91 See Kostjuk, Der Begriff des Politischen in der russisch-orthodoxen Tradition. Zum Verhältnis von Kirche, Staat und Gesellschaft in Rußland, 2005, pp. 28 ff. 92 See de Bour, The History of Philosophy in Islam, 1903, p. 27. See also Walzer, Greek into Arabic. Essays on Islamic Philosophy, 1962, p. 243. 93 See ibid., p. 19. Karsten Fischer 144 tle’s Nicomachean Ethics – that the last of these was treated by Plato and Aristotle in their teachings on government but that both philosophers treated questions of prophecy and (divine) right in their works on law.94 This erroneous reference of Iban Sīnā to a non-existent work of Aristotle on law seems to go back to a false entry in a list of Aristotle’s writings95 and with this puzzling reference, and the suspicion that Aristotle’s Politics was completely unknown in the Orient during the Middle Ages, we can let the matter rest.96 But even if Ibn Sīnā had known Aristotle’s Politics, that would change nothing; quite the contrary, in that case the lack of a recep‐ tion of Aristotle’s political writings would be all the more significant.97 That Platonic politics were particularly suited to the then prevailing cir‐ cumstances and corresponding philosophical needs can already be seen at the beginning of the 10th century in the writings of al-Fârâbî who, in the turmoil of civil war and in view of the impotence of the caliphate, turned to the concept of the ideal state in Plato’s Politeia “as a guide to practical action to renew the theocratic state.”98 In contrast to the unintended disenchantment of the world-view that fol‐ lowed from the Investiture Controversy and the successive re-discovery of politics as an autonomous sphere by scholastic Neo-Aristotelians, the Is‐ lamic reception of the ancient Greek world developed far less favorable conditions for the later adoption of a liberal attitude and democratic struc‐ tures – and for contingent reasons. This is especially true for Sunni Islam. In contrast, the Shiite tradition which was influenced by neo-Platonism and in which political Aris‐ totelianism was also unknown recognized in the beginning the separation of religion and politics. (It is still an erroneous commonplace in the public discussion in the West that the principle of the separation of religion and politics is universally absent in Islam.) The Shiite doctrine of ‘occultation’ and the return of the twelfth Imam at the end of time have existed since 94 See Avicenna, “On the Divisions of the Rational Sciences,” 1984, p. 97. 95 See ibid., p. 2. 96 See Morris, “The Philosopher-Prophet in Avicenna’s Political Philosophy,” 1992, p. 169. 97 See Peters, Aristotle and the Arabs: The Aristotelian Tradition in Islam, 1968, pp. 168 ff. 98 Endreß, “‘Der Erste Lehrer.’ Der arabische Aristoteles und das Konzept der Philo‐ sophie im Islam,” 1991, pp. 163 ff. See Corbin, History of Islamic Philosophy, 1993, p. 162. See also Walzer, Greek into Arabic. Essays on Islamic Philosophy, pp. 19, 243 ff. The Political Problem of Religious Liberality 145 934. This mystical interpretation of the Koran goes back to the sixth Shiite Imam who died in 765 and was developed in compensation for the humili‐ ating experience of having to live under foreign rule. Still, it amounted to a theocratic perversion of a centuries old secular Shiite tradition rooted in mysticism, when, in the course of the Islamic Revolution, the Ayatollah Khomeini succeeded in establishing his doctrine of the ‘guardianship of the scholar of the law’ (Velâyat-e Faqîh). In doing so, he destroyed the at‐ tempt that had been made in the 1904/1905 Iranian constitutional revolu‐ tion to connect with modern political thought in the West.99 Remarkably, there must be historically marginalized independent, ratio‐ nalist, and liberal developments in Islam, the recovery of which might open some promising possibilities. For the Sunni tradition in particular, Reinhard Schulze has reconstructed an original enlightenment stream, whose further development was tragically interrupted – and now we would say ironically prevented by Western colonialism.100 Even this brief tour de force through a desideratum of scholarly re‐ search brings into focus the necessity of undertaking a comparative study of the political ethics of the major world religions from the perspective of whether conditions may be found in them that favor religious liberality. This suggests the working hypothesis that radicalism does not take place due to the experience of the loss of meaning under the conditions of the secular liberal state. Indeed, quite the opposite seems to be true, there is a paradox of transcendence in religious liberality. While prima facie one might think that a religion is more liberal the more it is open to the world and the more it is politically engaged, as a matter of fact, the existence of a pronounced orientation toward transcendence seems to be a theological and religio-psychological condition for religious liberality, for it leaves a sphere free for the autonomous laws of worldly existence. This is especial‐ ly true if, at the same time, such a religion has positive experiences with the liberal political institutions that guarantee religious freedom. In conclusion, and with regard to the hypothesis that I have developed here with the help of Christian and Islamic examples, let us take a brief 99 See Armstrong, The Battle for God, 2000, p. 156. 100 See Schulze, “Das islamische 18. Jahrhundert. Versuch einer historiographischen Kritik,” 1990; see Schulze, “Was ist die islamische Aufklärung?,” 1996; see Schulze, A Modern History of the Islamic World, 2002; see Browers and Kurz‐ man, An Islamic Reformation?, 2004. See also Kurzman, Liberal Islam: A Sour‐ cebook, 1998. Karsten Fischer 146 look at Buddhism which is not a monotheistic religion of revelation and the fundamental position of which is well known to be compatible with freedom. First, we must correct the caricature of Buddhism that depicts it as pas‐ sive and wanting to flee from the world; a view that hardly pays attention to social and political issues, and which was unfortunately encouraged by Max Weber’s highly influential sociology of religion. Weber asserted that Buddhism is determined by “quietism”101 and is a “specifically apolitical and anti-political status religion”102 which “has established no ‘social-po‐ litical’ goal”.103 But these judgments “are based on an arbitrary interpretation of the evi‐ dence and the drawing of equally arbitrary conclusions”, for Gautama Buddha and his disciples turned toward the world “in order to provide a model of how, at one and the same time, one can distance oneself and yet remain in symbiotic relationship with the world.”104 Finally, the Buddha himself experienced politics as the decisive factor in existence, and not just because his father was the elected ruler of the Śâkya-Republic that had lost its autonomy, but also because he took the larger historical con‐ text into account. During Gautama Buddha’s life, profound social changes took place in north India, brought about by the introduction of a money economy, the use of iron, and the rise of crafts, commerce, and small busi‐ ness, which in turn led to the emergence of larger cities with their social differentiations. As far as political organization is concerned, smaller terri‐ torial principalities developed where previously republican forms of gov‐ ernment had been widespread. All these far reaching changes were reflect‐ ed in the transformation of values and in new world-views to which the Buddhist questioning of the caste system must be reckoned.105 In addition, 101 Weber, “Religion of India: The Sociology of Hinduism and Buddhism,” 2000, pp. 206, 215. 102 Ibid., p. 204. 103 Ibid., p. 224. 104 Tambiah, “Max Webers Untersuchung des frühen Buddhismus. Eine Kritik,” 1984, p. 208. 105 See Gokhale, “Dhamma as a Political Concept in Early Buddhism,” 1968, p. 251. Gombrich, Theravada Buddhism: A Social History from Ancient Benares to Mo‐ dern Colombo, pp. 5 ff. Ilaiah, God as Political Philosopher: Buddhism’s Chal‐ lenge to Brahmanism, 2001, pp. 33 ff. Schumann, Der historische Buddha. Leben und Lehre des Gotama, 1995, pp. 13 ff. Zotz, Buddha. Mit Selbstzeugnissen und Bilddokumenten, 1998, pp. 16 ff., 27 ff. The Political Problem of Religious Liberality 147 the princes sought Gautama Buddha’s counsel, and at the height of his fame he was also approached for an activity that today we would call po‐ litical consultation.106 Consequently, the sutras of Gautama Buddha reveal a modernizing ten‐ dency of thought that replaces the ritual collectivism of the Vedic tradition with a socially accented ethical individualism the object of which is to lead “to the formation of a viable economy, a strong and solid social struc‐ ture and a healthy and durable state.”107 Here we find a parallel between Buddhism and Protestantism since both, the one directed against Hin‐ duism and the other against Catholicism, place a higher value on individu‐ al achievement than on inherited social status. And it was this affirmation of social mobility that made both of these reform religions attractive to the aspiring middle classes and especially to merchants.108 Seen in this perspective, the question of Buddhism’s religio-political potential for liberality must be understood as “religious individualism”.109 At first glance, this view would seem to contradict the rejection of the no‐ tion of an individual soul; but the idea of an egoless spirit supports the teaching of limited genesis in mutual dependency, and precisely because acts, according to this Buddhist conception, are subject to thoroughly ob‐ served causality – since they determine a variety of conditions – the inten‐ tional ethical act (kamma) is all the more important. This leads to an understanding of politics as an autonomous realm and to a benign attitude toward republicanism and human rights: In short, each person should share in the responsibility of making decisions, and […] the community should present a united front. Here, obviously, the moral character of the individual must be a factor of primary importance.110 106 See Gokhale, “The Early Buddhist View of the State,” 1969, pp. 731 ff. 107 Upreti, Early Buddhist World Outlook in Historical Perspective, 1997, p. 168. See also Harris, „Buddhism and Politics in Asia: The Textual and Historical Roots,” 2001. 108 See Bailey and Mabbett, The Sociology of Early Buddhism, 2003, pp. 17 ff., 26. See also Gombrich, Theravada Buddhism: A Social History from Ancient Bena‐ res to Modern Colombo, 2006, pp. 171 ff. 109 Gombrich, Theravada Buddhism: A Social History from Ancient Benares to Mo‐ dern Colombo, 2006, pp. 73 ff. 110 Saddhatissa, Buddhist Ethics, 1997, p. 125. Karsten Fischer 148 That Gautama Buddha was a believer in tribal republicanism111 is also evi‐ dent in his skillful policy advice on the occasion when a king sent his counselor to him to seek advice on a pending military campaign. Gautama Buddha responded by asking whether the king’s enemies often held as‐ semblies, were peaceful and law-abiding, honored and followed the coun‐ sel of their oldest members, did not commit acts of rape, and whether they granted religious freedom. And because the king’s enemies did in fact live according to these principles, or in other words had a republican political order, the Buddha concluded that they were almost invincible. Confronted with this answer, the king dropped the notion of using force against them.112 In other sutras, Gautama Buddha explained how rulers should deal with civil unrest, lawlessness, and plundering. They should not reply with harsh penalties but rather with loans, alimentations, and investments that would lead to prosperity, peace, and harmony.113 As a consequence, the notion that systems of political rule are either natural or divine was called into question – and in this “‘demystification’ of the world” we find another parallel between Buddhism and Protes‐ tantism114 which is all the more surprising since Max Weber, of all people, overlooked it. In any case Gautama Buddha emphasizes “that societal status depends on man-made conventions”;115 a statement that situates religion in its prin‐ ciple duality to politics and thus underscores the fact that the liberal politi‐ cal order is endowed with a logic of its own.116 This view which is open to differentiation rules out the kind of paternal rule by philosophers that we 111 See Ilaiah, God as Political Philosopher. Buddhism’s Challenge to Brahmanism, p. 217. 112 See “Mahāparinibbāna Sutta: The Great Passing. The Buddha’s Last Days,” in The Long Discourses of the Buddha, 1996, pp. 231-277, 231 ff. 113 See “Kūṭadanta Sutta: About Kutadanta. A Bloodless Sacrifice,” in The Long Discourses of the Buddha, pp. 133-141. See “Cakkavatti-Sīhanāda Sutta: The Li‐ on’s Roar on the Turning of the Wheel,” The Long Discourses of the Buddha, pp. 395-405. 114 See Gombrich, Theravada Buddhism: A Social History from Ancient Benares to Modern Colombo, p. 88. 115 “Aggañña Sutta: On Knowledge of Beginnings,” in The Long Discourses of the Buddha, pp. 407-415. See also Ilaiah, God as Political Philosopher. Buddhism’s Challenge to Brahmanism, pp. 82 ff. 116 See Gokhale, “The Early Buddhist View of the State,” p. 732. The Political Problem of Religious Liberality 149 find in Plato.117 Instead a “balance of forces” between politics and religion shall prevail,118 which, at one and the same time, limits political domina‐ tion with the help of religion and also limits the domination of religion. 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The privatisation of religion, which in the nineteenth century was the political programme of radicals and progressives, has be‐ come the rather unspectacular reality of early twenty-first century liberal societies. Secularisation has not brought the end of religion, and most ob‐ servers by now accept that this is not going to happen in the foreseeable future either, but it has transformed religion in various ways.1 One aspect of this transformation is that religion is no longer considered a public good, but is viewed as part of people’s private existence, an expression of their personal freedom. Consequently, the traditional alignment of religion with national iden‐ tity must appear a thing of the past. Like other, similar traditions it may continue to linger, for example in institutions such as the Church of Eng‐ land, but these would be what the anthropologist E.B. Tylor has called ‘survivals’: leftovers from history that have lost their erstwhile function. The real battles about religion today are waged about individual world views, their practical consequences, and their integration into a secular and pluralistic society. And yet, there are indications that this perception may not capture the whole of reality. Quite generally, we may observe that wherever and whenever national identity becomes elusive, religion tends to get invoked A. 1 Recent literature on secularisation includes: Asad, Formations of the Secular, 2003; Bruce, God is Dead: Secularization in the West, 2002; Casanova, Public Religions in the Modern World, 1994; Connolly, Why I am not a Secularist, 1999; Jakobsen and Pellegrini, Secularisms, 2008; Cady and Fessenden, Religion, the Secular, and the Politics of Sexual Difference, 2013; Taylor, A Secular Age, 2007; Ward, “The Myth of Secularism,” 2014, pp. 162-179; Zachhuber, “Die Diskussion über Säku‐ larisierung am Beginn des 21. Jahrhunderts,” 2007, pp. 11-42. 157 by those seeking to instil a sense of belonging and thus a measure of sta‐ bility into those groups of people. In recent decades, this has most obvi‐ ously been the case in the newly emerging nation states of Eastern Europe, such as Ukraine, or in transition states, such as Russia, but the same mech‐ anism is applied almost intuitively by Western politicians in countries such as the United Kingdom or Germany.2 In this situation, my paper has two purposes. On the one hand, it will attempt to elucidate the current situation by tracing its genealogy back to pivotal movements in the nineteenth century. On the other hand, I shall of‐ fer a theological assessment or rather a theological critique of the use of religion to facilitate collective, national identity. Overall, it is my intention to highlight the continuing power of religion as a source of collective identity while sounding a warning with regard to its theological and ulti‐ mately political implications which often go unnoticed when the virtues of such an arrangement are extolled. Religion, I shall argue, works best when it transforms the individual towards an existence with and for other peo‐ ple. Where, on the other hand, it is predicated on a collective body as an expression of, for example, national unity, it shows many of its most deeply problematical sides which have understandably led many to turn away from the faith. Public Religion in a Secularised World The most influential recent argument for the perseverance or even return of a public dimension of religion in our own time has been presented in José Casanova’s book Public Religions in the Modern World.3 Casanova countered the narrative of religious privatisation with a detailed analysis of five very different cases in which religion more recently regained a public role – for better or worse. The instances he looked at were Poland with its Catholic Church famously contributing to the overthrow of the Communist regime in the 1980s; Spain where by contrast the Catholic B. 2 See for a recent example the discussion about a discussion paper in the German CSU emphasising the German ‘order of values on a Christian basis’ in the context of limiting the influx of refugees. Online source: https://www., accessed on 21 November 2016. 3 See Casanova, Public Religions in the Modern World. Johannes Zachhuber 158 Church keeps struggling from the aftereffects of its close alliance with Franco’s dictatorship; Brazil where the Church has for the first time man‐ aged to emancipate itself from the shackles of its long-time close associa‐ tion with the state. Casanova chose his final two examples from the USA in order to illustrate the public role of churches within civil society: the rise of the so-called ‘religious right’ as a transformation of American Protestantism, and the development of the American Catholic Church from a ghettoised subculture into a self-confident public voice. Casanova’s analysis led him to a twofold conclusion: first, the salient trend in religious life since the late 1970s has been “deprivatisation.”4 Sec‐ ondly, contrary to common assumptions, a long-term close association be‐ tween church and state does not enhance the church’s public relevance, but hampers it. The church becomes little more than a department of the state, and its public engagement, including its contribution to social and political controversies, is inevitably tainted by this association. Often, these churches find it difficult to distinguish their specific, religious mes‐ sage from the essentially political context in which they are embedded.5 Characteristically thus, the churches with longstanding ties to their respec‐ tive governments, in Casanova’s analysis these were the Catholic churches in Spain and Brazil, were far less successful as public agents than their counterparts in the US and Poland – two countries which, in spite of obvi‐ ous differences, shared the radical separation between church and state (at least until 1989). Ultimately, Casanova concludes that “only public reli‐ gions at the level of civil society are consistent with modern universalistic principles and with modern differentiated structures.”6 Religion as a Source of Identity My own approach here will be different not least because, unlike Casano‐ va, I am not a social scientist but a theologian with historical interests. But my results will in many ways echo those yielded by his research: I too shall seek to show that it is far from evident that in today’s world religion has ceased to perform a public or social role. This function may recede in‐ C. 4 Ibid., p. 10. 5 See ibid., chs. 3 and 5. 6 Ibid., p. 219. Religion and National Identity in Modern Western Societies 159 to the background in times of social and political stability, but it is ready to come to the fore as soon as the latter becomes more elusive. In arguing this case, however, my ultimate interest is different or at least more specific than Casanova’s was. I am not going to consider any form of social or political activity in which religious communities may en‐ gage, but shall enquire into their potential or actual role for social integra‐ tion and collective identity. This, it seems to me, is a much more serious, problematic, and contentious issue than the more general assumption that religious communities have their part to play in the social and political realm. The latter may pose a problem for an extreme interpretation of reli‐ gion as ‘private’ as it was understood, for example, in the former commu‐ nist countries in Eastern Europe, but, as Casanova has convincingly shown, it can be integrated into a pluralistic framework as long as church‐ es understand themselves as agents within civil society and agree to play by its rules.7 If religion underwrites collective identity, however, a religious commu‐ nity (and probably only one or only a few) will occupy a unique and privi‐ leged position in society and state by virtue of its ability to stem the cen‐ trifugal forces that threaten to compartmentalise and even atomise soci‐ eties.8 This evidently is a rather major claim with considerable political, legal and even financial implications. Not surprisingly therefore it has been, and continues to be, controversial: it is easy to see that it exists in tension, to say the least, with the principle of the separation of church and state which, albeit to various degrees and in different forms, underlies most modern democratic systems. It also has serious implications for reli‐ gious pluralism which it endangers on account of the privileges extended to one religion over against all others. In fact, one may take this consideration one step further and suspect that a strong link between collective religious and political identities un‐ masks religious pluralism as an illusion. For if religion is aligned to col‐ 7 This is not to deny the serious tensions that can emerge (and have emerged more recently) when religious groups struggle to accept social and political developments on topics such as gay rights and the end of life. 8 The need to preserve social cohesion in the face of impending ‘anomy’ has been a central concern in modern political thought at least since Thomas Hobbes declared the ‘natural state’ of human society to be bellum omnium contra omnes. Emile Durkheim famously saw religion essentially as society’s cohesive force. See Durkheim, The Elementary Forms of Religious Life, 1995, p. 429. Johannes Zachhuber 160 lective identity, might one not conclude that it can only be either con‐ ducive or detrimental to the flourishing of a particular society? In other words, will not perhaps the existence of a minority religion pose an actual threat to the cohesion of the society? This certainly was right into the nine‐ teenth century the suspicion towards Roman Catholics in countries such as England or Prussia (we shall see more of this later on). Along the same lines, however, a French conservative could equally lash out against the Protestants and their subversive influence on his country: Louis XIV trampled Protestantism, and he died in his bed shining with glory and laden with years. Louis XVI caressed it, and he died on the scaffold.9 For the author of these lines, who of course was no other than the notori‐ ous Joseph de Maistre,10 the mere existence of a sizeable minority unwill‐ ing to join in with majority rituals and accept their values was sufficient to challenge and undermine social and political stability. Was this merely a problem of early modern Europe with absolutist monarchies built on reli‐ gious establishment? Without denying that acceptance of religious plur‐ alism is deeply built into the self-definition of twenty-first century West‐ ern democracies, it is difficult not to recognise in the distinctive mix of ap‐ prehension and suspicion characteristic of many instinctive responses to Islam today an attitude remarkably similar to that expressed by de Maistre two centuries ago. The question about the relationship between religion and collective identity thus takes us right to the heart of two central problems of modern Western nation states: how can they have stable existence in a state of in‐ ternal peace, and, secondly, how can and should religion be integrated into such a commonwealth? I have neither the space nor the competence to sketch these two issues even in their broadest possible outlines; for my present topic it is, however, crucial to see that they have framed the debate about Christianity and national identity in Europe and North America at least since the nineteenth century. I shall now illustrate this with three ex‐ amples from the nineteenth century which, I hope, will show how diverse the responses were while also demonstrating some crucial similarities. 9 See de Maistre, “Réflexions sur le protestantisme,” 1874, pp. 8, 82; quoted from Armenteros, “Preparing the Russian Revolution: Maistre and Uvarov on the histo‐ ry of knowledge,” 2011, p. 224. 10 See on de Maistre: Berlin, Freedom and its Betrayal: Six Enemies of Human Li‐ berty, 2003, pp. 131-154. Religion and National Identity in Modern Western Societies 161 Historical Interlude: Three Narratives from the Nineteenth Century John Keble: Disestablishment as National Apostasy My first example takes us back to Britain in the early 1830s. This was a time of considerable change in the relationship between church and state. The so-called Corporation and Tests Act from 1673, which made an affili‐ ation with the Church of England practically the precondition for any pub‐ lic office, had been repealed in 1828.11 In the following year, the Roman Catholic Relief Act was a decisive step towards Catholic emancipation. Even so, the predominantly Catholic population in Ireland, which since 1800 had been united to Britain in the Act of Union, continued to pay tithes to the established Anglican Church of Ireland. This unsurprisingly led to considerable tensions culminating in the so-called Tithe War of the 1830s. To remedy this intolerable situation, a bill was introduced into Par‐ liament in 1833 seeking to reduce the number of Irish Anglican bishoprics with a view to using the income generated by these sees for the purposes that had previously been levied on Irish Catholic taxpayers. In this situation, a number of academics and churchmen (most of them were both) in Oxford joined up to organise resistance against this develop‐ ment. They were angered in particular by the role played by Robert Peel, Home Secretary under the Duke of Wellington and Member of Parliament for Oxford University. Peel had been elected by Oxford not least on ac‐ count of his staunch opposition to Catholic emancipation (in recognition of his “services to Protestantism”12), but had under mounting pressure changed his position and voted for the repeal of the Corporation and Tests Act as well as the subsequent Roman Catholic Relief Act. Consequently, the first action by the defenders of the Anglican status quo at Oxford was a campaign aimed to oust him from his parliamentary seat. In this they succeeded, but this did nothing to prevent continuing changes to the fabric of Britain’s religious establishment; in fact, Peel himself stayed in govern‐ ment for the time being, as he was returned for the ‘rotten borough’ of Westbury. D. I. 11 See here and in what follows Gelpi, “14 July 1833: John Keble’s Assize Sermon, National Apostasy,” at, ac‐ cessed on 30 July 2014. 12 Ibid. Johannes Zachhuber 162 One of the main campaigners against Peel was John Keble (1792-1866), an immensely talented young theologian and writer whose The Christian Year, published in 1827, became one of the most enduringly popular collections of religious poems throughout the nineteenth century and secured its author the election to Oxford’s Professorship of Poetry in 1831. Keble’s most influential intervention in the political and religious de‐ velopments of his time was a sermon preached on 14 July 1833.13 For this he chose the topic of ‘national apostasy’ – the apostasy of the nation was, of all things, the disestablishment of the Church of Ireland which Keble saw emerging on the horizon.14 For the preacher, such a prospect amount‐ ed to the nation’s renunciation of its age-old pact with God himself. Keble based his argument on an Old Testament text, Samuel’s critique of the popular wish in Israel for a monarchy (1 Samuel 12,23) which, according to him, offered the analogy not that a Christian people should not have a king, but that its special relationship with God must not be affected by contemporary popular opinion. He speaks of […] a nation, having for centuries acknowledged, as an essential part of its theory of government, that, as a Christian nation, she is also a part of Christ's Church, and bound, in all her legislation and policy, by the fundamental rules of that Church – the case is, I say, conceivable, of a government and people, so constituted, deliberately throwing off the restraint, which in many respects such a principle would impose on them, nay, disavowing the principle itself; and that, on the plea, that other states, as flourishing or more so in regard of wealth and dominion, do well enough without it.15 Keble is very careful in this text to avoid too explicitly political overtones. Throughout the sermon he does not mention words such as ‘establish‐ ment’ and does not commend any one model of the relationship between throne and altar as normative.16 Instead, he insists that the Church of Eng‐ land and the Church of Ireland are the ‘apostolical churches’ of these countries and for this reason deserve special recognition by the govern‐ 13 John Henry Newman famously made this sermon the beginning of the Oxford Movement: Apologia Pro Vita Sua, 1994, p. 50. 14 It finally happened in 1869 through the Irish Church Act. 15 Keble, “National Apostasy Considered in a Sermon Preached in St Mary’s Oxford, before His Majesty’s judges of Assize, on Sunday, July 14, 1833,” 1833, p. 12. 16 See Turner, John Henry Newman: The Challenge to Evangelical Religion, 2002, p. 70. Religion and National Identity in Modern Western Societies 163 ment as well as the people. Changes to the role of religion in British soci‐ ety, as envisaged by the government of the time, are therefore illegitimate attempts to interfere in the relationship between God and his people. One of the dangers about which Keble specifically warns his audience is the growing acceptance of religious diversity; at the time this was main‐ ly confined to Protestant dissenters and Roman Catholics: One of the most alarming, as a symptom, is the growing indifference, in which men indulge themselves, to other men's religious sentiments. Under the guise of charity and toleration we are come almost to this pass; that no diffe‐ rence, in matters of faith, is to disqualify for our approbation and confidence, whether in public or domestic life. Can we conceal it from ourselves, that ev‐ ery year the practice is becoming more common, of trusting men unreservedly in the most delicate and important matters, without one serious inquiry, whether they do not hold principles which make it impossible for them to be loyal to their Creator, Redeemer, and Sanctifier? Are not offices conferred, partnerships formed, intimacies courted, – nay, (what is almost too painful to think of,) do not parents commit their children to be educated, do they not en‐ courage them to intermarry, in houses, on which Apostolical Authority would rather teach them to set a mark, as unfit to be entered by a faithful servant of Christ?17 Keble’s sharp rejection of religious plurality is important as an indicator of his concern for religion as a source of national identity. His dire warning that liberal toleration for deviant religious views poses a grave risk to the wellbeing of the nation is analogous to de Maistre’s invectives against Protestantism. Yet while de Maistre couched his critique of religious de‐ viancy in political language, Keble shies away from the latter and prefers to express his concern as one of religious truth alone. The main line of argument is, nevertheless, unmistakeable. As far as the purposes of this paper are concerned, Keble represents a first and, in a way, the most expected response from a religious leader to a tendency to loosen the bonds between church and state: the attempt is denounced as an illegitimate attack on God’s own prerogative. The special bond between God and nation is presented as sacred and the source of unequivocal bene‐ fits to everyone. Neither the people nor the government are permitted to change it. Thus far, Keble’s position can legitimately be characterised as conser‐ vative. Yet it would be facile to reduce him and his allies to reactionaries going against the grain of modern developments. In spite of his defence of 17 Keble, “National Apostasy Considered,” p. 15 (italics in original). Johannes Zachhuber 164 the close bond establishment had created between Christianity and the British people, Keble perceived clearly the ambiguous nature of its politi‐ cal aspect, as it allowed politicians, parliamentarians and members of the government to make decisions in the religious realm on the basis of politi‐ cal expediency. So it may be no coincidence that throughout the sermon Keble refers to the English people and to the English nation rather than the monarch as the counterpart of God in this particular relationship. Keble’s analogy is carefully chosen: the people of Israel were in a special relationship with God. For this reason, their attempt to anoint a king is a violation of the terms of that covenant and, consequently, undermines their specific iden‐ tity as a people. The allusion to identity is evident from the emphasis both in the biblical text and in Keble’s sermon on the contrast with other na‐ tions. Keble gives no particular reason why the Anglican Churches of England and Ireland are apostolical churches more than, for example, the Roman Catholic Church, but he is clear that looking beyond the nation’s borders for guidance in this question is as wrong today as it was wrong for the Ancient Israelites to emulate the example of the Near Eastern monar‐ chies of their time. Preserving their particular, even idiosyncratic form of religious establishment therefore was imperative if the British nation wanted to stay faithful to its own character and preserve its vitality in Ke‐ ble’s own time. For all its conservative overtones, then, Keble’s sermon contains a whiff of the recognition that any defence of the ecclesiastical status quo could only work if religious identity became anchored in the populace as a whole. It is for this reason that the Oxford movement reformed the Church of England especially with regard to its roots in the general population: many of its proponents worked with the industrial working classes and de‐ voted themselves to the care for those suffering in the horrendous condi‐ tions of the country’s slums. Keble’s response to the threat to religious establishment in his own time, then, is less straightforward than might appear at first sight. In some ways one may even say that he inverts its traditional logic: the royal privi‐ lege extended to a single faith produced religious homogeneity by marginalising and ultimately excluding those unwilling to abide by its terms. It was therefore in the first instance a political tool chosen by monarchical rulers to enhance the nation’s coherence and stability. Its modern variant, by contrast, presupposes the existence of religious homo‐ geneity and argues from there for its political and social benefits. This Religion and National Identity in Modern Western Societies 165 modern argument, characteristically, is often presented by representatives of the churches themselves in opposition of political tendencies to loosen the bonds between church and nation. In this inversion, however, lies the weakness of this position. There are many reasons to believe that religions if left to themselves tend towards plurality; charismatic religious leaders may be able to rouse popular opin‐ ion on behalf of their group for a while, but most historical evidence would suggest that the withdrawal of political privilege for a particular faith leads to increased religious diversity including abstention from reli‐ gion.18 Keble therefore, quite understandably, warned against the dangers of what he called “the growing indifference, in which men indulge them‐ selves, to other men’s religious sentiments.” If for all intents and purposes it does not matter which faith a person holds; if there is complete civic equality between people of all religions: what does it even mean to speak of a Christian nation any longer? Nikolai Grundtvig and the Cause of National Religion Keble, while a religious rebel of sorts and at odds with the Anglican estab‐ lishment in the Oxford of his time, hoped to regain for his nation a Chris‐ tian identity in the traditional sense of the word. Yet not everyone in the nineteenth century was orthodox. On the contrary, part of the fascination of this period in religious history derives from the emergence of various novel forms of religion within the Christian churches and beyond. My sec‐ ond example, while in some ways staying close to Keble, illustrates this trend. The Danish intellectual Nikolai Grundtvig (1783–1872)19 had a com‐ plex religious biography; his period of significance for religion in Den‐ mark began with what he himself called his ‘matchless discovery’ (mageløse opdagelse) in the 1820s: “his insistence that the true Church is defined by and founded on the oral transmission of the Apostles’ creed, and not on scripture.”20 The essence of this discovery was the devaluation of the ‘dead letter’ of the Bible over against the ‘living faith’ of a Chris‐ II. 18 Cf. Bruce, God is Dead: Secularization in the West, p. 36. 19 For what follows I rely heavily on Backhouse, Kierkegaard’s Critique of Christian Nationalism, 2011. 20 Ibid., p. 67. Johannes Zachhuber 166 tian community. Grundtvig then combined this religious insight with a the‐ ory of historical development and on this basis assigned to the Nordic peo‐ ples in his own time the task to “demonstrate to the world authentic Chris‐ tianity”.21 That this understanding of Christianity was rather different from the official Lutheranism preached by the Danish state church only in‐ creased its attractiveness to Grundtvig who, as a political thinker, was deeply concerned about growing German and in particular Prussian influ‐ ence and hoped to kindle the spirit of Danish nationalism as an antidote against this tendency. Like his quasi-contemporary Keble, Grundtvig sought to re-establish Christianity at the centre of Danish society. Also comparable is his clear perception that the subject of such a national church now has to be the people. This line of thought is more extenuated in the Danish thinker, however, who is much closer than the English priest to the new European nationalism, rooted in Romanticism, which he seeks to integrate into his own idiosyncratic version of Christianity. These similarities notwithstanding, we find in Grundtvig a second and very different type of religious response to the debate about religion and national identity in the nineteenth century: an unashamed alignment of the cause of Christianity with that of nascent nationalism. In the words of a recent scholar, It is not an exaggeration to call Grundtvig’s theology ‘nationalistic’. National‐ ism is not an afterthought or an addendum to Grundtvig’s theology, it is inte‐ gral to it, and Grundtvig’s concern to foster national identity has rightly been described as “the crimson thread” that runs throughout the span of his writ‐ ings.22 For Keble, as we have seen, the emphasis on national identity is carefully and subtly woven into a narrative informed by traditional Christianity. Grundtvig, by contrast, brings modern ideals of national cohesion and na‐ tional identity much more to the centre of his own thinking and makes no apology for demanding fundamental alterations to the orthodox fabric of the Christian religion in order to make it fit for the modern world. Grundtvig and his followers always remained firmly within the tradi‐ tion of the Danish Lutheran church, but it is easy to see that his approach 21 Ibid., pp. 68-69. 22 Ibid., p. 68. The reference in Backhouse is to Thanning, N. F. S. Grundtvig. Aus dem Leben eines kritischen dänischen Theologen, 1972, p. 15. Religion and National Identity in Modern Western Societies 167 made the transition between Christian nationalism and national Christiani‐ ty an easy one. Motivations for further moves along this trajectory are not difficult to identify: with its universalistic character, Christianity has often been pronounced ultimately incompatible with the necessities of political identity formation. For this reason, Jean-Jacques Rousseau already opined that the Christian tradition could not provide for the civil religion his per‐ fect state needed. Add to that the nineteenth-century pressure on Christian‐ ity to adapt its traditional character to the insights produced by modern science and historiography, and the allure of modernised national Chris‐ tianities becomes as obvious as their regular, albeit short-lived, appearance throughout the nineteenth and early twentieth centuries. German Unification and the Quest for Protestant Identity My third example is different in kind from the first two in that I focus not on an individual person but a country. Germany was newly unified in 1871. It was the largest of the many new nation states created in Europe during the nineteenth and early twentieth century, desperately trying to find their own sense of national identity. One important aspect of the Ger‐ man quest for national identity was the attempt to define itself as Protes‐ tant. The choice of this particular label was neither historically nor theo‐ logically innocent: after all, there had been century-long divisions within the Protestant tradition. In the German territories, the most enduring and significant of them was the one separating Lutheran and Calvinist church‐ es. Administrative attempts to overcome this division, such as the Prussian Union of 1817,23 encountered fierce resistance, especially from the Lutherans.24 What exactly a Protestant identity was, was therefore far from obvious. In fact, it is arguable that such an identity was in many ways only the re‐ sult of nineteenth-century developments; and these developments were at least partly inspired by political concerns for national identity. The inten‐ tional character of this construction of identity is evident, for example, in buildings such as the huge Berlin Cathedral, inaugurated in 1905, as a ‘Protestant’ counterpart to Rome’s St Peter, or the multi-denominational III. 23 See Landry, Ecumenism, Memory, and German Nationalism, 1817-1917, 2013, pp. 9-17. 24 See Nipperdey, Germany from Napoleon to Bismarck: 1800-1866, 2014, p. 382. Johannes Zachhuber 168 Memorial Church of the Protestation of Speyer erected in remembrance of the Diet of Speyer of 1529, from which the term Protestant originated. Another central element for the construction of national, Protestant identity in nineteenth-century Germany was the person of Martin Luther. The Reformer was presented as standing at the twin-origin of Protestant Christianity and the modern German nation, its language, literature, and music. Like no other historical figure he could therefore be appealed to as vouchsafing the formative role of ‘Protestantism’ for German identity.25 The German case shows a new facet of our topic: since the nineteenth century, new nations or at least nations without a clearly defined historical narrative or genealogy of their identity actively sought out the ideological support of religious communities.26 The latter willingly agreed – after all they were previously often facing the same issues John Keble had protest‐ ed against, the increasing erosion of their traditional position of privilege and political, social, and educational influence. The advantage could therefore appear mutual: a church that had lost its sway over much of the educated public at that time or was in the process of losing it came out in support of a political entity desperately in need of identity. It is for this reason that, in the words of one leading scholar, “the success of national‐ ism [i.e. in the Wilhelmian era] could also be read as the success of ‘rechristianisation’.”27 The newly constructed ‘Protestant’ Christianity of Prussian-dominated Germany provided the newly created German nation state of the late nineteenth and the early twentieth century with a muchneeded source of collective identity and gained in turn a reinvigoration of its public acceptance as the guardian of a concept which at that time was cherished by large parts of the population. Yet the German case also reveals the Janus face of this kind of attempt. For Germany at the time was, of course, far from being a Protestant na‐ tion. While a majority of the inhabitants of the Reich belonged to Lutheran and Reformed churches, Catholics still made up more than one third of the total population. And so what may have helped many Germans develop 25 See Dewhurst, The Legacy of Luther: National Identity and State-Building in Ear‐ ly-Nineteenth Century Germany, 2013, p. 64, at viewcontent.cgi?article=1065&context=history_theses, accessed on 23 December 2016. 26 See Wood, Christianity and National Identity in Twentieth-Century Europe, 2016. 27 Graf, “Dechristianisierung. Zur Problemgeschichte eines kultur-politischen To‐ pos,” 1997, p. 64. Religion and National Identity in Modern Western Societies 169 their feelings of national identity in the Wilhelmian era produced consider‐ able difficulties for those who were effectively excluded by the decidedly Protestant brand of this political religion. Catholics, consequently, felt consistently the strain between their religious and their national identities, a conflict that came to a head in the so-called Kulturkampf (1871-87). Most notorious, and rightly so, became the pressure on the Jewish popula‐ tion which faced an increasing confrontation with an aggressive national‐ ism constructed in a way that would by definition exclude them from its notion of community.28 Summary The list of examples could easily be extended. Yet the three I have chosen illustrate, arguably, the major scenarios that have arisen as a result of the historical transformations in Europe over the past two hundred years. I have ignored attempts to replace the Christian religion with an alternative source of collective identity, such as the so-called political religions of Na‐ tional Socialism and Communism. The reason for this omission is not that I consider those experiments insignificant but that the purview of my pa‐ per is more narrowly concerned with the role of Christianity. For the same reason I have also excluded the fascinating case of American civil reli‐ gion. Within these limitations, I hope that my account so far demonstrates that and how the argument for a relation between religion and collective identity has been made in very different guises and yet displays some common features. By way of a brief summary, the following may perhaps be said: 1. Increasing religious pluralism, or at least the need to recognise this more than previously, casts into doubt traditional forms of religious es‐ tablishment. 2. In response to this development, ecclesiastical and, more broadly, reli‐ gious figures have found their sphere of influence under threat and searched actively for new inroads that would allow for their voice to be heard in crucial political and cultural matters. IV. 28 See Pickus, “Native Born Strangers: Jews, Catholics and the German Nation,” 2004, pp. 141-156. Johannes Zachhuber 170 3. There is general recognition that the ‘people’ must be the new point of reference if the identity of church and nation is to be upheld. This pro‐ vides for a link with emergent forms of nationalism and could lead to the development of novel forms of national Christianity. 4. Newly emerging or transforming nations clamoured for ideological support and often gratefully accepted the moral and historical narra‐ tives that religious communities can provide. Religion and Collective Identity Today: Where do we stand? Considering these nineteenth century developments, I would now suggest, can shed light on the relationship of religion and collective identity today if we take note of both similarities and dissimilarities. In many ways we are still – to use Charles Taylor’s phrase – the Victorians’ ‘contempo‐ raries’. Few if any of the problems troubling our ancestors during that pe‐ riod have entirely gone away though all of them have changed, some ar‐ guably beyond recognition. The public role of religion and its significance for identity formation are hardly an exception to this rule. The first interesting observation is that of the three models the second, which at first sight might seem the most modern option, is the most obvi‐ ously outdated one. After a promising career throughout the nineteenth and way into the twentieth century, the idea that a modernised form of na‐ tional Christianity could supplant the more traditional versions of the faith today appears a remote possibility if that. Its erstwhile success, of course, is at least partly to be blamed for its more recent fall from grace. Any at‐ tempt to revitalise this kind of project would be tarnished from its asso‐ ciations with totalitarian regimes in the earlier twentieth century.29 Yet I do not think that this historical link is the only or even the main reason why an idea such as Grundtvig’s seems so far-fetched and unattractive to‐ day. Rather, none of the modernised forms of traditional religion have managed to shed the air of artificiality and technicality; their purpose was too obvious to make them convincing and successful as religions. None of them, in a word, has lived up to Durkheim’s prophetic vision: E. 29 See Heschel, The Aryan Jesus: Christian Theologians and the Bible in Nazi Ger‐ many, 2008. Religion and National Identity in Modern Western Societies 171 A day will come when our societies once again will know hours of creative effervescence during which new ideals will again spring forth and new for‐ mulas emerge to guide humanity for a time.30 It is true, some commentators speak of ‘consumerism’ as the official reli‐ gion of Western, secular countries, but whatever truth such an observation may contain, it is insignificant for the larger question under investigation in the present paper as there is no evidence that an obsession with material goods provides for the communal structures that made traditional religions and some of their modern successors attractive from the point of view of identity formation. It may surprise that the first option, by contrast, has proved more re‐ silient. Religious establishment continues to exist in parts of the United Kingdom as well as some other European countries. In fact, the number of countries that recognise the special significance of one or a small number of churches for the nation’s identity is considerably larger and includes countries such as Poland and Ireland. Thus far, Keble’s worst fears have not materialised. The theologian’s stern warnings could not, however, stem the tide of religious diversification, and today the United Kingdom is one of the most religiously diverse countries in Europe. Consequently, to‐ day’s defenders of religious establishment do not any longer rail against religious plurality but, on the contrary, argue that the co-existence of peo‐ ple of various faiths is compatible with the established status of the Church of England. Thus Nigel Biggar, in his brilliant Between Kin and Cosmopolis: An Ethic of the Nation,31 points to this fact as an argument against the critics of the status quo: apparently, so his argument, the re‐ maining ties between the Anglican Church and the British monarchy do not make this country inhospitable to people of different faiths. In fact, apart from the remaining ban on a Roman Catholic monarch, there is no single law discriminating on the basis of religion; on the contrary, such discrimination is forbidden by strict equality legislation. Yet while this argument weakens the claims of those who reject reli‐ gious establishment as incompatible with religious pluralism, it is equally hard to see what in the circumstances the specific advantages of such a settlement are? Biggar sets out his case by suggesting that nations are in need of a moral foundation; liberalism, he charges, is in danger of creating 30 See Durkheim, The Elementary Forms of Religious Life, p. 429. 31 Biggar, Between Kin and Cosmopolis: An Ethic of the Nation, 2014. Johannes Zachhuber 172 a moral vacuum that can be filled by the enemies of freedom. This is an important point to which I shall return, but whatever the legitimacy of this observation, it remains unclear – and I suspect Keble would have agreed – how a church can provide for such a foundation if its role has become so largely ceremonial as it was bound to happen once the state had assumed religious neutrality for all practical purposes? Biggar points to the implicit admission by liberal theorists that political freedom must have limits, but fails to mention that in the United Kingdom these limits are in no obvious way defined with regard to the teachings of the Church of England. In‐ stead, for all practical purposes, British legislators adjudicate between in‐ dividual rights and their restrictions in the public interest on the basis of the same liberal and utilitarian principles that are applied in other secular Western countries as well. In spite of its perseverance, therefore, the traditional model of religious establishment or even quasi-establishment has in practice run its course. The reason was precisely identified by Keble and before him de Maistre when they pointed to the incompatibility of this model with religious plur‐ alism – they were right even though the purpose of their argument was the rejection of pluralism. For this reason, defenders of the special relation‐ ship between a particular faith and a nation today find themselves between a rock and a hard place: they either insist on the necessity to maintain the specific identity mandated by that religion and face challenges of religious discrimination; or they emphasise the compatibility of religious establish‐ ment with religious pluralism but then struggle to explain the tangible benefits of the settlement they defend. In their current coexistence with religious pluralism on the one hand and political and legal secularism on the other, contemporary forms of this model pose little danger to any political or religious agenda. It is therefore quite possible that they will continue to exist for some time if only by virtue of the law of inertia. Yet they offer little room for development as the force that brought them about, the political support for religious homo‐ geneity, has long ceased to exist, and the promise of religious leaders that the factual existence of a predominant religious culture could lend support of collective identity, sounds increasingly hollow in the face of radical re‐ ligious pluralism. This leaves the third model, and I would indeed argue that it offers the most powerful template for the interplay of religion and national identity today. The German case from the late nineteenth century maps almost per‐ fectly on to the much more recent situation of many Eastern and South- Religion and National Identity in Modern Western Societies 173 Eastern European, so-called transition states. Countries across the region have, since the fall of communism very consciously referred to their spe‐ cific religious roots as part of their search for a new national identity.32 This became perhaps most evident to a wider public at the time of the Yu‐ goslav Wars, when the various parties aligned their identities to their Or‐ thodox, Catholic, and Muslim traditions respectively.33 It is difficult not to be struck by the irony of the fact that this happened in places in which or‐ ganised religion had been suppressed for the better part of the twentieth century. The same, of course, is supremely the case in Russia where Vladimir Putin has skilfully played up Russian Orthodoxy as an important element of the country’s historical identity.34 In all these cases, the church‐ es have willingly played along, and it is easy to see why. Whether in the long run this strategy is successful (even in the merely institutional sense of the term), is, of course, very much an open question. Still, if we seek to understand the enduring allure of an alignment of religious and national identities, this is the type most worthy of consideration as it is most likely to be replicated wherever new political entities clamour for a sense of identity in the interest of internal stability on the basis of affective civic attachment to the nation. It is this model, therefore, that I will have pri‐ marily in mind in my subsequent theological assessment and critique of the use of religion in support of collective identity. Religion and Collective Identity: A Theological Critique My aim so far has been to describe and analyse the predominant forms in which the idea of religion as a prop of collective identity has been intro‐ duced since the nineteenth century and into our own time. What I have not yet asked is whether or how this idea can be justified. The latter question can be approached in several ways. One might, for example, consider how evident it is that particular religions have this effect. One would then have to look comparatively at nations with very different religious settlements and see how they fare in terms of stability as well as, broadly speaking, F. 32 Leustean, Eastern Christianity and Politics in the Twenty-First Century, 2014. I am grateful to Mr Andrey Levitskiy for pointing me to this publication as well as that mentioned in note 30. 33 Perica, Balkan Idols: Religion and Nationalism in Yugoslav States, 2002. 34 See Fagan, Believing in Russia: Religious Policy after Communism, 2012. Johannes Zachhuber 174 success. Another interesting question might be how realistic it is that this kind of settlement can be reintroduced or renewed in societies that have become religiously more diverse. I shall, however, leave these legitimate questions to others better quali‐ fied than myself to assess them. My own aim in the remainder of this chapter will be to look at this problem from the point of view of the reli‐ gious communities themselves, specifically the Christian churches. On the basis of their self-understanding, which it is the task of the theologian to elucidate, is it a legitimate expectation that they should provide this kind of ideological support for nations and similar communities? Should they understand themselves as providers for the values that hold society togeth‐ er?35 The need for this question is evident, I believe, even for the non-theolo‐ gian. An agreement to make use of a religion in support of collective na‐ tional identity is not without its risks for both sides that enter into it. Casanova, whose study I mentioned earlier in my paper, pointed out the utterly negative consequences for the churches in Spain and Brazil from their close association with a succession of political regimes.36 The Church of England has at some point been called “the Tory party at prayer” – and this surely was not meant as a compliment.37 In Germany it is also arguable that the least religious areas today, especially the tradition‐ ally Lutheran territories in the East, are the ones that historically saw the closest alliance between ‘throne and altar’.38 Generally, one could say that churches (or for that matter, religious communities) tying themselves to certain political settlements share in both their success and their failure. But my concern goes beyond the pragmatic disadvantages potentially resulting from a close alliance with a nation state. How persuasive is specifically the Christian justification of collective identities? How easily is it compatible with the fundamental ideas of that religion? It is in this 35 I have addressed this question elsewhere. See Zachhuber, “Churches as ‘Value Mediators’? Religion and Collective Identity in Germany,” 2007, pp. 187-200. 36 See Casanova, Public Religions in the Modern World. 37 The phrase goes back to the preacher and suffragist Agnes Maude Royden as re‐ ported by The Times of London on 17 July 1917. 38 Detailed references in Hölscher, Datenatlas zur religiösen Geographie im protes‐ tantischen Deutschland. Von der Mitte des 19. Jahrhunderts bis zum Zweiten Welt‐ krieg, 4 vols., 2001. Religion and National Identity in Modern Western Societies 175 sense that my paper in its title promised a theological assessment of a po‐ litical problem. To facilitate this assessment I start from the observation that any defini‐ tion of identity works with both inclusion and exclusion.39 At one level this may seem trivial and innocent enough: to be British means, for exam‐ ple, not to be French or German. To be Polish means to be neither Russian nor Czech. And yet it is evident that in most cases this formation of one’s own identity by defining it over against others, is by no means innocent: In different ways both English and German national identities have cru‐ cially involved the notion of the French as ‘the other’; and this idea con‐ tains a considerable degree of hostility which could, and was, used to jus‐ tify competition, enmity, and even warfare. Today we are aware of the constructed character of these identities: the other who needs to be excluded from our understanding of the self changes depending on the situation. This is particularly evident in the case of religious identities: a notion now extremely popular all over the West‐ ern world is that of a ‘Judaeo-Christian tradition’ which is usually brought up in order to emphasise the need to keep Islam at bay in Europe. Yet it is perhaps not too cynical to point out that one hundred years ago a consider‐ able part of European Christians felt that the religious and cultural ‘other’ who had to be excluded was precisely Judaism. The idea of a Judaeo- Christian tradition would have made no sense to these people (or indeed, I suspect) to anyone prior to the 1950s. If we go another fifty or hundred years back, we find that ‘Christian’ as a generic marker of identity meant little given that collective identities were formed along confessional lines. ‘Christendom’ usually mattered in confrontation with the (Muslim) Turks. My point is this: the truly worrying aspect of Christian contributions to political and social identity formation comes into view if we zoom in on those whose exclusion is the precondition for the consolidation of collec‐ tive identity: the Protestant identity in late nineteenth century Germany, as I have pointed out before, came at the cost of the marginalised Catholic population and even more dramatically the Jewish minority. Contempo‐ rary attempts to found national (or even European) identity on its ‘Judaeo- Christian’ heritage is similar in that the implicit connotation of this 39 For a more detailed treatment of the problems resulting from the use of exclusion in Christian constructions of identity see my “The Rhetoric of Evil and the Defini‐ tion of Christian Identity,” 2013, pp. 193-217. Johannes Zachhuber 176 rhetoric is the exclusion of immigrant religions that have grown and in‐ creased in importance over the last decades. This mechanism may at some level be inevitable: social entities are ap‐ parently in need of an identity and, as I argued above, exclusion seems to be part of how this operates. Be this, however, as it may, it seems more than doubtful that this practice is even remotely compatible with the fun‐ damental tenet of the Christian faith. It would take more than the space of a single chapter to develop this insight in more detail, but in a nutshell I would say that this fundamental tenet can be precisely identified as the turn towards those who are otherwise excluded. The reader of the gospel is directed to notice and regard those who are cast aside; those who become invisible on the margins of society (cf. Mt 25, 31-46): the paradox of the crucified God, which turns the object of capital punishment into an object of worship, was certainly not lost on the contemporaries of the early Christians.40 This is not to deny that the Christian Church has itself over the cen‐ turies contributed to the exclusion of others – nonbelievers, heretics, Mus‐ lims, Jews etc.41 It has, and it has also, in fact, contributed to political identity formation not least in European nation states for the better part of the last millennium. While all this is evident to all, the case can and should still be made that the decisions that led to these policies were at the least deeply problematic, inspired by the kind of logic Fyodor Dostoevsky has masterfully illustrated in his parable of the Grand Inquisitor.42 Where does this, however, leave the problem of religion and collective identity? If there is need for it to be provided, and if (for the sake of the argument) we assume that ‘religion’ can serve this purpose, does not the refusal of one religious community to offer this service simply mean that another one will do the job instead? Is there not, in other words, a burden of responsibility placed on certain churches whose rejection would be a sign of irresponsibility? A full answer to these questions cannot be given in the present place, but I would propose that the best answer to this co‐ nundrum today is that collective identity is specifically to be found in the 40 As the infamous Alexamenos graffiti shows; cf. ~grout/encyclopaedia_romana/gladiators/graffito.html, accessed on 23 December 2016. 41 See Zachhuber, “The Rhetoric of Evil and the Definition of Christian Identity,” 2013, pp. 195-200. 42 See Dostoevsky, The Brothers Karamasov, 2005, part II, ch. 5. Religion and National Identity in Modern Western Societies 177 acceptance of plurality and openness to what Britain’s former Chief Rabbi Jonathan Sacks has called the “dignity of difference.”43 If this is so, then perhaps this kind of identity formation could indeed be a contribution reli‐ gious communities in the Judeo-Christian tradition can make to contempo‐ rary Western societies. Bibliography Armenteros, Carolina, “Preparing the Russian Revolution: Maistre and Uvarov on the history of knowledge,” in Joseph de Maistre and his European Readers: From Friedrich von Getz to Isaiah Berlin, ed. Carolina Armenteros and Richard A. Le‐ brun, Brill: Leiden, 2011, pp. 213-248. Asad, Talal, Formations of the Secular, Stanford: Stanford University Press, 2003. Backhouse, Stephen, Kierkegaard’s Critique of Christian Nationalism, Oxford: Oxford University Press, 2011. Berlin, Isaiah, Freedom and its Betrayal: Six Enemies of Human Liberty, ed. Henry Hardy, Missoula: Pimlico, 2003. Biggar, Nigel, Between Kin and Cosmopolis: An Ethic of the Nation, Cambridge: James Clark, 2014. Bruce, Steve, God is Dead: Secularization in the West, Oxford: Wiley-Blackwell, 2002. Cady, Linell E., and Tracy Fessenden, Religion, the Secular, and the Politics of Sexual Difference, New York: Columbia University Press, 2013. Casanova, José, Public Religions in the Modern World, Chicago: University of Chica‐ go Press, 1994. Connolly, William E., Why I am not a Secularist, Minneapolis: University of Minneso‐ ta Press, 1999. de Maistre, Joseph, “Réflexions sur le protestantisme,” in Oeuvres complètes, 14 vols., Lyons: Vitte and Perrussel, 1874. Dewhurst, Ruth L., The Legacy of Luther: National Identity and State-Building in Ear‐ ly-Nineteenth Century Germany, Georgia: Thesis Georgia State University, 2013. Dostoevsky, Fyodor, The Brothers Karamasov, tr. C. Garnett, Mineola, New York: Dover, 2005. Durkheim, Emile, The Elementary Forms of Religious Life, tr. Karen E. Fields, Karen E., New York: The Free Press, 1995. Fagan, Geraldine, Believing in Russia: Religious Policy after Communism, London: Routledge, 2012. 43 Sacks, The Dignity of Difference: How to Avoid the Clash of Civilisations, 2004. Johannes Zachhuber 178 Gelpi, Barbara Charlesworth, “14 July 1833: John Keble’s Assize Sermon, National Apostasy,” in BRANCH: Britain, Representation and Nineteenth-Century History, ed. Dino Franco Felluga, at Graf, Friedrich Wilhelm, “Dechristianisierung. Zur Problemgeschichte eines kulturpo‐ litischen Topos,” in Säkularisierung, Dechristianisierung, Re-christianisierung im neuzeitlichen Europa. Bilanzen und Perspektiven der Forschung, ed. Hartmut Leh‐ mann, Göttingen: Vandenhoeck & Ruprecht, 1997, pp. 32-66. Heschel, Susannah, The Aryan Jesus: Christian Theologians and the Bible in Nazi Germany, Princeton/Oxford: Princeton University Press, 2008. Hölscher, Lucian, Datenatlas zur religiösen Geographie im protestantischen Deutsch‐ land. Von der Mitte des 19. Jahrhunderts bis zum Zweiten Weltkrieg, Berlin: De Gruyter, 2001. Jakobsen, Janet A., and Anne Pellegrini, Secularisms, Durham, NC: Duke University Press, 2008. Keble, John, “National Apostasy Considered in a Sermon Preached in St Mary’s Ox‐ ford, before His Majesty's judges of Assize, on Sunday, July 14, 1833,” Oxford: J.H. Parker, 1833. Landry, Stan M., Ecumenism, Memory, and German Nationalism, 1817-1917, New York: Syracuse University Press, 2013. Leustean, Lucian N., Eastern Christianity and Politics in the Twenty-First Century, London: Routledge, 2014. Newman, John Henry, Apologia Pro Vita Sua, London: Penguin, 1994. Nipperdey, Thomas, Germany from Napoleon to Bismarck: 1800-1866, Princeton: Princeton University Press, 2014. Perica, Vjekoslav, Balkan Idols: Religion and Nationalism in Yugoslav States, Oxford: Oxford University Press, 2002. Pickus, Keith H., “Native Born Strangers: Jews, Catholics and the German Nation,” in Religion und Nation, Nation und Religion: Beiträge zu einer ungbewältigten Ge‐ schichte, ed. Michael Geyer and Hartmut Lehmann, Göttingen: Wallstein, 2004, pp. 141-156. Sacks, Jonathan, The Dignity of Difference: How to Avoid the Clash of Civilisations, London: Continuum, 2004. Taylor, Charles, A Secular Age, Cambridge MA: Harvard University Press, 2007. Thanning, Kaj, N. F. S. Grundtvig. Aus dem Leben eines kritischen dänischen Theolo‐ gen, tr. David Hohnen, Copenhagen: Det Dankse Selskab, 1972. Turner, Frank M., John Henry Newman: The Challenge to Evangelical Religion, New Haven: Yale University Press, 2002. Ward, Grahameorge, “The Myth of Secularism,” Telos 167 (2014): 162‑179. Wood, John Carter, Christianity and National Identity in Twentieth-Century Europe, Göttingen: Vandenhoeck & Ruprecht, 2016. Religion and National Identity in Modern Western Societies 179 Zachhuber, Johannes, “Churches as ‘Value Mediators’? Religion and Collective Iden‐ tity in Germany,” in Religion and Politics in the United States and Germany: Old Divisions and New Frontiers, ed. Dagmar Pruin, Rolf Schieder, Johannes Zachhu‐ ber, Münster: LIT, 2007, pp. 187-200. Zachhuber, Johannes, “Die Diskussion über Säkularisierung am Beginn des 21. Jahr‐ hunderts,“ in Säkularisierung: Bilanz und Perspektiven einer umstrittenen These, ed. Christina von Braunn, Wilhelm Gräb, and Johannes Zachhuber, Münster: LIT, 2007, pp. 11-42. Zachhuber, Johannes, “The Rhetoric of Evil and the Definition of Christian Identity,” in Vom Bösen reden/Rhetoric of Evil, ed. Paul Fiddes, and Jochen Schmidt, Würzbung: Ergon, 2013, pp. 193-217. Johannes Zachhuber 180 Analysis of the Amendments to Articles 24 and 40 of the Political Constitution of the United Mexican States: Implications for Public Policies of Religious Diversity Management María Concepción Medina González Introduction The basis for the legal relationship between State and Church is to be found in the Mexican Constitution of 1917. Since that date, there have been amendments to Articles 24 and 130 on few but important occasions. Before constitutional reform of 28 January 1992, Articles 24 (at the time freedom of belief) and 130 (at the time Supremacy State on Church) con‐ tained anti-clerical provisions, religious associations could not obtain legal personality and the principle of Supremacy State on Church predominated. With the constitutional reform of 28 January 1992 to Articles 3 (right of education), 24 (at the time freedom of belief), 27 (right of property) and 130 (at the time Supremacy of State on Church), several anti-clerical pro‐ visions were derogated, religious communities and churches could obtain legal personality as “religious associations” (asociaciones religiosas) by the Ministry of Interior. This constitutional reform showed several processes, such as: construc‐ tion of laicity on the recognition of religious diversity, the visibility of the “religious minorities” at the possibility of being registered as religious associations and obtain legal personality, and recognition of religious di‐ versity within a framework of inclusion and tolerance. In particular, Article 130 (today Principle of Separation of State and churches) allowed the Churches and religious communities acquire legal personality once they obtain their registration as religious associations by the Ministry of Interior. Now, the last constitutional reform to Article 24 on 19 July 2013 im‐ plied the substitution of the expression “every man” for “every person”, the introduction of the right to freedom of ethical convictions, right to freedom of conscience and right to freedom of religion. It makes clear that A. 181 this freedom includes the right to participate individually or collectively, both in public and in private, in ceremonies, devotions or acts of worship, provided they do not constitute an offense punishable by law. Although a prohibition is incorporated: “No one can use the public acts of expression of this freedom for political purposes, proselytism or propaganda.” Before this reform several civil and non-catholic religious associations demonstrated in about 20 states in the Mexican Republic to warn that would not allow the reform of article 24 of the Constitution, because it threatens the secular nature of the Mexican State and it considers privi‐ leges for Catholics. They expressed three arguments: 1. The intention of the reform is the dismantling of the secular state. It is intended to use it to demand clerical privileges: mainly replacement of secular education for religious instruction in public schools and control of mass media. 2. The handling of the reform in the concept of "freedom of religion". The redefinition of "freedom of religion" that the Catholic hierarchy seeks to establish, offers a tendentious and biased concept of that free‐ dom to provide religious education in public schools as a religious privilege. 3. The consequences of reform are an affectation of the freedoms of reli‐ gious minorities. For example, religious education in public schools will cause that children and adolescents who profess a different faith to Catholic are victims of acts of intolerance and discrimination. Religion is also represented as a factor of division among students professing different faiths and as an element of social polarization that will dam‐ age seriously the living together. On the other side, the constitutional reform to Article 40 on 30 November 2012 to include the “lay character” of the State was not really necessary to know that “Laicity” is the scenario and presuppose for the effective exer‐ cise of fundamental freedoms. Laicity and religious freedom are not op‐ posed and are not mutually excluding. Reference to an “open Laicity”, “positive Laicity” or even “healthy Laicity” is made. For example, reli‐ gious freedom includes the teaching of religion too, and the state has to guarantee it. The current dimension of Laicity is particularly in the field of cultural identities and protection of minorities. The issue of Laicity is not only an issue of “political” but also one of “minorities” who defend their “vulnerability”. The concept of the lay state is dynamic, and is linked to social processes. In the debate on Laicity new actors are present, and not María Concepción Medina González 182 only the traditional State-Church or churches, but women, academics, ho‐ mosexuals, indigenous people. Certainly “pathology” of Laicity would be to reduce religion to the private sphere alone. The formula “for greater re‐ ligious freedom” less “lay state” is a fallacy. However, the exercise of reli‐ gious freedom recognizes limits. There is no doubt that the recent constitutional reforms involve two key elements of the rule of law (Estado de derecho): Popular sovereignty, under Article 40 of the Constitution (linked to Article 39) and human rights, including the right to religious freedom established in Article 24 of the Constitution. For the following analysis I will focus my remarks on three fundamental aspects: • Binomial “Law and Religion” (B.); • Analysis of the amendments to Articles 24 and 40 of the Constitution (C.); and • Approaches to public policy management of religious diversity (D.) Law and Religion This conceptual binomial gives me the opportunity to analyze the amendments to Articles 24 and 40 and their constitutional im‐ plications, from the perspective of the Mexican Law of Religion,1 whose core is religious freedom, and its ground the dignity of the human person, so that I will not focus only on the so-called "Churches- State relations”, which at least in its formal name apparently may be restrictive and not open to religious communities that are not churches.2 B. 1 It is worth noting that the concept of “Mexican ecclesiastical law” is formally limit‐ ed, because it refers to the ecclesiastical, to the institutional, to the churches, but not all religious communities are erected in this way, as churches; for example, the case of Jewish, Buddhist, Hindu communities. For that reason, among others, I prefer to refer to the “Mexican Law of Religion” as the set of rules of the State concerning the religious factor that attends to the religious needs and interests at the individual level (individual juridical person), corporate level (religious communities and reli‐ gious associations) and collective level (indigenous peoples, with respect to their religious practices and customs), under the principles of religious freedom, laicity (laicidad) and separation of state and churches (or religious communities). 2 I mean Jewish, Buddhist and Islamic religious communities. Analysis of the Amendments to Articles 24 and 40 183 Here I want to refer to the important intervention of Franҫois Houtart in the Assembly of the United Nations in 2008,3 which noted that the world needs alternatives and not merely regulations, since it is not sufficient to rehabilitate or maintain a system but to transform it It is a question of permitting all forms of knowledge, including tradi‐ tional forms of all philosophies and cultures, to participate in the con‐ struction of alternatives4 “in breaking the monopoly of Westernization”. This author considers various aspects among religions: [T]he wisdom of Hinduism in relationship to nature, the compassion of Bud‐ dhism in human relations, the permanent quest for utopia in Judaism, the thirst for justice which defines the prophetic current in Islam, the emancipato‐ ry power of the theology of liberation in Christianity, the respect for the sources of life in the concept of the land itself among the indigenous peoples of the Americas, the sense of solidarity expressed in the religions of Africa, can all make important contributions in the context of mutual tolerance guar‐ anteed by the impartiality of political society. This consideration has its own specific weight to the topic at hand, since to democratize society within a framework of laicity (laicidad) is to allow multiculturalism be expressed through religious freedom. A lay (laico) state which renounces religious freedom, renounces the claim of this hu‐ man right in all its dimensions; it loses its right to exist as such, i.e. as a lay (laico) state. Analysis of the amendments to Articles 24 and 40 of the Mexican Constitution This second aspect focuses primarily on distinguishing between the justification for the existence of the constitutional reform to Article 24 of C. 3 Cf. General Assembly of the United Nations, Panel on the financial crisis, October 30, 2008. 4 Here I want to refer to an indigenous representative Chamula, expert in Tzotzil in‐ digenous language of the National Commission for the Development of Indigenous Peoples, who – in December 2010 – questioned the application of human rights in indigenous communities, since in these – he says – “there is no freedom but com‐ plementarity, there is no equality but reciprocity, there is no fraternity but related‐ ness.” How to translate the Universal Declaration of Human Rights into the indige‐ nous context? It is a challenge for the indigenous peoples themselves. María Concepción Medina González 184 28 January 1992 and the reason for the existence of the recent amendments to Articles 24 and 40 of the Constitution.5 Regardless of the political nature attributed to the constitutional reforms of January 28, 1992 about a “search for legitimacy of the Federal Executive”, it was rather to combat obvious anachronism and open simu‐ lation with: • the adequacy of the rules in religious matters to social reality, to prevent thereby any simulation; • the updating of the regulations on religious freedom. It demands that the Mexican government complies with international treaties signed by the Mexican state to ensure that fundamental right; and • the need to promote, in the awareness of Mexican society, respect for the legal system and proper implementation of the law on religious matters. With this constitutional reform and the subsequent issuance of the Law on Religious Associations and Public Worship (July 15, 1992) several processes took place: • The construction of laicity (laicidad) on the recognition of religious diversity. • The visibility of religious minorities, which may be registered as religious associations before the Ministry of Interior to obtain juridical personality.6 • The recognition of religious diversity that creates conditions for inclusion and tolerance that are essential for peaceful coexistence 5 Amendments to Articles 24 and 40 of the Mexican Constitution were approved by the Senate on March 28, 2012. The amendment to the first paragraph of Article 24 received 72 votes in favor and 35 votes against; while the amendment to Article 40 was approved by 97 votes in favor, 3 against, and one abstention. The amendment to the first paragraph of Article 24 of the Mexican Constitution was published on July 19, 2013 in the Diario Oficial de la Federación. The amendment to Article 40 of the Mexican Constitution was published on November 30, 2012 in the Diario Oficial de la Federación. 6 In the year 1992 were registered as religious association only three communities of Catholic orientation (the Catholic, Apostolic, and Roman Church in Mexico, the Mexican Episcopal Conference, and the Primatial Archdiocese of Mexico); in 1993 and 1994 were registered diverse religious associations, mostly, different than Ca‐ tholic. Analysis of the Amendments to Articles 24 and 40 185 among different believers, religious communities and religious associa‐ tions. Amendment to Article 40 of the Constitution Article 40, in close connection with Article 39 of the Mexican Consti‐ tution,7 establishes the fundamental characteristics adopted by the political organization of the Mexican people. One reason, apparently, “to raise the lay (laica) nature of the state to constitutional rank”8 was the reaction to assumed acts that “violated” this lay nature (for example: to allow religious services at public hospitals;9 to deny minority rights; to impose the beliefs of the majority;10 and to dictate public policies based on religious criteria for 110 or 120 million Mexicans as if they were Catholics).11 Generally, in the case of the amendment to Article 40 of the Constitu‐ tion, it was argued that this reform was made to ratify, to reaffirm the lay (laica) nature of the Mexican state, even to defend and strengthen it against the backward and obscurantist temptation,12 and against attacks on laicity (laicidad), and that “postponing the fullness of secularity of the Sta‐ te” means the “risk of a successful [attack] from the rhetoric of intransi‐ gence.”13 I. 7 “Article 39. National sovereignty is vested essentially and originally in the people. All public power derives from the people and is instituted for their benefit. The people have at all time the inalienable right to alter or amend their form of govern‐ ment.”. 8 “Deplora el Senado que el carácter laico del Estado haya sido vulnerado,” La Jor‐ nada, February 18, 2010, p. 10. And here I want to ask: was the Mexican state not lay (laico) already? And if this is so, then the article 3 of the Law of Religious Associations and Public Worship, which establishes „The Mexican state is lay (lai‐ co)“, was unconstitutional. 9 “Intelectuales piden a senadores ratificar el carácter laico del Estado mexicano,” La Jornada, February 19, 2010, p. 10. 10 “Censuran a Rivera por su postura sobre el Estado laico,” Rumbo de México, Fe‐ bruary 19, 2010. 11 See ibid. 12 See “Navarrete confía en que el Senado apruebe reforma para Estado laico,” La Crónica, February 19, 2010, p. 9. 13 The Mexican state is lay (laico), a-confessional, and does not subscribe to any reli‐ gion or religious denomination as its own. The conception of a lay (laico) state is María Concepción Medina González 186 In sum, this constitutional reform was rather “confirmatory”, “declarative” and not “foundational” or “constitutive” in character. There‐ fore, even if there had not been any constitutional reform to Article 40, the laicity (laicidad) of the Mexican state would have remained intact.14 Here I would refer comparatively, while maintaining a proper sense of proportion, the case of the German law of religion, where, although there is no principle of laicity (laicidad), there is the principle of neutrality. The Fundamental Law of the Federal Republic of Germany does not explicitly contain the word “neutral”, this nature of the German state has been recognized and developed by the jurisprudence of the Federal Constitu‐ tional Court.15 dynamic, also linked to social processes. Precisely, one of the dimensions of laici‐ ty (laicidad) is in the field of cultural identities and the defense of minorities, of course in attention to the following guiding principles: • religious freedom; • separation of state and churches (or rather, religious communities); • no intervention by the authorities in the internal affairs of religious associati‐ ons (linked to respect for the right of self-determination of religious commu‐ nities); • authorities may not attend in an official character any religious act of public worship; • churches and other religious communities should not interfere in the functions of the state; • state laicity (laicidad). On November 6, 2012, the Senate declared approved the amendment of Article 40 of the Constitution, establishing formally the lay (laica) nature of the Mexican Sta‐ te, as follows: “Article 40. It is the will of the Mexican people to constitute a rep‐ resentative, democratic, lay (laica), and federal Republic composed by States, free and sovereign in all matters concerning their internal affairs; but united in a fede‐ ration established according to principles of this fundamental law.” (The under‐ lined is mine). This can be assumed to be a platform to strengthen the management of religious diversity. 14 From the freedom of belief – Article 4, paragraph 1 of the Fundamental Law – de‐ rives the principle of neutrality towards different religions and confessions. The ideological-religious neutrality is a binding mandate for the state. The state’s obli‐ gation to neutrality implies that the state must conduct itself equally before various religious orientations; the state cannot generate religious indifferentism. The state is prohibited from favoring certain denominations, also from making distinctions between religious communities and valuing the belief or non-belief of its citizens, and noting their convictions as correct or false. See BverfGE 24, 236 (246), BVerfGE 32, 98 (106), BVerfGE 33, 23 (28), BVerfGE 93, 1 (16). 15 “Pathology” of the laicity (laicidad) is to reduce religion to the private sphere. Analysis of the Amendments to Articles 24 and 40 187 In my opinion, the “laicity” is a scenario, which may be presupposed, where the effective exercise of fundamental freedoms – including the freedom of religion – takes place.16 Therefore “laicity” and “religious freedom” are not opposed and are not mutually exclusive, since a lay (lai‐ co) state must ensure full enjoyment of religious freedom. Certain documents such as the Universal Declaration of Laicity (laicidad) of 21st Century17 and the Lay (laica) Charter18 do not address in its true size, at least explicitly, religious freedom; rather, they include it only by reference, for example, that it is related to “freedom of religion” and to the “right to profess or not to profess religious beliefs”. The “Al‐ phabet of the lay (laica) Republic”19 simply refers to “freedom of worship” or “to exercise any religious option or not practice any one.”But it is evident that religious freedom in its complexity implies this and much more. 16 See Libertades laicas. Red Iberoamericana por las Libertades Laicas. Programa In‐ terdisciplinario de Estudios sobre las Religiones. El Colegio Mexiquense, A.C. 17 See Extraordinary Chair “Benito Juárez” of UNAM, January 14, 2013. 18 José Woldenberg, ex-counselor of the Federal Electoral Institute introduced this al‐ phabet during the Forum “Laicidad y democracia: 150 aniversario de la libertad de pensamiento”. 19 A large majority were evangelical groups, as shown by the various demonstrations that occurred in more than 20 states of the Mexican Republic. María Concepción Medina González 188 Amendment to Article 24 of the Constitution An Approach to the Three Argued Reasons for Rejecting the Amendment to Article 24 of the Constitution There were several groups,20 which expressed different reasons for re‐ jecting the amendment to Article 24 of the Constitution. These were linked to:21 • The intent of reform. It was argued that this was “the dismantling of the lay (laico) state”. • The manipulation of reform. It was argued that redefining “freedom of religion” was offering a tendentious and biased concept of that freedom. • The consequences of reform. There was reference, in this respect, to the effect on the freedoms of religious minorities. It was noted that reference to the supposed “danger” of religious teaching in public schools was common in these three reasons. The reference to religious freedom only as “teaching religion in public schools” represented, rather than a serious approach to the dimensions or areas of religious freedom, a manipulation of the discourse on religious freedom that prevented a serious analysis of its real scope. II. 1. 20 Approximately 50 organizations and associations publicly opposed the amendment to Article 24, among which are Pentecostal churches, the Light of the World, Apostolic Church of Mexico, Presbyterian churches and Masonic Grand Lodge. Moreover, it was expressed that some small religious groups are in opposition to this reform, because they considered that the reform would benefit the Catholic as‐ sociations. Historic churches – such as the latter – and Jewish, Orthodox, Anglican or traditional evangelical churches supported the amendment to Article 24. 21 The text of Article 24 of the Constitutional Reform from January 28, 1992 esta‐ blishes: “Every man is free to embrace the religion of his choice and to practice the ceremonies, devotions and acts of worship, provided they do not constitute a crime or an offense punishable by the Law” (first paragraph). “The Congress of the Union may not enact laws establishing or prohibiting any religion” (second pa‐ ragraph). “Religious acts of public worship must regularly be performed inside the temples. Those extraordinarily performed outside of them shall be subject to the Law” (third paragraph). Analysis of the Amendments to Articles 24 and 40 189 Analysis of Article 24 of the Constitution The Article 24 in force provides that: Every person has the right to freedom of ethical convictions, conscience and religion. This freedom includes the right to participate individually or collectively, in public or private, in the ceremonies, devotions and acts of worship, provided they do not constitute a crime or an offense punishable by law. No one may use the public acts of expression of this freedom for political purposes, proselytism or propaganda.22 Although the new version of this Article uses an inadequate legislative technique, the substance of the constitutional reform of Article 24 focuses on: • Replacement of “every man” by “every person” in accordance with the terminology adopted by all international instruments on human rights. • The formal introduction of the right to freedom of ethical convictions: Freedom of ethical convictions. Its inclusion – it seems to me – was linked mutatis mutandis to a formulation used in Article 4 of the Fundamental Law of the Federal Republic of Germany, which refers to the profession of religious and ideological beliefs (or non-religious worldview) called Welt‐ anschauung,23 whose translation into Spanish is complex, but in the case of Article 24 was adopted simply as “ethical convictions”, which creates some confusion especially when this is disassociated from the “freedom of religion”. 2. 22 “Art und Weise, wie jemand die Welt und ihren Sinn sowie sein Dasein betrachtet und beurteilt” (Mode and form how someone observes and judges the world, its reason and its existence), Wahrig, Deutsches Wörterbuch, 1997. Gerhard Anschütz considers Weltanschauung as the doctrine comprising the total and universal world that seeks to recognize and to value the position of man in the world. 23 While it is true that the Constitution of the United Mexican States did not establish expressly the freedom of conscience, this was considered by the Constituent As‐ sembly of 1856-1857 in the sense that freedom of conscience, based on the most intimate convictions of the person, could not be subject to regulation by the state legal order. Meanwhile, the Constituent of 1916-1917 considered freedom of con‐ science as presupposed and included in Article 24 of the Constitution, since, in the opinion of the liberals of the period, Article 24 expressed, on the one hand, a large freedom of conscience and on the other hand, limitation only for religious acts which constitute a crime or an offense punishable by law. María Concepción Medina González 190 Freedom of conscience.24 Various international instruments establish, unanimously, freedom of conscience as a fundamental right, where “con‐ sciousness” is precisely its subject. Note that within the elements of freedom of conscience are: • “Freedom of formation of consciousness” as the right guaranteed to every person to follow his own representations in the formation of concepts of religious-moral value or disvalue without any influence of state coercion or social pressure, and perform this purpose under the constitutional legal order.25 • “Freedom of realization of consciousness”implies “to omit” the legal prescribed behavior and "to not observe" the legally established rules of “not to do”. It is here that the “right of conscientious objection” is linked with the fundamental right to “freedom of conscience”. The International Covenant on Civil and Political Rights does not explicitly refer to a right of conscientious objection, however, in General Comment No. 22 to Article 18 of the Covenant it considers that such right can be derived precisely from Article 18, paragraph 1, and there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs. At the bottom of the issue about conscientious objection26 there is a relationship of tension between constitutional freedom and equality.27 24 See Listl and Pirson (eds.), Handbuch des Staatskirchenrechts der Bundesrepublik Deutschland, 1994, p. 468. 25 “Conscientious objection” comes to be defined as “the attitude of a person who re‐ fuses to comply with a rule of law under a binding mandate from his conscious‐ ness, which is in radical opposition to the implicit ethical content of the legal norm.” See Lima Torrado, Desobediencia civil y objeción de conciencia, 2000, p. 25. 26 See Bleckmann et al., Die Rechtsstellung des Wehrdienstverweigerers aus Gewis‐ sensgründen in den Mitgliedsstaaten des Europarats, Ein vergleichender Über‐ blick, 1967, p. 231. 27 For example, this is the case of Article 10 of the Military Service Law (Ley del Servicio Militar) and Article 38, paragraph III of its Regulation (Reglamento) con‐ cerning the ministers of worship, who may be exempted from compulsory military service; also this is the hypothesis in the case of Article 59, Health Law for the Federal District, where it is provided that doctors, for reasons of a religious nature, may refuse to perform an abortion. Analysis of the Amendments to Articles 24 and 40 191 Of course, freedom of conscience does not exclude or exempt, without further ado, the objector, of having to fulfill civic obligations, because a person who is recognized as a conscientious objector must perform, in principle, an alternative service (servicio sustitutorio), in order to recon‐ cile precisely the right to freedom of conscience with the observance of common duties for all within the rule of law. The Mexican Law of Religion provides what one might describe as “conscientious objection secundum legem”, for example, that the legislation itself establishes a certain “right to object” to justify the breach of a legal mandate.28 In addition it is essential to examine carefully the second paragraph of Article 1 of the Law of Religious Associations and Public Worship,29 in order to align its content with the current Article 24 of the Constitution, which expressly guarantees freedom of conscience. • Freedom of religion. Notwithstanding the constitutional reform on hu‐ man rights from June 10, 2011 (the rules on human rights shall be interpreted in accordance with the Constitution and international treaties on this matter, favoring to the people all the time the more extensive protection), and in addition to the requirements of the New Law of Amparo,30 (the sphere of protection of rights is extended, the human rights established within international treaties are subject of direct protection) still, the reform of Article 24 reinforces full religious freedom, from the interpretation of this in international instruments and from the contributions of comparative law. Religious freedom consists of an internum forum and an externum forum. The internum forum relates to the freedom of belief. “Positive freedom of belief”, i.e., to have or to adopt31 a belief of one’s choice “or preference” (International Covenant on Civil and Political Rights) as well 28 This establishes: “Religious convictions do not exempt in any case from comply‐ ing with laws of the country. No one may invoke religious motives to evade the responsibilities and obligations established in the laws.”. 29 Published on April 2, 2013 in the Diario Oficial de la Federación. 30 The “freedom to adopt a belief” consists usually in search of a community of be‐ lievers, learn about it, and take its doctrine. 31 The “freedom to change one’s religion” implies in the background “the right to abandon or to resign from being a member from a community of believers and to enter another.” This formulation has been considered in many cases instead of “to change one´s religion” because it has usually been objected by Islamic countries, María Concepción Medina González 192 as to maintain or to “change his belief”32 (American Convention on Human Rights); this internum forum includes the “negative freedom of belief”, which is summarized in not having any belief. The forum externum relates to the “freedom to profess a belief”. “Posi‐ tive freedom of profession” involves the right to say what one believes, which includes the freedom to propagate one's belief, and also the freedom of dispreading other beliefs (what is known as a missionary activity) and to say that one doesn´t believe at all. “The negative freedom of profession” guarantees the right to keep what one believes secret, or the right to silence (Schweigerecht in German law of religion). Moreover, the freedom of exercise of religion in any form involves exercising it alone, in a community, in private (for example, the called de‐ votio domestica simplex – private devotion without the intervention of a minister of worship of one’s religious confession – and devotio domestica qualificata – private devotion involving a minister of worship of one’s religious confession), and in public (the called exercitium religionis publi‐ cum).33 Moreover, the manifestations of the exercise of religion include, for example:34 • Religious service: as the typical form of religious adoration or proclamation, for example, worship. • Religious uses: among which are processions, wearing/carrying of religious clothing or (a certain style of) beard, circumcision, prayers, tolling of bells, flying of church banners; in short, rites and rituals of different religions. such as Saudi Arabia. See Nowak, UNO-Pakt über bürgerliche und politische Rechte und Fakultativprotokoll. CCPR-Kommentar, 1989, “Artikel 18 des Pak‐ tes”, p. 333. 32 See Listl and Pirson, Handbuch des Staatskirchenrecht des Bundesrepublik Deutschland, p. 458. 33 See ibid, pp. 461-462. 34 Article 18 of the Covenant: 1. “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to ad‐ opt a religion or belief of his choice, and freedom, either individually or in com‐ munity with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”. Analysis of the Amendments to Articles 24 and 40 193 • Praxis (practice): conducting religious assemblies, foundation and support of charities and humanitarian institutions; manufacture or acquisition of ritual objects; collecting donations; training of religious leaders; observance of days of rest and specific holidays; missionary activity; sustaining religious hospitals; implementation of development projects; distribution of flyers; pacifists, motivated by a pacifist spirit. • Teaching: transmission of content from one religion or worldview in religious schools, in public schools, in various forms of non-formal education and in missionary work. Also freedom of religious association is part of the fundamental right of religious freedom in its positive and negative aspect. In this regard, religious freedom in Mexico should not be a taboo subject. Hence the importance of serious and open debate on issues such as: • The right to self-determination of religious communities as well as freedom of expression of their ministers of worship. • Mass media in the ownership or possession of religious associations. • The right of parents to ensure the religious and moral education of their children in conformity with their own convictions, even in public schools. • The protection of cultural property of a religious character. • Attention to the problems of displaced indigenous people because of “religious intolerance”. It clarifies that this freedom includes the right to participate individually or collectively, in public or private, in ceremonies, devotions, or acts of respective worship, provided they do not constitute a crime or an offense punishable by law. In this respect, it is not that “this freedom includes the right...”, but rather “this right includes freedom...” (in accordance with Article 18 of the International Covenant on Civil and Political Rights,35 and Article 12 of the American Convention on Human Rights36). In addition to the ob‐ 35 Article 12 of the Convention: “Everyone has the right to freedom of conscience and of religion. This right includes freedom to maintain or to change one's religion or beliefs, and freedom to profess or disseminate one's religion or beliefs, either individually or together with others, in public or in private.”. 36 Papal Mass held on March 23, 2012 at Bicentennial Park in Silao, Guanajuato. María Concepción Medina González 194 servation about the inadequate legislative technique used, it is considered that such provision falls far short in scope, at least formally, when it refers only to ceremonies, devotions and acts of respective worship. Finally, a prohibition is incorporated: no one can use the public acts of expression of this freedom for political purposes, proselytism or propagan‐ da. The questions are: who is the addressee of this? Any person? What specifically does “using public acts of expression of this freedom” mean? What does “this freedom” mean? The “freedom of ethical convictions, conscience and religion”or the “freedom to participate individually or collectively, in public or private, in ceremonies, devotions, or acts of respective worship”? Is this prohibition applicable during an electoral campaign and also in non-election times? What would be the sanction for contravening this provision? By reading this provision, suddenly the image of the presidential candi‐ dates came to my mind who gathered at the Mass celebrated by Pope Benedict XVI in Silao Guanajuato in 2012,37 where some of them even took communion publicly. If at the time a prohibitive provision like this had been in force, would this prohibition have been applicable to them? Moreover, it appears that prohibitions against ministers of worship en‐ gaging in political matters existed before, for example: • to hold public offices and not be elected for public offices.38 Those who have ceased being ministers of worship with anticipation and in the manner established by law, may be elected (Article 130 of the Con‐ stitution d) and Article 14, first paragraph, LARCP); • to associate for political purposes, to proselytize in favor of or against any political candidate, party or association (Article 130 of the Consti‐ tution, and Articles 12 and 29 LARCP); • to celebrate political meetings in temples (Article 130 of the Constitu‐ tion and Article 21 LARCP); 37 In the doctrine it is discussed on the legal nature of this constitutional impediment of the ministers of worship to exercise a passive vote, placing it within three possi‐ ble explanations: 1. An incompatibility on the basis of the principle of Statechurches separation. 2. A mutilation of human rights of ministers of worship, or 3. A discriminatory treatment. 38 It is recommended to carry out this derogation also in local regulations (electoral codes and civil codes), where the word “sect” is present. Analysis of the Amendments to Articles 24 and 40 195 • in developing public acts of their own ministry, to induce the electorate to vote or not vote for a particular candidate or political party (Article 404 Cófigo Penal Federal (CPF)). To these, it has been added: “no one can use the public acts of expression of this freedom for political purposes, proselytism or propaganda” as a “burden” additional to the bans for ministers of worship, especially if this prohibitive requirement seems an “open letter” to the exercise of discretional activity of governmental authorities in its application. Public Policies for Managing Religious Diversity The laicity (laicidad) of the state, as a scenario and presupposed, where the effective exercise of religious freedom and other fundamental freedoms occurs, also involves the generation of appropriate public policies for the management of religious diversity. At the legislative level, it is necessary to legislate without discrimina‐ tion, as happened with the derogation of the word “sect” in federal regulations. This word was removed from the Federal Code of Electoral Institutions and Procedures (COFIPE) but this has not been done in case of the Federal Civil Code, because Article 1330 still includes the word “sect”.39 Moreover, the National Council to Prevent Discrimination (CONAPRED) published a Handbook for lawmaking without discrimina‐ tion, which will undoubtedly contribute to that purpose. D. 39 “Libertad religiosa. Sus diferentes facetas”, in Semanario Judicial de la Federa‐ ción, Ninth Epoch, First Chamber, Thesis 1a LX/2007, Subject: Constitutional, isolated thesis, February 2007. “Freedom of worship” means “freedom to practice the ceremonies, rites and meetings associated with the cultivation of certain reli‐ gious beliefs.”. María Concepción Medina González 196 At the jurisdictional level, the interpretation of “religious freedom and their different facets”40 and “differences of religious freedom and freedom of worship”41 is developed. At the federal executive level, it is necessary to comply with the generation of an appropriate public policy of management of religious diversity. Among the public policies for management of religious diversity are the following: • Political-administrative attention for the transformation Regardless of the circumstances that involved a significant shift of the administrative body of the federal executive in charge of religious affairs before 1992, it was called “Underdirectorate of Religious Worship, Fire‐ arms and Explosives”; and with the reform from January 28, 1992 the situation changed toward the formation of a General Directorate of Reli‐ gious Associations, within an “Undersecretariat for Population, Migration and Religious Affairs”. Here it is expedient to review the vision, mission and objectives of this Undersecretariat. 40 “Libertad religiosa y libertad de culto. Sus diferencias”, in Semanario Judicial de la Federación y su Gaceta, Ninth Epoch, First Chamber, Thesis 1a LXI/2007, Sub‐ ject: Constitutional, isolated thesis, February 2007. “Acts of public worship” as “the acts specifically oriented to develop collectively rites, ceremonies and practices of different religions recognized as institutionalized or formalized ex‐ pressions of religious faith, defined and governed by pre-established rules by them.”. 41 The management of the Federal Executive relations with religious associations (churches and religious communities), with full respect for the lay (laico) spirit of public institutions, formally has had as guidelines: a) Improving the relationship with religious communities, religious associations and religious traditions existing in the country; b) Greater openness and fairness for different religions; c) Assump‐ tion of a positioning of "non-control" by the authority on religious associations; d) Respect of the internal life of religious associations and religious pluralism; e) Strengthening of interfaith dialogue and coexistence; e) Permanent dialogue with religious organizations and ministers of worship; f) Transparency and access to in‐ formation on religious matters; g) Improving the administrative service to attend the religious associations; h) Application of modern technology for recording and processing information in religious matters. Analysis of the Amendments to Articles 24 and 40 197 While the services offered by the General Directorate of Religious As‐ sociations formally involve administrative attention to religious diversity, this is only part of public management policy. 42 Since the new administration took office on 1 December 2012, a rethinking of public policy for the management of religious diversity under the National Development Plan 2013-2018 is expected, and depending mainly on the implementation of the constitutional reform of Article 24. • Extraordinary acts of public worship are not “public spectacles” It must be insisted that in the case of holding acts of extraordinary public worship of religious associations provisions should not be applied which strictly correspond to “public performances”,43 since it is not possible to fulfill the same requirements for implementation and because “extraordi‐ nary acts of public worship” are not “public spectacles”. • Spiritual assistance It is required further to facilitate spiritual support in health, social care and rehabilitation institutions, making this effectively one of the dimensions of the right to religious freedom of internal people and users.44 • Prohibition of discrimination on religious grounds The constitutional and legal normativity on religious matters assumes the principle of non-discrimination in favor of religious diversity. Article 1 of the Constitution explicitly prohibits discrimination based on religion and establishes that the authorities have the obligation to promote, protect and ensure the human rights of all people. Article 2 of the Law of Religious Associations and Public Worship recognizes the right of individuals to be free from discrimination, coercion 42 See Law for Holding Public Events in the Federal District (Ley para la celebración de espectáculos públicos en el Distrito Federal), article 4, V. Public spectacle; arti‐ cle 25, VII, Requirements of permissions to hold public spectacles. 43 Based on article 6 of the Regulation of the Law on Religious Associations and Pu‐ blic Worship, published on November 6, 2003, in the Diario Oficial de la Federa‐ ción. 44 Agreements – that were ready to be signed – are those corresponding to the states of Coahuila, Jalisco, Puebla and Veracruz. Agreements in process of elaboration, in case of the states: Campeche, Guerrero, Queretaro, San Luis Potosi, Sonora, Ta‐ maulipas, Tlaxcala. María Concepción Medina González 198 or hostility because of their religious beliefs and the prohibition to restrict the exercise of any work or activity for religious reasons. Article 4 of the Federal Law to Prevent and Eliminate Discrimination prohibits all discriminatory practice. This law establishes the following in Article 9 as discriminatory behaviors: to hinder freedom of religion, religious practices or customs, provided they do not violate public order (paragraph XVI), and to deny religious assistance to persons deprived of liberty, serving in the armed forces or interns in assistance or health care institutions (paragraph XVII). • Conscientious objection Education authorities have refrained from punishing students – Jehovah's Witnesses – because of their religious beliefs, who refuse to salute the flag and sing the national anthem at civic ceremonies that take place in schools, according to the General Recommendation Nr. 5, issued by the National Commission of Human Rights (May 14, 2003). However, in the case of basic education teachers – for example, Jehovah’s Witnesses – are required, in respect of their right to conscien‐ tious objection to honoring national symbols, to complying instead of this with an alternative service, so that they should not be separated from their charges – as this happens at the present – because they "do not inculcate love for the country in their students". • Coordination agreements in religious matters45 It is necessary to review the status of coordination agreements on religious matters signed by the Ministry of Interior with the governments of the states of Zacatecas,46 Chiapas,47 Chihuahua,48 Michoacan,49 Nuevo Leon50 and Quintana Roo,51 to update them, and to promote the signing of agreements with the remaining states. • Translation of the Law of Religious Associations and Public Worship and its regulation into indigenous languages 45 Published on January 28, 2005, in the Diario Oficial de la Federación. 46 Published on January 28, 2005, in the Diario Oficial de la Federación. 47 Published on March 9, 2005, in the Diario Oficial de la Federación. 48 Published on April 25, 2005, in the Diario Oficial de la Federación. 49 Federación. 50 Published on April 28, 2005, in the Diario Oficial de la Federación. 51 Published on May 3, 2005, in the Diario Oficial de la Federación. Analysis of the Amendments to Articles 24 and 40 199 The Ministry of Interior has promoted the translation of the Law on Reli‐ gious Associations and Public Worship into various indigenous languages in at least five states. These languages are: Tzotzil, Tzeltal, Tojolabal, Zo‐ que (in Chiapas); Mazahua (in State of Mexico); Nawatl (in Puebla); Na‐ huatl, Tenek (in San Luis Potosí); Nahuatl, Totonaca (in Veracruz).52 However, translation of the law by itself is not enough, but there should also be informed knowledge about its content, so this topic must be addressed, too. • Interreligious dialogue The state must encourage the development of the work of interreligious dialogue at different levels, for example: 1. At national level: the Interfaith Council of Mexico. 2 At state level: the Interreligious Councils of Chiapas and Guerrero; and 3. At municipal level: the Municipal Evangelical Interfaith Council in Larrainzar. Also with respect to those who, exercising their right of self-determination, have decided not belong to any Interfaith Council, as has been the case of the Christian Congregation of Jehovah's Witnesses. On April 14, 2016, the first encounter between Deputies and Interfaith Councils took place.53 While the deputies pronounced to elaborate a politi‐ cal agenda and initiatives to advance in a regulation of the Article 24 con‐ stitutional, representatives of interreligious councils manifested the neces‐ sity to legislate in the matter of freedom of conscience and to improve the Law of Religious Associations and Public Worship, as well as its regula‐ tions, in order to defend and promote religious freedom. Finally, it was as‐ sumed that Mexico has much to learn about religious freedom, since the 52 The translation of the law into indigenous languages took place in states that have concluded a coordination agreement with the Ministry of Interior in religious mat‐ ters: Chiapas, State of Mexico, Puebla, San Luis Potosi and Veracruz. 53 Proposals: A) Develop a political agenda with these issues and advance in the con‐ stitution of a better society. B) In no public schools should be imposed or teached any religious line of thought. C) Legislate on conscientious objection; improve both Law of Religious Associates and Public Worship, and its regulations to de‐ fend and promote religious freedom. D) That religious associations may own and operate radio and television stations. E) That a fiscal legislation be elaborated ac‐ cording to the aims and objectives of the religious associations and churches, be‐ cause they are not economic companies with the objektive of trading. María Concepción Medina González 200 1992 reforms, although they recognized that guarantee, said reforms “are still far from what Mexico has signed on human rights issues.”54 • Migration It should support religious associations that make use of their right to bring into the country ministers of worship and associated religious per‐ sons to participate in pastoral interchanges, as well as for international events held in Mexico, so it is necessary to reduce administrative obstacles on matters of inviting foreign ministers of worship into the country. A positive aspect of the Mexican lay (laico) state has been to allow special diets in migration centers for people who for religious reasons so request (Immigration Law,55 Article 107, II, second paragraph). This shows more openness to guaranteeing religious freedom. It requires greater collaboration between government and religious associations for the defense and the protection of the rights of migrants, especially of unaccompanied migrant children. Finally, members of the Tohono otham indigenous people, as it is writ‐ ten on the other side of the Rio Grande; tojono o’tam, as pronounced on the Mexican side, are part of the 82,000 indigenous people, of whom some 42,000 reside in Mexico and around 40,000 live in the United States, in the desert territory of Sonora and Arizona, divided by 120 kilometers of border that was imposed upon them without having been consulted. To that is added the construction of the “wall” as proposed by Donald Trump, which represents a double offense fot this indigenous population.56 • Official recognition of studies in religious institutions Since 1995 there has been a policy of openness by the Ministry of Educati‐ on to recognize studies in religious matters, such as theology or religious sciences, provided they comply with the established legal requirements. For example, official validity was recognized by the Ministry of Educa‐ tion for the curriculum in Judaic at the upper level (October 2012), which is unprecedented in the history of the Jewish Community of Mexico. 54 Promote secondary legislation on religious freedom and worship, which strengt‐ hens social value. See Bulletin No. 1341. 55 Published on May 25, 2011, in Diario Oficial de la Federación. 56 See Analysis of the Amendments to Articles 24 and 40 201 • Tax matters The tax treatment of religious associations is regulated through a “general resolution” for all of them. However, the religious associations are not yet considered “non-profit legal entities” (personas morales sin fines de lu‐ cro);57 they are not authorized to receive donations deductible from income tax;58 so this situation should be changed. • Donations in kind from abroad Various religious denominations in Mexico – especially evangelical churches59 – have close relationship with churches from the United States of America who are willing to support them with donations in kind, especially: food, used clothing in good condition, medicines, toys, medical equipment, among others. The current problems, in this case, are customs procedures that carry a high cost, which often turns out to be more expensive than the amount donated, and churches or religious communities do not have sufficient financial resources to cover such costs. It seeks to guide religious associations to find the most appropriate way to receive donations from abroad. At present, they do this through civil associations for welfare; however, it insists that religious associations as “non-profit legal entities” also should come to be considered authorized donees. • Labor matters In this item it is necessary to determine that ministers of worship are not employees or workers of religious associations, because there is a general assumption that considers religious associations as their employers, who therefore have to pay patronal contributions to the Mexican Social Securi‐ ty Institute (IMSS) 57 Although the Law of Income Tax (Ley del Impuesto sobre la Renta) does not ex‐ pressly refer to religious associations, it establishes that: “For the purposes of this Law, are considered non-profit legal persons (...) the following: XVI. Civil asso‐ ciations or societies with political, sporting or religious purposes.” 58 See Tax Administration System (SAT). Rules for Religious Associations for the Fiscal Year 2012, of February 16, 2012. 59 For example, in the state of Tamaulipas. María Concepción Medina González 202 • Security State authorities have recognized that religious associations, churches and religious communities have much to contribute to Mexican society, to rebuild the social net (tejido social), especially in prevention matters, so their specific involvement in the new National Security Plan of the federal government must be known.60 For now, they work on voluntary disarmament programs61 which are usually carried out in the atrium of Catholic churches. • Reservations to international treaties It is necessary to review and to update the interpretative declarations and reservations made at the time by the Mexican state in concluding international treaties relating to religious freedom and ministers of worship. • Religious tourism At the federal level, the Ministry of Tourism (SECTUR) has conducted coordinated actions with state governments and non-governmental agencies to strengthen religious tourism in Mexico. At the local level, on June 14, 2014 the “religious tourism program” was presented by the Federal District Government. The program involves three routes for visitors: 1) The Guadeloupian way (El camino guadalupa‐ no), 2) Bastions of Catholicism (Baluartes del catolicismo), and 3) Ways of faith (Caminos de la fe). This program considers not only Catholic, but also Buddhist, Jewish, Methodist, Mormon and Orthodox temples. • Environmental education for sustainability The Ministry of Environment and Natural Resources (SEMARNAT), in coordination with the Ministry of Public Education (SEP), has developed since 2008 a program to encourage the called “green schools”, which perform actions and environmental management strategies to combat cli‐ mate change. 60 See Speech of Enrique Peña Nieto, Second Special Session of the National Public Security Council, December 17, 2012. 61 For example, since 2007 are developed voluntary disarmament programs in the Federal District under different names: “Entrega voluntaria de armas de fuego” (voluntary handing over of firearms) and “Por tu familia, desarme voluntario” (For your family, voluntary disarmament). Analysis of the Amendments to Articles 24 and 40 203 In 2012, for example, the Tarbut Hebrew College was recognized as “Green school. Environmental leader” and the Israeli College of Mexico as “Green school”, implying that in the field of environmental sustainabili‐ ty, institutions representing a diversity of religions are taken into consider‐ ation for such programs. • Resolution of religious conflicts The General Directorate of Religious Associations must address in a more timely and prudent manner the conflicts on religious intolerance matters that are characterized by the combination of several factors, including political, partisan, economic and agrarian, also caciquism (cacicazgo). These have even instrumentalized religion to cover up political actions or justify violence, so it makes it difficult to identify intolerance as purely religious and to achieve an immediate peaceful solution to the conflicts. Conclusion With the amendments to Articles 24 and 40 of the Mexican Constitution it is clear that a truly lay (laico) state has to facilitate the effective exercise of religious freedom. The state has to generate a public policy that engages a significant change in the way in which it manages the religious diversity, which makes it comprehensible to decision makers that this field is not in the sphere of persuasion or negotiation but in the necessary observance of rules that ensures religious freedom effectively. This management is expressed in developing actions and strategies for the implementation of in force legal instrumentarium, consistent with Mexico's international obligations in this regard; plus informed dialogue between state authorities and religious actors in the meaning of full religious freedom and the responsibility that implies its exercise in the context of a lay (laico) state respectful of religious diversity. E. María Concepción Medina González 204 Bibliography Bleckmann, Albert, Konrad Buschbeck, Volker Haak, Meinhard Hilf, Josef Jurina, Al‐ fred Maler, Werner Morvay, Hartmut Schiedermair, Dimitris Tsatsos, Hannfried Walter, and Axel Werbke, Die Rechtsstellung des Wehrdienstverweigerers aus Ge‐ wissensgründen in den Mitgliedsstaaten des Europarats, Ein vergleichender Über‐ blick, Heidelberg: Max-Planck-Institut für ausländisches Recht und Völkerrecht, 1967. Constitution of the United Mexican States. Federal Constitutional Court of Germany, BverfGE 24, 236 (246). Federal Constitutional Court of Germany, BVerfGE 32, 98 (106). Federal Constitutional Court of Germany, BVerfGE 33, 23 (28). Federal Constitutional Court of Germany, BVerfGE 93, 1 (16). La Jornada, “Deplora el Senado que el carácter laico del Estado haya sido vulnerado,” February 18, 2010. La Jornada, “Intelectuales piden a senadores ratificar el carácter laico del Estado mex‐ icano,” February 19, 2010. Lima Torrado, Jesús, Desobediencia civil y objeción de conciencia, Mexico: National Commission for Human Rights, 2000. Listl, Josef, and Dietrich Pirson (eds.), Handbuch des Staatskirchenrechts der Bundes‐ republik Deutschland, Vol. 1, 2nd ed., Berlin: Duncker & Humblot, 1994. Nowak, Manfred, UNO-Pakt über bürgerliche und politische Rechte und Fakultativ‐ protokoll. CCPR-Kommentar, Strassburg: Engel, 1989. Rumbo de México, “Censuran a Rivera por su postura sobre el Estado laico,” February 19, 2010. Wahrig, Gerhard, Deutsches Wörterbuch, Gütersloh: Bertelsmann Lexikon, 1997. Analysis of the Amendments to Articles 24 and 40 205 The State and Religious Communities: Their Relationship and its Development in Germany Dirk Ehlers Introduction Today’s national law controls the behavior of people and their co-exis‐ tence in a community. At the same time, religions and religious communi‐ ties address the person holistically and claim – in reference to transcen‐ dental deduction – to harmonize human action with religious rules. Sig‐ nificant conflicts can arise if the requirements diverge. The constitutional order of a state determines to a high degree how national law deals with religion and religious communities. In order to evaluate the constitutional order it is of significant importance whether religious freedom – and reli‐ gious equality as its sister – is ensured. From an historical point of view the guarantee of religious freedom is one of the oldest guarantees of fun‐ damental rights. There is no general freedom without freedom of religion. This is why freedom of religion today is considered as a human right. It is not only guaranteed by national constitutions, but also by International Human Rights Covenants such as the Universal Declaration of Human Rights (Article 18), the International Covenant on Civil and Political Rights (Article 18) and the European Convention for the Protection of Hu‐ man Rights and Fundamental Freedoms (Article 9). To assume that this freedom is fully secured would not only be hasty, but wrong. Firstly, there are still states which do not recognize freedom of religion. Secondly, one has to differentiate between the law in the books and the law in action. According to matching and reliable reports, viola‐ tions of religious freedom around the world increase.1 Some reports even claim that 75% of the world’s population lives in countries which do not A. 1 See (UN-Special Correspondent) Bielefeldt, Streit um Religionsfreiheit. Aktuelle Facetten der internationalen Debatte, 2012; Hainbach-Steinz, Religionsfreiheit. Ein Menschenrecht unter Druck, 2012. 207 fully guarantee free exercise of religion.2 For instance, it is not uncommon that there are persecutions of Christians3, violent (to some extent also mili‐ tant international or non-international) clashes between various Islamic persuasions and hostile activities between Buddhists and Muslims. These interferences are initiated only to a certain extent by the state. Often they are a result of social forces. However, this does not relieve the State from its duty to protect: the right of freedom of religion is not only a right of defense against the public authority, but also asks for state protection against unlawful interference by individuals.4 Then again, the state’s duty to guarantee religious freedom is not ful‐ filled by admitting uncontrolled freedom of religion or by allying with a particular religion. Freedom can also be suppressed by religion. A theo‐ cratic reign is as dangerous as any state-run tyranny. Based on a dictum of a 20th century German revolutionary one can say that freedom is always also the freedom to dissent.5 All this indicates that conflicting interests must be fairly balanced since there is no freedom without any commit‐ ment: in this case this means the recognition of certain rules in the com‐ munity. States react differently to the challenges they currently face. It is possi‐ ble to differentiate (not only in theory, but also in reality) between three ways of how states deal with religion: an alliance of the state with a reli‐ gious community, the strict separation of the two units or a mediating model on the basis of a separation between the state and religious commu‐ nities, which does not exclude a cooperation. 2 See the report “Rising Tide of Restrictions on Religion,” by Pew Research Centers on Religions & Public Life, available at rising-tide-of-restrictions-on-religion-findings/, 2012 (Index, pp. 52 ff.). 3 For more information see EKD, “Bedrohung der Religionsfreiheit, Erfahrungen von Christen in verschiedenen Ländern,” 2003, available at Texte/44616.html. In some Islamic states the conversion to Christianity will be pun‐ ished with the death penalty. 4 For general information about the duty to protect against infringements of basic rights (through private third parties) in the German law see Calliess, “Schutzpflicht‐ en,” 2006, § 44; concerning the duties to protect laid down in the European Con‐ vention on Human Rights see Grabenwarter and Pabel, Europäische Menschen‐ rechtskonvention, 2012, § 19 par. 3 ff.; for freedom of religion in particular see Un‐ ruh, Religionsverfassungsrecht, 2011, § 4, mn. 104 f.; von Ungern-Sternberg, “Art. 9,” 2012, par. 52. 5 Luxemburg, Die Russische Revolution. Eine kritische Würdigung, 1920, p. 109. Dirk Ehlers 208 An alliance may be created by the incorporation (control) of a religious community into the state along with the simultaneous suppression or con‐ trol of any other religious communities (as it tended to be in the past in Turkey6, where after the proclamation of Islam as the state religion, the caliphate was abolished and religion had been nationalized). Contrarily, the religious community can subdue the state (as it tends to be in the Is‐ lamic Republic of Iran with the religious leader’s right of final decision7) or the connection may more or less only have historical significance (as it is the case in the United Kingdom, in which the respective monarch is the head of the Church of England without having spiritual functions8). A sep‐ aration of state and religious communities aims to keep secular and sacred matters apart. Strict is the separation if its main aim is to banish religious communities from the public to the private sector. As a European example the French “Laïcité” can be named. It was mainly introduced by the sepa‐ ration law of 19059 and focused on this particular issue. The mediating model which merges fundamental separation and simultaneous coopera‐ tion has received its specific expression in Germany.10 In the following chapter, the development of the mediating model in Germany shall be briefly described because its development is characteristic for the Euro‐ pean region in many ways and it may and should inspire to legal compari‐ son. 6 For “state secularism” in Turkey see the preamble and Art. 2, 136 and 174 of the Turkish Constitution of 1982. For more information about this – and about Diy‐ naet İşleri Başknliği – see VerfGE 1970/53, 1989/1; Uslubaş, Das Präsidium für Diyanet-Angelegenheiten der Republik Türkei, 2014, pp. 188 ff. 7 Art. 107 ff. of the Iranian Constitution. 8 See Mückl, Europäisierung des Staatskirchenrechts, 2005, pp. 78 ff., 99 ff. 9 See Art. 2 I of the Constitution of the Fifth Republic of 4.10.1958 and especially the law of seperation of 9.12.1905. For more information see von Campenhausen, Staat und Kirche in Frankreich, 1962; Mückl, Europäisierung des Staatskirchen‐ rechts, pp. 143 ff. 10 See von Campenhausen and de Wall, Staatskirchenrecht, 2006, §§ 24 ff.; He‐ ckel, “Zur Zukunftsfähigkeit des deutschen ‘Staatskirchenrechts’ oder ‘Religionsverfassungsrechts’?,” 2009, pp. 309 ff.; Ehlers, “Staatskirchenrecht,” 2013, § 130, mn. 3 ff. The State and Religious Communities 209 Early Period and Middle Ages: State Church under a more Religious or more Secular Impact In ancient Europe political commonwealth and religion were usually in‐ separably linked together.11 In the Roman Empire many subjected peoples had been permitted to retain their religions as long as they surrendered un‐ conditionally to the roman emperor cult. This relation changed to a signifi‐ cant extent with the appearance of Christianity. There are different state‐ ments in the Bible about this relationship. On the one hand, the Bible says that one has to obey God more than humans (Acts. 5, 29), on the other hand everybody shall be subject to a human authority (Romans 13,1). The different ways of defining this relationship were not relevant as long as Christians were persecuted. However, they became relevant when Chris‐ tianity was elevated as state religion in 380. In the Eastern Roman Empire a Caesaropapism developed.12 The Emperor was the head of the Church, which was dependent on him, insofar political and religious power re‐ mained combined. Conversely, in the Western Roman Empire the papacy (the Roman Catholic Church) claimed the sovereignty over religious and even secular law. Eventually, conflicts with secular rulers occurred and be‐ came more intense in the Middle Ages. According to the so-called twoswords theory13, God ruled the world by a religious and a secular sword. Both had been given to the Pope with the order to hand the secular one to the Emperor, the Kings or Princes who had to comply with his (the Pope’s) instructions.14 One explanation for this theory was the gift that the Roman Emperor Constantine had given to the Church.15 However, this Donation of Constantine actually never happened, as it has been proven hundreds of years later.16 It will not surprise that secular powers, including communes, often did not accept their subsidiarity even in profane matters. Sometimes, they even claimed the right to appoint a bishop for their B. 11 See Classen, Religionsrecht, 2015, par. 5 f. 12 De Wall and Muckel, Kirchenrecht, 2014, § 2, par. 10. 13 Based on Lukas (22,38) by Gelesius I, Epistula 12 (494), and further developed by Bonifatius VIII, Unam Sanctam (1302); similarly Augustinus, who differentiates civites terrena and civites dei in De Civitate Dei, 413-426, German translation by Thimme, 1978, pp. 216 ff. 14 See Bonifatius VIII, Unam Sanctam of 1302, see also Link, Kirchliche Rechtsge‐ schichte, 2010, § 7, par 1. 15 See Fuhrmann, Das Constitutum Constantini, 1968, pp. 187 ff. 16 See Link, Kirchliche Rechtsgeschichte, § 5, par. 10. Dirk Ehlers 210 own.17 The whole Middle Ages were affected by conflicts between reli‐ gious and secular powers. An exception existed where the creation of prince-bishoprics succeeded, in which religion and politics merged. Re‐ garding the relations with other religions, there were multiple military conflicts, particularly the crusades in Muslim ruled areas. But the Roman Catholic Church also had inner conflicts, for example the election of rival‐ ing popes, leading to its temporary separation and intensive prosecution of heretics by the roman inquisition, which was established as the supreme clerical tribunal in 1542. From the Reformation to the End of the First World War: Approaches to Ensure Religious Freedom and Religious Equality The legal situation in Germany changed radically with the Reformation because, besides the Roman Catholic Church, the Protestant Church estab‐ lished itself as a second confession. If one includes not only the followers of Luther, but also of the reformers Zwingli and Calvin one could even speak of three confessions. The new situation led to cruel religious wars which were not even ended by the Augsburg Religious Peace of 1555. However, this agreement framed the legal situation from that time on. The peace accord included a dual solution: Within a given territory, the local sovereign determined the religion. The principle was cuius region, eius re‐ ligio. This means that the local sovereign had the power to dictate the reli‐ gion of all the people within the given territory. People with a different be‐ lief were allowed to emigrate if they left their belongings behind. On the level of the Holy Roman Empire (which was an association of different countries) the coexistence and equality of different religions (Roman Catholic and Protestant Church) was granted for the first time in the occi‐ dent’s history. About 100 years later, with the end of the Thirty Years’ War (1648), this solution was appeased: From then on, confessional issues were governed by the territory’s status of confession of the year 1624.18 If the territorial sovereign changed his belief, the subjects did not have to follow him. Subjects with a different confession were tolerated and not hindered from divine services or private religious practices. This was a C. 17 For the Investiture Controvery cf. de Wall and Muckel, Kirchenrecht, § 3 par. 3. 18 Art. V § 3 ff., Instrumentum Pacis Osnabrugense. The State and Religious Communities 211 first step towards individual protection of basic rights, long before the Bill of Rights of Virginia and the French Revolution. Furthermore, the powers of the territorial sovereign in religious matters were limited in the Protes‐ tant territories compared to the Roman Catholic territories. This can be traced back to the beginning of the Age of Enlightenment. The words of the Prussian King Frederick II (Frederick the Great) that everyone should find his personal luck according to his own inclinations became a guiding principle. Persons from religious minorities, such as Jews or Huguenots, also benefited from these changes. Many Roman Catholic princedoms be‐ came secularized in the Napoleon area, especially by the Principal Decree of the Imperial Deputation (Reichsdeputationshauptschluss) of the 25th of February 1803. The attempt of 1849 to create a uniform constitution (Paulskirchenverfassung) with freedom of faith and conscience for the German Federation (Deutscher Bund), which was influenced by the Amer‐ ican Constitution and the French Declaration of Civil Rights, failed due to conservative forces aiming at preserving and restoring the monarchies on German soil. Nevertheless, several state constitutions contained important provisions regarding individual freedoms (particularly in the Constitution of Prussia from 185019). Until 1914 civil rights and liberties such as free‐ dom of religion had been increasingly enlarged. This is why the period from the Reformation to the end of the First World War can be character‐ ized as the long way to a state under the rule of law. Current Law The current German law on state-church-relations is primarily governed by constitutional law. Constitutional Basis A distinction has to be made between the Weimar Constitution of the Ger‐ man Empire of 1919 and the Basic Law of the Federal Republic of Ger‐ many of 1949. D. I. 19 See in particular Art. 12 (freedom of religious belief, to unite as a religious com‐ munity and freedom of private and public practice of religion) and Art. 15 (clerical right to self-determination). Dirk Ehlers 212 Weimar Constitution The breakthrough and final recognition of basic rights – including the freedom of religion and religious equality – took place when the monarchy was replaced by the so-called Weimar Republic. The Weimar Constitution (Weimarer Reichsverfassung, WRV) of 1919 guaranteed “full freedom of faith and conscience” to all inhabitants of the empire (Art. 135 WRV) and introduced the separation of state and church (Art. 137 I WRV) along with the prohibition of a state church and the provision of a right to self-deter‐ mination of the religious community (Art. 137 III WRV). It protected both the positive and negative freedom of religion (negative freedom of reli‐ gion meaning the right not to have or express a religious or philosophical creed and the right to conceal the creed). Traditional religious communi‐ ties are recognized as public bodies with the right to collect church taxes (Art. 127 V, VI WRV). This also applied to other religious communities, otherwise regarded as organized under private law, if they existed on a permanent basis. In addition to public inter-denominational schools, pub‐ lic denominational schools (denominationally directed state schools) were permitted if the parents of a child (or other legal guardians) insisted (Art. 149 II WRV). Moreover, public schools had to offer denominational‐ ly bound religious education. However, participation was voluntary (Art. 149 I WRV). Previous (meaning Christian) theological faculties of the universities remained. Sundays (Art. 139 WRV) as well as the property of religious communities got special state protection and the communities were supposed to be compensated for former secularization during Refor‐ mation or in the Napoleonic Era. Finally, religious communities were granted the right to exercise pastoral care in state institutions (e.g. hospi‐ tals and prisons). Basic Law Generally speaking, the German Basic Law (Grundgesetz) incorporates most of the Weimar Constitution’s provisions on the relationship between the state and religious communities. However, it puts a stronger emphasis on the Basic Rights which form the core of the constitution. Thus, the right of religious freedom (Art. 4 I, II Basic Law) has a larger impact than during the Weimar Republic. Undoubtedly, basic rights are enforceable subjective rights. After the exhaustion of all domestic legal remedies one 1. 2. The State and Religious Communities 213 can file a constitutional complaint to the Federal Constitutional Court (Art. 94 I Nr. 4a Basic Law). Both freedom of religion and equality of reli‐ gion form the basis of the law on state-church-relations and play a signifi‐ cant role in the arrangement of this law and the still persistent institutional regulations of the Weimar Constitution by giving directions and striking the balance. However, religious freedom is not guaranteed without limits. The individual religious freedom needs to be balanced whenever it inter‐ feres with colliding constitutional law, especially Basic Rights of others (as for example freedom of expression)20. Additionally, religious commu‐ nities are bound by the law like any other (natural or juristic) person (Art. 137 III 1 WRV in conjunction with Art. 140 Basic Law).21 Any kind of interference with freedom of religion needs to be proportional. Propor‐ tional means suitable, necessary and adequate to achieve a legitimate pur‐ pose derived from the Constitution. The standard of proportionality de‐ veloped in the German law is applied in a very strict way in comparison to other constitutions. However, in extreme situations even religious commu‐ nities may be banned22 – for example if they violate human dignity or cause acts of violence. Essential Characteristics of the German Religious Law If one tries to point out the essential characteristics of the German law on state-church-relations, one can firstly point out that it is state law and not law enacted by both the state and religious communities. This also applies to state-church agreements which are widespread in Germany, because they are concluded according to state law and have to be measured against the respective national legal requirements. State-church agreements are Concordats (traditional name with regard to the RomanCatholic Church) and other contractual agreements between the State and religious commu‐ nities, which need the approval of the legislature or the parliament.23 With 3. 20 See BVerfGE 28, 243 (260 ff.); 108, 282 (297). Regarding the dispute of the Mo‐ hammed caricatures see (from an international perspective) Nathwani, “Freedom of expression and religious feelings,” 2009, pp. 507 ff.; Langer, “The Rise (and Fall?) of Defamation of Religions,” 2010, pp. 257 ff. 21 BVerfGE 67, 157 (173); 70, 278 (286); 104, 337 (347 ff.). 22 BVerfG (K), NJW 2004, 47 (48); BVerwG, DBVl 2003, 873 f.; EGMR, EuGRZ 2007, 543. 23 See Ehlers, “Staatskirchenverträge,” 2011, § 130, pp. 75 ff. Dirk Ehlers 214 respect to the Catholic Church the treaties are international treaties, be‐ cause the Holy See is regarded as sovereign entity under international law, with respect to everybody else they are of constitutional nature. The inter‐ pretation, specification and application of state law are done by state au‐ thorities; in case of a dispute it is handled by the state courts. This is one reason why it cannot be left to the understanding of each individual sub‐ ject of fundamental rights to decide what the constitution’s understanding of the terms religion, freedom of religion and religious communities is.24 What the state cannot define, it cannot protect either. The statement of US- Chief Justice Hughes “The constitution is, what the judges say it is”25 does not only apply to the United States. The jurisdiction of the federal courts in Germany defines religion or belief as a person’s certainty about certain statements concerning the world as a whole, as well as the cause, nature and purpose of human life. This certainty is connected to the character of the individual. According to this understanding, religion is based on a transcendent reality which exceeds and encompasses the human being whereas belief is limited to secular references.26 When defining the area of protection of freedom of religion, the self-conception of the believers and the religious communities play a significant role and has to be respected, as long as it is plausible. For example, an economic activity is primarily neutral with respect to religion. However, if the activity serves a religious aim a different evaluation, namely a protection of the activity by the free‐ dom of religion, might be necessary. All this indicates that freedom of reli‐ gion is a very broad concept. Of course, in the end it is the decision of the subject which is protected by this freedom if, how much and how it wants to make use of this generously offered constitutional freedom. Furthermore, state-related and religious issues are separated concerning organization and content. On the one hand, there shall be no state church (Art. 137 WRV in conjunction with Art. 140 Basic Law), on the other hand, the state is obliged to ensure its denominational neutrality.27 This 24 BVerfGE 83, 341 (353 ff.); cf. Morlok, Selbstverständnis als Rechtskriterium, 1993, pp. 431 ff. 25 See “Speech before the Chamber of Commerce, Elmira, New York (3 May 1907),” published in Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906-1908, 1908, p. 139. 26 BVerwGE 90, 112 (115). 27 BVerfGE 19, 206 (216); 24, 236 (246); 33, 23 (28); 93, 1 (16); 102, 370 (383); 108, 282 (299 ff.); 123, 148 (178 f.). The State and Religious Communities 215 means that the state is not allowed to identify itself with religious or irreli‐ gious beliefs or institutions. However, this does not exclude certain coop‐ eration between the state and the religious communities. The German law may claim for itself that it shaped this cooperation in a special way. Ac‐ cording to the German understand, the separation of state and religious communities is considered favorable, not adversarial.28 According to this notion, the state shall support and realize the freedoms granted by the Ba‐ sic Law. As indicated earlier, the basic rights do not only include rights of defense against the state, but also obligations of protection and guarantees in an objective sense both authorizing and binding the state to provide the conditions necessary for the realization of the freedom rights. Today, free‐ dom does not only mean freedom of the state, but also freedom in the state and by the state.29 This notion refers to all freedom rights and thus also to religious freedom. How should religion otherwise develop itself facing the great amount of state-dominated parts of public life, if it was not allowed to be brought up in for example public kindergarten, schools, universities, hospitals, military and penal institutions, retirement homes or within the scope of funeral on municipal cemeteries? The Basic Law does not de‐ mand that religious practice be confined to private life. The state may even fund religious communities. In the past, only Christian communities bene‐ fited from this. Nowadays, all religious communities can refer to the free‐ dom of religion and the principal of equal treatment. As the state is pro‐ hibited to judge religious communities, the state may not rank them in a certain way or make the promotion dependent on manifestations of loyal‐ ty30 or considerations of usefulness.31 Any kind of funding needs to be done without any special purpose. By its openness towards plurality of ideological and religious beliefs the liberal state of the Basic Law pre‐ serves religious and ideological neutrality.32 28 See Ehlers, “Art. 140 GG,” 2014, par. 9 with further references. 29 See Heckel, “Zur Zukunftsfähigkeit des deutschen ‘Staatskirchenrechts’ oder ‘Re‐ ligionsverfassungsrechts’?,” 2009, pp. 309 ff. 30 BVerfGE 102, 370 (392 ff.). 31 Ehlers, “Staatskirchenrecht,” § 130 par. 7. 32 BVerfGE 41, 29 (50). Dirk Ehlers 216 European Convention for the Protection of Human Rights and Fundamental Freedoms The authority of the state is not only bound by the national constitutional law, but also by the European Convention for the Protection of Human Rights and Fundamental Freedoms and thus on common European re‐ quirements, which include the guarantee of the freedom of conscience, thought and religion (Art. 9 ECHR). The European Court of Human Rights (the “Court”) supervises the compliance with the European Con‐ vention for the Protection of Human Rights and Fundamental Freedoms. The Court's jurisprudence may deviate from the jurisprudence of the Fed‐ eral Constitutional Court. The Federal Republic of Germany is obliged by international law to abide by the judgments of the European Court of Hu‐ man Rights. From a domestic perspective the European Convention on Human Rights ranks only as an ordinary law below the constitution. How‐ ever, the Federal Constitutional Court interprets the Constitution in a way to accommodate international law33, as long as the standard of protection of fundamental rights is not reduced or limited. Therefore, the decisions of the European Court of Human Rights are used as an auxiliary of interpre‐ tation and determination of the content and range of the German basic rights and fundamental principles of the Basic law. In fact, more and more appeals are addressed to the European Court of Human Rights in order to clarify essential questions related to religious law. Its administration of justice in this regard is however characterized by reluctance.34 Due to the different cultural and moral concepts regarding the role of religion in the European society the Court generally concedes every member state a wide margin of appreciation in religious issues in or‐ der to balance the conflicting freedoms (as the positive and negative free‐ dom of religion or freedom of religion and freedom of expression). In these cases, the Court does not apply a strict test of proportionality (be‐ II. 33 BVerfGE 74, 358 (370); 111, 307 (317 ff.). 34 For a typical example, see the decision of the ECHR concerning the presence of a crucifix in Italian school classes (footnote 43). For the question whether the Burka ban in public places is a breach of the Convention, see ECHR (Grand Chamber), Judgment of 1.7.2014 (Application no. 43835/11). The State and Religious Communities 217 cause otherwise there would be no margin of appreciation35). There might be exceptions in specific cases: In Germany, employees of the Church are subject to a particular clerical obligation of loyalty. This, for example, led to the case that an organist and choir director employed by the Catholic Church was dismissed because he had separated from his wife and moved to his new partner who was expecting a child from him. This is against catholic moral concepts. The German courts including the Federal Consti‐ tutional Court all considered the dismissal legal36, whereas the European Court of Human Rights37 claimed a violation of the right to privacy (Art. 8 ECHR). This shows that the German religious law sometimes needs to ac‐ cept selective corrections by European law. However, huge corrections should not be expected. Current Problems The challenges religious law is currently facing and will face in the near future especially refer to the constant trend of secularization and pluraliza‐ tion in Germany. Approximately 33% of the German population does not belong to any religious community. Only 48% are members of one of the Christian Churches.38 Moreover, according to surveys, approximately four million Muslims are living in Germany with a rising tendency. Besides these religions, there are numerous religious communities with a smaller number of members: for example Jewish, Buddhist and Hindu communi‐ ties or so called “Youth religions” (questionable term referring mostly to religious-ideological communities propagating syncretic beliefs and at‐ tracting primarily young people39). The problems resulting from this di‐ versification shall be illustrated by the following two examples. III. 35 Dissenting Follesdal, “Religion and the State – the European Court of Human Rights and the ‘Lautsi’ Case” about Kruxifixes in Italien Class Rooms (in this Vol‐ ume). 36 Judgement of the Federal Labour Court, NJW 2000, 1286; BVerfG (K), file no. 2 BvR 1160/00. 37 ECHR, EuGRZ 2010, 560. 38 Figures of the Federal Agency for Public Education (Bundeszentrale für politische Bildung) for the year 2010. 39 For example transcendental meditation societies like Rayneesh Chandra Mohan (Osho-Movement). Dirk Ehlers 218 Secularization Secularization in this context shall not only mean alienation from religion, but also atheism (the belief that there is no God or that there are not any gods). The atheistic beliefs and ways of behavior are also protected by the basic right of religious freedom. Within public institutions, such as schools, one might ask the question how positive and negative freedom of religion may be brought into a balance. In the past, crucifixes were affixed to class room walls in public schools in many areas in Germany. This cor‐ responded with the will of the Christian majority. However, during the eighties and nineties of the last century parents took legal action against this because they conceived the crucifix as a Christian symbol and did not want their children to be educated “under the crucifix” on the basis of their atheistic conviction. Although neither a commandment nor a ban was im‐ posed on those pupils, the Federal Constitutional Court decided in a highly controversial judgment that the daily confrontation with a Christian sym‐ bol violates the negative religious freedom of the dissenting pupils and rather that of their parents and that this violation cannot be justified in as the crucifix has a missionary significance.40 Nevertheless, the German state of Bavaria left all crucifixes in classrooms referring to its history and culture while conceding the right to object against a crucifix in a class‐ room to all pupils and parents on the basis of severe and respectable rea‐ sons of belief or ideology. The school director needs to find a compromise whenever there is a dispute between those welcoming the crucifix and those objecting it.41 The Federal Administrative Court thus decided that the school needs to accept the objections of parents if they are atheist or regard it as unacceptable that their child is exposed to religious influences in its upbringing because of irreligious beliefs. Mere ideological indiffer‐ ence does not constitute a basis for objection.42 With regard to this matter there is no matching decision of the European Court of Human Rights concerning Germany. However, in a case concerning Italy, the European Court of Human Rights decided that it falls into the appreciation of the contracting state to determine the legality of displaying a Christian cross in a class room of a public school.43 1. 40 BVerfGE 93, 1 ff. 41 Art. 7 III BayEUG, in the version dated 23.12.1995. 42 BVerwG, NJW 1999, 3063 ff. 43 ECHR (Grand Chamber), NVwZ 2011, 737. The State and Religious Communities 219 Pluralism Religious Pluralism means a rising diversification of religions and reli‐ gious communities, thus evoking questions of equal treatment. In Ger‐ many, for example, there is a discussion on the question whether a female Muslim teacher employed as a civil servant and working in a public school may wear a headscarf for religious reasons. Pupils are allowed to do so. As public servants represent the state, a different situation might ap‐ ply to them. At the same time, one needs to take into account the religious freedom of public servants which must not be completely suppressed by their status as public servants. The Federal Constitutional Court had ini‐ tially hesitated to decide how to solve this conflict. It had restricted itself to demand a legal provision.44 The German states thus enacted different and not always clear laws. Some of them can be interpreted as a general ban on religiously motivated clothing, whereas the depiction of Christian- Western cultural symbols is allowed. But, this is not in accordance with the denominational neutrality of the state and the principal of equality: If religious avowals in the outer appearance of educators are strictly banned to protect neutrality and peace of the school, this principle has to apply to all religions indiscriminately.45 It is not acceptable to argue that religious freedom is not guaranteed in all Islamic-orientated states and thus to conclude that the religious free‐ dom of Muslims in Germany does not need to be taken seriously. Reli‐ gious freedom and the principle of equality are human rights which apply to all people living in Germany, independent from the situation in other countries. Conclusion Before the background of this volume's title “Political and religious com‐ munities – partners, competitors and aliens” it shall be noted that the times in which the state and the religious communities competed for the power within a community belong to the past. The separation of state and reli‐ gion ensures both the liberality of the political community and the free de‐ velopment of religion. Therefore, one can hardly speak of “competitors” 2. E. 44 BVerfGE 108, 282 ff. 45 BVerfG, NJW 2015, 1359 ff. Dirk Ehlers 220 or “enemies”. In some ways these communities remain aliens or become aliens because they both primarily fulfill different tasks and have different opinions. Abolition for example is under certain conditions legally permit‐ ted, although fundamentally repudiated by several religious communities. However, also religious communities claim to influence the actions of their members living in the real world. Especially in state-run institutions such as schools, universities, cemeteries and other institutions, the state and religious communities normally face each other in a cooperative way. However, the fewer people make use of their positive religious freedom, the more often citizens will claim their negative religious freedom in pub‐ lic institutions and the more often the state will be confronted with diffi‐ cult questions of equal treatment and it will be more probable that the state will limit cooperation with and promotion of the churches as these are not legally obligatory. In conclusion, the degree of cooperation between the state and the reli‐ gious communities is on a stable level even though it is likely to decrease in the future. Bibliography Augustinus Aurelius, De Civitate Dei, translated by Thimme, Münster: dtv, 1978. Bielefeldt, Heiner, Streit um Religionsfreiheit. Aktuelle Facetten der internationalen Debatte, Erlangen: Friedrich-Alexander-Universität Erlangen-Nürnberg, 2012. Callies, Christian, “Schutzpflichten,” in Handbuch der Grundrechte, Vol. 2, ed. Detlef Merten and Hans-Jürgen Papier, Heidelberg: C.F. Müller, 2006, § 44. Campenhausen, Axel Freiherr von, Staat und Kirche in Frankreich, Göttingen: Otto Schwarz, 1962. Campenhausen, Axel Freiherr von, and Heinrich de Wall, Staatskirchenrecht, 4th ed., Munich: C.H. Beck, 2006. Classen, Claus Dieter, Religionsrecht, 2n ed., Tübingen: Mohr-Siebeck, 2015. De Wall, Heinrich, and Stefan Muckel, Kirchenrecht, 4th ed., Munich: C.H. Beck, 2014. Ehlers, Dirk, “Staatskirchenrecht,” in Leitgedanken des Rechts, Paul Kirchhof zum 70. Geburtstag, ed. Hanno Kube, Rudolf Mellinghoff, Gerd Morgenthaler, Ulrich Palm, Christian Seiler, and Thomas Puhl, Heidelberg et al.: C.F. Müller, 2013, pp. 1417-1426. Ehlers, Dirk, “Staatskirchenverträge,” in Die Privilegien der Kirchen und das Grund‐ gesetz, 4. Berliner Gespräche über das Verhältnis von Staat, Religion und Weltan‐ schauung, ed. Rosemarie Will, Norderstedt: Books on Demand, 2011, § 130. The State and Religious Communities 221 Ehlers, Dirk, “Art. 140 GG,” in Grundgesetz, ed. Michael Sachs, 7th ed., Munich: C.H. Beck, 2014. Evangelische Kirche Deutschlands, “Bedrohung der Religionsfreiheit, Erfahrungen von Christen in verschiedenen Ländern,” 2003, available at D-Texte/44616.html. Follesdal, Andreas, “Religion and the State – the European Court of Human Rights and the ‘Lautsi’ Case” (in this Volume). Fuhrmann, Horst, Das Constitutum Constantini, Monumenta Germaniae Historica – Fontes Iuris Germanici antiqui 18, Hannover: Hahn, 1968. Grabenwarter, Christoph, and Katharina Pabel, Europäische Menschenrechtskonventi‐ on, 5th ed., Munich: Beck, 2012. Hainbach-Steins, Marianne, Religionsfreiheit. Ein Menschenrecht unter Druck, Pader‐ born: Ferdinand Schönigh, 2012. Heckel, Martin, “Zur Zukunftsfähigkeit des deutschen ‘Staatskirchenrechts’ oder ‘Re‐ ligionsverfassungsrechts’?,” Archiv des öffentlichen Rechts 134 (2009): 309-390. Hughes, Charles Evans, Addresses and Papers of Charles Evans Hughes: Governor of New York, ed. Jacob Gould Schurman, New York, 1908. Karpenstein, Ulrich, and Franz C. Mayer, EMRK. Konvention zum Schutz der Men‐ schenrechte und Grundfreiheiten. Kommentar, Munich: C.H. Beck, 2012. Langer, Lorenz, “The Rise (and Fall?) of Defamation of Religions,” Yale Journal of International Law 35 (2010): 257-263. Link, Christoph, Kirchliche Rechtsgeschichte, 2nd ed., Munich: C.H. Beck, 2010. Luxemburg, Rosa, Die Russische Revolution. Eine kritische Würdigung, Berlin: Verlag Gesellschaft und Erziehung, 1922. Morlok, Martin, Selbstverständnis als Rechtskriterium, Tübingen: Mohr Siebeck, 1993. Mückl, Stefan, Europäisierung des Staatskirchenrechts, Baden Baden: Nomos 2005. Nathwani, Niray, “Freedom of Expression and Religious Feelings,” in Yearbook of Muslims in Europe, Vol. 1, ed. Jørgen S. Nielsen, Samim Akgönül, Ahmet Alibašić, Brigitte Maréchal, and Christian Moe, Leiden: Brill, 2009, pp. 507-532. Pew Research Centers on Religions & Public Life, “Rising Tide of Restrictions on Re‐ ligion,” 2012, available at ictions-on-religion-findings/. Schilling, Heinz, and Heribert Smolinsky, Der Augsburger Religionsfrieden 1555, Gü‐ tersloh: Gütersloher Verlagshaus, 2007. Ungern-Sternberg, Antje von, “Art. 9,” in EMRK. Konvention zum Schutz der Men‐ schenrechte und Grundfreiheiten. Kommentar, ed. Ulrich Karpenstein and Franz C. Mayer, Munich: C.H. Beck, 2012. Unruh, Peter, Religionsverfassungsrecht, 2nd ed., Baden-Baden: Nomos, 2011. Uslubaş, Ramazon, Das Präsidium für Diyanet-Angelegenheiten der Republik Türkei, Frankfurt a.M.: Peter Lang, 2014. Dirk Ehlers 222 Should Criminal Law Protect Against Religious Defamation? Some Reflections on the Applicability of Sec. 166 of the German Criminal Code and the Current Situation in Germany Robert Esser* Protection of Religious Belief by Means of Criminal Law? To punish a specific behaviour with a criminal sentence is considered the ultima ratio of the legislator’s reaction to certain grievances in society. In German law, the legal basis for the criminalization of religious defamation would be Art. 4 of the Basic Law (Grundgesetz – GG), the Constitution of the Federal Republic of Germany: [Freedom of faith and conscience] (1) Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable. (2) The undisturbed practice of religion shall be guaranteed. (3) No person shall be compelled against his conscience to render military service involving the use of arms. Details shall be regulated by a federal law. What may seem unusual at first becomes clearer when taking a look at the nature of fundamental rights in the German legal system. Nearly all funda‐ mental rights are above all defensive rights which protect the individual from infringement by the state. However, to be capable of actively making use of their fundamental rights, citizens have to be provided with effective legal protection by the state. In the present context that means: while the believer certainly enjoys his freedom to practice his religious beliefs and has to be protected to be able to do so, the non-believer and even the “blasphemer”, too, may claim to have their rights protected by the Consti‐ tution. A. * The chapter was completed in October 2015. 223 The Basic Law of 1949 is guided and inspired by a liberal spirit. The Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) ex‐ pressed in one of its leading verdicts that neither the protection of a “gen‐ eral feeling of peace” nor the protection from “poisoning the spiritual cli‐ mate” could justify an infringement of fundamental rights.1 Other courts in Germany emphasize the liberal spirit of the freedom to profess a religious belief, too. The Administrative Tribunal (Verwaltungsgericht – VG) in Hamburg once proclaimed: “Art. 4 § 1 GG protects believers against incursion by the state in their religious beliefs and activities and obliges the state to ensure an environ‐ ment in which one’s personality can unfold in the field of religious beliefs; it especially obliges the state to protect believers from attacks or other ways of infringement by believers of other religious groups. Art. 4 § 1 GG does not, however, give a right to state support in order to express one’s religious beliefs.”2 Arguments in Favour of Criminalization of Religious Defamation Nonetheless, there are of course arguments speaking in favour of criminal‐ izing religious defamation: 1. The protection of religious freedom may only be effective by means of specific statutory criminal norms. Every other form of legal protection might not be as effective in preventing religious defamation. 2. German criminal law already knows the criminal offences of “Incite‐ ment to hatred” (Volksverhetzung), Sec. 130 of the German Criminal Code (Strafgesetzbuch – StGB), and “Insult” in Sec. 185 ff. StGB. The StGB also contains Sec. 166 entitled “Defamation of religions, reli‐ gious and ideological associations” (Beschimpfung von Bekenntnissen, Religionsgesellschaften und Weltanschauungsvereinigungen). Those criminal offences have, to some extent, proven ineffective for protect‐ ing religious beliefs because of their narrow approach and due to some forms of “overlapping”: the offence of “Incitement to hatred” interferes with Sec. 166 StGB if verbal harassment is not only directed against the religious belief in respect of the institution, but also against an indi‐ I. 1 BVerfGE 124, p. 334. 2 VG Hamburg, 2012, p. 2536 (translated). Robert Esser 224 vidual personally, amounting to an attack against that person’s human dignity. In that case, Sec. 166 StGB steps back behind Sec. 130 StGB. Sec. 166 StGB has an autonomous meaning and scope if verbal abuse is not directed against a person and that person’s human dignity is thus not under attack. The scope of Sec. 185 ff. StGB does not comprise verbal abuse of the contents of religious beliefs if the attack is not di‐ rected at a person or a community at the same time. 3. Other arguments that militate in favour of criminalizing religious defamation are: the danger of compromising public morality if reli‐ gious defamation is not considered a criminal offence; the protection of public peace; the protection of believers; the social value of religion which justifies special protection; and the right to recognition of reli‐ gious beliefs and the predetermination set by the Basic Law in its Art. 4, guaranteeing the freedom of religion, and in its preamble (“Con‐ scious of their responsibility before God and man…”). Arguments Against Criminalization of Religious Defamation Despite the multitude of arguments that would speak in favour of crimi‐ nalizing religious defamation, there are quite a few arguments against it. 1. One of these is plain and simple: criminalization of religious defama‐ tion is superfluous because there simply is no necessity to punish. In Germany, there are around a dozen condemnations for religious defamation (Sec. 166 StGB) per year.3 This low number of cases sim‐ ply does not justify widening the scope of the offence. 2. In addition, there are grave constitutional concerns regarding Sec. 166 § 1 StGB and the principle of legal certainty (nulla poena sine lege certa) enshrined in Art. 103 § 2 of the Basic Law. 3. Criminal law has to restrain itself from governing every aspect of life. It is no moral codex but seeks to protect society from grave breaches II. 3 See for instance BT-Drucks. 16/3579 of 27 November 2006, pp. 2-4; Landtag-NRW Drucks. 16/4408 of 21 November 2013, pp.2-3; Hörnle, “Bekenntnisbeschimpfung (§ 166): Aufheben oder Ausweiten,” 2015, p. 293; Statistisches Bundesamt, Fachse‐ rie 10, Reihe 3, Tab. 2.1, at https:// Rechtspflege/StrafverfolgungVollzug/Strafverfolgung2100300137004.pdf?__blob= publicationFile, accessed 18 September 2015. Should Criminal Law Protect Against Religious Defamation? 225 of fundamental norms – like the right to life, the right to physical in‐ tegrity or the right to property. 4. A return to the blasphemy statute of olden times is unwanted by a ma‐ jority of the German population because society has evolved and be‐ come more liberal. 5. The protection of religious beliefs considered to be “right” or “accept‐ able” versus the non-protection of those considered “wrong” or “unac‐ ceptable” could prove to infringe upon the right to equality guaranteed in Art. 3 of the Basic Law. 6. Most certainly, the criminalization of religious defamation would col‐ lide with the freedom of expression and art guaranteed in Art. 5 of the Basic Law and Art. 10 of the European Convention on Human Rights (ECHR).4 It is possible that criminalizing religious defamation would effectively prohibit an open and critical discussing of topics with reli‐ gious content. 7. Another imminent danger in the discussion concerning the criminaliza‐ tion of religious defamation is that big religious communities have a far greater lobby than smaller ones. They could foster their special in‐ terests much more effectively than smaller ones which in the end might lead to an imbalance among the religious communities themselves. 8. Last but not least it has to be considered that public peace is not an au‐ tonomous legal interest as such that can be protected by criminal law. It is thus inconceivable to criminalize religious defamation for the sake of public peace alone. Structure of Sec. 166 StGB In order to decide if a deficiency of protection of religious beliefs by means of criminal law exists in Germany it is important to visualize the structure of Sec. 166 of the German Criminal Court which reads as fol‐ lows: Sec. 166 B. 4 See for a detailed analysis: Arslan, Meinungs- und Kunstfreiheit gegen die Religi‐ onsfreiheit – Wie viel Schutz für religiöse Empfindlichkeiten, 2015. Robert Esser 226 Defamation of religions, religious and ideological associations (1) Whosoever publicly or through dissemination of written materials (Sec. 11 § 3) defames the content of the religious or ideological conviction of others in a manner that is capable of disturbing the public peace, shall be liable to imprisonment not exceeding three years or a fine. (2) Whosoever publicly or through dissemination of written materials (Sec. 11 § 3) defames a church or other religious or ideological association within Germany, or their institutions or customs in a manner that is capa‐ ble of disturbing the public peace, shall incur the same penalty. The Legal Interest Protected by Sec. 166 StGB Sec. 166 StGB is conceived as a strict liability tort (abstraktes Gefähr‐ dungsdelikt). Its protected legal interest (Rechtsgut) is the public peace on‐ ly. This view is disputed but still prevails in the German legal community.5 It is thus clear that neither God nor religions or ideologies nor religious feelings of believers nor individual convictions are protected.6 The Object of the Offence The object of the offence is split in § 1 and § 2: 1. In § 1 the object is the content of a religious or an ideological convic‐ tion of another individual. An individual is convinced of something if she is “manifestly convinced of higher beliefs beyond mere persua‐ sion”. “Conviction” within the meaning of Sec. 166 StGB does not re‐ quire that an individual relies on a complex set of convictions as a whole; relying upon essential parts of a conviction is sufficient.7 It is thus not necessary that a believer include each and every teaching of a certain belief into her personal conviction to be actually convinced of the said belief. I. II. 5 See Lackner, Kühl, and Heger, StGB, 2014, § 166, marginal no. 1. 6 See OLG Karlsruhe, 1986, p. 364; OLG Nürnberg, 1999, p. 239; Lackner, Kühl, and Heger, StGB, § 166, marginal no. 1; Schönke, Schröder, Lenckner, and Bosch, StGB, 2014, Vor § 166, marginal no. 2; Muckel, “Kein Anspruch eines Privaten auf Untersagung eines blasphemischen Bühnenstücks – ‘Gólgota Picnic’,” 2013, p. 73. 7 See Schönke, Schröder, Lenckner, and Bosch, StGB, § 166, marginal no. 4. Should Criminal Law Protect Against Religious Defamation? 227 2. In § 2, churches and other religious groupings and ideological groups as well as their facilities and customs have to be targeted. Outside the scope of Sec. 166 § 2 StGB are attacks against individuals, objects of religious worship or other religious objects.8 Sec. 166 StGB is an of‐ fence against the institution as such. “Defamation” Within the Meaning of Sec. 166 StGB 1. Defamation in the sense of Sec. 166 reads as an expression of disre‐ spect that is especially damaging through its form or content. Not ev‐ ery disrespectful comment amounts to defamation.9 Even provoking, disapproving or harsh critique is permitted.10 Defamation cannot be de‐ fined as mere touting with the aim of ridiculing or the mere negation of holiness. Neither can defamation be committed by stating true facts.11 Every statement has to be evaluated objectively and impartially.12 2. Defamation can be committed orally, in written form and by means of symbolic acts and pictures. However, questions and problems may arise when the meaning of symbols and pictures is in doubt. 3. Defamation has to be interpreted in a restrictive manner because of the inherent conflict with the freedom of expression enshrined in Art. 5 § 1 of the Basic Law and Art. 10 § 1 sentence 1 of the European Conven‐ tion on Human Rights (ECHR): Article 5 Basic Law/German Constitution [Freedom of expression, arts and sciences] (1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the press and III. 8 See Maurach, Schröder, and Maiwald, Strafrecht Besonderer Teil, 2012, § 61 II, marginal no. 11. 9 See Hörnle, in Münchener Kommentar zum StGB, 2012, § 166, marginal no. 15. 10 See for instance VG Sigmaringen, Judgment of 19 January 2011 – 1 K 1561/10 –, juris § 35; VGH München, 2011, p. 795; ECtHR, NVwZ 2007, p. 316; Fahl, “Zur Strafbarkeit des Auftritts der Punk-Rock-Band ‘Pussy Riot’ nach deutschem Straf‐ recht,” 2013, p. 2. 11 See Hörnle, in Münchener Kommentar zum StGB, § 166, marginal no. 17. 12 See Satzger, Schluckebier, Widmaier, and Hilgendorf, Strafgesetzbuch, 2014, § 166, marginal no. 16. Robert Esser 228 freedom of reporting by means of broadcasts and films shall be guaran‐ teed. There shall be no censorship. (2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to person‐ al honour. (3) Arts and sciences, research and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution. Article 10 ECHR [Freedom of expression] (1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcast‐ ing, television or cinema enterprises. (2) The exercise of these freedoms, since it carries with it duties and respon‐ sibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic soci‐ ety, in the interests of national security, territorial integrity or public safe‐ ty, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for pre‐ venting the disclosure of information received in confidence, or for main‐ taining the authority and impartiality of the judiciary. The task of criminal courts is to balance the freedom of expression and the respect for freedom of religion, of thought and of conscience in ev‐ ery individual case.13 According to the German Federal Constitutional Court (BVerfG) even exaggerated criticism falls in principle within the scope of freedom of expression unless it can be regarded as “mere abu‐ sive” criticism (“Schmähkritik”). Even excessive and polemical criti‐ cism, in itself, does not make a statement defamatory provided that the statement is connected to a dispute in the matter, so that contempt of a person does not come to the foreground.14 The problems criminal courts face when they have to decide on defamation cases in connotation with religious matters can be illustrat‐ ed by two leading judgments of the European Court of Human Rights (ECtHR) in Strasbourg which has been set up in order to ensure the ob‐ servance of the engagements undertaken by the High Contracting Par‐ ties in the Convention and the Protocols thereto (Art. 19 ECHR). 13 See for example Isensee, “Meinungsfreiheit im Streit mit der Religion – ‘Gottes‐ lästerung’ heute,” 2013, pp. 190 ff. 14 BVerfG, Decision of 28 July 2014 – 1 BvR 482/13, ZUM 2014, p. 965; see also: LG Düsseldorf, NStZ 1982, p. 291. Should Criminal Law Protect Against Religious Defamation? 229 4. In Tatlav vs. Turkey the European Court of Human Rights (ECtHR) in Strasbourg ruled in 2006 that the freedom of expression (Art. 10 ECHR) is not only guaranteed “for ‘information’ or ‘ideas’ that are well perceived or being considered as inoffensive or irrelevant, but also for those that hurt, shock or disturb.”15 This judgment of the ECtHR was preceded by a conviction of the Turkish journalist Erdogan Aydin Tatlav (born 1957 and living in Istanbul). The District Court of Ankara sentenced Tatlav in 1998 for a “publication which aims at the defama‐ tion of a religion”.16 The occasion for the sentence of Tatlav, who worked as a journalist, was the publication of the five books compris‐ ing work entitled “Islamiyet Gerçegi” (“The reality of Islam”) in 1992. The work criticized the Islam as a religion legitimizing social injustice by portraying the injustice as “God’s will”; 16,500 copies were sold within only a few years.17 Only after the fifth edition was published in 1996, Tatlav was charged with blasphemy against “God, the Religion, the Prophet and the Holy Book” according to Art. 175 of the Turkish Criminal Code. He was sentenced to one year imprisonment, which was later reduced to a fine. After the Turkish Court of Cassation had confirmed the sentence of the previous instance, Tatlav complained be‐ fore the European Court of Human Rights (ECtHR) that this judgment was a violation of the right to freedom of expression (Art. 10 ECHR). Finally, the ECtHR held unanimously that there had been a violation of Art. 10 of the Convention. The Court continued saying that “[w]ith re‐ gard to religious beliefs there can exist an obligation to refrain from in‐ sulting or profaning statements”.18 However, in the view of the Court, “[t]hose exercising their right to religion […] cannot […] expect to be protected from any form of critique. […] [They] have to tolerate others disapproving of their religious beliefs and even teachings defying their faith”.19 The Court concluded that certain parts of the book indeed contained criticism of the religion in a socio-political context, but that these pas‐ sages did not offend Muslims or their sacred symbols to an extent that 15 Translated from the binding French version of the judgment: ECtHR, Tatlav v. Turkey, Judgment of 2 May 2006, no. 50692/99, § 22, NVwZ 2007, p. 314. 16 Ibid., §§ 8-17. 17 See ibid., §§ 9-10. 18 Ibid., § 23. 19 Ibid., § 28. Robert Esser 230 would justify a criminal charge. The court also considered the fact that the alleged offence was prosecuted for the first time in 1996 and con‐ cluded from the “delay” in prosecution that the insult was not very in‐ tense. Furthermore, the Court also included into its reasoning the dan‐ ger that other journalists and editors would feel discouraged to publish their opinions on religion, which the Court sees as an essential part of a democracy. 5. In I.A. vs. Turkey (2005) the ECtHR had already ruled on a condemna‐ tion of a journalist for defamation of Islam.20 In 1996 a Turkish Court had sentenced a journalist and editor for publishing the novel “Yasak Tümceler” (“The Forbidden Phrases”) according to Art. 175 §§ 3 and 4 of the Turkish Criminal Code. The work was accused of containing theological concepts critical to Islam21 and insults relating to “God, the Religion, the Prophet and the Holy Book”. For example it mentioned that “Mohammed did not forbid sexual intercourse with a dead person or a living animal”. The European Court of Human Rights held that Art. 175 of the Turkish Criminal Code (TCC) restricted the author’s freedom of expression. However, the court found that the reason behind Art. 175 TCC was pri‐ marily the prevention of disorder and the protection of morals and the rights of others thereby justifying a restriction of the right to freedom of expression. Therefore, the Court held that it was necessary to assess every individual case as to whether there had been a violation of the freedom of expression included in Article 10 of the Convention.22 The Court considered the claimant’s right to publish and distribute views on religious theory on the one side; on the other side, the Court found that every individual's right to freedom of opinion, conscience and religion has to be respected. It has to be tolerated that not everyone has the same religion or even adopts a particular religious orientation at all. However, intentional attacks on a religious group do not have to be accepted or tolerated. In the Turkish case, the Court held that parts of the book actually contained insulting attacks on the Prophet Mo‐ hammed and some of his statements. According to this it found that be‐ 20 ECtHR, I. A. v. Turkey, Judgment of 13 September 2005, no. 42571/98, ECtHR 2005-VIII, §§ 25-32. 21 See ibid., §§ 5-6, 13. 22 See ibid., §§ 30-32. Should Criminal Law Protect Against Religious Defamation? 231 lievers could rightfully feel violated in their religious feelings. Hence, they found no violation of Article 10 of the Convention. Public In order for public peace to be endangered and to give rise to the protec‐ tion by Sec. 166 StGB, the defamation has to be made publicly. ‘Public’ can be defined as a sufficiently large group of people not bound by per‐ sonal relations.23 Defamation in public could be committed by divulging scripts, sound and image carriers, hard disks, pictures and any depiction accessible by a large group of people. Of course, defamation in public can also be done by means of the Internet. Limited Scope of Application of Sec. 166 StGB due to Freedom of Art As mentioned above, Sec. 166 StGB conflicts not only with the freedom of expression of others but also with the freedom of art guaranteed by Art. 5 § 3 of the Basic Law.24 That is why some works of art, especially those bearing an ironic and critical character, cannot be considered defam‐ atory. The Higher Administrative Court (Oberverwaltungsgericht) of Berlin-Brandenburg ruled that publishing caricatures of Islamic Prophet Mohammed during a demonstration cannot usually be seen as defama‐ tion.25 That decision points out that Art. 4 of the German Constitution does not protect the freedom of belief in any case against the hurting of religious feelings by private persons, at least if the defendant can also can claim a fundamental right for their activities (such as the freedom of art) IV. V. 23 See Satzger, Schluckebier, Widmaier, and Hilgendorf, Strafgesetzbuch, § 166, marginal no. 18. 24 See BVerfG, NJW 1971, pp. 1645 f.; Isensee, “Meinungsfreiheit im Streit mit der Religion – ‘Gotteslästerung’ heute,” p. 192. 25 OVG Berlin-Brandenburg, NJW 2012, p. 3116 (preliminary review); Cornils, “Ge‐ fühlsschutz, negative Informationsfreiheit oder Staatliche Toleranzpflege: Blas‐ phemieverbote in rechtlicher Begründungsnot,” 2013, p. 200. Robert Esser 232 that prevails over the the freedom of belief by way of so-called “practical concordance” of the basic rights concerned by the conflict.26 Ability to Disturb Public Peace 1. In Germany religious defamation is only subject to criminal prosecu‐ tion if it is able to disturb public peace. Defamation that “only” dis‐ turbs religious feelings does not fall within the scope of Sec. 166 StGB.27 However, in a judgment delivered in 1999 the Court of Appeal (Ober‐ landesgericht – OLG) of Nuremberg decided that public peace is dis‐ turbed “either by shattering justifiable confidence of those affected in the respect and tolerance of their beliefs protected by the legal order or by encouraging intolerance against the defamed belief with regard to third parties”.28 In contrast to the aforementioned, the German Constitutional Court (BVerfG) has in one of its fundamental verdicts opted for a rather nar‐ row approach and presumed that in order for the assumption of the ca‐ pability of a special behaviour to qualify as disturbance of public peace, the threatening of the legally-protected interest needs to already have transitioned into aggression or breach of law.29 The definition used by the Court of Appeal (Oberlandesgericht) of Nuremberg is also criticized by Tatjana Hörnle30 who points out that “defaming” includes, in most cases anyway, an impairment of faith on behalf of the victims. Thus, the characteristic “capability of disturbing public peace” does not constitute a “filter effect”. However, if one VI. 26 Kau, “Polizeiliches Filmverbot im Spannungsverhältnis von Kunst- und Mei‐ nungsfreiheit – der sog. ‘Mohammed-Film’ im Lichte von Art. 5 GG,” 2015, pp. 72, 78. 27 See Schönke, Schröder, Lenckner, and Bosch, StGB, § 166, marginal no. 12; Mau‐ rach, Schröder, and Maiwald, Strafrecht Besonderer Teil, Teilband 2, § 61 II, mar‐ ginal no. 14. 28 OLG Nürnberg, NStZ-RR 1999, p. 240. 29 BVerfG, Decision of 4 November 2009 – 1 BvR 2150/08, § 77, NJW 2010, p. 51 – concerning § 130 para. 4 StGB; VGH München, NJW 2011, p. 795; Hörnle, “Be‐ kenntnisbeschimpfung (§ 166): Aufheben oder Ausweiten,” p. 294. 30 See Hörnle, “Strafbarkeit anti-islamischer Propaganda als Bekenntnis-beschimp‐ fung,” 2012, p. 3417. Should Criminal Law Protect Against Religious Defamation? 233 based the “capability of disturbance of public peace” solely on the re‐ action of the believers, it would, in the light of the significant differ‐ ences concerning the reactions of Muslims and Christians, lead to “false emphasis” on the subtext of Sec. § 166 StGB. In fact, it is much more decisive whether the defamation of the confession/religious be‐ lief reveals “that the intentionally pursued objective is the emotional incitement of third parties against the religious confession/belief”. 2. Some critique is voiced in the German legal community that the re‐ quirement of the disturbance of public peace has developed into an in‐ strument to restrain the application of the offence.31 Whenever big reli‐ gious communities are concerned, no defamation is able to cause per‐ turbation because of its irrelevance. Whenever small religious commu‐ nities are concerned, the number of believers offended is just too small to disturb public peace.32 Whenever those offended retain their compo‐ sure, no perturbation is perceived. On the other hand, whenever those offended lose their composure, their reaction is considered inadequate and thus irrelevant for public peace. Examples Constituted by Jurisdiction or Examples of Different Courts’ Decisions A recent example of developments in the interpretation of the term “ability to disturb public peace” was provided by a Local Court (Amtsgericht – AG) located in Berlin which ruled that naming the Catholic Church a “sect of paedophiles” on the Internet (i.e. publicly) was defamation, but was un‐ able to disturb public peace.33 Similarly, the Regional Court (Landgericht – LG) of Bochum decided with reference to a caricature in which a crucifix (the main Christian sym‐ bol) is depicted as a mousetrap and where the person lying on the crucifix beats a mouse to death when see-sawing forward. Indeed, the court af‐ VII. 31 See Maurach, Schröder, and Maiwald, Strafrecht Besonderer Teil, § 61 II, marginal no. 15; OLG Karlsruhe, NStZ 1986, p. 365. 32 See for instance Isensee, “Meinungsfreiheit im Streit mit der Religion – ‘Gottes‐ lästerung’ heute,” p. 190. 33 AG Berlin-Tiergarten, Judgment of 6 February 2012 – (263b Ds) 224 Js 3745/11 (228/11), 263b Ds 228/11, StraFo 2012, 110. Robert Esser 234 firmed in this case defamation in the sense of Sec. 166 StGB, but did not conclude that a disturbance of public peace had occurred.34 In addition, in the case of criticism of the church-designed float on the occasion of Christopher Street Day, the Higher Administrative Court (Ver‐ waltungsgerichtshof – VGH) of Munich concluded that a disturbance of public peace had not occured. The float represented a “popemobile”35 and contained illustrations of the Pope, inter alia with a HIV ribbon and con‐ doms. Yet the court did not see, on account of a lack of transition to a threatening of the protected legal interest, an impairment of the peaceful coexistence in the expressed criticism of the Church.36 Finally, in the case of the satirical television series “Popetown”37, a dis‐ turbance of public peace was also not assumed by the Regional Court (Landgericht) of Munich.38 Sec. 166 StGB as Subject in the World of Politics The widening of the scope of Sec. 166 StGB in the area of criminal law through a removal of the passage “Capability to disturb public peace” has already been the subject of parliamentary initiatives on multiple occasions. It is noteworthy that those were, most of the time, initiatives from federal states via the Bundesrat and did not originate from the center of the Ger‐ man Bundestag. This emphasises that the widening of the criminal protec‐ tion of religious convictions and feelings is rather a regional concern, more specifically a concern of the German South, which is also in reli‐ gious questions rather conservatively orientated. The removal of the passage “Capability to disturb public peace” in the norm of Sec. 166 StGB, and by this a criminal widening of the provision, C. 34 See LG Bochum, NJW 1989, pp. 727 f. 35 The “Popemobile” is a specially designed motor vehicle used by the Catholic Pope when travelling abroad during outdoor public appearances for transport and for communication with believers on the street. 36 VGH München, NJW 2011, pp. 793, 795. 37 “Popetown” is about the everyday life of padre Nicholas living in Popetown – a satirical imitation of the Vatican. The series portrays the Pope as childish and mad. The cardinals are greedy for money and corrupt. 38 LG München I, Decision of 3 May 2006 – 9 O 8051/06, §§ 5 f.; Liesching, “An‐ merkung zu LG München, Beschluss vom 3. Mai 2006 – 9 O 8051/06,” 2006, pp. 578 ff. Should Criminal Law Protect Against Religious Defamation? 235 was already demanded by means of a “Länder-initiative” in the years 1986 and 1998.39 A majority for this initiative could not even be found in the Bundesrat, the representation of the Länder (federal states) in the German Parliament.40 In its reasoning the Bavarian Federal Government quoted, inter alia, that the scope of the norm was restricted too much by the inter‐ pretation of the characteristic “Capability to disturb public peace” in liter‐ ature and jurisdiction whereby the protection of religious and ideological beliefs could not be sufficiently guaranteed anymore. First and foremost, the victims could not be expected to turn to peace-disturbing means in or‐ der to realise the offence.41 Besides that, the Länder-initiative referred to the increased sharpness and intensity of attacks on Christian belief which is proved by the rising amount of complaints submitted to public bodies and politicians by citi‐ zens. It is therefore regarded necessary that the State guarantees within the scope of its duty, the validity of constitutional fundamental values; the punishment of inappropriate disturbances (exceeding the previous extent) of the exercise of religion of fellow citizens and stipulates a standard of tolerance. Even the reform proposal of the Free State of Bavaria dating back to 2007 which aimed, without a removal of this passage, at a widening of the sope of Sec. 166 StGB, failed.42 The concrete proposal was as follows: in the norm of Sec. 166 StGB the word “defames” should have been re‐ placed by “degrades and ridicules.” Furthermore it was proposed to add a third paragraph which should incorporate a broad definition of “Capabili‐ ty to disturb public peace.”43 The background of this reform proposal was 39 See BR-Drucks. 460/98 of 14 May 1998; BR-Drucks. 367/86 of 11 August 1986. 40 The Parliament of the Federal Republic of Germany comprises the German Bun‐ destag, consisting of directly elected representatives (Art. 38 GG – Basic Law), and the Bundesrat (Federal Council of Germany), consisting of members of the governments of the federal states (Art. 51 GG). An initiative for an amendment of the Criminal Code can be proposed, as with every other federal law, by the Ger‐ man government, by the center of the Bundestag or by the Bundesrat (Art. 76 § 1 GG). 41 See BR-Drucks. 460/98 of 14 May 1998; BR-Drucks. 367/86 of 11 August 1986. 42 See BR-Drucks. 683/07 of 1 October 2007. 43 See ibid. Robert Esser 236 the ongoing debate in 2006 on the caricatures of the Prophet Mohammed and satirical television series like “Popetown”.44 In the end it must therefore be concluded that, in the last more then 60 years, a parliamentary majority for the widening of Sec. 166 StGB could not be built.45 Sec. 166 StGB as Subject of Academic Writing Concerning academic writing, there are two totally opposing views re‐ garding the future of criminalization of religious defamation. One view proposes to eliminate the clause “capable of disturbing the public peace” to widen the scope of Sec. 166 StGB. It also proposes to de‐ fine the “respect for religious and ideological tolerance” as the protected legal interest of Sec. 166 StGB. That would include a protection of believ‐ ers’ feelings and wishes to be appreciated. Martin Mosebach46 thinks it would “serv[e] art and social climate in general if blasphemy is punishable again.” In particular, restrictions on the freedom of art by rules and prohibitions inspire artists to create sophisti‐ cated, creative and audacious works. The same applies, according to Mosebach, to satire in the religious sphere. The artist, conscious of the prohibition of blasphemy, would then utilise blasphemous elements more deliberately and aesthetically. Moreover, a society in which God and reli‐ gious convictions are (more) present again, is to be welcomed. Robert Spaemann47 also militates in favour of criminalizing religious defamation. He argues that “German law and even more so the German Courts allow for public defamation and ridiculing of the holiest goods of religious citizens.” The disturbance of public peace would only apply to the defamation of Islam as Christians would just not react as violently as Muslims to defamation. Spaemann continues saying that D. 44 See Steinke, “‘Gotteslästerung’ im säkularen Staat, Ein Plädoyer für die Strei‐ chung des § 166 StGB,” 2008, p. 456. 45 See also Cornils, “Gefühlsschutz, negative Informationsfreiheit oder staatliche To‐ leranzpflege: Blasphemieverbote in rechtlicher Begründungsnot,” p. 202. 46 Mosebach, “Kunst und Religion – Vom Wert des Verbietens,” Berliner Zeitung, 18 June 2012. 47 See Spaemann, “Beleidigung Gottes oder der Gläubigen,” Frankfurter Allgemeine Zeitung (FAZ), 25 July 2012. Should Criminal Law Protect Against Religious Defamation? 237 [p]eople that are concerned with God, that do believe in God have to be pro‐ tected. They are the ones insulted by religious defamation and more deeply so than by insulting themselves as individuals. […] A state not protecting the holiest goods of its citizens cannot expect those people to feel like a part of society. In addition, according to Müller-Neuhof, 48 Sec. 166 StGB should not be abolished for now. The norm is rather an important signal for victims who suffer from defamation of their belief, and shows behavioural limits as a message for potential offenders. However, Müller-Neuhof adds that the norm should only be applied rarely or, in case of doubt, not at all. The contrasting view proposes the elimination of Sec. 166 StGB. That would strengthen the freedom of expression. Recently published opinions on this subject have sparked the debate once more: Barbara Rox49 argues that the right to practise one’s religion is not im‐ paired by defamation. Neither is the believer’s internal religious freedom nor the freedom of decision to believe impaired. The denial of respect of religious believers is directed against an individual and thus falls under the scope of Sec. 185 ff. StGB (Insult). Rox consequently finds that the state has no duty to protect the believer based on fundamental rights. In her opinion, the “State has to protect the foundations of human coexistence – if necessary with means of criminal law. When the freedom of expression is affected, caution is required. […] Not only blasphemers are expected to behave respectfully towards people of other beliefs.” This effectively means that those affected have the same rights within the limits of the freedom of expression. Rox argues that a standstill of any public discus‐ sion concerning religious content would follow from criminalizing blas‐ phemy whereas the public sphere should serve as a room for intellectual controversy in a democratic society. Tatjana Hörnle50, too, speaks up for the abolition of Sec. 166 StGB. This would be due to the norm’s “lack of purpose”. In particular, Hörnle sees in the legally-protected interest “public peace” no substantial reason‐ ing for the maintenance of the norm, since the violence could often not be ascribed to the defamer, but rather to those who thereupon act violently or incite others as agitators to act in this way. Furthermore, she argues that it 48 Müller-Neuhof, “Der Bart des Propheten, ” 2012, p. 907. 49 Rox, “Vom Wert der freien Rede – Zur Strafwürdigkeit der Blasphemie,” 2013, p. 30 ff. 50 Hörnle, “Bekenntnisbeschimpfung (§ 166): Aufheben oder Ausweiten,” p. 295. Robert Esser 238 should not be encouraged to let people define themselves solely via a sin‐ gle essential key group membership. Current Discussion in Germany in the Light of the Terrorist Attacks in Paris in January 2015 On the occasion of the terrorist attack on the offices of the French satirical magazine Charlie Hebdo on Wednesday 7 January 2015, a discussion on the reform of Sec. 166 StGB (Defamation of religions, religious and ideo‐ logical associations) unfolded in Germany. The current debate provides a good example of how the development of criminal law is not only subject to the formal international framework conditions (compulsory penalisation in public international and European law), but also to the influence of in‐ ternational political trends and social incidents in foreign countries. The current reform proposals cover the whole conceivable spectrum of thoughts, i.e. they range from the abolition of the criminal provision on the one hand51, to its notable tightening (of offence and legal consequence)52 on the other. A tightening of Sec. 166 StGB is in the present discussion primarily de‐ manded by members of conservative parties. Thus the CSU-politician Stephan Mayer supports, in view of the events in France, a tightening of the penalty range of Sec. 166 StGB.53 Wolfgang Bosbach (CDU) also stresses that a widening of the offence’s range by the cancellation of the formulation “that is capable of disturbing the public peace” is right, al‐ though there is no majority prevailing for this in the Bundestag at the mo‐ ment.54 In the context of the current debate regarding the terrorist attack on the offices of the satirical magazine Charlie Hebdo in January 2015, it is fre‐ quently postulated that Sec. 166 StGB should be abolished as a whole. This was particularly expressed in an online petition (started in January E. 51 See Hörnle, “Abschaffung des Blasphemie-Paragrafen?,” 2015, p. 62; Stein‐ ke, “‘Gotteslästerung’ im säkularen Staat, Ein Plädoyer für die Streichung des § 166 StGB,” p. 451. 52 See Hillgruber, “Abschaffung des Blasphemie-Paragrafen?,” 2015, p. 62. 53 See Berliner Zeitung, uer-blasphemie, accessed 18 September 2015. 54 See ibid.; for this argumentation see also Hillgruber, “Abschaffung des Blasphe‐ mie-Paragrafen?,” p. 62. Should Criminal Law Protect Against Religious Defamation? 239 2015 and released on the website of the Bundestag) on the abolition of Sec. 166 StGB, which ended on 17 February 2015.55 The petition, attract‐ ing far-reaching attention, is now in the parliamentary screening process.56 In its rationale, the petition particularly aims at the protection of the free‐ dom of expression, art and press.57 Thus, it shall be underlined that intol‐ erance and the inability of fundamentalistic-minded human beings to take criticism cannot restrict the freedom of art.58 Other advocates for the abo‐ lition rely primarily on the conviction that no one who reacts to religious provocations with peace-disturbing acts should be protected.59 Steinke, who pleads likewise on that score for the abolition, also criticises the vagueness of Sec. 166 StGB, since the characteristic “disturbance of the public peace” is not measureable in an objective, but only in a subjectivejudgmental manner.60 In addition, leading politicians of the party Freie Demokraten (Free Democrats – FDP) advocate the criminal provision’s abolition and argue inter alia that the defamation offences’ scope already guarantees enough protection.61 In principle, the party Bündnis 90/Die Grünen (The Greens) approves of this but nonetheless argues in favour of the retention of the norm at this time, and so do the Social Democratic Party (SPD) and the majority of the Christian Democratic/Social Union (CDU/CSU).62 55 See Deutscher Bundestag, “Petition 56759,” at petitionen/_2015/_01/_08/Petition_56759.html, accessed 18 September 2015. 56 See Giordano Bruno Stiftung, “Petitionsausschuss prüft Petition zur Abschaffung des ‘Gotteslästerungsparagraphen’,” at me ldung/petition166-pruefverfahren, accessed 18 September 2015. 57 See Deutscher Bundestag, “Petition 56759,” at petitionen/_2015/_01/_08/Petition_56759.html, accessed 18 September 2015. 58 See. Giordano Bruno Stiftung, “Petitionsausschuss prüft Petition zur Abschaffung des ‘Gotteslästerungsparagraphen’,” at dung/charlie-hebdo-paragraph166-abschaffen, accessed 18 September 2015. 59 Vgl. Norouzi, “Kultur, Religion, Strafrecht – auch ein Thema für die Anwalt‐ schaft, Herausforderungen für das Strafrecht in einer pluralistischen Gesellschaft,” 2014, p. 596; Steinke, “‘Gotteslästerung’ im säkularen Staat, Ein Plädoyer für die Streichung des § 166 StGB,” p. 456; Hörnle, ZRP 2015, p. 62. 60 Vgl. Steinke, “‘Gotteslästerung’ im säkularen Staat, Ein Plädoyer für die Strei‐ chung des § 166 StGB,” pp. 453-456. 61 See Lindner and Buschmann, “Signal für mehr Meinungsfreiheit,” 2015, p. 123; Zeit Online, “Grüne gegen Diskussion um Blasphemie-Paragrafen,” at http://www, accessed 18 September 2015. 62 See ibid., accessed 18 September 2015. Robert Esser 240 It is predominantly emphasised that the abolition of the criminal provi‐ sion of the Sec. 166 StGB at this time, would by no means be a sign of solidarity vis-à-vis a country (in this case France) that was afflicted by a religiously motivated assault.63 In the light of the increase of religiously motivated infringements, Nils Muižnieks (Commissioner for Human Rights of the Council of Europe) stresses especially for France the need for political measures in the field of criminal law and through ratification of the Protocol No. 1264 to the ECHR.65 Final Views In Germany an expansion of criminal law provisions concerning blasphe‐ mous behaviour is not advisable, not to say unnecessary, even after the terrorist attack on the offices of the satirical magazine Charlie Hebdo in January 2015. In a democratic society pertinent criticism on deficiencies within a religious community is not only tolerable but requires a positive protection by the criminal law – by means of a narrow interpretation of ex‐ isting criminal law provisions covering blasphemous behaviour. Due to its strong basic rights protection (freedom of expression) and in conformity with human rights standards Germany has opted for a quite re‐ luctant criminal approach concerning blasphemous behaviour and favours an open discourse on different religious topics including sharp and direct criticism on religious institutions and representatives of religious commu‐ nities. Against meaningless, nasty or even abusive criticism of religious communities and their members in public, Sec. 130, 166 and 185 ff. of the Criminal Code (StGB) already offer sufficient protection. F. 63 See Osnabrücker Zeitung, “Bosbach weist FDP-Vorschlag zurück,” at http://www. k, accessed 18 September 2015. 64 Protocol No. 12 to the Convention for the Protection of Human Rights and Funda‐ mental Freedoms, 4 November 2000, entry into force on 1 April 2005 (CETS No. 177). 65 See Council of Europe, “Nils Muižnieks: Racism, discrimination and hate speech ‘are on the rise’ in France,” at, ac‐ cessed 18 September 2015. Should Criminal Law Protect Against Religious Defamation? 241 As in many other areas of life, the call for an extension of criminal law does not solve the core problems of society but merely leads to an atmo‐ sphere of unreasonable fear and democratic self-restraint in the end. Those who want to live in an openminded, pluralistic community have to tolerate criticism on religious topics even if it hurts their personal feelings. Even in case of an attack on religious feelings criminal law can and should only – according to its very nature and basic concept of “ultima ra‐ tio” – protect the “unbearable” instead of the “moral”. Bibliography AG Berlin-Tiergarten, Judgment of 6 February 2012 – (263b Ds) 224 Js 3745/11 (228/11), 263b Ds 228/11, StraFo 2012: 110. Arslan, Canadar, Meinungs- und Kunstfreiheit gegen die Religionsfreiheit – Wie viel Schutz für religiöse Empfindlichkeiten, Hamburg: Verlag Dr. Kovač, 2015. Berliner Zeitung (B.Z.), “CDU fordert härtere Strafen für Blasphemie,” at BR-Drucks. 367/86 of 11 August 1986. BR-Drucks. 460/98 of 14 May 1998. BR-Drucks. 683/07 of 1 October 2007. BT-Drucks. 16/3579, 27 November 2006. BVerfGE 124, 300. BVerfG, Neue Juristische Wochenschrift (NJW) 1971: 1645. BVerfG, Decision of 4 November 2009 – 1 BvR 2150/08, § 77, Neue Juristische Wo‐ chenschrift (NJW) 2010: 47. BVerfG, Decision of 28 July 2014 – 1 BvR 482/13, Zeitschrift für Urheber- und Medi‐ enrecht (ZUM) 2014: 965. Cornils, Matthias, “Gefühlsschutz, negative Informationsfreiheit oder staatliche Tole‐ ranzpflege: Blasphemieverbote in rechtlicher Begründungsnot,” AfP – Zeitschrift für Medien- und Kommunikationsrecht 44, 3 (2013): 199-211. Council of Europe, “Nils Muižnieks: Racism, discrimination and hate speech ‘are on the rise’ in France,” at Deutscher Bundestag, “Petition 56759,” at _2015/_01/_08/Petition_56759.html. European Court of Human Rights, I. A. v. Turkey, Judgment of 13 September 2005, no. 42571/98, ECtHR, 2005-VIII. European Court of Human Rights, Tatlav v. Turkey, Judgment of 2 May 2006, no. 50692/99, § 22, Neue Zeitschrift für Verwaltungsrecht (NVwZ) 2007: 314. Robert Esser 242 Fahl, Christian, “Zur Strafbarkeit des Auftritts der Punk-Rock-Band ‘Pussy Riot’ nach deutschem Strafrecht,” StraFO – Strafverteidiger Forum 1 (2013): 1-6. Giordano Bruno Stiftung, “Petitionsausschuss prüft Petition zur Abschaffung des ‘Got‐ teslästerungsparagraphen’,” at /pet ition166-pruefverfahren. Hillgruber, Christian, “Abschaffung des Blasphemie-Paragrafen?,” ZRP – Zeitschrift für Rechtspolitik (2015): 62. Hörnle, Tatjana, in Münchener Kommentar zum StGB, ed. Olaf Hohmann et al., 2nd ed., Munich: C. H: Beck, 2012, §§ 166–168. Hörnle, Tatjana, “Abschaffung des Blasphemie-Paragrafen?,” ZRP – Zeitschrift für Rechtspolitik 48, 2 (2015): 62. Hörnle, Tajana, “Bekenntnisbeschimpfung (§ 166): Aufheben oder Ausweiten,” JZ – Juristenzeitung 70, 6 (2015): 293-297. Hörnle, Tatjana, “Strafbarkeit anti-islamischer Propaganda als Bekenntnisbeschimp‐ fung,” NJW – Neue Juristische Wochenschrift 47 (2012): 3415-3418. Human Rights Europe, “Nils Muižnieks: Racism, discrimination and hate speech ‘are on the rise’ in France,” at Isensee, Josef, “Meinungsfreiheit im Streit mit der Religion – ‘Gotteslästerung’ heute,” AfP – Zeitschrift für Medien- und Kommunikationsrecht 44, 3 (2013): 189-199. Joecks, Wolfgang, and Klaus Miebach (eds.), Münchener Kommentar zum Strafgesetz‐ gesetzbuch, Vol. 4, §§ 185-262, 2nd ed., München: C.H. Beck, 2014. Kau, Marcel, “Polizeiliches Filmverbot im Spannungsverhältnis von Kunst- und Mei‐ nungsfreiheit – der sog. ‘Mohammed-Film’ im Lichte von Art. 5 GG,” AöR – Ar‐ chiv des öffentlichen Rechts 1 (2015): 31-88. Lackner, Karl, and Kristian Kühl, Strafgesetzbuch, Kommentar, ed. Kristian Kühl and Martin Heger, 28th ed., München: C.H. Beck, 2014. Landtag NRW Drucks. 16/4408, 21 November 2013. LG Bochum, Neue Juristische Wochenschrift (NJW) 1989: 727. LG Düsseldorf, Neue Zeitschrift für Strafrecht (NStZ) 1982: 290. LG München I, Decision of 3 May 2006 – 9 O 8051/06. Liesching, Marc, “Anmerkung zu LG München, Beschluss vom 3. Mai 2006 – 9 O 8051/06,” ZUM – Zeitschrift für Urheber- und Medienrecht (2006): 578-580. Lindner, Christian, and Marco Buschmann, “Signal für mehr Meinungsfreiheit,” DRiZ – Deutsche Richterzeitung 4 (2015): 122-124. Maurach, Reinhart, Friedrich-Christian Schröder, and Manfred Maiwald, Strafrecht Besonderer Teilband 2, Straftaten gegen Gemeinschaftswerte, 10th ed., Heidelberg: C.F.Müller, 2012. Mosebach, Martin, “Vom Wert des Verbietens,” Berliner Zeitung, 18 June 2012. Muckel, Stefan, “Kein Anspruch eines Privaten auf Untersagung eines blasphemischen Bühnenstücks – ‚Gólgota Picnic‘,” JA – Juristische Arbeitsblätter (2013): 72-74. Müller-Neuhof, Jost, “Der Bart des Propheten, ” AnwBl – Anwaltsblatt (2012): 907. Should Criminal Law Protect Against Religious Defamation? 243 Norouzi, Ali B., “Kultur, Religion, Strafrecht – auch ein Thema für die Anwaltschaft, Herausforderungen für das Strafrecht in einer pluralistischen Gesellschaft,” AnwBl – Anwaltsblatt (2014): 595-597. OLG Karlsruhe, Neue Zeitschrift für Strafrecht (NStZ) 1986: 363. OLG Nürnberg, Neue Zeitschrift für Strafrecht – Rechtsprechungsreport (NStZ-RR) 1999: 238. Osnabrücker Zeitung, “Bosbach weist FDP-Vorschlag zurück,” at eutschland-welt/politik/artikel/536986/bosbach-weist-fdp-vorschlag-zuruck. OVG Berlin-Brandenburg, Neue Juristische Wochenschrift (NJW) 2012: 3116 (prelimi‐ nary review). Rox, Barbara, “Vom Wert der freien Rede – Zur Strafwürdigkeit der Blasphemie,” JZ – Juristenzeitung (2013): 30-34. Satzger, Helmut, Wilhelm Schluckebier, and Gunter Widmaier, Strafgesetzbuch, Kom‐ mentar, 2nd ed., Köln: Carl Heymanns, 2014. Schönke, Adolf, and Horst Schröder, Strafgesetzbuch, Kommentar, ed. 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Robert Esser 244 How Law Incorporates Religious Communities: A New Look on State-Religion Relationships Explained by Using the Example of Switzerland René Pahud de Mortanges Introduction Until the 1970s Switzerland was a religiously very homogenous country. Most citizens were either member of the Roman-catholic church or the Protestant church. Both churches were granted on the cantonal level a form of recognition under Public law, which gave them many privileges as well as some duties. The states’ policy and governmental practice fo‐ cussed entirely on the demands and needs of these two Churches. Discus‐ sion or even conflicts were rather seldom. The needs or even the presence of other, minority religious groups were hardly taken into consideration. With this policy Switzerland was indeed perfect in line with other coun‐ tries in Western Europe, which, apart from France, all had some form of establishment of the large Christian churches. The situation however has dramatically changed since then. Switzer‐ land has experienced a large-scale immigration from many South Euro‐ pean and North African countries in the last four decades. With a growth of Muslim population from nearly zero in 1970 to 4.5 percent in 2010, Is‐ lam in Switzerland has become a topic of general interest and, especially after 9-11, also of many heated debates – unfortunately often with a rather islamophobic prefix. During the past fifteen years, the discussion on state and religion in Switzerland was dominated by the question: What effect does the presence of Islam and other non-Christian religions have on the Swiss legal sys‐ tem?1 New religious practices, religious clothing and cultural conceptions A. 1 This essay is a shortened, translated and updated version of my original essay “Das rechtliche Inkorporationsregime für Religionsgemeinschaften,” in Integration durch Religion? Geschichtliche Befunde, gesellschaftliche Analysen, rechtliche Perspekti‐ ven, ed. Edmund Arens, Martin Baumann, Antonius Liedhegener, Wolfgang W. 245 seem to challenge the majority of the society and the state government. How to handle a request for a dispensation of certain school activities for religious reasons? When to allow the construction of a building for a new religion or cult? Is it legal to arrange a special sector in a cemetery for the deceased of a certain religion? In Switzerland such specific questions of‐ ten led to pragmatic and casuistic solutions. By this, the traditional statelaw system experiences some sort of a patchwork-style development. So far so good, but as it seems to me, this raises a more fundamental question: Is the Swiss legal system still capable of providing an adequate legal frame for the activities of the different religious communities, both the older and the newer ones, and the practice of their members? Does the fact that nowadays the discussion on state and religion at least in Switzer‐ land is closely related to the topic of migration demand a new state policy? This paper shall analyse these questions in the following order: The first chapter introduces the notion of incorporation of religious communi‐ ties. Furthermore, it will be explained what basic options a state may choose regarding this notion. In the second chapter, I will present the con‐ crete legal incorporation system in Switzerland, including the fundamental rights of the Swiss constitution, the specific legal levels of the Confedera‐ tion, the constitutional system of the cantons as well as some case law of the Swiss Supreme Court. A final conclusion shall be drawn in the third chapter. Conditions of Incorporation Notion How do states regulate religious communities and religious practice – and do they act adequately in times of growing religious diversity nowadays? Differently asked: What are the state-given conditions for the development of the activity of religious communities and their adherents? What are the rules for established religious communities and what for the novel ones? First, it is evident that there is more to this topic than just religious free‐ dom. This is, of course, a very important but by far not the sole element of the state policy. There are other fundamental rights and constitutional pa‐ B. I. Müller, and Markus Ries, Zürich: Pano-Verlag 2014, pp. 179-211. Many thanks to the editor for the permission to re-utilise the essay. René Pahud de Mortanges 246 rameters in addition, as well as rules in other legal sectors, such as, for in‐ stance, in family law, construction law or criminal law. Furthermore, there is school law, naturalisation law, international private law, or – in Switzer‐ land – the cantonal law of recognition of religious communities – and much more. Thus, there is a conglomerate of legal norms and governmental practices that provides the state-given condition for religious communities and religious individuals. Could we call this a state’s regime of integrati‐ on? This seems not appropriate. What is integration at all? The general un‐ derstanding of this notion equates it with assimilation to the “intake”-soci‐ ety. The pattern of thinking behind this may be the following: A group of immigrated persons that is perceived as a foreign body to the society evolves to a group that lives within the surrounding society “as everybody else does”. There are indeed clear normative conceptions behind this no‐ tion. The majority, thus the “intake”-society provides the normative scale. However, I wonder if such a majority still exist in Western countries nowadays or if societies today are much more a mix of different groups with a wide spectrum of values and goals? The question therefore is: What political and legal frame conditions must the state establish in order that religious communities and its mem‐ bers can evolve freely, be and become a part of the society and, as the case may be, integrate? According to a concept proposed by Yasemin Soysal2 and in Switzer‐ land amongst others by Martin Sökefeld and Virginia Suter Reich, we should be talking about incorporation instead of integration. This means a multidimensional and interactive process of integration which includes not only the efforts of the particular groups but also those of the “intake”-soci‐ ety and its institutional equipment.3 The scope of groups and individuals are of course dependent on their own cultural, social and demographic characteristics. However, the existing institutional, legal and political frame conditions have a significant influence. Those conditions can either have a supportive or repressive effect or then be indifferent. As the case may be, they can work including or excluding. There is thus a correlation between the frame conditions and the process of integration. How an (reli‐ gious) individual integrates into society and how he organises his life de‐ 2 See Soysal, Limits of Citizenship, Migrants and Postnational Membership in Euro‐ pe, 1994, pp. 31. 3 See Allenbach and Sökefeld, Muslime in der Schweiz, 2010, p. 19. How Law Incorporates Religious Communities 247 pends partly on the frame conditions. They urge him to make choices re‐ garding his strategy: his path of incorporation is influenced by them.4 The state policy on religion can have social effect of inclusion or exclu‐ sion, depending on how it is designed and for whom it applies. If, for in‐ stance a religious community can offer religious education in public schools and spiritual care in public institutions, and if this is even finan‐ cially supported by the state the social effect will be an including one. If, on the other hand, apparent and significant legal restrictions for religious practice exist, these restrictions will work out in an excluding manner for the religious groups affected. The incorporation system can be either way. Apart from the conditions of incorporation for religious groups as a whole there are additional ones for their members, for religious individu‐ als. For example, to what extent do they have access to the employment and residential market? Do they have a fair chance in the political pro‐ cess? Are they allowed to practise their religion without problems or just with restrictions? All these questions have to be answered when it comes to immigrants and their religious practice – but also for members of estab‐ lished Christian communities, in this case often with a reverse prefix. Types of Conditions Conditions of incorporation are therefore conditions which government and society set up for groups and individuals to be socially accepted. They may be of different nature, such as a result of a conscious action and ac‐ tive decision or just by unreflecting and unconscious acting. Regarding the religious communities and its members, we can also distinguish, besides the legal conditions of incorporation, some social, economic and political conditions. Of importance, for instance, is also the economic situation of the religious community and its members as well as their education and social and professional position, the possibilities of participating in the po‐ litical process, the appearance in the media and therewith related also the perception in the public. Often, there is a correlation between the different categories of these conditions of incorporation. For example, the possibilities of participating II. 4 Suter Reich, Zwischen Differenz, Solidarität und Ausgrenzung. Inkorporationspfade der alevitischen Bewegung in der Schweiz und im transnationalen Raum, 2011, p. 207. René Pahud de Mortanges 248 in the political process is sometimes limited for members of migrating re‐ ligions because they have not obtained citizenship yet – the pre-condition for voting rights – or because they dispose only of limited financial re‐ sources which do not allow efficient lobbying. Prohibition or limitations to their religious practice can be the consequences. Basic Options A state’s legal system of incorporation constitutes of a plurality of legal norms and governmental practices. It is founded on certain basic options that a state defines explicitly or tacitly. With these basic options, first sig‐ nificant positions are set for the particular system of incorporation. 1. First and foremost, every state has its own method of assignment of the religious communities, may this be explicitly, for instance based on the constitution, or simply as a result of the existing policy and practice. In simple terms, this relation can consist in a relation of subordination of religion to the state (or vice versa) or in a cooperation of both institu‐ tions: In the case of a separation of state and religion, the state does not es‐ tablish a constitutional relation to the religious communities. This may be in a positive sense, as for instance in the U.S. (non-establishment clause) or in France, or may it be in an adversarial sense, as for exam‐ ple in the former Soviet states, where religion was seen as something to be fought against. Separation can thus be the expression of very dif‐ ferent political concepts. Such a program, however, does have conse‐ quences for the incorporation of the religious communities and its members in the particular state, because such a state does not provide any administrative, financial or other support. Subordination means that the religious community is subordinate to the state authority (or reverse). The state claims a more or less strict sovereignty over the religious communities. This brings to mind the concept of a state church that was dominating many European States. Contrariwise, there are nowadays still examples of governing religious authorities over state authority, such as the Vatican or Iran.5 In such a relation between the state and the religion, other religious communities III. 5 See ibid, p. 72. How Law Incorporates Religious Communities 249 and their members have only limited freedom, if any at all. Religious compulsion is the normal case and religious minorities are forbidden or (strongly) restricted in their practice. A relation of cooperation between the state and the religious communi‐ ties means that the parties are equal, independent and autonomous.6 The state does no longer identify with a particular religion, but recog‐ nises the positive social function of religious communities in general. Nowadays, this is the case in most of the Western-European states. The state’s position is religiously neutral and the freedom of religion is granted. The state may offer a legal frame (e.g. establishment, recogni‐ tion under public law) for historical reasons or because the cultural and social function of the religious communities seem socially valuable to the state. This concept is favourable for the incorporation of religious communities. 2. Of importance is also the organisation of a state: Is it a unitary or a federally organised state? And in the latter: How big is the autonomy of the member state when it comes to own policies dealing with reli‐ gious groups? The unitary state has only one system of incorporation. The federal state, on the other hand, has maybe as many as the number of its states. Due to the different levels of a federal state, there is the possibility of having different incorporation systems in the different states. There are many examples such as the U.S., India and Germany – and of course also Switzerland with its cantonal diversity. But even in a unitary state as France things are more complicated than one may think: even though there is a strict separation in the laic republic since 1905, the two departments Elsass and Mosel have a different, coopera‐ tive relation with the churches.7 3. The system of incorporation is furthermore influenced by the democra‐ cy type a state has adopted. In a representative democracy, the state policy on religion is – next to the executive and the judiciary – dictated only by parliament. In a (semi-)direct democracy, citizens have the possibility to participate in this process by the instruments of the initia‐ tive and the referendum. A popular vote means that the majority de‐ cides over the minority – and mostly not in favour of the latter. 6 See ibid, p.74. 7 “Art. France,” Dictionnaire Droit des religions, 2010, pp. 358 f. René Pahud de Mortanges 250 4. Of great significance, lastly, is the standard of constitutional rights: To what extent are fundamental rights granted and protected? At this point, we shall not only think of religious freedom, but also of other fundamental rights, such as the right of assembly for religious commu‐ nities and their members, the right of property with regard to their ma‐ terial goods. To what extent can these rights be enforced by law? Do they exist only on paper when it namely comes to members of ethnicreligious minorities and is the political reality in fact a different one? A Western European point of view, coined by the ECHR, may lead to an over-optimistic contemplation of the situation. According to a report of the Pew Research Centre (in Washington) 70 percent of the world pop‐ ulation lives in countries which restrict religious freedom massively or in which a large social discrimination exists for religious reasons.8 These restrictions and discriminations have increased over the last years in many countries – and this particularly in those countries where the situation was already tense. The Legal System of Incorporation in Switzerland General Policy How is the legal system of incorporation for religious groups and individ‐ uals shaped in Switzerland? The Swiss Confederacy is a federal state that consists of the Confedera‐ cy and the Cantons. The Cantons are sovereign as far as their sovereignty is not limited by the constitution (art. 3 Swiss Constitution, Cst.).9 The Cantons’ sovereignty plays an essential role regarding the religious consti‐ tutional law (see below chap. 2.4.). All Cantons have an autonomous poli‐ cy regarding their relation with religious communities, which leads to a multitude of different systems of incorporation. For historical reasons – the church authority was always a Cantonal competence – the Confedera‐ cy abstains from imposing a nationwide policy. In fact, this leads to a sep‐ C. I. 8 Pew Forum on Religion and Public Life, “Rising Restrictions on Religion, one-third of the world’s population experiences an increase,” at‐ ment/Rising-Restrictions-on-Religion.aspx, last visited 9 November 2017. 9 A translation of the Federal Constitution of the Swiss Confederation (Cst.), can be found at, last visited 17 July 2014. How Law Incorporates Religious Communities 251 aration of state and religion on the level of the Confederacy. On this level exists thus implicitly a non-establisment policy, meanwhile, as we will see in chap. 2.4., on the level of the member states (the Cantons) there are many (mild) forms of establishment. But even on the federal level the sep‐ aration is not to strict. At a closer glance one can see that between the Confederacy and the religious communities there are many points of con‐ tact and fields of cooperation. In the Swiss federal state, there are three levels of state-activities: on the level of the Confederacy, the Cantonal level and at last, the level of the municipalities. This leads to three levels of state activity with partly differ‐ ent conditions for incorporation. The municipalities of the big cities often set up own policies dealing with religions, this often to create better condi‐ tions for migrant regions. For instance, they establish own agencies or spe‐ cial projects to facilitate integration, or they install on public cemeteries burial places for particular religions in order to meet their special burial requirements. Important to note is that the democratic civil rights of citizens in Switzerland are large. They cannot only elect the governmental authorities but also, via initiative and referendum, vote on concrete factual questions (art. 138 Cst.). The Swiss Confederacy is by this a semi-direct democra‐ cy.10 Questions regarding the policy on foreigners, integration or religion are often the subject of heated public debates and lead to initiatives and referendums. Decisions of citizens thus become part of the different incor‐ poration regimes, which by this not seldom contain some contradictory elements, some religion-friendly, some limiting or even discriminating re‐ ligions. As the official governmental policy will often try to integrate mi‐ grants, popular initiatives aiming at restriction of immigration or religious symbols (2009: ban of minarets on federal level; 2014: ban of Burka in Canton of Ticino) will send totally opposite signals. 10 See Biaggini, Gächter and Kiener, Staatsrecht, 2011, pp. 44. René Pahud de Mortanges 252 The Legal Situation on the Level of the Confederacy The Swiss Constitution Fundamental Rights The three levels of the Confederacy are legally bound by the Constitution that builds the framework which does not only organise the state activity but also defines the fundamental rights of the citizens. The protection through fundamental rights has strongly developed in Switzerland since the 1970s. The fundamental rights can only be restricted under concrete conditions defined in the constitution: A restriction may be allowed if there is a legal basis, there is further the necessity of a public interest or the need for pro‐ tection of a third party's fundamental rights, and at last, this restriction has to be proportional. The core value cannot be touched (art. 36 Cst.). In this context, the most significant fundamental right is certainly the freedom of religion and conscience (art. 15 Cst.). This right includes, on the one hand, the inner freedom to believe or not to believe and, on the other hand, also the external freedom of being allowed to express religious beliefs or (other) convictions, to practise and to spread them. This right protects the religious beliefs or convictions of every individual and that in a positive and negative sense: The latter also in terms of protection from governmental compulsion in religious matters. This protection manifests itself, inter alia, in the obligation of the state to religious neutrality. When‐ ever public institutions deal with religious topics, as for example in public schools, this shall not happen in a single-sided or partial manner. Religion, religious traditions and symbols may also have a rightful place in public institutions, however only in a way that non-believers are not hurt in their opinion.11 The freedom of belief and conscience is of great significance in this context because it (partly) leads to a freedom of culture – which is not ex‐ plicitly anchored in the constitution.12 Religious and cultural practices – as for instance wearing a certain piece of clothing or following a specific diet II. 1. a) 11 See Tappenbeck and Pahud de Mortanges, “Religionsfreiheit und religiöse Neutra‐ lität in der Schule,” 2008, pp. 105. 12 See Kälin, Grundrechte im Kulturkonflikt. Freiheit und Gleichheit in der Einwan‐ derungsgesellschaft, 2000, p. 30. How Law Incorporates Religious Communities 253 – are often closely related, which leads to the fact that cultural practices, exercised in the name of religious freedom, are also protected by the state. Within the fundamental rights, the right to equality (art. 8 Cst.) is of further importance as well as the prohibition of discrimination – besides others for religious reasons – and the therewith connected claim of equal treatment of women and men. The latter is perceived as an essential ac‐ complishment of the Western society of the 20th century which, however, seems to oppose the understanding of gender roles of some religions.13 The prohibition of discrimination is furthermore important regarding the naturalisation law or the law of construction. Since 2009, Switzerland has after a successful popular initiative incorporated a prohibition of con‐ structing minarets into its Constitution (art. 72 section 3 Cst.). Such a uni‐ lateral restriction on religious freedom can be seen as a discrimination of Muslims but cannot be successfully claimed to the Swiss Supreme Court, since these two constitutional norms (prohibition of constructing minarets and the prohibition of discrimination) have the same level in hierarchy. The right of marriage and family is anchored in art. 14 of the Constitu‐ tion. As a consequence of the secularisation in the 19th century, Switzer‐ land has adopted a state-based marriage and family law. In the beginning, it was strongly coloured by Christian values and forms. Due to the social development in the second half of the 20th century it has oriented itself to an own and more secular direction. The patriarchal concept disappeared and equal rights of the spouse as well as the best interests of the child be‐ came the primary values of society.14 A marriage according to religious law can still take place, but only after the civil marriage and on a purely optional level. This is the same for members of religious minorities as for members of traditional religious communities. A religious marriage or di‐ vorce has no legal value for the state. This leads – differently from other states – to a compulsory civil marriage. 13 See Wyttenbach, “Partnerwahl, Familienplanung und sexuelle Gesundheit zwi‐ schen verfassungsrechtlich geschützter Selbstbestimmung und religiösen Vor‐ schriften,” 2010, p. 126. 14 Pahud de Mortanges, Schweizerische Rechtsgeschichte. Ein Grundriss, 2007, pp. 237. René Pahud de Mortanges 254 Further Constitutional Elements of the Incorporation Regime A further constitutional aim and value expressed in the Swiss Constitution is the integration of everybody in society (art. 2 Cst.). Integration is per‐ cieved not only a political objective, but also a state task. Equality of treat‐ ment and equal participation are in this context of special importance. Art. 41 Cst. states the social objectives of the Constitution, which includes the support of children and young adults in their social, political and cul‐ tural integration. Some Cantonal constitutions oblige governmental au‐ thorities as well to undertake efforts of integration.15 A last governmental task in this context finally is the duty to preserve religious peace. Art. 72 section 2 Cst. empowers the Federation and the Cantons to take necessary measures to preserve the public peace between the members of the different religious communities. Nowadays, this should probably be complemented with “between religious and non-reli‐ gious persons”. Further Elements of the Legal System of Incorporation As an example for a specific sector of Swiss law, criminal law shall be ex‐ plained hereafter. Likewise relevant would be e.g. family law, naturalisa‐ tion law, construction law or international private law. The states’ task of preserving religious peace is anchored in several norms of criminal law, namely, amongst others, art. 261 of the Swiss Criminal Code (SCC)16 and art. 261bis SCC. Both norms part of the 12th chapter of the SCC, which contains a rather heterogeneous group of of‐ fences called “offences against the public peace”. b) III. 15 See Caroni, “Religion und Integration – Gedanken zum Umgang mit religiösen Minderheiten,” 2010, p. 16. 16 An officially translated version of the Swiss Criminal Code can be found at http://, last visited 17 July 2014. How Law Incorporates Religious Communities 255 Art. 261 (attack on the freedom of faith and the freedom to worship) is a conglomerate of four alternative elements:17 • Any attack on the freedom of faith and the freedom to worship by any person who publicly and maliciously insults or mocks the religious convictions of others, • any malicious desecration of objects of religious adoration, • any person who maliciously prevents, disrupts or publicly mocks an act of worship guaranteed by the Constitution (this refers to Art. 15 Cst.), • any person who maliciously desecrates a place or object that is intend‐ ed for a religious ceremony or an act of worship guaranteed by the Constitution. This norm contains a rather mild punishment.18 It does not intend the pro‐ tection of God (in a biblical sense), nor of a certain religion. Objective of this norm is solely the protection of all religious opinions.19 Even atheism is seen as being protected.20 Neither does the norm protect specific reli‐ gious communities. Art. 261 must be interpreted in connection with art. 15 Cst. (freedom of belief and conscience). The Constitution protects all forms of religious and non-religious understanding of the world.21 The object protected by art. 261 SCC is “the freedom of belief, more precisely the esteem of the fellow human being and their conviction in religious matters and therewith at the same time also the religious freedom”.22 Therefore, the object of protec‐ tion is primarily the religious feelings of individuals,23 the protection of 17 Stratenwerth and Bommer, Schweizerisches Strafrecht, Besonderer Teil II, 2008, pp. 202. 18 A monetary penalty not exceeding 180 daily penalty units. 19 Schwander, Von den Religionsdelikten, 1955, p. 105. 20 Ibid., p. 107; Fiolka and Niggli, “Strafrechtlicher Schutz von Religionsgemein‐ schaften im realen und virtuellen Raum,” 2005, p. 710; Stratenwerth and Bommer, Schweizerisches Strafrecht, Besonderer Teil II, p. 203; Fiolka, “Kommentar zu Art. 261 StGB,” 2007, N. 12 regarding art. 261. 21 See Winzeler, Einführung in das Religionsverfassungsrecht, 2009, pp. 63. 22 Translation of “die Glaubensfreiheit, genauer die Achtung vor dem Mitmenschen und seiner Überzeugung in religiösen Dingen und damit gleichzeitig auch der reli‐ giöse Friede,” decision of the Swiss Supreme Court (BGE 86 IV 19, 23). 23 Fiolka, “Kommentar zu Art. 261 StGB,” N. 7 regarding art. 261. René Pahud de Mortanges 256 the “person who relinquishes him-/herself in the irrational.”24 Secondarily, the norm aims also at the preservation of the public peace. Art. 261bis SCC (racial discrimination) was introduced to the SCC in 1993.25 It targets a person or a group of persons who are victims of dis‐ crimination because of their race or ethnicity, but also because of their re‐ ligion. Religion has here to be understood both in a large sense, i.e. includ‐ ing all traditional, but also any smaller or novel religion; the jurisprudence regarding freedom of religion can be helpful in interpretating.26 As art. 261bis SCC shows, minoritarian religious communities with a migration background (which are probably more often target of discriminatory pro‐ nouncement or actions than the established churches) are seriously pro‐ tected by the criminal law. Swiss criminal law makes special efforts to cre‐ ate favourable conditions of incorporation. The Cantonal System of Incorporation An Element of Great Importance: The Recognition under Public Law In concretization of the general norms of competence in art. 3 Cst., art. 72 section 1 Cst. states the competence of the cantons to regulate the relation‐ ship between “State and Church”. In Switzerland, there are 26 different cantons. Therefore 26 different autonomous relationships exist between “State and Church”. Apart from the two Geneva and Neuchatel, who have adopted the French “Laicié-model”, the cantons have all adopted a similar system nevertheless.27 This system grants the two main religious denomi‐ nations, the Roman-Catholic and the Protestant Church, as well as the small Christian-Catholic Church a status under Public law. This gives them a favourable position with several rights and advantages, as well as some duties. The recognised churches, firstly, have the right to raise church taxes from their members. In those cantons in which corporations are obliged to IV. 1. 24 Translation of “im Irrationalen preisgebenden Menschen,” Krauss, “Der strafrecht‐ liche Konflikt zwischen Glaubensfreiheit und Kunstfreiheit,” 1984, p. 220. 25 Trechsel, Schweizerisches Strafgesetzbuch. Praxiskommentar, 2008, Rz. 3 regar‐ ding art. 261bis SCC, 1123. 26 See ibid, N.13 to Art. 261bis SCC, 1127. 27 See Winzeler, Einführung in das Religionsverfassungsrecht, pp. 77. How Law Incorporates Religious Communities 257 pay church taxes as well, they participate in the profit thereof. Further‐ more, some cantons provide for historical reasons unconditional financial support. In many cantons, the recognised communities also have the possi‐ bility to offer pastoral care in state institutions such as hospitals, schools and prisons; the state is then financing this work as well. Moreover recog‐ nized religious communities have at public primary and secondary schools the right to use the schools’ infrastructure for their confessional education. In return for all these privileges, the state claims a limited right to su‐ pervise the activities of the Churches and their financing. Also, several cantons claim democratic decision structures for the elec‐ tion member of the local Church government. For the Protestant Church this is nothing new, as its members elect its government in a democratic way. But in the case of the Roman-Catholic Church, this led to the cre‐ ation of an additional governmental structure besides the (hierarchical) diocesan structures.28 The recognition under Public law leads to significant advantages for the recognized religious communities. As they can work in many state institu‐ tions, they are thereby able to reach not only their members, but also other people. Furthermore, they receive financial support from the state for their activities. Equally important: the official recognition of a religious com‐ munity gives them a kind of “governmental approval”, a “certificate of non-objection”. Those which are recognised by the state are declared as socially integrated at the same time. The recognition under Public law by this also has an important symbolic value. As a result many minoritarian religious communities aim for this recognition in order to overcome the social disadvantages. This growing interest of the minor religious communities is interstingly in coincidence with the opening up of the cantonal law of recognition, as seen in the last decades. After the revision of the Swiss Constitution in 1999, many cantons followed the path and revised their Constitutions as well.29 In certain cantons, this led to a cautious and pragmatic reform of the legal system of recognition. In a first step, the local Jewish communities were recognised. After their recognition in Basel City, St. Gallen, Fribourg and Bern, the cantons Waadt and Zurich followed. 28 See ibid., pp. 55. 29 Pahud de Mortanges, “Im Laufe der Zeit. Vom Stand des kantonalen Religionsver‐ fassungsrechts,” 2010, pp. 14. René Pahud de Mortanges 258 Furthermore, some cantons created a legal basis for the recognition of “other” religious communities. Some cantons introduced a form of a small public recognition: In this case, the recognised community maintains its legal status under Private law, but receives some of the above named privi‐ leges (in particular, this small recognition does not include the right to raise church taxes). This is some sort of intermediate stage on the way to a full recognition under Public law. By this a significant step was made to‐ wards fairer conditions for the incorporation of minor religious communi‐ ties. The Canton of Basel City has in the last years recognized three mi‐ nority communities, amongst others the local Alevit community. A clear disadvantage is that there is no enforceable right to obtain the recognition in any canton. Due to the fact that the Swiss Supreme Court has no right to constitutional review, a religious community cannot claim recognition grounded on the right to equality (art. 8 Cst.). A cantonal par‐ liament can refuse a request for recognition; sometimes government au‐ thorities advice religious communities not to hand in a request. This tool of incorporation is thus not set up in a totally fair way. Even though in the‐ ory the norms may look decent and fair, in practice they are not when the decision is left more or less entirely to the discretion of government offi‐ cials. For historical reasons the cantons speeded up recognizing their local Jewish communities, for actual political reasons they repeatedly avoid to recognize local Muslim communities. The result is rather discriminatory – but there is no constitutional way to claim that. The Jurisprudence The incorporation system of the state is not only influenced by the lawmaking process of the legislative and the practices of the executive author‐ ities but also by the case law of the courts. The court is the last deciding instance when there is a collision of private interests of religious practise with public ones and individuals do not accept decisions of governmental autorities. Particularly, the Swiss Supreme Court has not seldomly to give guid‐ ance in state-religion matters.30 In the last years its jurisdiction repeatedly V. 30 See Winzeler, “Die öffentliche Schule als Werkstatt der Integration,” 2010, pp. 149 ff.; Kley, “Kutten, Kopftücher, Kreuze und Minarette – religiöse Symbole in öffentlichen Räumen,” 2010, pp. 229. How Law Incorporates Religious Communities 259 dealt with the religious practice of Muslims in public institutions. The fast augmentation of the Muslim population in Switzerland led to several legal questions for which legislation did not have any answer. Therefore, it was ultimately the court that had to solve these conflicts. Some of the Supreme Court jurisprudence was afterwards included into cantonal law. How does the Supreme Court deal with the religious freedom of Mus‐ lims in Switzerland? Comparing older and newer decisions one can see that some years ago the Supreme Court was quite easy with waiving limi‐ tations of religious freedom: (BGE 123 I 296 ff.: ban on headscarves for teachers in primary schools in the canton of Geneva; BGE 125 I 300 ff.: no right to Islamic burial rites; BGE 135 I 79 ff.: no right to dispensation of mixed-gender swimming instructions at school). But this seems to have changed: more recent decisions do not support half-cooked limitations of local authorities any more (e.g. BGE 1 C_35/2015: no ban on veil for fe‐ male students in public primary school; 2 C_121/2015: no interdiction for an event of a wahabid muslim organisation on public ground; BGE 134 I 56: no refusal of naturalisation because the applicant wears a headscarf). It seems to me that the Supreme Court has changed to a more open in‐ terpretation of freedom of religion especially for Muslims. The Court takes religious neutrality more serious. It cannot give in to the pressures of those groups in Swiss society, who do not want to see Muslim religious practice at all. Court decisions regarding matters of state and religion are often a topic of wide and controversial discussions in Switzerland. However, such deci‐ sions are the rare case because in general, a consensual solution can be found. Nevertheless, these decisions show the change from a homoge‐ neous, Christian coined society towards a religious pluralistic one. Gov‐ ernmental authorities have to find their position in this new situation. Thereby, freedom of religion and religious neutrality become very impor‐ tant. And like the legal instrument of recognition under Public law, the principle of the religious neutrality – as blurry as it may seem – is a ‘incor‐ poration tool’ of essential significance. Conclusion This overview of some aspects of the incorporation system in Switzerland leads to the assumption that the state and religion system is currently di‐ rected towards more acceptance of religious plurality. Rights which were D. René Pahud de Mortanges 260 in earlier times only granted to the two majoritarian Christian churches are nowadays also given to non-Christian religions. The initial point and mo‐ tor of this development is – besides the principle of neutrality – primarily the constitutional principle of equal treatment, respectively the prohibition of discrimination. This principle requests a state policy of acceptance of religious and cultural diversity in society. In the last years, the Federal state as well as the cantons tried to enforce these constitutional aims and values e.g. by opening-up of the cantonal recognition under Public law and by several important decisions of the Supreme Court. Direct democra‐ cy on the other hand, has rather a braking effect in this process: initiatives on the federal and cantonal level were and are still used in order to keep mainly Muslim religious practice invisible. But this seems to me a rather transient phenomenon. What used to lead to protest some years ago, e.g. the opening of special burial sites for specific religious groups, is widely accepted these days. And the opening of a “Center for Islam and Society” at Fribourg University in summer 2016 had an overwhelming positive echo. Bibliography Allenbach, Brigit, and Martin Sökefeld (eds.), Muslime in der Schweiz, Zürich: Seis‐ mo, 2010. Biaggini, Giovanni, Thomas Gächter, and Regina Kiener (eds.), Staatsrecht, Zürich and St. Gallen: Dike, 2011. Caroni, Martina, “Religion und Integration – Gedanken zum Umgang mit religiösen Minderheiten,” in Religion und Integration aus der Sicht des Rechts. Grundlagen- Problemfelder-Perspektiven, ed. René Pahud de Mortanges, Zürich: Schulthess, 2010, pp. 11-37. Dictionnaire Droit des Religions, sous la direction de Francis Messner, CNRS Edtiti‐ ons, Paris, 2010. Fiolka, Gerhard, and Marcel Alexander Niggli, “Strafrechtlicher Schutz von Religions‐ gemeinschaften im realen und virtuellen Raum,” in Kooperation zwischen Staat und Religionsgemeinschaften nach schweizerischem Recht, ed. René Pahud de Mortan‐ ges and Erwin Tanner, Zürich: Schulthess, 2005, pp. 705-734. Fiolka, Gerhard, “Kommentar zu Art. 261 StGB,” in Strafrecht II, Basler Kommentar, ed. Marcel Alexander Niggli, Marcel Alexander and Hans Wiprächtiger, 2nd ed., Basel: Helbing Lichtenhahn, 2007. Kälin, Walter, Grundrechte im Kulturkonflikt. Freiheit und Gleichheit in der Einwan‐ derungsgesellschaft, Zürich: NZZ libro, 2000. How Law Incorporates Religious Communities 261 Kley, Andreas, “Kutten, Kopftücher, Kreuze und Minarette – religiöse Symbole in öf‐ fentlichen Räumen,” in Religion und Integration aus der Sicht des Rechts. Grundla‐ gen-Problemfelder-Perspektiven, ed. René Pahud de Mortanges, Zürich: Schulthess, 2010, pp. 229-257. Krauss, Detlev, “Der strafrechtliche Konflikt zwischen Glaubensfreiheit und Kunstfrei‐ heit,” in Gedächtnisschrift für Peter Noll, ed. Robert Hauser, Jörg Rehberg and Günter Stratenwerth, Zürich: Schulthess, 1984, pp. 209-230. Pahud de Mortanges, René, Schweizerische Rechtsgeschichte. Ein Grundriss, Zürich: Dike, 2007. Pahud de Mortanges, René, “Im Laufe der Zeit. Vom Stand des kantonalen Religions‐ verfassungsrechts,” in Wo Gottes Wort ist. Die gesellschaftliche Relevanz von Kir‐ che in der pluralen Welt. Festgabe für Thomas Wipf, ed. Thomas Flügge, Martin Ernst Hirzel, Frank Mathwig and Peter Schmid, Zürich: Theologischer Verlag, 2010, pp. 141-155. Pew Forum on Religion and Public Life, “Rising Restrictions on Religion, one-third of the world’s population experiences an increase,” at Govern‐ ment/Rising-Restrictions-on-Religion.aspx. Schwander, Vital, Von den Religionsdelikten, Freiburg: Universitätsverlag, 1955. Soysal, Yasemin Nuhoglu, Limits of Citizenship, Migrants and Postnational Mem‐ bership in Europe, Chicago: Chicago University Press, 1994. Stolz, Jörg, “Religion und Integration aus der Perspektive der erklärenden Soziologie,” in Religion und Integration aus der Sicht des Rechts. Grundlagen-Problemfelder- Perspektiven, ed. René Pahud de Mortanges, Zürich: Schulthess, 2010, pp. 41-80. Stolz, Jörg, and Martin Baumann, “Religiöse Vielfalt: Kulturelle, soziale und individu‐ elle Formen,“ in Eine Schweiz – viele Religionen, ed. Martin Baumann, and Jörg Stolz, Bielefeld: Transcript, 2007, pp. 21-38. Stratenwerth, Günter, and Felix Bommer (eds.), Schweizerisches Strafrecht, Besonde‐ rer Teil II, 6th ed., Bern: Stämpfli 2008. Suter Reich, Virginia, Zwischen Differenz, Solidarität und Ausgrenzung. Inkorporati‐ onspfade der alevitischen Bewegung in der Schweiz und im transnationalen Raum, Dissertation Universität Bern, 2011. Swiss Supreme Court, BGE 86 IV 19, 23. Tappenbeck, Christian, and René Pahud de Mortanges, “Religionsfreiheit und religiöse Neutralität in der Schule,” in Religiöse Neutralität. Ein Rechtsprinzip in der multi‐ religiösen Gesellschaft, ed. René Pahud de Mortanges, Zürich: Schulthess 2008, pp. 105-136. Trechsel, Stefan, Schweizerisches Strafgesetzbuch. Praxiskommentar, Zürich an‐ dSt.Gallen: Dike 2008. Winzeler, Christoph, Einführung in das Religionsverfassungsrecht, 2nd ed., Zürich: Schulthess, 2009. Winzeler, Christoph, “Die öffentliche Schule als Werkstatt der Integration,” in Religion und Integration aus der Sicht des Rechts. Grundlagen-Problemfelder-Perspektiven, ed. René Pahud de Mortanges, Zürich: Schulthess, 2010, pp. 149-171. René Pahud de Mortanges 262 Wyttenbach, Judith, “Partnerwahl, Familienplanung und sexuelle Gesundheit zwischen verfassungsrechtlich geschützter Selbstbestimmung und religiösen Vorschriften,” in Religion und Integration aus der Sicht des Rechts. Grundlagen-Problemfelder-Per‐ spektiven, ed. René Pahud de Mortanges, Zürich: Schulthess, 2010, pp. 123-147. How Law Incorporates Religious Communities 263 Islam in Italy: A Religion Under Construction Alessandro Ferrari Introduction For some years now, Islam has been, with Eastern Orthodox Christianity, the second largest religion in Italy after Roman Catholicism. In fact, al‐ though precise data are not available, the number of Muslims in Italy is approximately 1.9 million.1 Nevertheless, Islam is still perceived in Italy as a foreign religion, and its integration into the Italian civic and institu‐ tional landscape has been, until a very recent time, mainly left to the “goodwill” of local practices, often promoted by civil society actors. As a consequence, Islam in Italy, although it represents one of the most power‐ ful symbols of the “post-secular” age and the “return of religion” in the public arena, is not still officially recognized as a “religion” within the law but as a more generic and fluid cultural or ethnic experience. In very few cases, in fact, are Muslims able to take advantage of the special disposi‐ tions on religious freedom available under Italian law. Islam, then, exists mainly as a “non-religion” in a “religious country,” relying on organiza‐ tional forms that disguise its religious dimensions. This situation reflects the traditional character of the Italian nationstate, which bases civic cohesion more on proximity or private relation‐ ships than on the voluntary engagement of public institutions.2 However, A. 1 As in most European countries, the national census does not consider religious affil‐ iation, and the data for the foreigners are most often inferred from the surveys pub‐ lished in the annual reports on immigration by the Italian Caritas, the Roman Catholic relief, development, and social service organization. See for example, re‐ garding the 2016 Report http://www.integrazionemigranti.‐ cerche/Sintesi_OK%20(1).pdf, and -matrice-islamica-in-italia/lislam-sunnita-unintro duzione/: both accessed 30 June 2017. See, for a first overview, Razzali and Equizi, “I musumani e i loro luoghi di culto,” 2013, pp. 47-72, and Coglievina, Annotated Legal Documents on Islam in Europe: Italy, 2016. 2 I have analyzed this ideal-typical condition in “Laïcité et multiculturalisme à l’itali‐ enne,” 2008, pp. 133-154, and in “Civil Religion in Italy: ‘A Mission Impossi‐ 265 the legal status of Italian Islam also reflects a broader, deeper contempo‐ rary change in the perception of religions and the right to religious free‐ dom. In fact, the difficulty in reconciling globalized and ‘post-modern’ reli‐ gious experience with the traditional paradigm of ‘religious belonging’ based on clear ‘religious constellations’; the advent of a “third age” of sec‐ ularism3 and the subordination of the right to religious freedom to more ideological and securitarian versions of civic cohesion and public order have provoked contradictory dynamics within the European right to reli‐ gious freedom. On one side, these changes have brought to a crisis of reli‐ gious freedom as a unified, specific and high standard right. On the other, they have exacerbated the efforts to transform Islam in a “religious de‐ nomination”, although its all-encompassing, multifaceted and transnation‐ al nature complicates references to the traditional Church-oriented Euro‐ pean right to religious freedom. Consequently, if Islam is too broad to be encapsulated by the only right to religious freedom, the Italian experience witnesses the ongoing political role of this latter as state’s protector through its function of watershed be‐ tween “sacred alterities” and “secular” institutions. Sociological Frameworks Setting aside the far memory of Muslim Sicily, Islam only arrived and be‐ came established in Italy in the 1970s, coming from Tunisia, and later from Morocco, Syria, Jordan, and Senegal. From the 1990s on, migration to Italy grew, including from new countries such as the Balkans and Southeast Asia. Consequently, unlike other European Islams, Italian Islam is neither a colonial Islam, as in France, nor is it an Islam based on ar‐ B. ble’?,” 2010, pp. 839-859. This nation-state character avoids simple recourse to the often hypocritical principle of neutrality, but it certainly does not avoid evident ten‐ sions between a “Kelsenian” and a “Böckenfördian” approach, making it difficult for a (Kelsenian) law to limit the (Böckenfördian) weight of majority and, above all, of history. 3 With “secularity 3” Taylor, A Secular Age, 2007, p. 3 intends “a move from a soci‐ ety where belief in God is unchallenged and indeed, unproblematic, to one in which it is understood to be one option among others (…). Secularity in this sense is a matter of the whole context of understanding in which our moral, spiritual or reli‐ gious experience and search takes place.” Alessandro Ferrari 266 rangements between Italian companies and a specific country rich in man‐ power, as is true, for example, in the case of Turkish Islam in Germany. Italian Islam is rather, a group of very different people who arrived in ran‐ dom order largely for economic reasons (except in these very recent years) and who have formed, over time, a real plural community.4 Among the approximately 1.9 million Muslims in Italy, Moroccans comprise about 500,000; the largely secularized Albanians about the same, followed by 118,000 Bangladeshis, 110,000 Egyptians, about 100,000 Tunisians, the same number of Pakistanis and Senegalese and about 20,000 Turkish.5 Although the different faces of Sunni Islam are clearly the majority, groups of Shiites are also represented.6 The distribution of this diversified community within Italy reflects the economic geography of the country, the possibility to find a job, such that there is a stronger Muslim presence in the Northern regions. Recently, there has been an ex‐ change between unskilled workers who returned to their countries of ori‐ gin or moved to other European countries due to the Italian economic cri‐ sis, and younger graduates who have arrived in Italy after the events fol‐ lowing the ‘Arab Spring’. Despite the forty years since Muslims’ stable settlement in Italy and its overcoming of the symbolic “second generation” threshold, Muslim eth‐ no-national groups have not only not been merged into a single religious entity, but, above all, Islam still remains a foreign religion in Italy. This is due, first of all, to the fact that the majority of “Italian Muslims” are still foreign citizens and Italian citizenship is deeply rooted in a very strong conception of ius sanguinis and its acquisition depends on a complicated process full of bureaucratic obstacles. As a result of these challenges, there are only about 100,000 naturalized “Italian Muslims,” or, in any case, less 4 See Allievi, Islam italiano: Viaggio nella seconda religione del paese, 2003, pas‐ sim. 5 See Bombardieri, “Islam in Italia: Numeri, protagonisti e dinamiche sociali,” 2013, pp. 7-24, and for more recent data: statistiche/ cittadinistranieri-2016/, accessed 30 June 2017. 6 There are, in fact, six Shi’a associations and one small Ismaili group. About the non-Arabic Muslim groups, Senegalese murids associations are spread all over the national territory, while various Turkish associations (Süleymanci, Fetullah Gülen or Milli Görüsh) are especially prevalent in the North. In 2009 the Union of Muslim Albanese in Italy was also founded, see Bombardieri, “Mappatura dell’associazion‐ ismo islamico in Italia,” 2014, pp. 11-34. Islam in Italy: A Religion Under Construction 267 than 10 percent of the total Muslim population.7 This formal and ascribed “foreign” character, which prevents Muslims from having an influential political voice,8 directs public discourse about Islam mainly on immigra‐ tion, ethnicity, and security, a discourse that rarely addresses Muslims’ right to religious freedom.9 At the same time, this foreign character also leads public institutions to focus more on the role of foreign “Muslim” states and private international law than on investigating the role of au‐ tochthonous leaderships and Italian sharī’a.10 7 The Law 91/1992 defines an Italian as one who is born of an Italian mother or fa‐ ther. Young people do not automatically acquire Italian citizenship simply by be‐ ing born on Italian soil. The acquisition of citizenship is possible through marriage to an Italian citizen or after ten years of legal residence. Moreover, Article 4, para 2 of the same law allows people born in Italy of foreign parents to apply for citi‐ zenship after reaching legal age (eighteen years) if they have legally resided in the country “without interruption”. Nevertheless, each year 37 percent of these young “foreigners” – but not immigrant – who are resident in Italy at their majority can‐ not become Italian citizens because of some interruption of their residence, and they have to remain in the strange condition of “Italian with foreign citizenship”: See Milena Santerini, “Le seconde generazioni e il nodo della cittadinanza,” 2014, pp. 137-148. In October 2015 the Chamber of Deputies had approved a new law on citizenship which introduced a soft form of ius soli but the Senate didn’t ap‐ prove it. 8 In the present legislature there is only one Muslim MP, native Moroccan journalist Khalid Chaouki, of the Democrat Party. In the XV legislature (2006-2008), the so‐ ciologist Khaled Fouad Allam, native to Algeria, was elected in the same party and in the XVI legislature (2008-2013) the journalist Souad Sbai, native to Moroc‐ co, was MP for the right-wing coalition. No political Muslim movement to date has participated in any Italian election, and the civic electoral list “Milano Nuova” that ran at Milan’s 2011 municipal election in Milan and proposed the president of an Islamic center as a candidate for mayor, presented itself as “secular, pluralist and open”, see Nuova, accessed 25 August 2014. 9 See I musulmani e la società italiana. Percezioni reciproche, conflitti culturali, trasformazioni sociali, ed. Stefano Allievi, 2009; Bruno, L’islam immaginato. Rappresentazioni e stereotipi nei media italiani, 2009, and the Report of the Natio‐ nal Institute of Statistics (ISTAT), “Il contesto italiano nei dati Istat,” at http://, accessed on the 30 June 2017. 10 See Conetti, “Il matrimonio: conflitti di leggi o di culture?,” 2008, pp. 111-120, and Domianello, “Il pluralismo in materia religiosa nel settore matrimoniale,” 2012, pp. 120 ff. For a wider picture see Anello, “Passato e futuro della minoranza musulmana in Italia, tra islamofobia e pluralismo pragmatico-giuridico,” 2016. Alessandro Ferrari 268 Nevertheless, the hundred thousand Italians who have converted to Is‐ lam11 and, most importantly, the youth, the so-called second generation, already Italian or still not, could change this perspective. On one hand, because of their mastery of the Italian language and of the Italian ‘way of life’, converts are natural mediators between their new reli‐ gious community and Italian institutions and civil society. Mario Scialoja, the former Italian ambassador in the Saudi Arabia, who worked in support of the ‘Great Mosque’ of Rome and the Shaykh’ Abd al-Wahid Felice Pallavicini, founder of COREIS, an influential Muslim association which mainly gathers Italian converts, were pioneers in this role.12 On the other hand, a bridging role is played today by the young of the ‘second genera‐ tion’, men and women born in Italy who, interpreting their multiple identi‐ ties as a strength rather than a limitation, are moving away from a purely symbolic or “decorative” role to assume leadership positions in the build‐ ing of an Italian Islam more autonomous from foreign states.13 Muslim Actors: The Main Actors The “foreign” character of Islam in Italy clearly has a strong impact on Muslim organizations born to transplant Islam in the country and, in par‐ ticular, to open places of worship, promote religious education and other C. 11 In 1999 Allievi, I nuovi musulmani. I convertiti all’islam, quoted at ten thousand the number of converts. Today, after fifteen years, that number has increased ten‐ fold: Bombardieri, “Mappatura dell’associazionismo islamico in Italia,” p. 12. 12 See infra in the paper. 13 See Abis Analisi e strategie, “G2: una generazione orgogliosa. Una ricerca sui musulmani in Italia,” at item /2308-g2-una-generazione-orgogliosa-unaricerca-sui-musulmani-in-italia.html, accessed on 25 August 2014, and Frisina, Giovani musulmani d’Italia, 2007. See also, Branca, Yalla Italia! Le vere sfide dell’integrazione di arabi e musulmani nel nostro paese, 2007, and, written by two young “2G” leaders: Chaouki, Salaam, Italia! La voce di un giovane musulmano italiano, 2005, and Qader, Porto il velo, adoro i Queen. Nuove italiane crescono, 2008. It is worth noting that today Khalid Chaouki is the only Italian Muslim MP and Sumaya Abdel Qader the only sitting in the Council of the city of Milan where another young Italian Muslim, Davide Piccardo, plays an important role as coordinator of the CAIM (Coordination of Is‐ lamic Associations of Milan), which gathers more than twenty Muslim asso‐ ciations: see about/?ref=page_internal, accessed 10 November 2016). Islam in Italy: A Religion Under Construction 269 community activities. In fact, the internal life of the main Italian Islamic organizations is still strongly influenced by the financial and ideological links with foreign governments, with homelands. Three main Sunni associations traditionally contend for the representa‐ tion of Italian Muslims: the Union of Islamic Communities and Organiza‐ tions in Italy (UCOII); the Islamic Cultural Center of Italy, called the ‘Great Mosque’ of Rome; and the Islamic Religious Communities in Italy (COREIS). The Union of Islamic Communities and Organizations in Italy UCOII, ideologically related to the Tunisian An-Nahada and the Egyptian Muslim Brotherhood14 and associated with the Federation of Islamic Or‐ ganizations in Europe (FIOE), aspires to represent the ‘people of mosques’, a ‘bottom-up Islam’, and aims to promote an Islamic identity fully integrated within Italian society as a public moral force. The Union was founded in 1990 by former students of the University for Foreigners of Perugia who came to Italy in the 1970s and by the first Italian converts coming from leftist ranks.15 Present throughout the country the Union brings together about two hundred places of worship, and in recent years has managed to build two mosques with dome and minaret, in Ravenna and Colle Val d’Elsa,16 near Siena, and to inaugurate a third in a redevel‐ oped building in Catania. With time, the Union has been able to develop a visible presence within civil society and is today considered a central in‐ I. 14 These are, in any case, rather flexible and sensitive references. For Ahmed Abdel Aziz, former spokesman of the Italian Muslim Youth and now responsible for the Committee for the Freedom and Democracy for Egypt, «the Muslim Brotherhood does not exist in Italy and there are not even brothers Muslims». For Aziz, in fact, “the Brotherhood is an important political and social movement in Egypt, but (in Italy) we do not have a corresponding, and it does not intend to have it. This is why it does not make sense to replicate in Italy the model of another country that is based on a different reality,” at Ne2/Primo_piano/ Fratelli_(musulmani)_d_Italia.aspx, accessed 20 August 2014. 15 See Bombardieri, “Mappatura dell’associazionismo islamico in Italia,” pp. 15-18. 16 This mosque has a very long history: see the 2005 study by Fiorita and Tarchia‐ ni, “L’Islam a Colle Val d’Elsa: pregi e difetti di un protocollo d’intesa,” at http://, accessed 25 August 2014, and Bombardieri, Moschee d’Italia. Il diritto al luogo di culto. Il dibattito sociale e politico, 2011, pp. 147-153. Alessandro Ferrari 270 terlocutor by the state.17 But the path for joining this position has been long and marked by vicissitudes. In 1992, the Union presented a proposal of agreement (intesa) to the state with the aim to be placed on the same level as the Roman Catholic Church and other “established religions.”18 The fact that this proposal came from only one of the Muslim groups not already recognized as a “re‐ ligious institution” according to Italian law19 gave the impression of a pro‐ pagandistic initiative addressed more to the internal Muslim audience than to the Italian government. As such, the proposal remained unilateral, ephemeral, and inconsequential. In any case, UCOII’s lack of clear organi‐ zation as a recognized religious association has not been the only source of tension between it and the state; the perception of UCOII as a represen‐ tative of a political and fundamentalist Islam also has weighed heavily.20 The lowest point of these relations occurred in 2007 at the signing of the Charter of Values of Citizenship and Integration, promoted by the Home Ministry.21 The official aim of the Charter was the promotion of a model of integration able to settle new religious and cultural pluralism and Italian constitutional principles thanks to the recognition of the role played 17 Apart from ‘Muslim activities’, UCOII is especially attentive to relationships with non-Muslims and to interreligious dialogue. UCOII also provides scholarships for the master’s in European Islam at the inter-university Centre FIDR, based at the University of the “Piemonte Orientale”, also sponsored by Morocco. 18 The third paragraph of art. 8 of the Italian Constitution foresees that relationships between the state and religious denominations (confessioni religiose) “shall be regulated by law on the basis of agreements with their respective representatives.” See Ventura, Religion and Law in Italy, 2013, pp. 58-59 and 101-104. 19 UCOII does not have any recognition as a “religious legal entity” on the basis of the 1929-1930 legislation (see below). Recognition has always been considered by the administrative praxis the condition sine qua non for asking the state to open talks for the signature of an agreement. 20 This perception was also encouraged by some organization leaders themselves, who have slipped up on ambiguous anti-Zionist demonstrations or on ingeniously conservative and misogynistic theological statements, thus provoking a barrage of criticism by anti-Muslim right-wing opinion makers. See Bombardieri, Moschee d’Italia, pp. 30-33. 21 See‐ pa/speciali/accordo_integrazione/carta_dei_valori.html, accessed 24 August 2014, and see also below in the text. Islam in Italy: A Religion Under Construction 271 by the Catholic character of the nation as a bedrock of the societal sys‐ tem.22 Nevertheless, at the same time, the Charter aimed also at encourag‐ ing unity among moderate (i.e. state-centered) Islamic organizations and marginalizing the Union, which was perceived as an expression of a transnationalism without state and too politically radical.23 Consequently, although UCOII formally signed the Charter, the Home Ministry, citing controversial statements by some Union leaders, declared the signature meaningless.24 In 2011, this resulted in the Union being excluded from the new Committee for Italian Islam established by the Home Ministry. This also caused difficulties at the local level, where having signed the Charter was considered an indispensable requirement for opening places of wor‐ ship, especially by right-wing local administrations. It was the Arab Spring to restore the political – and religious – centrali‐ ty of the Union which, in the interim, had chosen a renewed leadership, more able to cope with Italian landscape. In fact, in 2012 UCOII was among the religious groups represented at the Permanent National Consul‐ tation for Religions, Culture and Integration, and since then, regardless of the fall of the Egyptian President Morsi and the recent ‘Qatar crisis’, it al‐ ways officially appears in all important institutional events. Above all, in February 2017, UCOII has been the main actor of the signature of the “Pact for an Italian Islam” promoted by the Home Ministry.25 It is worth to note that, until the signature of this last document, the Union has not used its institutional role for structuring itself as a religious entity, but rather for continuing its expansion from the bottom as a simple private association within the more flexible and generic framework pro‐ vided for the civil code and charity legislation.26 Given the government in‐ stability and the state’s awkwardness towards the Islamic question, it ap‐ pears that the Union leadership was convinced that, rebus sic stantibus, it 22 This character was particularly evident, for example, in n. 25 for which “(O)n the basis of its religious and cultural tradition, Italy respects the symbols and the signs of all religions.” 23 See the following para 5. 24 See Bombardieri, Moschee d’Italia, pp. 107 ff. and para. 7.3. 25 See, infra, at para. 5. 26 Things didn’t change after the gift, between 2013-2016, of more than 20 millions of dollars by the Qatar Charity Foundation for the places of worship of this organi‐ zation. See fi‐ nanzia_le_moschee_dal_qatar_alla_turchia_fondazioni_e_tanti_soldi_per_l_is‐ lam_italiano-145334232/, accessed 20 September 2016. Alessandro Ferrari 272 was better not to get involved in the complex and highly discretionary pro‐ cedures necessary of being recognized as a religious entity. Rather UCOII, indulging the growing search by the state for safe and loyal imams has heavily invested in creating an “Italian imamate” as a premise for a subse‐ quent greater and structural recognition. Consequently, on one hand, in 2013, it has signed an agreement with the Tunisian Ministry of Religious Affairs for the arrival of imams who will be retrained by UCOII with respect to the linguistic, sociological, and juridical skills necessary for their work in the Italian context.27 On the oth‐ er, UCOII has cultivated strong links with the Italian Islamic Association of Imams and Religious Guides, which is connected with the European Council for Fatwas and Research and that aspires to become the referent for an “Italian fiqh.”28 On the 5th November 2015, the UCOII’s attention to the “imam question”29 has been rewarded an agreement with the De‐ partment of Prisons of the Ministry of Justice for the access of cultural mediators and imam of this organization in Italian prisons.30The signature of the “Pact for an Italian Islam”, which is accompanied by the explicit commitment of the government to engage itself in the process of institu‐ tional recognition of Islamic religious associations, has opened a new phase where UCOII is destined to play a leading role. 27 See, accessed 25 September 2015. 28 See Bombardieri, “Mappatura dell’associazionismo islamico in Italia,” pp. 16-17, and internal, ac‐ cessed 5 November 2016. 29 See also the circular of the 18 January 2015 to the associations linked with UCOII for a khutba in Italian, as the common language of Italian Muslims: http://, accessed 5 November 2016. 30 The convention indicates that there are only 9 imam and 14 cultural mediators for more than 10,000 Muslim prisoners. See;jsessionid=94smZhGhJwx9+tbWYfBn4lKi?facetN‐ ode_1=0_2&facetNode_2=1_1(2015)&facetNode_3=1_1(201511)&facetN‐ ode_4=1_1(20151105)&contentId=SCA1196726&previsiousPage=mg_1_7, ac‐ cessed 25 November 2015, and Cuciniello, “L’Islam nelle carceri italiane,” 2016, at, accessed 10 July 2017. Islam in Italy: A Religion Under Construction 273 The Islamic Cultural Center of Italy The Islamic Cultural Center of Italy (ICCI) is the other main Muslim insti‐ tution in Italy. ICCI is the traditional antagonist of the Union and repre‐ sents a ‘top-down Islam’, strictly controlled by foreign state authorities. Based in Rome, it is the only Islamic organization in Italy recognized as a religious entity according to the 1929-1930 legislation.31 Nevertheless, the date of the recognition, 1974, and the name assigned to this institution, which emphasize its cultural before the religious character are the mark of a very peculiar reality. In 1974, Italy was in the midst of the oil crisis, and the Italian government, in cooperation with the Vatican, determined it would be a good political investment to recognize an institution directed by the ambassadors of Muslim countries appointed to the Italian govern‐ ment and the Holy See. The nature of this foreign-state leadership and the fact that Islam was still perceived as a far reality, determined the choice to define the center with a less engaging cultural reference rather than with a more demanding religious denomination. In any cases, in 1995 ICCI offi‐ cially inaugurated the Great Mosque, designed by Paolo Portoghesi and funded mainly by Saudi Arabia and Morocco, which have since competed for ICCI leadership. The mosque is directed by a council of administra‐ tion, in which fifteen of the twenty-eight Muslim country ambassadors based in Rome sit in rotation, and by an assembly of the general member‐ ship that also includes Italian Muslims, among whom is the vice-president of the Islamic Religious Community in Italy (COREIS), the third most in‐ fluential Muslim institution in Italy. Currently, Saudi Arabia appoints the president of the council of administration and Morocco appoints the gen‐ eral secretary, who is in charge of the effective administration of the Mosque and ICCI. The imam, in turn, is appointed by Egypt. Due to its seniority, its location in Rome and official legal status, ICCI presents itself as the primary “natural” representative of Islam in Italy. However, it faces a challenge among the general Muslim population be‐ cause of its evident foreign character and top-down nature, both of which distance it from the “people of mosques” courted by UCOII. Conscious of these limits – and within the context of its competition with Saudi Arabia – Morocco has used its influence through the position of the general secretary of the Great Mosque to regroup Moroccan Mus‐ II. 31 Decree of the President of the Republic no. 212 of 21 December 1974. Alessandro Ferrari 274 lims living in Italy into regional associations since 2008. After March 2012, these associations were merged into the Islamic Italian Confedera‐ tion (IIC), which aspires to become the more qualified representative of Italian Islam by combining top-down diplomacy and bottom-up dissemi‐ nation Consequently, the Confederation aims at two interconnected goals: first, to influence and control the Moroccan diaspora and avoid anti-royal‐ ist influences on it; and second, to strengthen the Maliki school in Italy and sign an agreement with the state as the more reliable Muslim repre‐ sentative. Nevertheless, governance of the Confederation has not proved easy. In fact, already at its inaugural meeting, five out of fifteen regional federations refused to join the national confederation complaining a lack of transparence and democracy in the decisional process. Then along came criticisms of Moroccans eager to integrate in the new Italian context and break free from too obliging ties with their native country. Regardless, ac‐ tually the deed of incorporation speaks about thirteen regional federations as being part of the Confederation with a total of 269 associations32 and which counts about the same number of places of worship as UCOII. The Confederation also tries to organize its own imamate in relationship with the European Council of the Moroccan Ulema.33 Its undeniable spreading together with its Moroccan governmental su‐ pervision, give Confederation important advantages over its competitors also because the debate about radicalization among European Muslim youth has strongly re-legitimated the role of Morocco as guarantor of ‘moderate Islam’. Nevertheless, the foreign supervision, although it could reassure Italian authorities, slows down the consideration of the ICCI Is‐ lam as an “Italian religion” limiting the possibility for the Center to be‐ come, just as it is, without formal statutory changes, a partner of the state for the signature of an agreement.34 32 See Bombardieri, “Mappatura dell’associazionismo islamico in Italia,” pp. 20-21, and idem, “Una federazione prevalente,” 2012, p. 314, and http://www.conf-islam‐, and confederazione-islamica-italiana/atto-costitu tivo/, accessed 30 June 2017. 33 See, accessed 5 November 2016. 34 In fact, due to their too overt foreign character, it is very unlikely a signature of an agreement only between the Italian state and the Great Mosque or the Confedera‐ tion. See Casuscelli, “Le proposte d’intesa e l’ordinamento giuridico italiano. Emi‐ grare per Allah/emigrare con Allah,” 2009, pp. 83-105. See also, idem, “La libertà religiosa alla prova dell’Islām: la peste dell’intolleranza,” 2008, pp. 53-70. See Islam in Italy: A Religion Under Construction 275 The Islamic Religious Community in Italy The third relevant Italian Muslim organization is the Islamic Religious Community in Italy (COREIS) founded in the 1990s by the Shaykh’ Abd al-Wahid Felice Pallavicini, an Italian convert to Islam, who led the asso‐ ciation until passing the leadership to his son, Yahya, in the spring of 2016.35 Despite only having about one hundred official members, COR‐ EIS is the only Muslim association clearly established and organized as a religious association. It is led by Italian converts and mainly composed of Italian citizens. Founded in the gnostic esoteric line of the French thinker René Guenon, it represents an independent branch of the tarīqa Ah‐ madiyya Idrīsiyya Shādhiliyya and cultivates the reputation of embodying a ‘moderate Islam’, open to interreligious and intercultural dialogue.36 COREIS’s Italian character, ‘moderation’, theological focus, and intensive dialogue with the Catholic Church and its institutions are presented as the best credentials for good relationships with state authorities. This activism also differentiates this association from the ICCI and ICC, where COREIS has been ‘junior partner’, sharing a similar top-down approach and close ties with foreign institutions unsympathetic towards any ‘Muslim brothers style’. This also explains why relationships between COREIS and UCOII have often been quite strained. Especially in the past, UCOII has overtly accused COREIS of ‘esotericism’, which has led the latter to tout its own moderate stance in opposition to the perceived fundamentalism of the Union. This was particularly evident by the signing of the Charter of Val‐ ues of Citizenship and Integration, which was endorsed and strongly pro‐ moted by COREIS acting in opposition to UCOII. III. also, for a complete and updated overview, Comunità islamiche in Italia. Identità e forme giuridiche, ed. Carlo Cardia and Giuseppe Dalla Torre, 2015. At the same time, it is also very unlikely that the Italian state sign an agreement without con‐ sidering the role played by Morocco within the Italian and Mediterranean scenar‐ ios. 35 Moreover, the daughter-in-law of the founder, the wife of the present President, IlhamAllah Chiara Ferrero, is the General Secretary of the association. 36 See Bombardieri, “Mappatura dell’associazionismo islamico in Italia,” pp. 18-19. The present President, Yahya Pallavicini, is the only Italian among the 138 Islamic scholar signatories of the letter “A Common Word between US and YOU” written to Pope Benedict XVI in 2007. Alessandro Ferrari 276 COREIS’s website proudly references the public recognitions enjoyed by the association over the years.37 Aside from the participation at many thematic seminars organized by local and central institutions, these recog‐ nitions include, in particular, a 2013 agreement with the Italian Ministry of Education aimed at starting educational projects in schools and universi‐ ties for the development of studies on religious diversity, and the 2009 in‐ terministerial agreement in support of “Halal Italy,” a trademark of halal certification recorded by COREIS.38 Nevertheless, these qualifications struggle to make effective and, above all, have been insufficient not only to obtain a signature of agreement with the state but also, to achieve the status of religious entity, as the “foreign” ICCI. In fact, not only did COR‐ EIS’s 1996 proposal of an agreement with the state remain unanswered, but more surprisingly, two requests proposed by this association to the Home Ministry for obtaining the recognition of the legal status as religious entity have been unsuccessful as well. The first request, at the beginning of 2000, was frozen by political reasons despite the favorable opinion of the Council of State, probably because of the state’s indecision about the broadening of the number of Islamic recognized institutions without a clear global “Muslim policy.”39 The second request, has been stopped in 2015 by the refusal of the Council of State to recognize the religious char‐ acter of the association,40 a decision which has completely overturned the position taken by the same institution fifteen years before but which seems have also convinced the Government that the time was ripe for getting out from a simply dilatory attitude and for deciding a more direct involvement in the process of institutionalization of Italian Islam. 37 See, accessed 20 August 2014. 38 See, accessed 24 August 2014. 39 See Pallavicini, “Un itinerario nell’Islam italiano: dalla Costituzione verso l’Inte‐ sa?,” 2010, p. 21. 40 To be recognized as cult institution the religious goals and activities of the asso‐ ciations have to be “prevalent” in relation to those qualified as merely cultural. In 2015 the Council of State as qualified as cultural – and not religious – the COR‐ EIS’s activities directed to the diffusion of their creed and the interreligious dia‐ logue. This refusal of the Council of State has had the form of a negative advice to the Home Ministry. See AmministrazionePortale/DocumentViewer/index.html?ddoc‐ name=UAQ4E2ATUZRXLVJMGS2OMS2XFM&q, accessed 30 June 2017. Therefore, COREIS has decided not to publicize this refusal for not compromising its potential revision and the relationships with the state administrations. Islam in Italy: A Religion Under Construction 277 Muslims Before the State: In Search for a Law Faced with this new and plural religious presence, for many years the Ital‐ ian state ignored Islam or choose paralysis regarding to it. This has been the result of two interrelated factors. At the beginning, was the loss of im‐ portance of the “religious question” in political discussion together with the lack of perception of the deep transformations of Italian society. From the Seventies the idea that “religious issue” had ended and that changes were only in the direction of more individualistic and privatized approach‐ es favored the underestimation of the growth of a “Muslim question”. In a second time, when to ignore globalization and the settlement of Muslim communities became impossible, the state appeared to be reluctant and without clear categories to address a topic suddenly as sensitive as Islam. This situation not just confirms the fact that the “Muslim question” as a “religious question” is inseparable from multiple and very complex politi‐ cal factors but also points out a specific trait of the relationship between Islam and the Italian right to religious freedom. This is a widespread toler‐ ance for some forms of public exhibition of Muslim religiosity and, at the same time, the extreme difficulty for Muslim associations to be formally recognized as religious entities or, much more, to sign an agreement with the state because of the weight of the political discretion of state authori‐ ties. Clearly, this state of affairs not only highlights the special place re‐ served for religion within the Italian scenario, but also the rigidity and the distinctive political character of the right to religious freedom, which forces ‘religious’ groups into legal patterns that reflect very specific histo‐ ries and interpretations of ‘religiosity’ and ‘religious freedom’. This framework fosters a system of coexistence that has been (gener‐ ously) praised by the judges of Strasbourg on the occasion of the Great Chamber “Lautsi” decision.41 In fact, unlike some other European coun‐ D. 41 See, for example, the § 74 of the Application no. 30814/06 of 18 March 2011. The generosity of the Strasbourg Court is especially referred to its benevolent ac‐ ceptance of the Italian government’s statement (see § 39) following which the be‐ ginning and end of Ramadan were “often celebrated” in schools; and optional reli‐ gious education could be organized in schools for “all recognized religious creeds”. In reality, not only are these “celebrations” really exceptional, but the op‐ tional religious education is unlikely to be organized by Muslims due to the fact that only the “foreign” Cultural Islamic Centre has obtained the legal status of Alessandro Ferrari 278 tries, Italy does not consider some practices – e.g. wearing the hijab in public and institutional spaces and, unless a few exceptions, even the burqa, asking food compatible with religious prescriptions (although not always formally certified as halal food) in hospitals, school and prisons – as ideological and dangerous communitarian displays, and they are prag‐ matically accommodated.42 Still, this pragmatism does not follow from a conscious application of the constitutional rights. It is rather a form of tol‐ eration resulting both from Italy being a Roman Catholic country long ac‐ customed to the public visibility of its religion, and also, paradoxically, a reflection of the lack of real reception of the cultural and religious changes of the Italian society. In fact, problems immediately arise as soon as from this more fluid level we move on to institutional one, concerning the legal status of Muslim associations. In fact, in this matter, Italy suffers both the limits connected to a legislation that dates back to 1929-1930, at the times of the Fascist regime and the consequent lack of an updated legislation. This situation can be explained by two main reasons. The first is that, despite the great consideration given by the Constitution to religion(s),43 in nearly seventy years since its approval, the major political energy has been spent addressing the long and difficult reform of the Lateran Pacts (1929) between the state and the Catholic Church, and the extension of this same bilateral model to other religions, according to a system of dis‐ “recognized religious creed”, namely “religious entity”, indispensable for using the possibility offered by art. 23 of the Royal decree no. 289 of 28 February 1930. 42 See, for example, the resolution of the Consiglio Superiore della Magistratura (the self-governing body of Italian judges) of 22 February 2012, which declared that once a person has been identified, he/she can attend court hearings with the head and also the face covered, at argomento= 127&documento=5782, accessed 25 August 2014. It is worth to note that recent discussions about wearing the burka in France and Germany have not changed this perception at all. Nevertheless, this data has to be combined with the 2015 Pew Forum’s survey from which Italy appears to be one the most “islamophobic” Euro‐ pean country. See chapter-3-anti-minoritysentiment-not-rising/#jews-seen-favorably, accessed 13 September 2016. 43 Religion is the most quoted social factor in the Italian Constitution, which refers to it in at least six articles (2, 3, 7, 8, 19 and 20), representing for some authors a sign of a real favor religionis: See Torre, Il fattore religioso nella Costituzione. Analisi e interpretazioni, 1995, pp. 28-29. Islam in Italy: A Religion Under Construction 279 cretionary selection by public authorities.44 Accordingly, if the Parliament approved a new concordat with the Catholic Church in 1985 and twelve general agreements with as many religious denominations between 1984 and 2016,45 no bill has been approved that grants a general basic standard of religious freedom enjoyable by religions that remain outside of the con‐ tractual relationships with the state.46 The second, more general reasons, is that a new legislation would have meant the formal recognition of an open 44 Nevertheless, a new comprehensive legislation, designed to provide a right to reli‐ gious freedom for all, was already presented by Bettino Craxi, the President of the Council of Ministries responsible for the new Concordat with the Catholic Church of 1984, as the natural framework for the new bilateral relationships between the state, the Catholic Church, and the other religious denominations: See Francesco Margiotta Broglio, “La politica religiosa della Repubblica italiana. Elementi e rif‐ lessioni,” 2014, pp. 29-30. 45 Agreements have been approved with the Tavola Valdese (Valdensians), the Sev‐ enth-day Adventists, the Assemblee di Dio (Assemblies of God, a Pentecostal church), the Union of Jewish Communities, the Christian Evangelical-Baptist Union, the Lutheran Church, the Italian Buddhist Union, the Italian Hindu Union, the Apostolic Church in Italy, the Church of Jesus Christ of Latter-day Saints, the Greek Orthodox Archdiocese of Italy and Exarchate of Southern Europe and the Soka Gakkai. The Jehovah’s Witnesses signed an agreement in 2000 and later in 2007, but parliament has never approved these agreements. All the agreements, except that of the Church of Jesus Christ of Latter-day Saints, foresee the partici‐ pation of the religious denomination signatory to the “0,8% system.” See http://w, accessed on 5 November 2016. 46 This is the so-called legislation on the “admitted cults” formed by the law no. 1159 of the 1929 and its executive royal decree no. 289 of the 1930 clarified by the Home Ministry circular no. 111 of 20 April 1998. See Ferrari, La libertà religiosa in Italia. Un percorso incompiuto, 2012, passim. This legislation allows religious associations to enjoy the legal status of “religious entity” after a procedure that, starting from the Home Ministry and passing through an (formally not compulsory but always requested) advocate of the Council of State and a (political) vote of the Council of Ministers, ends with a decree of the President of the Republic. Reli‐ gious associations recognized as a “religious legal entity” enjoy fiscal advantages because their finalities of religion and cult are assimilated to that of instruction and beneficence. Getting this recognition requires presenting for the approval of the public administration a clear organizational statute, a detailed balance sheet, and a report on the religious principles followed by the organization. Once recognition is granted, the religious entity is subject to the supervision of the Home Ministry, which is in charge of monitoring adherence to the approved organizational statutes and the other conditions of the law: See Finocchiaro, Diritto ecclesiastico, 2012, pp. 315-317. Alessandro Ferrari 280 and fluid religious pluralism47 and, necessarily the erosion of the present highly institutional right to religious freedom modeled on the Catholic paradigm. It is true that a formal appreciation of pluralism occurred in 1989, when the Constitutional Court recognized a principle of laicità im‐ plying “the protection of the freedom of religion in a context of confes‐ sional and cultural pluralism.”48 But the fulfilment of this “supreme con‐ stitutional principle” is yet to be completed. The result of this situation is that in the absence of a fair suit specifical‐ ly tailored for the exercise of religious freedom and in an effort to avoid the unpredictable scrutiny of the public administration connected with the application of the 1929-1930 legislation, Muslim groups prefer to camou‐ flage their religious identity and act as no-profit associations, within the more beneficial frames of the private law.49 In this way, they enjoy simpli‐ fied procedures for gaining recognition of private legal status, as well as advantageous and flexible organizational forms and fiscal advantages for‐ mally only foreseen for the exercise of non-profit charity activities. Al‐ though this choice entails the abandonment to openly display a religious identity, this is also the only available alternative to the poor status of nonrecognized religious association, which would be the only available in the impossibility to benefit from the 1929-1930 legislation, but which also does not provide for any benefit.50 47 In the national census of 1931 non-Catholics were 130,000; see Broglio, “La poli‐ tica religiosa della Repubblica italiana,” pp. 30-31. Today they have reached five million, not to count the non believers. See Pace, Le religioni nell’Italia che cam‐ bia, and idem,, “Achilles and the tortoise. A society monopolized by Catholicism faced with an unexpected religious pluralism,” 2013, pp. 315-331. . 48 See decision no. 203 of 12 April 1989, at 1989/ 0203s-89.html, accessed on 24 August 2014. 49 This Muslim consciousness has been confirmed by the negative outcome of COR‐ EIS’s attempt to obtain legal recognition as a “religious entity” (2015) and con‐ firms the exceptional case of the Islamic Cultural Centre, recognized more for its diplomatic character than for its contribution to the “religious freedom”, as also demonstrated by the tolerance shown by the ministerial authorities toward some opacity in the administration of the Institute. See the previous paragraph. 50 The Council of State is firm in pretending that the only possibility for becoming a recognized religious association, and obtaining a religious legal status, is the pro‐ cess prescribed by the special legislation of 1929-1930. Consequently, no religious association can achieve legal status according to private, general law. See decision no. 2331 of 17 April 2009, at documento=4988, accessed 20 August 2014. Islam in Italy: A Religion Under Construction 281 The unavailability of the special religious associative typology foreseen by the 1929-1930 legislation and the impossibility of religious groups achieving legal status on the basis of the civil code are really problematic. The Constitution, in fact, prohibits discrimination based on the religious character of the activities carried out by an association51 and aims at over‐ coming the eighteenth-century royalist idea that associates religion with unjustified privileges and a highly discretionary public scrutiny. As a result, most influential Muslim associations still do not have a clear religious physiognomy (UCOII); or if they have it, it is without any recognition by the state (COREIS), or only through a peculiar “extraterri‐ torial” organization recognized by the state as a “cultural” Muslim entity (ICCI). But the camouflage of the religious character is even more evident at the bottom, where the hundreds of Muslim associations that comprise the three main national organizations are mainly structured as cultural associations, associations of social promotion, charities, non-profit asso‐ ciations, and so on.52 On the one hand, this mimicry forces important di‐ mensions of social capital underground, first of all not allowing the full recognition of the important public role played by Muslim religious orga‐ nizations in the integration of their members in the Italian society. On the other hand, the use of forms of association intended for goals other than religious activities is against the law and turns out to be counterproductive for religious groups.53 In fact, some non-profit associational schemes ab‐ solutely prevent any profit, whereas a religious group may be able to pur‐ sue profit secondarily. In other cases, the law prohibits any form of dis‐ crimination in the choice of members or imposes a democratic organiza‐ tion, two points that could be hardly acceptable for a religious group. Moreover, some organizational forms used by Muslim groups are for spe‐ cific activities only, among which religious activity is not included. Even 51 See, for example, the Art. 20 of the Constitution, for which: “(N)o special legis‐ lative limitation or tax burden may be imposed on the establishment, legal capaci‐ ty or activities of any association or institution on the ground of its ecclesiastical nature or its religious or worship purposes,” and Angelucci, “L’associazionismo religioso nel quadro delle garanzie costituzionali del diritto di libertà religiosa,” 2014, pp. 35-52. 52 See Ferrari, “Libertà religiosa e nuove presenze confessionali (ortodossi e islami‐ ci): tra cieca deregulation e super-specialità, ovvero del difficile spazio per la dif‐ ferenza religiosa,” 4 July 2011, 53 See Angelucci, “L’associazionismo religioso musulmano tra diritto speciale e di‐ ritto comune: la centralità dello statuto,” 2014, pp. 71-93. Alessandro Ferrari 282 more limiting, if a religious group chooses to act as a ‘generic’ cultural or no-profit organization, it cannot formally provide religious assistance in prisons, in the army, or in hospitals because of the lack of a religious phys‐ iognomy. For the same reason, public authorities will also refuse both the recognition of such association as a religious entity on the basis of the 1929-1930 legislation and, obviously, the signature of an intesa, which re‐ quires that the organization is a ‘religious denomination’ (confessione reli‐ giosa). Moreover, without a clear religious character, an association may exer‐ cise worship only privately, within the premises of the organization, and without the possibility of opening an ‘official’ public space of worship, open to anyone who wishes to participate. In fact, Muslim places of wor‐ ship are quite numerous but they are not legally considered as such. Be‐ tween 2008 and 2009, a survey counted 769 ‘places of worship’: one for every 1,723 Muslims, which is more or less in line with the European av‐ erage.54 Today, the numbers have not changed significantly, and only six 54 Cfr. Bombardieri, Moschee d’Italia, passim. Some years later, another study iden‐ tified 655 of them: Rhazzali and Equizi, “I musumani e i loro luoghi di culto,” pp. 47-72. See also, for the European framework, Allievi, Conflicts over Mosques in Europe. Policy issues and trends, 2009, pp. 22 ff., at p-content/uploads/2013/03/Conflicts-over-mosques_NEF-RelDem-RELIGION-M OSQUES-Final-1.pdf, accessed on 26 August 2014. In 1992 these places num‐ bered about one hundred (Allievi and Dassetto, Il ritorno dell’Islam. I musulmani in Italia, 1993). Self-financed and often supported with financial assistance from abroad (see the note 26), Italian mosques are often open to all Muslims, without ethnic or national distinctions. There exist, however, some ethnic places of wor‐ ship, mostly attended by Pakistani, Bangladeshi, Senegalese and Turkish Muslims looking for a less Arabic-speaking environment, although an Italian summary of the khutba is common today (see note 29). Apart from the ethnic-national divide, the other distinguishing factor depends on the leadership of the places of worship. Thus, these places may be more or less open to a new and younger leadership, while other places are more or less “fundamentalist”. Some years ago, in the noto‐ rious case of Jenner Street in Milan, the imam who was involved in an unlawful operation of kidnapping organized by the CIA and Italian security services was sentenced in December 2013 to six years in prison for conspiracy with the aim of international terrorism. See, accessed 5 October 2014; Hen‐ dricks, A Kidnapping in Milan: The CIA on Trial, 2010, and Vidino, Il jihdaismo autoctono in Italia: nascita, sviluppo e dinamiche di radicalizzazione, 2014, at http://www., accessed on 26 August 2014. Islam in Italy: A Religion Under Construction 283 of them (Segrate, near Milan; Brescia; Ravenna; Colle di Val d’Elsa, near Siena; Roma and Catania) have architectural features which make them recognizably Muslim. Anyway, only very few of them have followed the special dispositions foreseen by regional laws for places of worship, which means they are open not as headquarters of a private cultural associations but as places open to anyone who wishes to practice Muslim worship. On the contrary, the great majority are simply garages, sheds, and places where worship can only legally be a secondary ‘lawful activity’, confined to the members of the particular association. The situation is also exacer‐ bated because some Northern regions starting with the Lombardia, use their powers regarding urban planning to impose draconian conditions for the opening of places of worship, and make changing the use of a building from ‘civil’ to ‘religious’ particularly difficult. These regions are able to use their powers regarding urban planning because there is a lack of fun‐ damental principles dictated by the central state, forcing religious groups to hard and uncertain recourses to regional administrative courts.55 Finally, this context does not help Muslims associations in seeking greater transparency and rather helps to continue to practice their worship in a “private” way, in a vicious circle that hinders their integration, feeds local suspicions, and, obviously, deprives them of eligibility for govern‐ ment grants for the construction of places of worship. The result is that Islam in Italy is moving into a ‘no-law area’. Looking for (a Policy of) Religious Freedom The legal condition of Islam that has been summarily described highlights the weakness – or even the absence – of coherent ‘ecclesiastical politics’56 E. 55 On the current legislation in the matter See Marchei, “Il diritto alla disponibilità degli edifici di culto,”2012, pp. 171 ff., and idem, “Le nuove leggi regionali ‘anti‐ moschee’,” 10 July 2017, See also Ferrari, “È possibile costruire una moschea in Italia?,” 2008, pp. 35-52, and for the case of the Lombar‐ dia region Marchei, “La legge della Regione Lombardia sull’edilizia di culto alla prova della giurisprudenza amministrativa,” 31 March 2014, at www.statoechiese.i t. 56 See the editorial and the papers of Francesco Margiotta Broglio, Luciano Musselli, Pasquale Annicchino, Marco Ventura, Pierluigi Consorti, Fabiano Di Prima, and Antonio Angelucci in the first part of the journal Quaderni di diritto e politica ec‐ clesiastica 1 (2014), pp. 5-158, about “Politica e rapporti fra Stato e confessioni Alessandro Ferrari 284 in contemporary Italy: a “construction without a project.”57 More precise‐ ly, this situation is suggestive of the extreme difficulty in the transition from an ‘ecclesiastical policy’ based on the relationships between the state and Roman Catholic-like structured religious groups (confessioni religio‐ se), to a policy of religious pluralism aimed at offering individuals and (all different) groups access to a fair right to freedom of religion and con‐ science. In fact, the ‘Muslim policy’ of the Italian authorities on one side, replicates the patterns of the traditional ecclesiastical policy, which favors diplomatic, political, and institutional contacts; on the other, it tends to emphasize the ‘exceptionality’ of the “Islamic question.”58 This policy, even more than the political colour of the Government, depends very much on the personality and the political strength of the single Home min‐ isters and has often risked to lead to further divisions and discrimination.59 Apart from the Italian Parliament, the Government is the main institu‐ tion responsible for the religious policy trough both the Presidency of the Council of the Ministries and the Central Directorate for the Cult’s Affairs of the Home Ministry, two institutions that not always act in full coordina‐ tion between them. The Presidency of the Council is directly responsible for negotiating the signing of agreements (intese) between the state and religious denomina‐ tions (confessioni religiose), agreements that enter into force in the Italian legal order after the approval of the Parliament. As I have already men‐ tioned, the agreements represent the top level of protection of religious freedom, which certifies the full political and institutional recognition of the religious group and can open the doors of important public funding for the group.60 The Home Ministry, in turn, is responsible for recognition of ‘religious entities’, which are finally chosen by the Council of Ministries and are the only eligible to request the start of the negotiation with the state for the signing of the intesa. Finally, according to the article 117, 1c of the Constitution, local authorities do not have general competences in religiose. Il sistema italiano (Politics and relationships between the state and reli‐ gious denominations: The Italian system)”. 57 See Naso and Salvarani (eds.), Un cantiere senza progetto. L'Italia delle religioni. Rapporto 2012, 2012. 58 See Ferrari, “‘Deislamizziamo’ la questione islamica,” 2007, at http://www. cipmo .org/analisi/2007/silvio-ferrari-newsletter-cipmo.html, accessed 25 August 2014. 59 See Angelucci, “Una politica per l’islam?,” 2014, pp. 141-158. 60 See note 47. Islam in Italy: A Religion Under Construction 285 the matter: nevertheless, their role is far from insignificant and they meet – and manage – religious needs by exercising their powers in the fields of health, integration, and urban planning. As explained earlier, no Muslim group has been granted an agreement with the state; only one of the groups, the ICCI, is recognized as a reli‐ gious entity, and all of them struggle to receive even minimal attention from local governments. Although the lack of a unitary representation should not constitute an obstacle to the conclusion of an agreement per se,61 the question of representation has for long time prevented not only access to this highest level of recognition, but also recognition of more than one Muslim association as a religious entity,62 with a ‘slippery slope’ effect that also influences the local level by slowing down the process for constructing places of worship.63 Nevertheless, the institution, in January 2016, of the Council for Relationships with Italian Islam at the Home Ministry seems to have injected a new dynamic, as we will see later on. A part from the recognition, in 1974, of the ICCI, the Italy’s contempo‐ rary ‘Muslim policy’ basically begins after September 2001. It is true that in the 1990s the unilateral proposal of agreements from some Muslim associations were made public, and in the first half of 2000, thanks to the intervention of the secretary-general of the League of the Islamic World, the ICCI promoted the creation of the Islamic Council of Italy with the 61 See, for example, the treatment foreseen for the Orthodox churches: not only have associations with different affiliations been recognized as religious entities, but the state has also signed an agreement with an only partial representative of the Ortho‐ dox world that directly depended on the Ecumenical Patriarchate. Even more evi‐ dent is the situation of Buddhists. In fact the state has already signed two different agreements with two different entities: the Italian Buddhist Union and the Italian Buddhist Institute Soka Gakkai. 62 See the already mentioned case of the COREIS: in fact, so far, to have recognized the Cultural Islamic Center of Rome as a “religious entity” seems to be interpreted as precluding other (Muslim) recognitions. 63 Against the regional law that forbids religions without an agreement with the cen‐ tral state to open places of worship, the Constitutional Court has strongly clarified that the right to build places of worship, as an essential part of the right of reli‐ gious freedom, belongs to all religious groups. So Muslims also can benefit from the regional laws that assign special areas and public funding for this purpose in each municipality: see, e.g., the decisions no. 195 of 19 April 1993, http://, against the Abruzzo Region, and no. 346 of 16 July 2002, decisioni/2002/0346s-02.html, against the Lombardia Region. Alessandro Ferrari 286 aim of including all main Muslim associations.64 But these attempts were quickly replaced by the post-2001 phase where securitarian approach was central and the ‘moderate’ role of the Great Mosque of Rome greatly eval‐ uated. In this period, Italian state administration tried to encourage a uni‐ tary Islamic representation able to cope with the values of a Western democratic country.65 The apex of this attempt was reached on 10 Septem‐ ber 2005, with the creation, by the Home Minister, of a consultative insti‐ tution: the Council for Italian Islam.66 The tasks of this Council were far from homogeneous. They concerned not only matters specifically linked with specific Muslim religious needs, but also matters generically con‐ nected to immigration and integration. This multiplicity of purposes was reflected in the members of the Council, who were chosen by the minister from among representatives of religious associations (UCOII to COREIS), journalists, ostensibly secular intellectuals, social workers, and so on. It was always difficult to conceive of this body as actually being in a pos‐ ition to influence the debate and encourage concrete initiatives.67 A change in this rather unproductive routine occurred a year later, with the arrival of a new Home Minister who decided to approve a ‘manifesto’ on citizenship and Islam. This project represented a strong politicization of the works of the Council and highlighted the overlaps between the debate on rights, duties, and citizenship and the search for a moderate Muslim representation. Consequently, the exclusion of UCOII from the consulta‐ tive table after the approval of the Charter of Values of Citizenship and In‐ tegration,68 and, one year later, the 13 February 2008 the signature of a Declaration of Intent for the Federation of Italian Islam by the “constitu‐ 64 See Mancuso, “La presenza islamica in Italia: forme di organizzazione, profili pro‐ blematici e rapporti con le istituzioni,” 22 February 2010, pp. 17-18, at www.stato, and Pacini, “I musulmani in Italia. Dinamiche organizzative e processi di interazione con la società e le istituzioni italiani,” 2000, pp. 50-51. 65 See the influential Sartori, Pluralismo, multiculturalismo e estranei. Saggio sulla società multietnica, 2000, that was the ideal forerunner of those who denied this possibility. 66 See Alessandro Ferrari, “L’intesa con l’islam e la Consulta: osservazioni minime su qualche questione preliminare,” 2006, pp. 29-53. 67 See Angelucci, “Una politica per l’islam?,” pp. 150-151. 68 See the decree of the Home Minister of 23 April 2007. The Charter was conceived as a programming guide for the administrative action of the Ministry: for a critical comment see Colaianni, “Una ‘carta’ post-costituzionale?,” 11 June 2007, at Islam in Italy: A Religion Under Construction 287 tional Muslims” (ICCI and COREIS), did not come as a surprise.69 Never‐ theless, these initiatives didn’t reach their expected results. From 2008 to 2011, at the time of the last right-wing Berlusconi gov‐ ernment, Italy experienced a tide of vociferous public expression that por‐ trayed Islam as being in irreconcilable opposition to ‘Western civilization’. This time, among the parties to this debate were Muslims who were indi‐ vidually involved in politics and who made the fight against Islamic fun‐ damentalism the core business of their public engagement. The future con‐ vert to Catholicism, Magdi Allam and slightly more nuanced the rightist MP, Souad Sbai, founded their political legitimation in alliances with “de‐ vout atheists”70 and other ardent defenders of so-called Western values ac‐ cusing the Italian Muslim leadership to be too weak in the defense of hu‐ man and – especially – women rights.71 In such a heated political context, a comprehensive, efficient and con‐ stitutionally fair Muslim policy was clearly not feasible. Instead, the Council for Italian Islam was replaced by a more modest Committee for Italian Islam, which worked within the Home Ministry from 2010 to the end of 2011, when the Berlusconi government fell. Established after the affair of UCOII’s “missing signature” on the Charter of Values of Citizen‐ ship and Integration,72 the Committee was composed of experts in Islamic studies and religious freedom, right-wing pundits, and “constitutional Muslims”, with ICCI and COREIS in the front line and the obvious exclu‐ sion of UCOII. Backing ‘moderate Islam’ remained on the agenda, but in the mind of the new Home Minister the goal of the Committee was simply to support 69 The Federation was actively promoted by the state administration that “posted” it on the website of the Home Ministry. See Angelucci, “Una politica per l’islam?,” pp. 151-154; for the text of the Declaration mininterno/ export/sites/default/it/assets/files/15/0679_DICHIARAZIONE_DI_INTENTI.pdf, accessed 26 August 2014, and Fantelli, “La ‘Dichiarazione di intenti per la feder‐ azione dell’Islam italiano’: un primo commento,” 21 July 2008, at www.statoechie 70 The sociologist Renzo Guolo had already highlighted this phenomenon in Xenofo‐ bi e xenofili. Gli italiani e l’Islam, 2003, pp. 44-80 and 100-124. See also idem, Chi impugna la croce. Lega e Chiesa, 2011, on the “identity Catholicism” of this political movement. 71 See, among others, Allam, Europa cristiana libera. La mia vita tra verità e libertà, fede e ragione, valori e regole, 2009, and Sbai, L’inganno. Vittime del multicultu‐ ralismo, 2010. 72 See, above, in the text. Alessandro Ferrari 288 parliamentary initiatives about Islam with ‘neutral’ and ‘technical’ exper‐ tise. The first case facing the Committee was the proposal of a law to ban the burqa from public space, with MP Sbai in the forefront.73 The endorse‐ ment of this ban was unsurprisingly the first act of the Committee which was approved by all the Muslim members with only two votes against from two non-Muslims experts. The Committee continued its work by producing other soft law documents, sometimes pressed by the minister (e.g., opinions on kafala and on the Mediterranean Arab Spring), and other times acting mostly on its own initiative, as in the case of the opinions on mosques and imams. It is worth noting that except for the first opinion on the burqa, which responded to an imperative political need, the Commit‐ tee’s later opinions tried to draft general answers to the most delicate is‐ sues using the limited spaces of the 1929-1930 legislation, given the im‐ possibility of counting on Parliament for a (constitutionally oriented) re‐ newal of the latter.74 Regardless, no proposal of the Committee was real‐ ized and this entity ended its work in uncertainty and awaiting policy di‐ rectives. The simultaneous end of the Committee and of the Berlusconi govern‐ ment in November 2011 closed a first time of the Italian Muslim policy. The Conference of Religions, Culture, and Integration, which replaced the previous Committee between March 2012 and February 2014, can be seen as the beginning of a new phase. The Conference, established at the Ministry on Integration and International Cooperation, was the first out‐ side the Home Ministry and so, the first that acted without clear compe‐ tences over the right to religious freedom. Nevertheless, thanks to the per‐ sonal skills of the Minister, Andrea Riccardi, founder of the Community of Sant’Egidio, the Conference had been able both to officially renew the dialogue between the state and UCOII, bypassing the fracture between moderate and fundamentalist Islam and also to try to surmount Muslim ex‐ ceptionalism through a global approach to the public role of religions and religious freedom, far from “islamophobic” feelings.75 73 See Ferrari, “A Besieged Right: Religious Freedom and the Italian War on the Burqa and the Niqab,” 2013, pp. 37-58. 74 The opinions are published in Il Regno 3 (2012), pp. 115-128 (with a comment of Maria Bombardieri, “Sul burqa, le moschee e la formazione degli imam,”) and have also been commented on by Macrì, “Brevi riflessioni sui pareri espresso dal Comitato per l’Islam italiano,” 2012, pp. 407-423. 75 See Ferrari, La libertà religiosa in Italia, pp. 107-108. Islam in Italy: A Religion Under Construction 289 Nevertheless, the weak jurisdictions of the new Ministry of Integration, which operated without an effective coordination with the Home Ministry and the weakness of the government as a whole prevented the inaugura‐ tion of a constructive phase able to concretely address the needs of Italian Muslims.76 In the same period, even at the local level, promising initia‐ tives that have shown formal goodwill on the part of some municipalities were also left at the stage of good intentions, without concrete develop‐ ments. The most notorious case was that of Milan, chosen as the site of the ‘Exposition 2015’ and still devoid of suitable Muslim places of worship. In 2012, thinking at the forthcoming EXPO and with the aim of becoming a real European multicultural metropolis, the municipality pressed Muslim groups to explicitly organize themselves as religious associations, with co‐ herent and appropriate statutes, in order to benefit from the regional dispo‐ sitions regarding places of worship.77 Nevertheless, this encouragement didn’t achieve its target, especially because of the intervention of the Re‐ gion, which changed the urban development law in order to make the con‐ struction of Muslim places of worship almost impossible78 and turning the initiative of the city of Milan in another frustrated opportunity for Mus‐ 76 As a partial exception of this picture it is possible to quote the experience of coop‐ eration of some universities of Northern Italy with Muslim associations in order to address two crucial issues: the civic training of imams and the statute for religious associations. See Bombardieri, “Un percorso d’integrazione. Fra università, asso‐ ciazioni islamiche e Ministero,” 2010, pp. 732-733; idem, “Il dialogo continua... Università, Associazioni islamiche e Ministero,” 2012, p. 4, and Angelucci, “L’as‐ sociazionismo religioso musulmano tra diritto speciale e diritto comune.” See also the website 77 See (at the time much too optimistic) Ferrari, La libertà religiosa in Italia, pp. 108-112; Angelucci, “L’Albo delle associazioni e organizzazioni religiose del Co‐ mune di Milano,” 2013, pp. 461-478, and Bombardieri, “Un albo per il culto,” 2012, p. 597. 78 Moreover, the action of the municipality of Milan was strongly opposed by the Lombardia Region, ruled by the right-wing. In fact, on 27 January 2015 the Re‐ gion, to impede the legitimation of Muslim places of worship, passed the law n. 2/2015 which imposed severe burdens to religious groups without agreement with the state. The law, challenged by the central government and only partially de‐ clared against Constitution by the Constitutional Court (decision no. 63 of 23 February 2016) is still in force, posing serious questions to Lombard municipali‐ ties. See, for a wise indication of the limits of local policies not backed by a coher‐ ent general regulatory framework, Floris, “La tutela delle esigenze religiose in am‐ bito locale tra regole giuridiche e buone pratiche. Il contesto italiano,” 2013, pp. Alessandro Ferrari 290 lims, convinced once more of the empty rhetoric of public statements re‐ garding their status. Two years after the Conference of Religions, Culture, and Integration, the state management of the ‘Muslim question’ returned to the Home Min‐ istry, which established, in the January 2016, the Council for the Relation‐ ships with the Italian Islam. The Council, still in charge, is composed by two different commissions: one composed by experts and one composed by members of Islamic associations.79 The Council, although benefiting from the ‘ecumenical’ action of the Minister Riccardi’s Conference, start‐ ed its work in a climate of international uncertainty and fear, marked from the ‘caliphate’ terrorism. This situation also explains the fact that the Council began its activities since the start, in a sort of never-ending task, analysing the usual topics – imam and places of worship – already exam‐ ined by the previous analogous commissions. So, in July 2016, the Coun‐ cil approved an advice about imams, very similar to that already adopted in 2011 by the Committee for Italian Islam, and again focused on the need to make the 1929-1930 legislation effective also for Muslim clergy by im‐ plementing an action of ‘civic training’ carried out by Universities in part‐ nership with the Ministry itself.80 However, no special financial resources have been devoted by the Italian state to this task. Funding rests only upon European funds for integration, whose use complies more with formal and bureaucratic logics than with strategic considerations connected with a state policy on the matter. Another document about places of worship, containing the usual pleas for a coordinated action between central and lo‐ cal state administrations in order to implement the basic constitutional right to religious freedom, was approved some months later. These documents, which aim at assuring Muslim communities in Italy in that difficult time, have soon appeared as a premise of a much more am‐ bitious project. This latter has been revealed on 1st of February 2017 with the approval of the “National Pact for an Italian Islam, expression of an 175-206 (and especially pp. 200-202), and, about the Regional law and the Court decision: Oliosi, “La Corte costituzionale e la legge regionale lombarda: cronaca di una morte annunciata o di una opportunità mancata?,” 24 October 2016, at See also note 57. 79 See ta nte-nella-pace-e-sicurezza-attraverso-dialogo, accessed 5 September 2016. 80 See an unofficial version of the document in index.p hp?argomento=26&documento=6710, accessed 13 August 2016. Islam in Italy: A Religion Under Construction 291 open and integrated community, recognizing the values and principles of the state legal order.”81 The contents of this document, divided into three sections, are not, per se, a total novelty. They are aimed at fighting Islamic radicalism through a common engagement between Muslim associations and the Italian state. The former commit themselves in order of ensuring both a selection of well-trained imam able to preach in Italian according with the national context and the transparence of their organization, with special regards to the financial matters. The latter shall ensure to overcome any further delay in making operational the legislation about the recognition of Muslim reli‐ gious entities also in the light of the signature of one (or more) general agreement(s) between Muslim representation(s) and the state. If these en‐ gagements can seem quite usual, their formulation is not. In fact, in a con‐ cordatarian country such Italy, it must not pass unnoticed the contractualbilateral character of the “pact” where, for the first time, the Home Min‐ istry and Muslim associations appear on an equal footing in front of the need to comply with Constitutional directives. Moreover, for the first time, this bilateral structure, which emphasizes the role of religious autonomy, another pillar of the Italian way to cope with religious groups, openly pre‐ ludes to a conclusion of one or more agreement(s) with one or more Mus‐ lim representation(s). The signature of the ‘Pact’ could have opened a new phase charac‐ terised by a process of institutionalization, more precisely of ‘ecclesiasti‐ cization’, of Muslim communities. Of the consequences of this Pact, on one hand single religious Muslim associations, counting now on the gov‐ ernment’s commitment, are working for recognition as legal entities, fol‐ lowing the 1929-1930 legislations. On the other, they try again to build a confederal representation, again with the endorsement of the government which would unsurprisingly prefer to interact with a single umbrella Mus‐ lim federation. 81 See _it aliano.pdf, accessed 10 July 2017. Alessandro Ferrari 292 Towards an Italian “Muslim Church”? The description of the legal condition of Islam in Italy seem to confirm the argument of those who have suggested that a ‘right to religious freedom’ is inevitably politically oriented, discriminatory and even impossible.82 Nevertheless, this description, reveals also the inexorable path toward the building of a ‘Muslim Church’ Westphalian style.83 The Pact for the Ital‐ ian Islam goes in this direction. Nevertheless, faced with economic priori‐ ties, as well as with the political instabilities of both Mediterranean shores and the connected migratory flows, Italy as a whole must decide what to do regarding religious and cultural pluralism, religious freedom, and Is‐ lam: the recent debates about the new law on citizenship, so harshly dis‐ cussed but not approved, are part of the same picture. The decision about the (degree and the ways of the) metabolism of globalization will also de‐ termine not only internal social cohesion but also Italy’s international sta‐ tus and possibilities for reaching its potential in Europe and especially in the Mediterranean area.84 The so far peaceful coexistence with Islam, which has also avoided Italy to completely fall into the traps of the securi‐ tization of the ‘Islamic question’, together with the needs of the coopera‐ tion of Italian Muslims in the management of the significant migratory flow and, more widely, as a new social capital, could be seen by the politi‐ cal establishment as crucial opportunities for experiencing and metaboliz‐ ing an Italian style of “living together” where the establishment of a ‘Mus‐ lim Church’ could play a fundamental role. Bibliography Abis Analisi e strategie, “G2: una generazione orgogliosa. Una ricerca sui musulmani in Italia,” at Allam, Magdi, Europa cristiana libera. 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Silvio Ferrari Introduction Italy is a Member State of the European Union and, at the same time, a country whose history and culture has been strongly influenced by Catholicism. On the one hand, the questions underlying the relations be‐ tween law and religion are shared by Italy with many other countries of the Old Continent; on the other hand, the answers given to these questions often reflect the Italian specificity. To understand the Italian pattern of law and religion relations and its current transformations it is therefore neces‐ sary to take into consideration both the European and the national dimen‐ sions: in some cases the first will prevail, in some others the specific char‐ acteristics of Italian history will gain the upper hand. In this paper I shall not provide a description of the Italian system of State-religion relations. I shall focus on its most interesting feature, the at‐ tempt to govern religious plurality by transforming Catholicism into the Italian civil religion. Once the European context has been outlined (B), the Italian pattern will be described focusing the attention on the attempt to transform Catholicism into the Italian civil religion (C): the debate about the crucifix in the classrooms will provide a good example of this transfor‐ mation (D). A short description of the French model of civil religion will highlight the peculiarities of the Italian model (E) and will open the way to an assessment of its strong and weak points (F). The European Context Europe is in the middle of a process of transformation which can be de‐ fined as the passage from religious pluralism to cultural and ethical plur‐ alism, often characterized by a strong religious foundation. Due to this transformation, the traditional systems of relations between States and re‐ ligions do not work smoothly anymore and, after a period of relative sta‐ bility, they have entered a phase of transition. The direction of this change A. B. 299 is sufficiently clear but it is hard to pinpoint its point of arrival with simi‐ lar precision. Religious pluralism is a well-known fact in Europe. For centuries, Eu‐ rope had been split up into Catholic, Protestant, and Orthodox communi‐ ties, with dividing lines which frequently crossed the same town or the same region. But this pluralism was contained within a shared horizon, de‐ fined by the reference to the same sacred books (Old and New Testament) and the same interpretative corpus (Patristic). Of course, Jewish and Mus‐ lim communities have been living in Europe for a long time: but the Jews were faced quite early on with the alternative between assimilation or per‐ secution (and they chose the first, without avoiding the second), and the Muslims were confined to a peripheral region of Europe after the Catholic “reconquista” of Spain in the fifteenth century. As a consequence, reli‐ gious pluralism in Europe has predominantly been intra-Christian plur‐ alism and the religious conflicts which divided Europe after the Great Schism and above all the Protestant Reformation did not create insupera‐ ble cultural divisions. It is true that the relations between man and woman, citizen and State, State and religion were and partly still are conceived in a different way in the Catholic, Orthodox, and Protestant countries, but this difference did not become so huge as to generate incompatibility and to prevent mutual understanding. The unification process of Europe, with all its shortcomings, is the proof that a shared notion of citizenship exists. This common horizon has become progressively weaker. Two factors – the first internal and the second external to Europe – have played an im‐ portant role in this weakening process and have paved the way to the birth of a culturally and ethically pluralistic society. The first factor is immigration, which brought an increasing number of people into Europe who do not know and do not share some central fea‐ tures of the European cultural heritage. The way political or family rela‐ tions are conceived or, at a more day-to-day level, the way people dress or what they eat mark a difference between a part of these immigrant groups and the majority of Europeans. It is not only a difference of religion, but something larger which concerns lifestyles, beliefs, values, behaviour: in a nutshell, a cultural difference. Silvio Ferrari 300 Second, there is individualism, which questions assumptions that used to be taken for granted.1 Secularisation had already weakened the control historical Churches exercised on the central passages of human life, birth, marriage, death, and so on: now the way these experiences are conceived and lived is in the process of changing. The range of possibilities has be‐ come far larger and the individual is in a position to make choices which were unconceivable only a few years ago. Europe is moving towards the coexistence of different ways of procreating, marrying and dying which correspond to the different ethical views of individuals and which enjoy the same legal legitimacy. The debate on bioethics all over Europe and the recent reform of family law in a number of European countries show that the historic Churches have largely lost their capacity to lead the public de‐ bate on central ethical issues and to influence the corresponding political decisions (although there are exceptions, and I am thinking of Italy, which should not be overlooked). What I have said confirms that today we are faced with something more than simple religious pluralism: we have to deal with a veritable cultural and ethical pluralism. But to understand this new challenge properly, we need to take into consideration its most interesting feature. This cultural and ethical pluralism is by no means a result of the dissolution of the reli‐ gious dimension in contemporary society: on the contrary, it is frequently characterized by a strong religious connotation or, at least, takes place in a context still dominated by the “revanche de Dieu”.2 On the one hand, the decline of the historical Churches’ power to speak on behalf of the whole European society has been balanced by the development, within these same Churches, of new groups and movements, like the Pentecostals and the “Born Again Christians” in the Protestant field and movements like “Communion and Liberation” and the Opus Dei in the Catholic one. They all are motivated by the aim to manifest their strong religious identity in all fields of human life and, consequently, they want to affirm the religious 1 “The changing nature of churchgoing in modern Europe” is underlined by Grace Davie, who highlights the passage “from a culture of obligation or duty to a culture of consumption or choice. What until somewhat recently was simply imposed (with all the negative connotations of this word), or inherited (a rather more positive spin), becomes instead a matter of personal choice” (Davie, “Is Europe an excep‐ tional case?,” 2006, p. 26, in Turkish). 2 See Kepel, La revanche de Dieu. Chrétiens, juifs et musulmans à la reconquête du monde, 1991. See also Casanova, Public Religions in the Modern World, 1994. Law and Religion in Italy 301 foundation of ethical, cultural and political choices. On the other hand, the distinction between religion, ethics, culture and politics which had been accepted – willingly or unwillingly – by most Christian Churches is not part and parcel of the heritage of many religious communities which have arrived in Europe in the last forty years, starting with Islam and some of the “new religious movements”. Consequently, cultural and ethical choic‐ es are frequently justified through a direct reference to religion. The affair of the Islamic headscarf is a good example: what had been regarded, until a few years ago, as an ethnic custom is now perceived primarily as a reli‐ gious expression. The final outcome of this mix between religion, culture, ethics and po‐ litics has been that negotiation and compromise are much more difficult today than in the past: when ethical and cultural choices are directly con‐ nected to the will of God, they tend to become non-negotiable. What are the legal consequences of this transformation of the European religious landscape? What is its impact on the systems of relations be‐ tween States and religions? Today the traditional legal mechanisms which regulated the different areas where human activity takes place do not seem to work properly: confronted with a pluralism which is at the same time cultural, ethical and religious such mechanisms have difficulty in granting the freedom of social communities without falling into the anarchy of par‐ ticularisms. It is necessary to find new legal mechanisms which take into account the public role of religions. But how is it possible to do so without falling into “communautairisme” which erodes the hard core of shared principles and values and risks endangering social cohesion? The Italian Case or Catholicism as the Civil Religion of Italy Many and different meanings can be given to the expression “civil reli‐ gion”. Jean Jacques Rousseau employed it in a very broad sense, to indi‐ cate a set of universal religious beliefs that every human being is bound to accept;3 Robert Bellah’s most famous essay is entitled “Civil religion in America” and it links civil religion to the specific history, culture and mis‐ sion of a given country.4 Sometimes civil religion is viewed as a specific, C. 3 See Ball, “Rousseau’s Civil Religion Reconsidered,” 1995, pp. 108-118. 4 See Bellah, “Civil Religion in America,” 1967, pp. 1-21. Silvio Ferrari 302 sectarian religion competing with other religions;5 sometimes it is con‐ ceived as a set of principles and values that the members of all religions can accept without giving up their beliefs. It seems to me that the current debate on civil religion has to do with the identification of a core nucleus of values that bind individuals together and make a people out of them. This linkage is revealed by the debate timeline: it started in the United States in the ’60s, during a time of trial when the national covenant had been broken (to quote Bellah again), and resurfaced in Europe a couple of decades ago, when immigration from Asia and Africa raised the question of the identity of Europe and of its Member States. In a religiously plural society civil religion provides a set of values, symbols and rituals upon which the spiritual unity and social cohesion of a nation (or a group of nations, as in the case of Europe) can be re-built.6 These remarks help to explain why the debate on civil reli‐ gion concerns all the European countries: but each of them has its own way of dealing with this issue. In the European context, is there an Italian way of shaping its own civil religion, which is to tackle the challenges deriving from religious plurali‐ ty? The answer is affirmative: the central core of the Italian experience is the attempt to govern ethical, cultural and religious plurality through the Catholic religion, raised to the rank of civil religion of the country. More precisely, Catholicism supplies the cultural and ethical principles on which citizenship is based: provided they are ready to accept this horizon, non- Catholic religions can fully enjoy religious rights. Governing diversity by stressing (Catholic) identity is the narrow path Italy is trying to follow. Is this attempt bound to fail, just an impossible dream to revive a longfaded past, or can it be seen as a way to introduce diversity (albeit a “do‐ mesticated” diversity) into a largely homogeneous country? If so, can this model be applied in other countries where the Catholic (or another) reli‐ gion plays a dominant role? In a broader perspective, does it have the ca‐ pacity to assuage the fears raised by the growth of religious, cultural and ethical diversity, framing it in a traditional, familiar and reassuring con‐ text? 5 See Bellah, The Final Word: Can Christianity Contribute to a Global Civil Religi‐ on, 2010, pp. 351-366. 6 See Bellah, The Broken Covenant: American Civil Religion in Time of Trial, 1975, p. 3. Law and Religion in Italy 303 If we answer in the affirmative, then a second set of questions needs to be addressed. Assuming that the Italian model is viable, what are the con‐ ditions it requires to be successful? What are its strong and weak points? In other words, what is the price to pay, regarding both the dominant and the minority religions, when a particular faith is elevated to the level of civil religion of a country? The Crucifix as Symbol of the Italian Civil Religion The question of religious symbols provides a good research field for studying the Italian pattern of civil religion. While in France and in other European countries, the debate focused on the symbols of non-Christian religions (first of all the Islamic headscarf), in Italy the same debate con‐ centrated on the symbols of the Catholic religion.7 The Islamic headscarf was never a real issue in Italy: but when some requests were made to re‐ move the crucifix from schools, hospitals, and tribunals a chorus of disap‐ proval could be heard. This different approach to the religious symbols is‐ sue needs to be carefully taken into consideration, as it enlightens both the elevation of Catholicism to the rank of civil religion of Italy and the impli‐ cations this process has on the legal status of other religions. To date the Islamic headscarf has not raised significant problems in Italy. There is no law that forbids wearing a headscarf in public places: in particular, there is no provision that prevents students from wearing a scarf at school. It is possible to wear a headscarf when taking a photograph for an official document (driving licences, identity cards, etc.), provided that the face and the ears are visible. Wearing a headscarf in the workplace can be limited only for health or safety reasons and in cases where a uniform has to be worn. How is it possible to explain this apparent lack of importance of the headscarf issue in Italy? Two elements can be of help in finding an an‐ swer. First, this issue is likely to emerge when the Muslim community has reached a certain level of development in a country and it has acquired the strength to affirm its religious and cultural identity. In Italy the number of D. 7 On the issues connected to religious symbols in Italy see Dieni, Ferrari, and Pacillo (eds.), Symbolon/Diabolon. Simboli, religioni, diritti nell’Europa multiculturale, 2005; Dieni, Ferrari, and Pacillo (eds.), I simboli religiosi tra diritto e culture, Mila‐ no, Giuffrè, 2006. Silvio Ferrari 304 Muslim women who have a regular job in the public administration is still small and, when they work, they do not have very high and visible pos‐ itions: female Muslim teachers, medical doctors, judges etc. are very few. The same can be said of female Muslim students wearing the headscarf at school. It is possible that, by some kind of imitative process, the headscarf issue will be imported into Italy and become an element of conflict: but the endogenous motivations for such a conflict are not yet in place. The second and more interesting element is connected to the position of the Catholic Church. Even when the conflict between Church and State in Italy was at its peak in the nineteenth century, no prohibition to wear reli‐ gious symbols in public was enacted: clothing regulations for priests and nuns – like the ones that were in force in Mexico – have always been un‐ known. Moreover, until recently Catholic religion was taught in State schools by priests dressed in clerical attire (now most of the teachers are laymen): differently from France, no official or unofficial prohibition to enter a school with garments that clearly reveal a religious membership or faith has ever been in force. Finally, television broadcasts daily show the Pope, bishops and priests dressed as Popes, bishops and priests: clerical clothes are so common and visible in Italy that people do not understand why other religiously qualified ways of dressing should be prohibited. In this way the dominance of Catholic religious symbols created some kind of protective umbrella extended to all religious symbols: as long as they are not in competition with the Catholic ones, non-Catholic religious sym‐ bols can benefit from the presence of religion in the public life that is a consequence of the social importance of the Catholic Church. But when a Muslim requested to remove the crucifix from the classroom attended by his sons and a judge accepted his petition, a wave of indignation crossed the country: the President of the Republic criticized the decision, the Mini‐ ster of Justice threatened to take disciplinary measures against the judge, political leaders on both sides of the Parliament reaffirmed in the strongest terms that the crucifix had to remain on the classroom walls8. A few years later the issue of the crucifix was brought again to the at‐ tention of the courts and the media. This time the request to remove the crucifix from the classroom came from a lady of Finnish origin who lived in Veneto. The court rejected the request, stating that the crucifix is not on‐ 8 On the debate about the crucifix in the classrooms see Temperman (ed.), The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom, 2012, in particular the chapter written by Carlo Panara, pp. 301-325. Law and Religion in Italy 305 ly a religious symbol but also the symbol of Italian identity: according to the court, it manifests the historical and cultural tradition of Italy and is a sign of a system of values based on freedom, equality, human dignity, and religious tolerance. As citizenship is founded on these same values, that are to be respected by everybody, the presence of the crucifix in the class‐ room cannot be made dependent on the religious convictions of the stu‐ dents.9 So far, nothing really new: similar remarks can be found in the case law of other European countries. But the Council of State, which judged the appeal against this decision, opened a new perspective by stating that the crucifix is the symbol of the Italian model of laïcité. According to the Council of State, in Italy the principles that are at the base of the idea of laïcité cannot but have a religious origin: therefore the best way to mani‐ fest the secular character of the Italian school is the crucifix in the class‐ room. This conclusion does not mean that the crucifix is deprived of its religious significance. But it has a different meaning depending on the place where it is situated: when the crucifix is placed in a church or anoth‐ er place of worship, it is only a religious symbol; when it is placed in a school, it becomes a tool for educating students, independently from their religious beliefs, to the values of tolerance, mutual respect, dignity of the human being, human solidarity, non discrimination, etc., that is to the val‐ ues that are at the core of the notion of laïcité.10 It would be a mistake to dismiss the Council of State decision as a bun‐ dle of paradoxical and incoherent statements. On the contrary, it is a lucid attempt to express in legal terms the idea – supported by large part of the Catholic hierarchy, the governing political coalition and the public opinion – that only Catholicism can perform the role of civil religion of Italy and provide the set of fundamental principles and values on which social cohe‐ sion is founded. This conviction does not imply that non-Catholic reli‐ gions have no standing in this country: as it has been shown by the issues 9 The court went even further: the fact that Italian schools are attended by a growing number of non-Christian students underlines the need of the crucifix, because it contributes towards propagating the principles of respect of diversity and rejection of radicalism (both religious and secular) that are at the foundation of the Italian legal system and that may not be familiar to students of other cultures and reli‐ gions. See Administrative Court of Veneto, decision of March 17, 2005, n. 1110, at =2075). 10 Council of State, decision of February 13, 2006, n. 556, at‐ ca/index.php?Form_Document=3517. Silvio Ferrari 306 of the headscarf and the Muslim places of worship,11 they can benefit from the dominant position of Catholicism in Italian society. But the inte‐ gration of non-Catholic religious communities passes through the accep‐ tance of Catholicism as the civil religion of the country. This point was clearly stated in an article published in a newsletter that is inspired by Car‐ dinal Angelo Scola, then Patriarch of Venice and now Archbishop of Mi‐ lan and one of the most influential personalities among the Italian bishops. Commenting the Archbishop of Canterbury’s speech on the opportunity of giving shariʻa some place in the English legal system12, the newsletter af‐ firmed that “rather than trying to defend religion through the guise of sec‐ ular multiculturalism, the Archbishop of Canterbury should have been de‐ fending religious pluralism through Christianity” as only Christianity can integrate other religions into a shared European project by acknowledging what secular ideologies cannot: a transcendent objective truth that exceeds human assertion but is open to rational discernment and de‐ bate. […] Paradoxically, what other faiths require for their proper recognition is the recovery of the indigenous European religious tradition – Christianity.13 In this perspective State support of Catholicism and integration of non- Catholic communities into Italian society are linked together. One could wonder why secular symbols and values cannot perform the same job of integrating religions in the Italian society. The answer is provided by his‐ tory. Different from what happened in France and other European coun‐ tries, Italian history did not provide a set of secular symbols and values that are strong enough to replace Catholic symbols and values as the civil religion of the country. 11 In many cases the right of Muslims to have their own places of worship has been defended by the representatives of the Catholic Church, who underlined that hav‐ ing a place where to pray is part of religious freedom. See Ferrari, “Le moschee in Italia tra ordine pubblico e libertà religiosa,” 2009, pp. 219-236. 12 The speech, given on February 7 2008, can be read in Ecclesiastical Law Journal, v. 10, n. 3, September 2008, pp. 262-275. 13 Blond and Pabst, “A new kind of “laïcité” to integrate Islam in the West,” 2008, at‐ tory=contributi&name=contributi_doc&news=429&group=contributi&sub‐ group=doc_2008. Law and Religion in Italy 307 Italy v. France: Two Models of Civil Religion Taking briefly in consideration the French conception of civil religion will help in understanding the peculiarities of the Italian model. As already said, civil religion has many facets. One of them is the sacralization of secular concepts and symbols that become the axis around which civil society is organized. This is the case, in France, of laïcité, con‐ ceived as the general principle that can include and reconcile the particular values of the religious, racial, ethnic, cultural, and political communities living in the country. In this perspective laïcité is seen as a cluster of uni‐ versal and abstract values – liberty, equality, tolerance, etc. –that every cit‐ izen and group must embrace independently from his origins, preferences, belongings. Citizenship is built around these values that are, as was stated by the past French President Jacques Chirac, “at the heart of our republi‐ can identity”.14 Coherently with this approach, the contract of “accueil et integration” that each immigrant has to sign when entering France15 lists laïcité, together with democracy and equality, among the non-negotiable values on which the French Republic is founded. This secular conception of civil religion is not without consequences as to the way the relations between State and religions are shaped. I shall give three examples. In the field of education, the French schools curricula (with the exception of Alsace and Moselle) include neither a teaching of religions nor a teaching about religions: this is a very exceptional case, as all the EU States and almost all the European countries comprise this teaching in the school curricula, as a compulsory or optional subject16. At the European level, France is spearheading the fight against the so called new religious movements: a law has been enacted and a governmental body has been created to combat the sects and the “derive sectaires”17. Also in the field of religious symbols, France has taken a very clear-cut E. 14 This passage of a speech given by Chirac in 2003 is quoted by Chelini Pont and Gunn, Dieu en France et aux Etats-Unis. Quand les mythes font la loi, 2005, p. 15. 15 The text of the contract can be read at Contrat_200 8.pdf. 16 On the teaching of religion in the French schools see Willaime, “Teaching Reli‐ gious Issues in French Public Schools: From Abstentionist Laïcité to a Return of Religion to Public Education,” 2007, pp. 87-102; Kuyk, Jensen, Lankshear, Man‐ na, and Schreiner (eds.), Religious Education in Europe, 2007, pp. 71-75. 17 See Beckford, “‘Laïcité’, ‘Dystopia’, and the Reaction to New Religious Move‐ ments in France,” 2004, pp. 27-40; Duvert, “Anti-Cultism in the French Parlia‐ Silvio Ferrari 308 position, by passing a law that prohibits the wearing at school of religious symbols that are too visible18 and, a few years later, another law that pre‐ vents women from wearing a full-face veil in the public spaces19. Once more, we are confronted with a case of French exceptionalism: almost no other EU country has followed this path. In my opinion there is a link between the secular conception of civil re‐ ligion prevailing in France and these legal and political choices. If national identity has to be built around the notion of laïcité, “it is the role of the state to create laïque citizens”20 by educating them to the values of laïcité and shielding them from the competing values upheld by religions. This attitude explains the exclusion of the teaching of religion from schools curricula, the prohibition of religious symbols in public institutions and the need to protect citizens from the threat to freedom posed by the new religious movements. This conclusion is confirmed by an exam of how the same issues have been dealt with in Italy, starting from a completely dif‐ ferent conception of civil religion. In the Italian public schools, the teach‐ ing of the Catholic religion is compulsory, in the sense that the State has the obligation to provide it and the students or their parents can decide whether to attend or not Catholic religion classes; other religions can be taught but only at the request of the students and the teachers are not paid by the State (as the teachers of the Catholic religion are). In Italy there is no specific law concerning new religious movements nor an official insti‐ tution charged with controlling or combating them: but these movements are far from enjoying the same legal status other religious communities have. Finally, the symbols of the minority religions – like the Islamic headscarf, the Jewish kippa, or the Sikh turban – are not a matter of con‐ cern in Italy, while the debate focused on the symbols of the majority reli‐ gion: when the Catholic symbols were threatened almost everybody – from the President of the Republic to the Prime Minister – felt compelled to heed the public outcry in their defense. The different impact of the two ment: Desperate Last Stand or an Opportune Leap Forward? A Critical Analysis of the 12 June 2001 Act,” 2004, pp. 41-53. 18 On this issue see Bowen, Why the French Don’t Like Headscarves: Islam, the Sta‐ te, and Public Space, 2006. 19 On this second law see Ferrari and Pastorelli (eds.), The Burqa Affair Across Euro‐ pe, 2013, in particular the chapter written by Anne Fornerod, pp. 59-76. 20 Berger, Davie and Fokas, Religious America, Secular Europe? A Theme and Va‐ riations, 2008, p. 76. Law and Religion in Italy 309 conceptions of civil religion on the Church-State system could not be more evident. How much the French conception of civil religion can cope with the two driving forces that are changing the European religious landscape – the increasing plurality of religions and their growing public character – is open to discussion. The weakest point of the French pattern is the assump‐ tion that not only the State and its institutions but also society and politics have to be independent from particular traditions and conceptions of life.21 To attain such a goal these traditions are to be pushed to the margins of public life: but privatization of religion is increasingly rejected by a consistent part of the European historical religions and of the immigrant communities, which come from countries where law and politics are inter‐ mingled with religion and by a part of the autochthonous Europeans. What Future for the Italian Civil Religion? Italy is a country with a strong Church and a weak State. Italy does not have a “state-nation identity, such as France, which aims to achieve social cohesion through a common bond of citizenship based on public institu‐ tions”; instead it has a “nation-state identity […] in which social cohesion is principally entrusted to a natural, cultural-religious homogeneity”22. This historical weakness of the State has been accentuated by the radical transformation of the political landscape that took place in the ‘90s, when the Socialist and the Christian Democrat parties disappeared under the blows of the judges who jailed most of their leaders under accusation of corruption. Their place was taken by new parties that had no real ideology beyond the idea of running Italy as an economic enterprise (in the case of Berlusconi’s Forza Italia) and of reviving an implausible Celtic tradition to distance the Italian Northern regions from the South and connect them to Central and North Europe (in the case of Bossi’s Lega Nord). This ideo‐ logical void gave the Catholic Church the opportunity to expand its influ‐ ence. F. 21 This assumption emerges clearly in the “Déclaration sur la laïcité” prepared by Jean Bauberot, Roberto Blancarte and Micheline Milot and published on Decem‐ ber 9, 2005 (see art. 4 and 9). The text is published in Bauberot, L’intégrisme ré‐ publicain contre la laïcité, 2006, pp. 247-265. 22 Ferrari, “Religious Education in a Globalized Europe,” 2008, p. 113. Silvio Ferrari 310 Italy has a long Catholic past and also a relatively strong Catholic present23, if compared with other traditionally Catholic countries like France, Belgium and Spain where secularisation has had a far stronger im‐ pact. Moreover the Pope and the Holy See, that are the central governing bodies of the Catholic Church, are in Rome – not in Paris or Madrid – and this fact has a significant influence on the political, cultural and social life of Italy. Just to give one example, when John Paul II died, the whole coun‐ try virtually stopped: football matches were cancelled, political activity was suspended, schools and universities closed. The Catholic Church is not only a powerful institution: it is also a deeply rooted presence in Ital‐ ian society. On Sundays churches are reasonably full, there is an impres‐ sive network of Catholic voluntary associations that are active in the fields of assistance to immigrants, poor and sick people, Catholic oriented schools are quite strong at the level of pre-primary and primary education, and every parish has an “oratorio”, that is a place where young people meet, play and socialize under the vigilant eye of the parish priest. For these reasons the Catholic Church in Italy is something more than the “vi‐ carious Church” described by Grace Davie24; it is a “popular” Church, that is something that still has an impact on civil society.25 In this context Catholicism was the natural candidate to provide the val‐ ues and principles on which social cohesion is built, that is to become the civil religion of Italy. It would be a mistake to conclude hastily that the religious rights of non-Catholic individuals and communities cannot be safeguarded in this context: as some scholars have underlined, “the cross in Italy’s state schools is the main defender of the headscarves of Muslim pupils”.26 But 23 Until not long ago over 90% of the pupils at state schools took part in Catholic religious education classes, 70% of all marriages were concluded according to Catholic rites and about 30% of the population regularly attended Sunday mass. See Garelli, Guizzardi, and Pace (eds.), Un singolare pluralismo. Indagine sul plu‐ ralismo morale e religioso degli italiani, 2003. 24 Davie, Religion in Modern Europe: A Memory Mutates, 2000. 25 See Garelli, La Chiesa in Italia, 2008; see also Sciolla, La sfida dei valori. Rispet‐ to delle regole e rispetto dei diritti in Italia, 2004. 26 Ferrari, “Religious Education in a Globalized Europe,” p. 119. The same remark can be extended to other situations: a number of non-Catholic communities has benefitted from the right to conclude a Catholic marriage with civil validity, to have the Catholic religion taught in State schools, to devolve a part of the State income tax to the Catholic Church, as these rights have been extended to them. Law and Religion in Italy 311 non-Catholic religions have to accept “the Catholic Church’s role of gatekeeper” of the Italian identity: those groups that are not ready to accept this condition “are not recognized as part of the national heritage.”27 In other words, religious plurality can develop in Italy as long as it is con‐ fined within a cultural and ethical horizon defined by the Catholic tradi‐ tion. When the ‘civil’ Catholic values are in conflict with the values of other religions – as it happened in the field of family law for example – tensions emerge and the Italian model shows its shortcomings. Governing religious plurality through Catholic cultural and ethical tra‐ dition can provide a short-term solution. The public reaffirmation of the Catholic identity of Italy contributes towards reassuring its citizens and helps them to come to terms with changes that are of unusual speed and magnitude: it makes the whole process of integration more sustainable. But, in the long run, this project is not viable as religious plurality in‐ evitably implies cultural and ethical plurality. It is understandable that Muslim immigrants in Italy are not yet in a position to affirm their cultural identity and concentrate their efforts on gaining full enjoyment of their re‐ ligious rights. But sooner or later Italy will have a substantial number of socially well-integrated Muslim citizens and they will demand their say in defining the cultural profile of Italy, that is of their own country. Two other profiles of the Italian experience deserve attention. First of all, Catholicism itself can undergo a transformation in the process of be‐ coming Italy’s civil religion. On the one hand this process links a universal religion (Catholicism) to a specific nation (Italy), by emphasizing the role of the Catholic Church as the custodian of the Italian memory and tradi‐ tion; on the other hand the cultural and ethical dimension of Catholicism come into the forefront, while its religious meaning risks being left in the background. Second, the claim of Catholicism to be Italy’s civil religion has an impact on the Church-State system, as it gives a new justification for the State’s support of the Catholic Church. Until recently this support was defended through “democratic” arguments, based on the fact that the majority of Italian citizens were members of the Catholic Church. In the ‘civil religion’ perspective, the Catholic Church can claim public support because it constitutes a fundamental component of the Italian tradition. Its privileged position is disconnected from popular will: the number of the faithful could decrease but, once the Church has repositioned itself on the 27 Ibid. Silvio Ferrari 312 terrain of the Italian cultural heritage, it is entitled to claim State support as the custodian of Italian identity. This would be a step backwards in the direction of the old-fashioned confessional models. Bibliography Administrative Court of Veneto, Decision no. 1110, 17 March 2005. Ball, Terence, “Rousseau’s Civil Religion Reconsidered,” in idem, Reappraising Poli‐ tical Theory: Revisionist Studies in the History of Political Thought, Oxford: Clarendon Press, 1995, pp. 108-118. Bauberot, Jean, L’intégrisme républicain contre la laïcité, Paris: Aube, 2006. Bauberot, Jean, Roberto Blancarte, and Micheline Milot, “Déclaration sur la laïcité,” (December 9, 2005), in L’intégrisme républicain contre la laïcité, ed. Jean Bauberot, Paris: Aube, 2006, pp. 247-265. Beckford, James A., “‘Laïcité’, ‘Dystopia’, and the Reaction to New Religious Move‐ ments in France,” in Regulating Religion: Case Studies from Around the Globe, ed. James T. Richardson, New York: Kluwer, 2004, pp. 27-40. Bellah, Robert, “The Final Word: Can Christianity contribute to a global civil reli‐ gion?,” in Christianity and Human Rights: An Introduction, ed. John Witte Jr. and Frank. S. Alexander, Cambridge: Cambridge Univ. Press, 2010, pp. 351-366. Bellah, Robert, The Broken Covenant: American Civil Religion in Time of Trial, New York: Seabury Press, 1975. Bellah, Robert, “Civil Religion in America,” Daedalus: Journal of the American Aca‐ demy of Arts and Sciences 96, 1 (1967): 1-21. Berger, Peter, Grace Davie, and Effie Fokas, Religious America, Secular Europe? A Theme and Variations, Farnham: Ashgate, 2008. Blond, Phillip, and Adrian Pabst, “A new kind of “laïcité” to integrate Islam in the West,” Oasis, 2008, at‐ ble=contributi&directory=contributi&name=contribu‐ ti_doc&news=429&group=contributi&subgroup=doc_2008. Bowen, John R., Why the French Don’t Like Headscarves: Islam, the State, and Public Space, Princeton: Princeton University Press, 2006. Casanova, José, Public Religions in the Modern World, Chicago: University of Chica‐ go Press, 1994. Chélini Pont, Blandine, and Jeremy Gunn, Dieu en France et aux Etats-Unis. Quand les mythes font la loi, Paris: Berg, 2005. Council of State, Decision no. 556, 13 February 2006. Davie, Grace, “Is Europe an exceptional case?,” in State and Religion in Europe, Istan‐ bul: Center for Islamic Studies, 2006, pp. 23-33. Davie, Grace, Religion in Modern Europe: A Memory Mutates, Oxford: Oxford Uni‐ versity Press, 2000. Law and Religion in Italy 313 Dieni, Edoardo, Alessandro Ferrari, and Vinzenzo Pacillo (eds.), Symbolon/Diabolon. Simboli, religioni, diritti nell’Europa multiculturale, Bologna: Mulino, 2005. Dieni, Edoardo, Alessandro Ferrari, and Vinzenzo Pacillo (eds.), I simboli religiosi tra diritto e culture, Milano: Giuffrè, 2006. Duvert, Cyrille, “Anti-Cultism in the French Parliament: Desperate Last Stand or an Opportune Leap Forward? A Critical Analysis of the 12 June 2001 Act,” in Regula‐ ting Religion: Case Studies from Around the Globe, ed. James T. Richardson, New York: Kluwer, 2004, pp. 41-53. Ferrari, Alessandro, “Religious Education in a Globalized Europe,” in, Religion and Democracy in Contemporary Europe, ed. Gabriel Motzkin and Yochi Fisher Lon‐ don: Alliance Publ. Trust, 2008, pp. 113-124. Ferrari, Alessandro, and Sabrina Pastorelli (eds.), The Burqa Affair Across Europe, Farnham, Ashgate, 2013. Ferrari, Silvio, “Le moschee in Italia tra ordine pubblico e libertà religiosa,” in Quatt‐ ordicesimo rapporto sulle migrazioni 2008, ed. Fondazione ISMU, Milano: Franco Angeli, 2009, pp. 219-236. Fornerod, Anne, “The burqa affair in France,” in The Burqa Affair Across Europe, ed. Alessandro Ferrari and Sabrina Pastorelli, Farnham, Ashgate, 2013, pp. 59-76. Garelli, Franco, Gustavo Guizzardi, and Enzo Pace, (eds.), Un singolare pluralismo. Indagine sul pluralismo morale e religioso degli italiani, Bologna: il Mulino, 2003. Garelli, Franco, La Chiesa in Italia, Bologna: Mulino, 2008. Gau, Justin, Ruth Arlow, and Will Adam, “Trustees of the Roman Catholic Church v Ellis,” Ecclesiastical Law Journal 10, 3 (2008): 262-275. Kepel, Gilles, La revanche de Dieu. Chrétiens, juifs et musulmans à la reconquête du monde, Paris: Seuil, 1991. Kuyk, Elza, Roger Jensen, David Lankshear, Elizabeth Löh Manna, and Peter Schrei‐ ner (eds.), Religious Education in Europe, Oslo: Iko-ICCS, 2007. Panara, Carlo, “Back to the Basics of Fundamental Rights: An Appraisal of the Grand Chamber’s Judgment in Lautsi in Light of the ECHR and Italian Constitutional Law,” in The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom, ed. Jeroen Temperman, Leiden: Brill, 2012, pp. 301-325. Sciolla, Loredana, La sfida dei valori. Rispetto delle regole e rispetto dei diritti in Ita‐ lia, Bologna: Mulino, 2004. Willaime, Jean-Paul, “Teaching Religious Issues in French Public Schools: From Ab‐ stentionist Laïcité to a Return of Religion to Public Education,” in Religion and Education in Europe: Developments, Contexts and Debates, ed. Robert Jackson, Siebren Miedema, Wolfgang Weisse, Jean-Paull Willaime, Münster: Waxmann, 2007, pp. 87-102. Temperman, Jeroen (ed.), The Lautsi Papers: Multidisciplinary Reflections on Reli‐ gious Symbols in the Public School Classroom, Leiden: Brill, 2012. Silvio Ferrari 314 Religion and the State: The ‘Lautsi’ Case of the European Court of Human Rights About Crucifixes in Italian Class Rooms Andreas Follesdal Introduction1 The relationship between political authorities and religious communities is complex and controversial. One area where the tensions are evident is in public education. A central task of public authorities is to ensure the edu‐ cation and socialisation of children to become well informed and responsi‐ ble citizens with a sense of justice. The children must on the one hand ap‐ preciate the history and past culture of their society, and at the same time be prepared for their present and future multi-cultural society. Tensions between these objectives are visible when the state seeks to include or ex‐ clude contested religious symbols and teachings within the public educa‐ tional system. The European Court of Human Rights (ECtHR, ‘the Court’) has been brought in to address and resolve some of these issues, insofar as they fall under relevant paragraphs of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). A. 1 This article was written under the auspices of the European Research Council under the European Union's Seventh Framework Programme (FP7/2007-2013)/ERC Grant agreement no 269841 – “MultiRights: On the Legitimacy of the Multi-Level Human Rights Judiciary”; and partly supported by the Research Council of Norway through its Centres of Excellence Funding Scheme, project number 223274 – “ The Legitimacy of the International Judiciary”. It was first presented November 24, 2013 at the German – Southeast Asian Center of Excel‐ lence for Public Policy and Good Governance (CPG) Conference on “Political and Religious Communities – Partners, Competitors, or Aliens,” on the panel on “How Neutral is the State? – State Power and Religious Practice.” It was then discussed at the programme on “Justice in Conflict” at the University of Tromsø. I am grateful to the organizers for these opportunities, and for very constructive suggestions by participants. 315 The ECtHR track record may seem inconsistent. It has restricted reli‐ gious teaching in textbooks2 allowed Turkey to prohibit students from wearing religious headscarves at university,3 allowed Switzerland to pro‐ hibit primary school teachers from wearing headscarves,4 and allows Italy to require crucifixes on school walls – after first denying Italy that authori‐ ty.5 There are several ways to try to make some sense of this cluster of deci‐ sions. The explanation which will be addressed here is the ECtHR’s prac‐ tice to grant states a ‘Margin of Appreciation’ (MA). Other approaches merit mention, only to leave them aside here: One is to look closely at the various rights and vulnerabilities at stake: the rights of the school authori‐ ties vs those of parents, or the teacher’s right to freedom of expression vs parents’ rights, etc. Alternatively, one could elaborate on the distinctions and relations between the public sphere, universities and compulsory pub‐ lic schools. Yet another approach may be to explore the presumed differ‐ ent impacts of statements in schoolbooks intended to influence beliefs ex‐ plicitly, versus ‘passive’ crucifixes on school room walls in societies where such symbols are not perceived as salient, versus teachers wearing head scarves in communities where this is experienced as unusual.6 The Court’s practice of a ‘Margin of Appreciation’ occurs when the Court gives states some but not full discretion to decide whether they are in compliance with their treaty obligations. This typically concerns ques‐ tions whether states are justified in violating some individuals’ rights be‐ cause the violations are ‘proportionate’ to acceptable social objectives – or other human rights. Many may argue that international or regional courts and treaty bodies should be particularly hesitant in reviewing the legislation of well func‐ tioning democracies, out of respect for the citizens’ autonomy.7 Indeed, the rampant value pluralism and variations in natural and social conditions 2 See Folgero v. Norway, 2007. 3 See Leyla Sahin v. Turkey, 2004. 4 See Dahlab v. Switzerland, 2001. 5 See Lautsi v. Italy I, 2009, and Lautsi v Italy II, 2011. 6 I owe these points to Jan Harald Alnes, Annamari Vitikainen and Claudio Corradet‐ ti. 7 Note that criticism of the ECtHR that it interferes in ‘political’ issues is misplaced: the objective of the treaty and its court has clearly been to limit legislation and other state decisions that violate the Convention. Thus, the Italian government’s argument in this regard concerning the Lautsi case seems mistaken when it held that “1. The Andreas Follesdal 316 across states counsels a certain leeway concerning how states should best respect and promote various objectives – including human rights. Thus, one explanation of the pattern of decisions by the Court with regard to re‐ ligion in the class room is that it has declined to overturn several of the national laws or regulations in the cases mentioned. Critics often challenge the Court’s application of a MA as being incon‐ sistent.8 To explore these worries, this article seeks to bring a more precise MA doctrine to bear on the Lautsi case concerning crucifixes on school walls, to assess whether the ECtHR decision and doctrine withstands criticism that it is too vague, or that it is poorly applied in this particular case. The case is one where privacy and family life is at stake, thus an area where scholars claim that the Court usually applies a heightened standard of scrutiny.9 Was this the case in the Lautsi case, and if not, what should the Court have done? The focus of this article is not to deny that there are other criticisms of the first Lautsi decision – which required crucifixes to be taken down – and the second Lautsi decision which permits them. Such criticisms merit attention – some of which has been presented by others.10 Government did not contend that it was necessary, advisable or desirable to keep crucifixes in classrooms, but that the decision whether to keep them there was a political one and therefore one to be taken on the basis of what was expedient, rather than according to legal considerations.” (Lautsi I [2009]) Thus Lautsi II (2011): 68. The Court takes the view that the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation of the respondent State. The Court must moreover take into account the fact that Europe is marked by a great diversity between the States of which it is composed, particularly in the sphere of cultural and historical development. It emphasises, however, that the ref‐ erence to a tradition cannot relieve a Contracting State of its obligation to respect the rights and freedoms enshrined in the Convention and its Protocols.” 8 See Benvenisti, “Margin of Appreciation, Consensus, and Universal Standards,” 1999, pp. 843-844; Brauch, “The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to the Rule of Law,” 2005; Del Moral 2006, “The Increasingly Marginal Appreciation of the Margin-of-Apprecia‐ tion Doctrine,” p. 621; Yourow, The Margin of Appreciation Doctrine in the Dyna‐ mics of European Human Rrights Jurisprudence, 1996. 9 See Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR, 2001. 10 See Zucca, “Lautsi: A Commentary on a Decision by the ECtHR Grand Cham‐ ber,” 2013, doi:10.1093/icon/mos008; Smet, “Lautsi v. Italy: The Argument from Religion and the State 317 The first section presents the Lautsi case, the following sections attend to various elements of the MA doctrine of the court. We return at the end to consider whether critics of the MA doctrine are right. Lautsi The Lautsi case concerns complaints by a parent (Mrs Soile Lautsi) who challenged Italy’s administrative law requiring display of the crucifix in every State school classroom. She held that this violated the right of par‐ ents to “to ensure [their children’s education] in conformity with their own religious and philosophical convictions” (Article 2 of Protocol 1 to the ECHR). Mrs Lautsi pointed out that crucifixes in rooms used as polling stations for voting in political elections had already been found in viola‐ tion of the principle of a secular state.11 Italy argued to the contrary that “the cross had become one of the secu‐ lar values of the Italian Constitution and represented the values of civilian life”. “The democratic values of today are rooted in [...] the Gospel mes‐ sage. The message of the cross would be a humanist message, which could be read independently of its religious dimension, consisting of a set of principles and values that form the basis of our democracies.” Therefore, “the display of the cross does not undermine the secular state”, and since “there is no European consensus on how in practice to interpret the con‐ cept of secularism [...] states should have a wider discretion in the matter.” The Margin of Appreciation Skeptics object that the MA doctrine is too vague: it is hardly a “doctrine” in the sense of a principle or position that forms part of a legal system.12 B. C. Neutrality,” 2011, at 03/22/lautsi-v-italy-the -argument-from-neutrality/. 11 See Ronchi “Crucifixes, Margin of Appreciation and Consensus: the Grand Cham‐ ber ruling in Lautsi v Italy,” 2011, at core/journals/ecc lesiastical-law-journal/article/crucifixes-margin-of-appreciation-and-consensus-the -grand-chamber-ruling-in-lautsi-v-italy/0C8445F5BD6C88BA 4A4B6BC0EA9A9 E42. 12 One reason that is put forward for an MA is the respect for democratically ac‐ countable decisions. However, we should note that this is not obvious in this case. Andreas Follesdal 318 One concern is that the vague MA doctrine leaves too much discretion to the judges who may be tempted to treat states differently. In particular, the procedure to determine an “emerging common practice” – or “some abstract sense of common standards” is exceedingly opaque – sometimes also contested by the participating judges.13 A more precise MA doctrine could specify how to determine whether there is a ‘common practice’, in particular whether to only include legisla‐ tion and stated policies, or also include practices of permitting a practice which is technically not legal, and a minimum threshold, for instance 60% of states, to maintain that there is a consensus. Still, such improvements do not avoid other objections: that such discretion entails a failure of the ECtHR to protect human rights in the short and long run. The Court there‐ by “side-step[s] its responsibility as the ultimate interpretative authority in the Convention system.”14 Indeed, “[t]he essence of the international con‐ trol mechanism may evaporate if there is in fact no effective check upon national power.”15 Of central concern here is that when the ECtHR discusses the MA, the general issue is whether there is ‘proportionality’ or ‘fair balance’ between the means a state chooses and the aim sought.16 Discretion might be grant‐ ed with regard to at least five different elements of the ‘proportionality test’ as developed in later cases and by various authors.17 As part of this decision the Court assesses 1. The legitimacy of the social objective pursued. 2. How important the restricted/derogated right is, e.g., as a foundation of a democratic society. 3. How invasive the proposed interference will be. Judge Malinverni, in a dissenting opinion to Lautsi II, noted that. “With regard to the regulations governing this question, I would point out in passing that the pres‐ ence of crucifixes in Italian State schools has an extremely weak basis in law: a very old royal decree dating back to 1860, then a fascist circular of 1922, and then royal decrees of 1924 and 1928. 13 See Rasmussen v. Denmark 1984, para 40; X v. United Kingdom 1997, 13; cf. Brems, “The Margin of Appreciation Doctrine in the Case-law of the European Court of Human Rights,” 1996, p. 248. 14 Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Hu‐ man RightsJurisprudence 1996, p. 181. 15 Yourow, The Margin of Appreciation Doctrine, p. 181; cf Z v. Finland 1998. 16 James and others v. the United Kingdom 1986, 50. 17 See Follesdal, “Appreciating the Margin of Appreciation,” 2018, pp. 264-294. Religion and the State 319 4. Whether the restriction of the right is necessary. 5. Whether the reasons offered by the national authorities are relevant and sufficient. For each of these, the Court may grant the state a narrow or broad MA. Note that some of these factors may well change over time in light of ex‐ periences about what rights are necessary for a ‘democratic society’18, or concerning realistic alternative policies. The following sections address each of these factors. The Legitimacy of the Social Objective Pursued The issue at stake is the interest of the state to pursue its educational ob‐ jectives through the curriculum and teaching environment of the public schools. Public education contributes in important ways to a sustainable and le‐ gitimate society: it surely prepares students to be full and equal citizens – but what is required, and what is permitted regarding the teaching of reli‐ gions and values? Clearly, in order to navigate within several European societies, all citizens must know a bit about Christian culture as it has shaped institutions, discourse, and everyday phrases – ‘to be a good Samaritan’, ‘to turn the other cheek’. But Christianity is also a set of reli‐ gions, with beliefs about the supernatural and norms about human morali‐ ty that are worthy of respect, but not shared by every reflective and hon‐ ourable citizen. Three important elements are worth noting: 1. Issue: Not ‘Public Sphere’ but Public Schools The social interest at stake in the Lautsi case – and the policy that is chal‐ lenged – is not the presentation of religious symbols in the ‘public square’ or in the ‘public sphere’ or in ‘public life’ more generally. Rather, the con‐ cern is about crucifixes in public schools, attendance to which is obliga‐ D. 18 Arts. 8-19; Moral, “The Increasingly Marginal Appreciation of the Margin-of-Ap‐ preciation Doctrine,” 2006, p. 613. Andreas Follesdal 320 tory, and whose role is to educate citizens. This distinction has been over‐ looked in some of the discussions.19 2. Public education about religion is not prohibited, but should be objec‐ tive, critical, and pluralistic. The Court allows religious teaching in schools, but insists that it must be objective and pluralistic.20 The Government21 seems to justify the obligation to display the crucifix by referring to the positive moral message of Christian faith. This message is said to transcend secular constitutional values, concerning the role of re‐ ligion in Italian history and to the deep roots of religion in the country’s tradition. The Court did not accept this argument as sufficient grounds to grant the Italian state a Margin of Appreciation on this issue, and thus apparent‐ ly did not accept that the crucifix is part of an objective, critical and plu‐ ralistic religios education. In particular, the Court disputed the govern‐ ment’s claims about the ‘secular’ symbolism of the crucifix: The Government22 justified the obligation to display (or the fact of dis‐ playing) the crucifix by referring to the positive moral message of Chris‐ tian faith, which transcended secular constitutional values, to the role of religion in Italian history and to the deep roots of religion in the country’s tradition. They attributed to the crucifix a neutral and secular meaning with reference to Italian history and tradition, which were closely bound up with Christianity. They submitted that the crucifix was a religious sym‐ bol but one which could equally represent other values.23 In the Court's opinion, the symbol of the crucifix has a number of meanings among which the religious meaning is predominant.24 The Grand Chamber joined other parties in dismissing claims by the government that the crucifix in this setting should not be regarded as a re‐ 19 See Weiler, “Lautsi: Crucifix in the Classroom Redux,” 2010. 20 See e.g. Folgero v. Norway, 2008. 21 See Lautsi I, paras. 34-44. 22 See ibid. 23 See citing “The Veneto Regional Administrative Court’s judgment,” 2005, § 16 and § 13. 24 See Lautsi II, p. 51. Religion and the State 321 ligious symbol: “The Court further considers that the crucifix is above all a religious symbol.”25 3. What are State’s objectives when requiring crucifixes on the school walls? It remains very difficult to understand the state’s objectives in requiring crucifixes as not including a concern to favour the Catholic religion. A va‐ riety of appropriate objectives concerning the dissemination of national culture and history can be secured by several other means. Note that this point is also granted by some who have criticized the Lautsi I judgment: Weiler remarks that: By this reasoning, Ms. Lautsi is perhaps entitled to her damages because the Italian government failed to demonstrate that the use of religious symbology in its classroom was part of a credible programme of education for tolerance and mutual respect. It is that which should be the guideline and constitutional imperative of contemporary Europe.26 How Important is the Restricted/Derogated Right The right to education is protected by Article 2 of Protocol 1: No person shall be denied the right to education. In the exercise of any func‐ tions which it assumes in relation to education and to teaching, the State shall respect the right of the parents to ensure such education and teaching in con‐ formity with their own religious and philosophical convictions. It is difficult to determine how important this right is, but both this and the right to family life appear to be threatened or violated in the Lautsi case. What is at stake is precisely thatthe state's education efforts are at odds with the parents' religious and philosophical convictions concerning how the school dispalys the crucifix. Several authors note that the ECtHR should not grant a broad MA of appreciation to rights of minorities that are at risk by majoritarian decision-making.27 The latter does seem to be at stake here. E. 25 Lautsi II, p. 66. 26 Weiler, “Lautsi: Crucifix in the Classroom Redux.” 27 E.g., Benvenisti, “Margin of Appreciation, Consensus, and Universal Standards,” 1999, p. 853. Andreas Follesdal 322 Note that the right to education does not prohibit all teaching of reli‐ gion, but that this education must be ‘objective.’ How InvasiveWill the Proposed Interference be This particular issue is controversial. The Italian government appears to have held that the Crucifix was not primarily a religious symbol at all, so did not raise an issue. The Grand Chamber rejected this argument, – as did various Catholic and Christian organizations.28 The Court held that the display was religious in nature, yet rejected un‐ substantiated claims by Mrs Lautsi that it had a noticable impact on chil‐ dren: There is no evidence before the Court that the display of a religious symbol on classroom walls may have an influence on pupils and so it can‐ not reasonably be asserted that it does or does not have an effect on young persons whose convictions are still in the process of being formed. How‐ ever, it is understandable that the first applicant might see in the display of crucifixes in the classrooms of the State school formerly attended by her children a lack of respect on the State’s part for her right to ensure their education and teaching in conformity with her own philosophical convic‐ tions. Be that as it may, the applicant’s subjective perception is not in itself sufficient to establish a breach of Article 2 of Protocol No. 1. The Court here seems on the verge of an inconsistency with its rejection of the Dahlab case. The Swiss ban on Muslim teachers wearing head‐ scarves while teaching was justified in order to ‘protect the religious be‐ liefs of the pupils and their parents and to apply the principle of denomina‐ tional neutrality in schools enshrined in domestic law’.29 In this case the Court regarded headscarves as ‘a sign that is immediately visible to others and provides a clear indication that the person concerned belongs to a par‐ ticular religion’.30 It went on to claim that [t]he Court accepts that it is very difficult to assess the impact that a powerful external symbol such as the wearing of a headscarf may have on the freedom of conscience and religion of very young children. The applicant’s pupils were aged between four and eight, an age at which children wonder about F. 28 See Lautsi II, p. 9. 29 See Lautsi II, para 73. 30 Dahlab v. Switzerland, 2-3. Religion and the State 323 many things and are also 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 proselytising effect.31 It is not easy to understand how a headscarf can be a more powerful sym‐ bol, nor why the burden of proof shifts according to the government’s pre‐ ferred position between Dahlab and Lautsi. One possible – but problemat‐ ic – explanation may be that in the former case the religion of concern was one of a minority, while in the latter case it was one of the majority. An‐ other possibility is that under such circumstances of uncertainty the Court grants the state a broader MA – though the right at stake concerns minori‐ ties. Whether the Restriction of the Right is Necessary A central issue here concerns what alternative policies are available to the state that might avoid all rights violations of a similar weight. There are at least three central issues worth considering related to the Lautsi case. Are Crucifixes Necessary? Firstly, it is not clear from the state’s arguments that crucifixes on the school room walls are at all necessary to achieve the legitimate objectives of public education. To the contrary, according to the Court: The Government did not contend that it was necessary, advisable or desirable to keep crucifixes in classrooms, but that the decision whether to keep them there was a political one and therefore one to be taken on the basis of what was expedient, rather than according to legal considerations.32 It would be a mistake to assume that the fact that the decision was a politi‐ cal one does not reduce the conflict between the ECHR rights and the par‐ ticular policy. Other symbols of ‘secularism’ would seem less objection‐ able; as might other symbols of the historical impact of the Catholic Church on Italian life. G. I. 31 Ibid. 32 See Lautsi II, p. 42. Andreas Follesdal 324 Did the State Consider Less Rights-Infringing Alternatives? Secondly, even if crucifixes were regarded as a required component of public education, there is little evidence that the state considered other less burdensome alternatives. For instance, it appears that Bavaria maintains similar practices but allows parents to challenge the practice in particular school rooms – this opportunity for parents was introduced after the Fed‐ eral Constitutional Court struck down a previous Bavarian school law.33 Will all Alternatives Violate Some Citizens’ Human Rights? Thirdly, a more complex issue, is whether all alternatives will violate other citizens’ similar rights with regard to their world view. Will any Crucifix policy violate objectivity? The state – and Joseph Weiler, and at least some of the judges of the ECtHR34 – seems to assume that ‘secularism’ is on a par with Christianity. The Lautsi I Court held that: The State's duty of neutrality and impartiality is incompatible with any kind of power on its part to assess the legitimacy of religious convictions or the ways of expressing those convictions.35 Weiler claimed that: The position adopted by the Chamber is not an ex‐ pression of the pluralism manifest by the Convention system, but an ex‐ pression of the values of the laique State. To extend it to the entire Con‐ vention system would represent, with great respect, the Americanization of Europe. Americanization in two respects: First a single and unique rule for everyone, and second, a rigid, American style, separation of Church and State, as if the people of those Members whose State identity is not laique, cannot be trusted to live by the principles of tolerance and plur‐ alism. That again, is not Europe.36 II. III. 33 See Zucca, “Lautsi: A Commentary on a Decision by the ECtHR Grand Cham‐ ber.” I am grateful to an anonymous referee for the information about why the Bavarian legislation was changed. 34 See Bonello, 2.10, and Power, pp. 44-45. 35 See Lautsi I, p. 47. 36 See Weiler, “Oral Intervention by Professor Weiler on Behalf of Armenia, Bulgar‐ ia, Cyprus, Greece, Lithuania, Malta, Russia, and San Marino – States Who Inter‐ vene as Third Parties in the Lautsi Case Before the Grand Chamber of the Euro‐ pean Court of Human Rights,” 2010, p.17. Religion and the State 325 The Grand Chamber noted that: In the Government’s view, neutrality meant that States should refrain from promoting not only a particular reli‐ gion but also atheism, “secularism” on the State’s part being no less prob‐ lematic than proselytising by the State. The Chamber’s judgment was thus based on a misunderstanding and amounted to favouring an irreligious or antireligious approach of which the applicant, as a member of the Union of atheists and rationalist agnostics, was asserted to be a militant support‐ er.37 Some hold that “secularism (which was the applicant’s preferred belief or world view) was, in itself, one ideology among others.”38 On this view, to require the removal of crucifixes amounts to the same sort of endorse‐ ment of a particular conception of the good life, a competitor to religious world views. I submit that this is a mistake.39 There are certainly secular comprehen‐ sive conceptions of the good life that deny the existence of transcendent beings, just as there are comprehensive liberal views that cherish individu‐ al autonomy.40 But there are political theories that seek to elaborate standards for justi‐ fiabe policies precisely where citizens have different such comprehensive views. Some such contributions are known as ‘political liberalism’,41 oth‐ ers use the term ‘constitutional secularism’42 about standards appropriate for the constitutional essentials’ of a state committed to treat all on a foot‐ ing of equality, respecting all citizens’ status as free and equally partici‐ pant in a society regarded as a fair scheme of social cooperation. That per‐ spective on the constitution and the central institutions of a state may be better characterized as agnostic than atheistic: There is, or need be, no war between religion and democracy. In this respect political liberalism is sharply different from and rejects Enlighten‐ ment Liberalism, which historically attacked orthodox Christianity.43 37 See Lautsi II, p. 35. 38 Judges Bonello 2.10, Power 44-45. 39 See Kyritsis and Tsakyrakis, “Neutrality in the classrom,” 2013. 40 See Mill, On Liberty, 1978, and Kant, Grounding for the Metaphysics of Morals 1980. 41 Rawls, Political Liberalism, 1993. 42 Zucca, “Lautsi: A Commentary on a Decision by the ECtHR Grand Chamber.” 43 See Rawls, Political Liberalism, p. 176. Andreas Follesdal 326 Note that this ‘constitutional neutrality’ – at least the version argued by Rawls – is limited in scope – and hence is not a full ‘alternative’ to a world view. It only concerns the basic structure of society – its constitu‐ tion and central institutions – such as schools. The institutions of the basic structure must be “framed to leave individuals and associations free to act effectively in pursuit of their ends and without excessive constraints."44 This account will entail that it is impermissible to display crucifixes in courtrooms, polling stations – and presumably public primary schools.45 Other aspects – such as symbols of national identity – flags etc – or other appearances of religion in the public sphere would not obviously be part of this, so Weiler’s objection would not hold against this account: In the cultural, social and political circumstance of Europe today one does not want to win on such ground – because it implies that if a symbol still maintains its religious significance, it has no place in the public square. That cannot be a correct reflection of the European constitutional sensibility.46 A second point is that the required ‘neutrality’ does not need be one of effects, but of aims. Neutrality of aim rules out legislation that is “intended to favor any particular comprehensive view”47 – and instead insists that such rules must be justified based on premises that are acceptable to all, regardless of their reasonable comprehensive conception of the good. I submit that this version of neutrality may be a suitable reinterpretation of the ECtHR’s claim in Lautsi I, that: The State’s duty of neutrality and impartiality is incompatible with any kind of power on its part to assess the legitimacy of religious convictions or the ways of expressing those convictions.48 So the government’s interpretation is mistaken and unfortunate, and the Court’s ruling is unfortunate. 44 Rawls, Political Liberalism, p. 55. 45 See Kyritsis and Tsakyrakis, “Neutrality in the classrom,” p. 210. 46 See Weiler, “Lautsi: A reply (to Kyritsis and Tsakyrakis),” 2013. 47 Rawls, Political Liberalism, p. 197. 48 See Lautsi I, p. 47. Religion and the State 327 Whether the Reasons Offered by the National Authorities are Relevant and Sufficient The possibility of ‘constitutional neutrality’ suggests that the Italian gov‐ ernment did not consider plausible alternatives. Furthermore, I submit that the state did not offer convincing arguments why hanging crucifixes was necessary for disseminating Italy’s history and values. It did not discuss any alternatives as required by the proportionality test. Moreover, the gov‐ ernment’s claim that crucifixes are a non-religious symbol of the secular state seems implausible. Of course, if the crucifix did not convey uniquely Catholic values, there would be no problem. This argument appears specious, and was not accepted by the Grand Chamber. The Administrative Court held that inter alia. Moreover, with the bene‐ fit of hindsight, it is easy to identify in the constant central core of Chris‐ tian faith, despite the inquisition, despite anti-Semitism and despite the crusades, the principles of human dignity, tolerance and freedom, includ‐ ing religious freedom, and therefore, in the last analysis, the foundations of the secular State.49 In Lautsi II, Catholic groups conceded this point: The non-governmen‐ tal organisations Zentralkomitee der deutschen Katholiken, Semaines so‐ ciales de France, and Associazioni cristiane lavoratori italiani stated that they agreed with the Chamber that, whilst the crucifix had a plural mean‐ ing, it was primarily the central symbol of Christianity. They added, how‐ ever, that they disagreed with its conclusion, and found it difficult to un‐ derstand how the presence of crucifixes in classrooms could be “emotion‐ ally disturbing” for some pupils or hinder the development of their critical thinking. In their submission, that presence alone could not be equated with a religious or philosophical message; it should rather be interpreted as a passive way of conveying basic moral values.50 Concluding Assessment Leaving aside the substantive issue – whether crucifixes on public school walls aviolate the ECHR – let us briefly return to consider whether this de‐ cision should be taken by ECtHR or by the Italian authorities. On the basis H. I. 49 See Lautsi II, 11.6. 50 See ibid., p. 9. Andreas Follesdal 328 of the discussion above, I conclude that the ECtHR should not have grant‐ ed Italy a margin of appreciation in this case, on the basis of the policy the Court itself has laid out. Italy’s arguments fail on several points of the pro‐ portionality test. This case seems to confirm the criticism that the Court’s granting of a MA is inconsistent.51 Some might argue that this supports a general conclusion that the MA practice should be abolished. I submit that we should instead use this and other cases to explore how the practice may be developed even further, to ensure that the Court contributes to strength‐ en domestic protections of human rights in Europe. Bibliography Arai-Takahashi, Yutaka, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR, Antwerpen: Intersentia, 2001. Benvenisti, Eyal, “Margin of Appreciation, Consensus, and Universal Standards,” In‐ ternational Law and Politics 3 (1999): 843-854. Brauch, Jeffrey A., “The Margin of Appreciation and the Jurisprudence of the Euro‐ pean Court of Human Rights: Threat to the Rule of Law,” Columbia Journal of Eu‐ ropean Law 11 (2005): 113-150. Brems, Eva. “The Margin of Appreciation Doctrine in the Case-law of the European Court of Human Rights,” Heidelberg Journal of International Law 56 (1996): 240-314. European Court of Human Rights, 1984, Rasmussen v Denmark, 7 EHRR 371 Appli‐ cation no 8777/79 (ECtHR) European Court of Human Rights, 1986, James and others v. the United Kingdom, 8 EHRR 123, Application no 8793/79. European Court of Human Rights, 1997, X v United Kingdom, IHRL 32 Application no 7215/75. European Court of Human Rights, 1998, Z v. Finland. 25 EHRR at 371, Application no 22009/93. European Court of Human Rights, 2001, Dahlab v Switzerland, Application no 42393/98 European Court of Human Rights, 2004, Leyla Sahin v. Turkey. Application no 44774/98. European Court of Human Rights, 2007, Folgero and others v. Norway, Application no 15472/02. 51 See Benvenisti, “Margin of Appreciation, Consensus, and Universal Standards,” pp. 843-844; Brauch, “The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights,”; Moral, “The Increasingly Marginal Apprecia‐ tion,” 2006, p. 621; Yourow, The Margin of Appreciation Doctrine. Religion and the State 329 European Court of Human Rights, 2009, Lautsi v Italy I, Application no 30814/06. European Court of Human Rights, Grand Chamber, 2011, Lautsi v. Italy II. Applica‐ tion no 30814/06. Follesdal, Andreas, “Appreciating the Margin of Appreciation,” in Human Rights: Mo‐ ral or Political?, ed. Adam Etinson, Oxford: Oxford University Press, 2018, pp. 269-294. Kant, Immanuel, Grounding for the Metaphysics of Morals, Indianapolis: Hackett Pub‐ lishing Company, 1980. Kyritsis, Dimitrios, and Stavros Tsakyrakis, “Neutrality in the classrom,” International Journal of Constitutional Law 11, 1 (2013): 200-217, at i con/article/11/1/200/776146. Mill, John Stuart, On Liberty, Indianapolis: Hackett, 1978. Moral, Ignacio de la Rasilla del, “The Increasingly Marginal Appreciation of the Mar‐ gin-of-Appreciation Doctrine,” German Law Journal 7, 6 (2006): 611-624. Rawls, John, Political Liberalism, New York: Columbia University Press, 1993. Ronchi, Paolo, “Crucifixes, Margin of Appreciation and Consensus: the Grand Cham‐ ber ruling in Lautsi v Italy,” 2011, at siastical-law-journal/article/crucifixes-margin-of-appreciation-and-consensus-the-gr and-chamber-ruling-in-lautsi-v-italy/0C8445F5BD6C88BA 4A4B6BC0EA9A9E4 2. Smet, Stijl, “Lautsi v. Italy: The Argument from Neutrality,” Strasbourg Observers, 2011, at m-neutrality/. Weiler, Joseph, “Lautsi: Crucifix in the Classroom Redux,” European Journal of Inter‐ national Law 21, 1 (2010): 1-6. Weiler, Joseph, “Oral Intervention by Professor Weiler on Behalf of Armenia, Bulgar‐ ia, Cyprus, Greece, Lithuania, Malta, Russia, and San Marino – States Who Inter‐ vene as Third Parties in the Lautsi Case Before the Grand Chamber of the European Court of Human Rights,”, 2010. Weiler, Joseph, “Lautsi: A reply (to Kyritsis and Tsakyrakis),” International Journal of Constitutional Law 11, 1 (2013): 230-233. Yourow, Howard Charles, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence, Leiden: Brill, 1996. Zucca, Lorenzo, “Lautsi: A Commentary on a Decision by the ECtHR Grand Cham‐ ber,” International Journal of Constitutional Law 11, 1 (2013): 218-229, at https://a Andreas Follesdal 330 Political Community and Religion in Croatia: Thorny Path Towards Partnership Slavica Banić Justice of the Constitutional Court of the Republic of Croatia Historical Overview from the 19th Century to 1945 Croatia has traditionally been a country with a major population being Catholic. Throughout the history it has been accepted how Catholicism in Croatia shaped the value set of the Croatian people. In that regard the priv‐ ileged position of the Catholic Church in Croatia during the history was never brought in question. The Kingdom of Croatia, Slavonia and Dalma‐ tia which existed within the Austro-Hungarian Monarchy accepted the Concordat between the Monarchy and the Holy See from 1855 and did not refrain to show its loyalty to the Church. The Catholic Church was consid‐ ered as the “state” religious community.1 However, the reforms that were undertaken within the Monarchy by time extended to Croatia as well. Al‐ ready in 1873 the Croatian Parliament enacted a law which equalized Jews with other legally recognized religious communities.2 This law was the basis for the subsequent legal recognition of the Orthodox Church, the Greek Catholic Church, the Evangelical Church etc. In the following year, in 1874, reform was carried out in the school system by which the Catholic Church lost its leadership in education and was obliged to fulfil the legal preconditions in the case of the establishment of public confes‐ sional schools. The position of religious communities during the time of the Kingdom of Serbs, Croats and Slovenians, later on known as Kingdom of Yu‐ goslavia, to which Croatia belonged from 1918 to 1941 was variable. In general, it was conditioned by their legal recognition. This implied a sig‐ A. I. 1 Frane Staničić, for the purposes of the paper taken from “The Legal Status of the Religious Communities in Croatian Law,” 2014, pp. 225-254. 2 Law from 1873, Art. 61 which establishes the equality of Isrealis with followers of the rest in the Kingdom of Croatia and Slavonia by the Law of recognized religions. 331 nificant influence of the state in their matters and in no way meant the sep‐ aration of the state and Church. There were also strong tendencies of favouring the Serbian Orthodox Church3 and undermining at the same time the Catholic Church whose legal position remained ambiguous dur‐ ing the whole period of its existence.4 Although the Kingdom of Yu‐ goslavia signed the Concordat with the Holy See in 1935, the ratification procedure which started in 1937 was never finished due to, among other reasons, resistance and disagreement of the Serbian Orthodox Church. Still, the Catholic Church enjoyed trust and recognition within the Croat‐ ian society and its role remained stable. World War Two and the following world events were the turning point in the change of the position of religion, religious communities and ac‐ cordingly of the exercise of the freedom of religion in Croatia. The Croat‐ ian history during the Second World War marks the existence of the Inde‐ pendent State of Croatia which supported fascism. The religious commu‐ nities accordingly shared the destiny of the fascistic policy of the “proper” and “improper”.5 The Catholic Church was, however, misused for the po‐ litical purposes of the fascists in spite of the clear rejection of the Croatian Archbishop to be a part of such policy. Additionally, some clerics support‐ ed fascism against the Church's will. This image of the Church during the War caused an open contempt of the Communist Party which conducted the partisan movement during the war and led it subsequently to clash with the Church after the war. Position of the Religious Communities in the Socialist Time (1945-1990) The communists who carried out the victory over fascism on the territory of the former Yugoslavia embraced the socialist political order proclaim‐ II. 3 For example, the Day of Saint Sava, the saint of the Orthodox Church and the pro‐ tector of Serbia was a national holiday in the the whole territory of the Kingdom of Yugoslavia. 4 See Staničić, “The Legal Status of the Religious Communities in Croatian Law.” 5 The regime recognized catholicism, protenstantism and islam. The Serbian Ortho‐ dox Church was considered as dangerous enemy. Already in 1941 it did not func‐ tion since more than half of the orthodox priesthood was deported or killed. Slavica Banić 332 ing communism as the highest expression of equality among the people. Croatia became one of the republics within the federal state of Yugoslavia. The socialist regime that lasted from 1945 up to 1991 was marked by the gradual, but steady secularization of the Croatian society. Communists followed the Marx’s statement that “religion is the opium for the people” and deemed that “the religious communities may not interfere in the politi‐ cal life of believers.”6 The earliest socialist Yugoslav Constitution from 1946 guaranteed the freedom of religion and conscience but at the same time it clearly separat‐ ed the Church from the state. The religious communities were free in the exercise of their religious activities and the state could financially support the religious communities. The early years of the new state were especial‐ ly marked by the open oppression of the Catholic Church. The reasons were twofold. One of them lies in the fact that the Catholic Church openly deemed communism as a world danger and something that was against Christianity. Another one lies in the communists’ conviction that the Catholic Church was an ally of the fascists.7 The president of post-war Yu‐ goslavia, Josip Broz Tito, openly advocated the separation of the “domes‐ tic” Catholic Church from the Holy See.8 Legal measures against the reli‐ gious communities were aimed at depriving them of property, denying their clerics different rights, abolishing the social involvement and exclud‐ ing them from the public life at all. These measures especially hit the Catholic Church and the Serbian Orthodox Church in Croatia, which was the second largest religious community. The Serbian Orthodox Church though was partly saved from the communist oppression because it was deemed as patriotic during the Second World War and therefore consid‐ ered as less dangerous than the Catholic Church. The Act on Agrarian Re‐ form and Colonization was the first in the line of later legislation which deprived religious communities of the property. Under the moto “the land to peasants” it prescribed deprivation of the land that exceeded the provid‐ ed legal limits. This Act reasonably affected the material position of the 6 Jandrić, “Položaj Katoličke crkve u Hrvatskoj u poslijeratnim godinama (1945-1953),” p. 49, at 7 See Matijević, “Religious communities in Croatia from 1945 to 1991: Social causa‐ lity of the dissent between Communist Authorities and Religous Communities Leadership,” p. 1, at 8 See Jandrić, “Položaj Katoličke crkve u Hrvatskoj u poslijeratnim godinama (1945-1953),” p. 50. Political Community and Religion in Croatia 333 Catholic Church which was considered as one of the largest land owners in Croatia. The land which, in turn, remained in the ownership was subse‐ quently severely taxed forcing thus the Church to give away from it often. The imposition of the obligatory primary schools as the precondition for further priesthood education was aimed at diminishing the religious educa‐ tion and abolishment of the religious schools. The parents whose children went to religious schools and did not attend the state primary schools were punished. A large number of the priests and monks was arrested, accused and killed for the national betrayals or cooperation with fascists. In spite of the harsh relation of communists toward the religious com‐ munities, mainly toward the Catholic Church, the position of Croatian Catholic clerics stayed firm while the orthodox priesthood reduced reason‐ ably. The clash between the Church and communists came to its peak with the arrest of the Croatian Archbishop Alojzije Stepinac and trial against him. This led to a breakup of the diplomatic relationships between Yu‐ goslavia and the Vatican in the beginning of the 1950s. Tensions decreased during the 1960s by their reestablishment. The constitutional provision from 1963 which recognized a right to religious communities to own real estate within the limits provided by the federal law in a way opened the door to loosening the rigid approach toward the religious communities in socialism. Generally said, the socialist political order advocated atheism and over time, by the coordinated legal and quite often illegal actions, pushed the exercise of the freedom of religion completely to the private domain of life. Religious communities in general were excluded from any participa‐ tion in the social development and, in the socio-political context of that time, were considered as potential danger for the socialist political order. The religious affiliation or any kind of religious behaviour was an obstacle for the public functions the consequence of which was the exclusion from the active involvement in political life. Revitalization of Religion after 1990 After the fall of communism, the newly established political order main‐ tained the general principle of the secular state. The Croatian Constitution of 1990 provided that all religious communities shall be equal before the law and separate from the state. Yet, the practical denial of the freedom of religion in the past 45 years due to the institutionalized contempt for reli‐ III. Slavica Banić 334 gion and all religious people was suddenly converted to its national “em‐ brace”. Being unreligious was related to communism while religiousness was related to capitalism and Croatianhood. The process of religious revi‐ talization was largely supported by politics. The politics unilaterally did not hesitate to develop a relationship which would procure support of reli‐ gious communities in maintaining the political power. Religion became a powerful political force in the way that the leading party of that time was performing its religiousness in order to obtain a larger degree of legitima‐ cy.9 The distinguished Croatian scholar in this field, Vrcan, claimed that the 1990s were the witness of the political mobilization of a significant part of present religious traditions as well as the witness of the political mobilization of religious symbolism of all three religions which were present in the former Yugoslavia.10 In the case of Croatia, its relation toward religion started with the politi‐ cal mobilization of Catholicism aimed at redefining the Croatian national identity. The Croatian national identity was built up on the politicization of the cultural differences11 among which the most recognizable was ex‐ actly the affiliation to the Catholic Church. The process of mutual affirma‐ tion was happening on the Croatian scene: the Catholic Church became an important resource for politics, but at the same time politics became an important factor for the affirmation of the Catholic Church. How the things went on could be best illustrated by an event which happened in 1992 by the first Croatian president’s oath. By the oath before the Constitutional Court on the loyalty to the Constitution, the elected president of the Republic arbitrarily changed the text of the oath and added the words “So help me God” although those words were not part of 9 The leading party of that time was the Croatian Democratic Union (CDU) (Hrvats‐ ka demokratska zajednica (HDZ)) which was firstly considered as national-demo‐ cratic movement and which actively worked on the establishment of Croatia as in‐ dependent state and its secession from Socialist Federative Republic of Yugosla‐ via. After 1992, it was formed as political demochristian party. CDU was the pre‐ vailing political power in Croatia until 2000 when a coalition led by the Social De‐ mocratic Party (SDP) (Socijaldemokratska partija (SDP)) won the elections. 10 See Vrcan, “Religija i politika – simptomatičan primjer bivše Jugoslavije devede‐ setih godina dvadesetog stoljeća,” 2003, at files/373/Religija%20i%20politika20Simptomati%C4%8Dni%20primjer%20biv %C5%A1e%20Jugoslavije%20devedesetih%20godina%2020.%20stolje %C4%87a.pdf. 11 See ibid. Political Community and Religion in Croatia 335 the legal text of the oath. The President’s discretionary change of the oath text was legalized by the respective law in 1997 and ever since is a part of the presidential oath regardless of the constitutional principle of the secu‐ lar state. The Croatian Constitutional Framework Regarding Religion The starting point of the constitutional framework regarding religion is the constitutional principle in Article 14 which prohibits any kind of discrimi‐ nation including the discrimination on the basis of religion.12 Article 17 further on, provides that even in the cases of clear and present danger to the existence of the state, no restrictions may be imposed upon the provi‐ sions of the Constitution stipulating, inter alia, the freedom of thought, conscience and religion. However, regarding freedom of religion under the Constitution of 1990 (hereinafter: the Constitution), the Articles 40 and 41 are of particular importance.13 Article 40 guarantees the freedom of con‐ science and religion and the freedom to demonstrate religious or other convictions, while Article 41 guarantees that all religious communities are equal before the law and separate from the state. The Constitution mani‐ fested the awareness of the importance of the freedom of religion. There‐ fore, the same article states that religious communities shall be free, in compliance with law, to publicly conduct religious services, open schools, academies or other institutions, as well as welfare and charitable organiza‐ tions and to manage them. They shall enjoy the protection and assistance of the state in their activities. IV. 12 Article 14 of the Constitution: “All persons in the Republic of Croatia shall enjoy rights and freedoms, regardless of race, colour, gender, language, religion, political or other conviction, national or social origin, property, birth, education, social sta‐ tus or other characteristics.” 13 Article 40 of the Constitution: “Freedom of conscience and religion and the free‐ dom to demonstrate religious or other convictions shall be guaranteed.” and Arti‐ cle 41 of the Constitution: “All religious communities shall be equal before the law and clearly separate from the state. Religious communities shall be free, in compliance with law, to publicly conduct religious services, open schools, academies or other institutions, and welfare and charitable organizations and to manage them, and they shall enjoy the protection and assistance of the state in their activities.” Slavica Banić 336 The latter provision gave a slight guess that the Croatian state will exer‐ cise the so-called cooperative model of separation of the religious commu‐ nities from the state. The Legal Framework for the Religious Communities from 1990 to 2002 The blossom of religion in practice and the constitutional determination on the free exercise of the freedom of religion did not mean, at the same time, its institutionalization. For a long time, the state did not provide the proper legal frame on the status of the religious communities which would be the realization of the previously mentioned constitutional principle. The so‐ cialist Act on the Legal Status of the Religious Communities from 1978 (hereinafter: ALSRC 1978)14 continued its legal life within the new politi‐ cal order until 2002 when Croatia enacted the new Act on the Legal Status of the Religious Communities (hereinafter: ALSRC 2002).15 The ALSRC 1978 completely reflected the socialist approach towards religion. As such, it was inappropriate for the new political order and the established constitutional framework. According to it, religious communi‐ ties had the status of civil legal entities without providing any criteria for their foundation; there were no provisions on registration or evidence on them; the functioning of the religious communities was completely in the private sphere; there were restrictions on organizing or conducting of any kind of social activity which would fall out of the religious domain, and material help was just a legal possibility which could have been condi‐ tioned by the prescribed purpose. The whole Act was, actually, “overwhelmed” by the interdictions for religious communities’ possible public engagement. Such determination directly contravened the new constitutional guarantee of free foundation of schools, social and charity institutions or public conduct of religious ser‐ vices. In such circumstances, this Act was actually a dead letter except in the aspect of the legal status of the religious communities as civil legal en‐ tities. It was the only link of the law with the real life, and not because it V. 14 The Act on the Legal Status of the Religious Communities (The Official Gazette no. 14/78, 52/88). 15 The Act on the Legal Status of the Religious Communities (The Official Gazette, no. 83/02). Political Community and Religion in Croatia 337 was a suitable solution for the new political order, but because it was nec‐ essary for their normal legal functioning. Yet, the only way to confirm the status of religious community was the evidence by the State Bureau of Statistics which was the only valid proof of their existence as legal enti‐ ties. The neglect of the newly established state to install the legal framework according to the Constitution had far-reaching consequences on the devel‐ opment of the religious communities and multicultural society in Croatia. Although there were laws that partly overcame this situation by regula‐ tions which reaffirmed the freedom of religion and free conduct and foun‐ dation of religious schools or institutions, they could not substitute all is‐ sues related to the religious communities. In some aspects, it could be said that this factual situation later contributed to the uncertain legal status of some religious communities under the ALSRC 2002. The reasons for such a long non-regulation of this field are not well-known. In general, it was thought that the constitutional framework was quite enough for the time being as it secured the freedom of religion without any major obstacles for its exercise. The Legal Status of the Catholic Church in Croatia – the Concordats between the Holy See and Croatia and Their Impact on the Croatian Legal Order The Catholic Church, as the dominant religious community in Croatia16, in the first decade of independence did not share the same destiny with other religious communities. The perennial recognition of the special pos‐ ition of the Catholic Church in Croatia and its political ascent resulted in the establishment of a special relationship between Croatia and the Holy See. From 1996 to 1998, Croatia signed and subsequently ratified four In‐ ternational Treaties, i.e. Concordats, with the Holy See: on legal issues, on VI. 16 See Padjen, “Vjera u narod bez vlasti i vlasništva: Crkvena šutnja 1961-1971. i glasnost 1990-,” 2012, pp. 175-211, at cla‐ nak&id_clanak_jezik=144139. The statistic on the population of the Republic of Croatia from 1991, between the period of the first multiparty elections and inde‐ pendence of the state according to the international law show that Croatia had 4,784,265 inhabitants from which 3,678,787, i.e. 76,6% are Catholics (12.003 of Greek-Catholics), see ibid., p 192. Slavica Banić 338 chaplaincy of the Catholic believers, soldiers and police officers of the Re‐ public Croatia, on cooperation in the field of education and culture, as well as on economic issues.17 According to Article 141 of the Constitu‐ tion,18 these Concordats have become part of the internal legal order and by their legal force are above the law. It means that the legal position of the Catholic Church established by the Concordats may not be altered by the law. Generally speaking, the pillar of all four Concordats is the one on legal issues. Its Preamble, inter alia, emphasizes the irreplaceable role of the Catholic Church in the education of the Croatian people, its historical and present role in the social, cultural and educational field as well as the ap‐ preciation that majority of Croatian citizens affiliate to the Catholic Church. Croatia granted the Catholic Church the status of a public legal entity. Moreover, all Church institutions which have legal entity status according to the canon law were recognized as such in Croatia. Further on, the Con‐ cordat on legal issues provided freedom of Catholic Church to establish its church organization, to found, change or abolish church regions, archdio‐ ceses, dioceses, etc. This enabled the Catholic Church the complete inde‐ pendence within the Croatian territory. Croatia accepted Sundays and Catholic solemnities to be non-working days within the territory of Croat‐ ia, as well as the Church’s right to establish foundations, to build churches and church buildings (where the diocese decides on the building need and location), to have free access to public media owned by the state as well as to found its own radio and television activities in accordance with the Croatian legislation. The Concordat introduced the canon marriage which 17 Ugovor o dušobrižništvu katoličkih vjernika, pripadnika oružanih snaga i redarstvenih službi Republike Hrvatske (The Official Gazette, Addition – Interna‐ tional Agreements, no. 2/97); Ugovor o suradnji u području odgoja i kulture, (The Official Gazette, Addition – International Agreements, no. 2/97); Ugovor o pravn‐ im pitanjima (The Official Gazette, Addition – International Agreements, no. 3/97) Ugovor o gospodarskim pitanjima, (The Official Gazette, Addition – International Agreements, no. 18/98). 18 Article 141 of the Constitution: “International treaties which have been concluded and ratified in accordance with the Constitution, published and which have entered into force shall be a component of the domestic legal order of the Republic of Croatia and shall have primacy over domestic law. Their provisions may be altered or repealed only under the conditions and in the manner specified therein or in ac‐ cordance with the general rules of international law.” Political Community and Religion in Croatia 339 produces civil effects provided there are no civil barriers according to the Croatian legislation. A very interesting provision is related to the position of the clerics in the case of criminal investigations which obliges Croatian authorities firstly to inform the respective church authorities on such in‐ vestigation. With regard to the other three Concordats, several rights of the Church are worth mentioning due to their far-reaching impacts on the Croatian le‐ gal order as a whole. One of the major commitments of the Croatian State was the introduction of Catholic religious education at schools as the equal subject when and if the parents decide to have it as a school subject for their child. The content of the program of religious education is authorized by the Church but expenses related to it are on the side of the state. Reli‐ gious teachers may teach only upon the canon mandate given by the Church. The Holy See took the obligation to establish the Military Ordi‐ nary in Croatia equated with the diocese and led by the Bishop, while Croatia took the obligation to secure all material conditions necessary for its functioning, to establish the proper seat of the Ordinary as well as to finance all the Ordinary’s staff. Croatia exempted the Catholic Church from the Croatian tax system and obliged itself to return to the Church all nationalized property during the communist time, exchange it with other property or pay a certain amount of compensation for it. Furthermore, Croatia obliged itself to pay a certain amount of money on a monthly basis for the proper functioning of the Church. The amount was agreed accord‐ ing to the percentage of the Croatian citizens who considered themselves as Catholic. Although Concordats allege donations and different kind of contributions as vital source of Church’s functioning, it is evident that the state has become a powerful and significant source of Church’s funding. The Catholic scholar Eterović defined Croatia’s ratification of the Con‐ cordats as a historical happening with important ecclesiastical, social and political characteristics. He is of the opinion that these Concordats were the expression of Croatia’s recognition of the Catholic Church as an equal interlocutor. Furthermore, he claims that by them Croatia wants to be an open state which accepts the principle of subsidiarity enabling the Church to contribute to the betterment of man and the social community.19 On the other side, there are scholars who do not share this view. Uzelac, for ex‐ 19 See Eterović, “Ugovori između Svete Stolice i Republike Hrvatske,” 1997, p. 181, at Slavica Banić 340 ample, challenges the constitutionality of the Concordats due to the privi‐ leged status of the Catholic Church in relation to other religious communi‐ ties claiming, inter alia, that any form of contractual arrangements with re‐ ligious community is not permitted because of the constitutional principle which demands a regulation by law and for all religious communities.20 Padjen submits that Concordats are not necessary because every religious community without Concordat ought to enjoy the complete internal auton‐ omy and right to communicate with its centre abroad. Besides that, he deems that the Concordat would be contrary to the constitutional equality of all religious communities.21 Staničić, on the contrary, thinks that the in‐ ternational subjectivity of the Holy See would be discriminated if disabled to enter into a treaty as an international subject. Furthermore, he deems that the Concordats are constitutional because the Constitution does not prescribe that the status of the religious communities can be regulated only by law.22 Jelčić criticises burdensome financial obligations on the side of the Croatian state and pledges for the revision of the Concordats.23 It is evident that all the Concordats produce a substantial financial im‐ pact on the state budget for the fulfilment of the commitments undertaken. According to some published data, the Catholic Church in Croatia receives around 85 million Euros per year on the basis of the implementation of the Concordats.24 The financial obligations which mainly fall on the side of the Croatian state are the subject of many public disputes with regard to the lack of transparent financing of the Catholic Church, the questions of the need to amend the Concordats or even to withdraw from them. 20 See Uzelac, “Od liberalizma do katolicizma: neki aspekti pravnih odnosa između crkve i države u Republici Hrvatskoj – novo pravno uređenje braka,” 1999, pp. 367-368, at kato licizma_Zbornik.pdf. 21 See Padjen, “Veliko bezglavo ništa,” 1995, at /pubs/ archive/data/199512/51201-001-pubs-zag.htm. 22 See Staničić, “The Legal Status of the Religious Communities in Croatian Law.” 23 See Jelčić, “Koliko košta Hrvate Crkva: prava istina o novcima koji se slijeva u crkvenu blagajnu,” 2013, at 1140001/. 24 In the research made by Ana Benačić and presented in the article „Financiranje Katoličke u Hrvatskoj“ („Financing of the Catholic Church in Croatia“), at htt p://, there is a thorough overview of the financial obligations on the basis of Concordats. The ar‐ ticle also claims how Croatian authorities are not keen in monitoring the expen‐ diture of those means and tolerate the absence of the necessary reports. Political Community and Religion in Croatia 341 Leaving aside the financial issue, it is apparent, as it has been previous‐ ly said, that the Concordats “affected” the Croatian legal order in different aspects. The most significant impacts are within the family law by the in‐ troduction of the canon marriage as being equal to the civil one and, with‐ in the education system, by the introduction of the Catholic religious edu‐ cation in public schooling. However, the aspects of the exemption of the Catholic Church from taxation, the position of the Military Ordinary in re‐ lation to the public administration system as well as the different position of the Catholic Church with regard to the Act on the compensation for seized property during the communist regime25 are also issues which raise a legitimate question on the position of the Catholic Church in relation to the constitutional principle of the separation between the state and reli‐ gious communities as well as the equality of all religious communities be‐ fore the law. The issue of the seized property seems to be especially inter‐ esting because Croatia obliged itself to return to the Catholic Church, within reasonable time, in kind all the property that is possible to return according to legal provisions. In case of the impossibility of return, the ad‐ equate exchange of goods will be made. For the property that cannot be returned though, Croatia is obliged to annually pay out appropriate com‐ pensation in four rates as of 2000. Total amount of that compensation will be made upon the evaluation of the goods. On the other side, according to the Act on Compensation for Seized Property, all individuals and legal en‐ tities (including other religious communities) are entitled to compensation firstly and exceptionally to return of the property in kind. Although the Concordat obliges both sides to adhere to the legal provisions in case of compensation, the Church refuses to be compensated according to the Act’s provisions (which provide measures for evaluation) but insists on the evaluation of the market value of the property that is not possible to return.26 Relationship between the State and the Catholic Church It was evident that politics was one of the main drivers of the Church’s re‐ vitalization in Croatia. The Concordats clearly reflect the opportunity of VII. 25 The Act on the Compensation for the Seized Property during the Communist Regime, (The Official Gazette, no. 92/96, 92/99, 80/02, 81/02). 26 See Benačić, “Financiranje Katoličke crkve u Hrvatskoj,” p. 6. Slavica Banić 342 the Catholic Church to take part in the desecularization27 of society. By simple application of the basic desecularization features on the Concor‐ dats, it can be concluded that they deeply affect the state by reshaping their secular institutions, return the Catholic Church to the public sphere, and enable the resurgence of religious belief and practices and allow the Catholic Church to reassert its social influence. They were more than sufficient a legal basis for building a partnership. However, in spite of its privileged legal and social status, the Catholic Church has been on a thorny path toward partnership with the state. Distinguished Croatian scholar Banac deems that in spite of many dilemmas, the Catholic Church has remained the main moral arbiter of the Croatian society, regardless of the fact that Croats themselves as well as the Church were on both sides of modern divisions many times.28 This view supports the fact that researches show high percentage of the trust in the Catholic Church. The Church is on the second place after the military. The lowest trust is in the Government and the political parties.29 If it is 27 See Karpov, “Desecularization: A Conceptual Framework,” 2010, at http:// “Desecularization is a process of counter-secularization, through which religion reasserts its societal influence in re‐ action to previous and/or co-occurring secularizing processes. The process mani‐ fests itself as a combination of some or all of the following tendencies: (a) a rap‐ prochement between formerly secularized institutions and religious norms, both formal and informal; (b) a resurgence of religious beliefs and practices; (c) a return of religion to the public sphere (“de-privatization”); (d) a revival of religious con‐ tent in a variety of culture's subsystems, including the arts, philosophy, and litera‐ ture, and in a decline of the standing of science relative to a resurgent role of reli‐ gion in world-construction and world-maintenance; (e) religion-related changes in society’s substratum (including religiously inspired demographic changes, redefi‐ nition of territories and their populations along religious lines, reappearance of faith-related material structures, growing shares of religion-related goods in the overall economic market, and so on).” 28 Taken from Tanjić, “Uloga i značenje Katoličke crkve u Hrvatskoj,” 2013, at oga-i-znacenje-Katolicke-Crkve-u-Hrvatskoj.pdf. 29 See Ponoš, “Research: Croatians trust the most in the Church and military, the least in the Government and the political parties,” 2015, at Vijesti/Hrvatska/Istrazivanje-Hrvati-vjeruju-Crkvi-i-vojsci -ne-vjeruju-Vladi-istrankama?meta_refresh=true. In the article it is noted that research made in 2015 shows how the first place of trust (out of 10 it is rated with 5,62) is given to the military and the Church is on the second place (out of 10 it is rated 5,23). Further are the president of the Republic (4,89). The Government is rated with 2,4 and the political parties with 2,05. Political Community and Religion in Croatia 343 added that around 86 percent30 of Croatian population are considered to be catholic, the potential of the Catholic Church for reassertion is very high. So why is this path a thorny one? In order to return to the public scene, the Catholic Church allowed the then leading party, Croatian Democratic Union (CDU), to use it for politi‐ cal aims. This alliance was at a certain point of time seen as a symbiosis of the state and church. The Church participated in events like the construc‐ tion of highways, schools and pre-school buildings and blessed these projects. Politicians of the highest rank were present at all major Christian events or messes. Many distinguished sociologists and theologians deem that the Church at that time developed a certain client-relationship with the leading political party which contributed to the loss of the Church’s insti‐ tutional reputation and supra-party status. As much as the Church tried to be critical, the shadow of ‘flirting’ with the CDU became a constant bur‐ den with regard to the Church’s objectivity. The Catholic scholar Tanjić admitted that the Church, after perennial isolation did not manage to ade‐ quately interpret the roles of the state and of society in the 1990s.31 It seems that the Church has not used the religious revitalization in or‐ der to go for a new evangelism but it got lost in the whirls of politics which, in the case of Croatia, is still in a transitional process. Tanjić criti‐ cizes that the Church failed in recognizing those Marxist elites who con‐ tinued to influence the social life in Croatia under the veil of cos‐ mopolitism disabling the development of the Croatian society. However, he states that the Church in the socialist time was in a forced exile while today it is in a voluntary exile within the Croatian society. He sees the rea‐ son for this in the lack of the cultural, social and political elite who, in‐ spired by Christian values, could contribute to the development of the Croatian society. Further on, he is critical toward the Church since it has fared not particularly well in the field of culture, and with regard to gener‐ al participation in the democratic society.32 Padjen states that the Church from the independence of Croatia was more an observer of the social and economic circumstances than an initia‐ tor of deliberations. Furthermore, he thinks that the Church, in spite of be‐ ing critical toward CDU which was in power at the end of the 1990s, was 30 Census from 2011. 31 See Tanjević, “Uloga i značenje Katoličke crkve u Hrvatskoj.” 32 See ibid. Slavica Banić 344 not entirely objective because of the fact that the same political power brought some good to the Church – the Concordats.33 The barrier to the reassertion of its societal influence might be exactly the Concordats with the Holy See. In the general public, they are seen as the cause for the Church’s alienation from society since it was more con‐ cerned with the return of its property rather than the resurgence of beliefs. The amount of money that is given to the Church without any justification from its side is becoming a leading question of the advocates on secular‐ ism. Very burdening financial clauses in Concordats raise scepticism. De‐ spite the fact that all four Concordats contain a provision which allows both sides to start the negotiations on changes if any of them deems that the circumstances under which the Concordat has been concluded are es‐ sentially changed, there has been no impetus for that until now. In the time of the overall economic crisis which has become deeper and deeper in Croatia, more and more voices claim that the Church does not share the destiny of all within the state. Although politicians are voicing that the Concordats should be reconsidered, no power so far has approached to it in a structured manner. On the other side, Cardinal Bozanic claims that Concordats do not determine the privileged position of the Catholic Church. They are concluded in the atmosphere of general recognition of the religious freedoms. The Concordats promote transparent relationship between the state and the Church, their norms protect the Church against possible dependence and blackmails from any of the actual powers.34 As much as this statement can be supported in a wider political context, it can also be a starting point in turning the Church to the civil society through which it can reaffirm its social, cultural and spiritual function. This view stems from the opinion of the Franciscan theologist Šago who stated that the Church will show its authentic face the best if demonstrates that it does not care for the former external glow and material power, but that it prefers to be poor and free in free society which respects every individual, that it is sensi‐ tive for social moral, social justice and solidarity with all who suffer any kind 33 See Padjen, “Vjera u narod bez vlasti i vlasništva: Crkvena šutnja 1961-1971. i glasnost 1990,” p. 197. 34 Cardinal Bozanić presenting the book on twenty years of diplomatic relations be‐ tween the Republic of Croatia and the Holy See; see index.php?option=com_php&Itemid=41&news_ID=2563130, November 2014. Political Community and Religion in Croatia 345 of justice and that it is above all on the side of poor people and those who are humiliated by the present transition.35 The Legal Framework for Religious Communities from 2002 Considering the fact that the Catholic Church in Croatia achieved a high degree of independence within the Croatian legal order, the question is: What was the position of other traditionally present, known or newly founded religious communities in Croatia? How did politics behave to‐ ward other religions and was it fully in line with the constitutional princi‐ ple that all religious communities are equal before the law? After many years of ‘legal passivity’ on the issue of the legal status of religious communities in general, the Croatian Parliament enacted the AL‐ SRC in 2002. At first sight, the ALSRC 2002 contains many ‘freedom-like’ provi‐ sions. It is not necessary to look into the Explanatory Memo of the Act to realize how it followed the patterns of the Concordats. Nevertheless, the part of the explanation which refers to the position of the Catholic Church should be greeted as it showed the striving of the State to bridge possible problems with regard to the status of the Catholic Church vis-a-vis other religious communities. The Explanatory Memo of the Act further on gives an overview of the number of laws which affected the functioning of the religious communities and underlined those which have already taken into account the constitutional framework for religious communities. The Ex‐ planatory Memo explicitly defined the religious communities as the social formations sui generis. In the Act, they are non-profit legal entities defined as communities of physical persons which realize the freedom of religion by equal public exercise of religious services and by other expressions of their faith and that they are recorded in the Register of the religious com‐ munities of Croatia. It is noted that the Act accepted the legal personality of religious com‐ munities obtained by the ALSRC 1978 in the way that it asked only for their registration in the Register of religious communities. However, all the religious communities which did not have this quality up to enforce‐ ment of the Act or which would be founded in the future had to exist first‐ VIII. 35 Taken from Badjun, “Financiranje Crkve u Hrvatskoj: Trebaju li nam crkveni porezi?,” at Slavica Banić 346 ly like religious associations with legal entity status for five years. It means that they ought to be subject to the Act on Associations firstly and after expiration of five years could be registered as religious communities. In the basic provisions of the ALSRC 2002 it is expressively prescribed that the issues of the common interest for the Republic of Croatia and one or more religious communities may be regulated by the agreement be‐ tween the Government and the religious community. In the part which is defined as specific provisions, the legislator prescribed the rights of reli‐ gious communities. So, they are entitled to religious education in public schools, the right to spiritual care in health institutions and social care in‐ stitutions, the right to spiritual care in penitentiaries and prisons, and the right to spiritual care of members of the Armed Forces and the police. However, realization of these rights depends on the agreement concluded between the religious community and the Croatian Government. It means that only upon the concluded agreement the prescribed legal rights may be exercised. It further means that the ALSRC 2002 is ineffective for those communities which do not conclude the agreement. In that regard, the practice went one step forward: the Croatian Government interpreted the Act in a way that the agreement on issues of common interests is actually the agreement on the implementation of legal rights. It signed several agreements at the beginning, but obviously being overwhelmed by differ‐ ent religious communities’ requests to conclude the respective agreements with all of them, in due time it imposed conditions which had to be pri‐ marily fulfilled for it. They were given within a governmental act, the so called Conclusion, whose legal basis was not the ALSRC 2002 but the Act of the Government of the Republic of Croatia.36 The Government asked from religious communities to fulfil at least one of two conditions for the agreement: either that they acted within the territory of the Republic of Croatia on April 6, 1941 and continued to act and existed legally including that the membership of believers exceeded the number of six thousand, or that the historical religious community is one of the European cultural cir‐ cle (Catholic Church, Orthodox Church, Evangelical Church in the Repub‐ 36 The Act on the Government of the Republic of Croatia (The Official Gazette, no. 101/98, 15/00, 117/01, 199/03), Article 30 par. 3: “By Conclusion, the Govern‐ ment determines the views on its implementation of politics and establishes the tasks to the state administration bodies.” By its legal nature, the Conclusion does not fall into the field of regulations. Political Community and Religion in Croatia 347 lic of Croatia, Reformed Christian Church in Croatia, Islamic community in Croatia, Jewish community in Croatia). Shortly said, the legal obligation to conclude the agreement on the real‐ ization of the rights was discretionally converted to the Government’s right. Therefore, only those religious communities which fulfilled one of the two conditions set up by the executive discretion could realize their le‐ gal rights and obtain the agreement on common interests. With regard to financing, religious communities are free to obtain the means from different resources. The state obliges itself to grant them fi‐ nancial means depending on the kind and importance of the religious ob‐ jects and on their activities in educational, social, health and cultural fields as well as depending on their contribution to the national culture and hu‐ manitarian activities. Moreover, a religious community could be granted state aid especially for the construction or renovation of its objects. For the latter, the religious community has to submit the elaborated request. They are also exempted from taxation like the Catholic Church including the donations from abroad. From this overview, it can be concluded that legal position of other religious communities differs to a large extent from the position of the Catholic Church. While Concordats foresee secure and reg‐ ular state’s financial aid for the Catholic Church, other religious communi‐ ties depend on the state’s free evaluation on the importance of the reli‐ gious communities and in that connection their contribution for Croatian society. The Catholic Church is free to decide where and when to build their institutions while other religious communities fall under regular legal regime which is additionally conditioned by the Government’s decisions. The Relationship of the State and Other Religious Communities The legal status of other religious communities shows that they are in the shadow of the state’s relationship with the Catholic Church. In spite of the state’s will to follow the patterns from the Concordats, it did not succeed to equalize the positions of religious communities in general. Firstly, the alliance of politics and the Catholic Church already in the beginning of the Croatian independence contributed to the stagnation in the development of a multicultural society which evidently had a negative impact on the smaller religious communities. Secondly, while the Concordats between the state and the Holy See enabled total independence and freedom of the Catholic Church in its functioning, the rights of other religious communi‐ IX. Slavica Banić 348 ties depend very much on the different approvals or decisions of the state. The Catholic Church is defined as a public legal entity whereas religious communities hold the status of non-profit legal entities. Moreover, the pro‐ grams for religious education of all other religions are approved by the re‐ spective ministry which is not the case vis-a-vis the Catholic Church. The financial aid for other religious communities depends on the kind and im‐ portance of the respective religious objects and activities of the religious community in the society while the Catholic Church independently de‐ cides on its activities. In practice, this means that the state aid depends very much on the state’s discretionary evaluation of the degree of their contribution to society. The previously mentioned imposition of severe conditions by the (ultra vires) governmental act complicated the realiza‐ tion of legally granted rights of religious communities thereby also violat‐ ing Convention rights. The judgement of the European Court softened the state’s approach toward the status of religious communities, and opened the space for a more liberal approach of the state toward the religious communities. So far, the state has signed eight agreements on the issues of common interests by which it regulated the status of nineteen religious communities. These agreements show that the ALSRC 2002 seems to be just a formal legal base for the conclusion of agreements by which the ex‐ ecutive power and respective religious community arrange the rights and obligations of both sides. A glance at the agreements shows that they fol‐ low the pattern of the Concordat in many ways, but with evident differ‐ ence in the legal force. Therefore, the ALSRC 2002 is only an instrument for the Government to proceed with the agreements which become a legal source for legal functioning of the religious community. The Case-Law of the Constitutional Court with Regard to the Religious Communities The Constitutional Court of the Republic of Croatia met with the issue of religion, religious communities and the right to freedom of religion several times. Already in 1992, the Constitutional Court of the Republic of Croat‐ ia has made a breakthrough regarding freedom of religion by instituting the constitutional procedure on the provision of the Act on Marriage and X. Political Community and Religion in Croatia 349 Family Relations37 which prohibited the conclusion of a marriage by reli‐ gious conduct before the legal conclusion of the marriage. The provision was quashed two years later, in 1994. The Court was of the opinion that the marriage by religious conduct falls in the field of free exercise of reli‐ gion and therefore could not, as such, jeopardize constitutional values. It was quite clear that this provision, enacted during the socialist time, did not go along with the proclaimed values with regard to the free conduct of religious service. At the same time, it was evident that it did not corre‐ spond to the actual social reality and that, as such, it was ineffective within the new political circumstances. The zeal of the Constitutional Court for this issue is challenged here by the question on the silence of the Court on the constitutionality of the whole ALSRC 1978. Namely, the Constitution‐ al Court is entitled to institute the constitutional proceedings ex officio. It is hard to believe that this ALSRC 1978 stayed aside of the Court’s inter‐ est in spite of its obvious inconsistence with the Constitution. Therefore, this approach of the Constitutional Court, nevertheless welcome, seemed yet more like distraction of the attention from much more serious prob‐ lems in that field. In addition, it seems like it went along with the trend of that time which was reflected in public reaffirmation of the religion. The interest for the constitutionality of the Concordats has been previously mentioned. The expressed views dealt more with formal issues of the con‐ stitutionality than with the substantial ones. The Constitutional Court was, nevertheless, challenged to review their constitutionality but it rejected its competence on the review38 simply alleging that the Article 129 of the Constitution, which establishes the competences of the Constitutional Court, did not contain the competence for the review of international agreements. Such approach has been justified in the literature by invoking Article 141 of the Constitution which provides that the concluded and rati‐ fied international agreements may be altered or repealed only under the conditions and in the manner specified therein or in accordance with the general rules of international law.39 In spite of the clear constitutional pro‐ visions on the way of possible interventions in the content of the ratified 37 The Act on Marriage and Family Relations (The Official Gazette, No. 51/89, 59/90, 25/94) was a republic law enacted during the socialist time which continued to be in force until the Family Law, enacted in 1998. 38 Decision of the Constitutional Court, no. U-I-825/2001 from 14 January 2004 (The Official Gazette, 16/04). 39 See Smerdel, “Ustavno uređenje europske Hrvatske,” 2013, p. 432. Slavica Banić 350 international agreements, the Constitutional Court’s approach is disputed here. First of all, the international agreements are above the law, but below the Constitution. Secondly, the international treaty which is ratified be‐ comes a part of the internal legal order through the act of ratification. Al‐ though this act by its procedural aspects and content differs from the ordi‐ nary laws, it is still a law which is enacted by Parliament through the le‐ gislative procedure. In that regard, neither the Constitution nor the Rules of Procedure of the Croatian Parliament prescribe a different legislative procedure with regard to the acts on ratification in relation to other laws. Therefore, there are no obstacles for the constitutional interpretation that the act on ratification falls under the constitutional competence of review‐ ing whether the laws comply with the Constitution. Even if the Court is not authorized to “touch” the content of the international agreement in any way, it could review its constitutionality and in case of unconstitutionality just declare the violation of the Constitution. This declaration could be further considered like a justified reason for the Croatian side to start pro‐ cedure on alternation of the Concordat because of changes in circum‐ stances. With regard to the position of the religious communities which fall un‐ der the reach of the ALSRC 2002, the Constitutional Court had the oppor‐ tunity to review the Government’s Conclusion from 2004 (previously mentioned) which regulated the conditions under which a certain religious community could conclude an agreement on the issues of the common interest with the Government. The Court rejected the proposal on the con‐ stitutional review limiting itself to the formal aspects. Its reasoning was that the Conclusion did not contain the characteristics which are essential for “other regulations” in order to be examined by the Constitutional Court.40 The religious communities in question tried to obtain a decision from the ordinary court as well and subsequently from the Constitutional Court via constitutional complaint. After no success before domestic bod‐ ies they ended up before the European Court of Human Rights which es‐ tablished a violation of Article 14 in connection to Article 9 of the ECHR41. In the merits of the case, the European Court started from its for‐ 40 Decision of the Constitutional Court, U-II-3961/2005 from June 5th, 2007, at C12570D30061CE53C12572F2002843B9?OpenDocument. 41 The case Savez Crkava “Riječ života” and Others v. Croatia (App. no.7798/08), Judgement of the ECtHR from 9 March 2011. Political Community and Religion in Croatia 351 tification that State had a duty to remain neutral and impartial in exercis‐ ing its regulatory power in the sphere of religious freedom and in its rela‐ tions with different religions, denominations and beliefs. The European Court found then that Government’s treatment of the religious communi‐ ties in question did not have any “objective and reasonable justification.” The formalistic approach of the Constitutional Court was severely criti‐ cised by Staničić and Ofak who deemed that the Constitutional Court made a huge mistake when it considered itself incompetent to review the Conclusion. According to their opinion, the disputed Conclusion was the Government’s decree on the execution of the ALSRC 2002 and as such it was suitable for review.42 It is not the purpose of this paper to discuss the legal nature of the disputed Conclusion.43 It will be enough to state that the Conclusion represented a typical ultra vires act and the Court could have quashed it easily because neither does the ALSRC 2002 in general prescribe any conditions regarding the status of religious communities, nor does it contain any provision which would authorize the Government to set up the conditions at all. Additional reason for substantive approach of the Court would be whether the content of the Conclusion complies with its definition in the Act of the Government as an act without regulative features. An interesting test for the position of religious communities arose in the face of the Act on Trade which in 2004, after very strong public pressure by the Catholic Church, prohibited work on Sundays for shops and trade centres. The aim of this Act was to improve “the protection of labour rights and families” of those who worked in the shops, and to introduce legal mechanisms for “combating the exploitation of the workers” em‐ ployed in the shops with a special emphasis on the protection of women and believers.44 The initiatives for the constitutional review came from the side of entrepreneurs who claimed violation of entrepreneurial rights but also from two citizens, members of the Christian Adventist Church, who 42 See Staničić and Ofak, “Registracija vjerskih udruga i vjerskih zajednica u svjetlu Europske Konvencije za zaštitu ljudskih prava i temeljnih sloboda,” 2011, p. 236. 43 The writer of this article disagrees with the opinion on legal nature of the Conclu‐ sion. Even a decree on execution of an act should be within its legal boundaries which was not the case in the current Conclusion. The Conclusion introduced completely new legal premisses in the implementation of the ALSRC 2002 and went beyond legal ratio of the ALSRC 2002. 44 Decision of the Constitutional Court, no. U-I-3824/03, from 28 April 2004 (The Official Gazette, no. 55/04). Slavica Banić 352 claimed violation of the right to freedom of religion. They claimed that the Agreement which their Church signed with the Government on the issues of the common interest provided for the members of the respective reli‐ gious community a right not to work on Saturdays. Their right to freedom of religion is confirmed in the Labour Act which forbids any kind of dis‐ crimination including the one on the basis of religion. The Act on Trade by their opinion contravened to the concluded Agreement and the Labour Act. In its review, the Constitutional Court referred to the Act on Holidays and Work-Free Days of the Republic of Croatia, on the Concordat on the legal issues with the Holy See, but also on the aforementioned Agreement between the Government and three religious communities on the issues of the common interest. However, the reasoning of the decision on abolish‐ ment of the Act on Trade did not take into account the issue of religious freedoms at all. It was directed on the aspects of the rule of law and the equal rights of all entrepreneurs on the Croatian market. The question is, why did then the Constitutional Court refer at all to the respective Concor‐ dat and Agreement if did not take into account these issues? Moreover, the initiative of two members of Advent Church claimed violation of their re‐ ligious rights in connection to discrimination. Although there is no answer to it, this case showed how the issue of legal status of the religious com‐ munities and in that relation of the religious rights of their members is not yet clearly defined in the Croatian legal order. It also showed how even an act from the market field may have an impact on the position of the reli‐ gious communities. This decision of the Constitutional Court did not pre‐ vent the legislator to enact the new Act on Trade four years later prohibit‐ ing working on Sundays again, however, slightly different than the previ‐ ous one. The new constitutional review was established again by en‐ trepreneurs who claimed, among other reasons, that the constitutional principle on equality of all religious communities and principle of separa‐ tion of the Church from state are violated because one of the aims of the disputed Act was to promote certain world views which reflected only the views of the Catholic Church. The Court noted that in Croatian tradition and its customs Sunday is the day in the week which is recognized as the day for rest. It is also confirmed by the national legislator. In relation to the disputed aim of the Act, the Court defended itself by stating how such an aim could not be recognized. The Court abolished the respective provi‐ Political Community and Religion in Croatia 353 sions,45 again taking into account entrepreneurs’ constitutional rights and did not touch the issue of status of the religious communities. The problem for the Constitutional Court in both cases was in the fact that none of the allegations on privileging the Catholic Church could be recognized directly in the disputed Acts exactly because Sunday is tradi‐ tionally non-working day in Croatia. The claims mainly referred to the Church’s public opinion on the respective issue and its firm publicly pre‐ sented determination to promote its values and defend them legally. In that regard, it could be said that Church’s aim to prohibit Sunday as working day showed high degree of Church’s socio-political strength in the Croat‐ ian society. With regard to the individual cases, recent case law of the Constitution‐ al Court shows its rather restrictive approach towards ‘religious issues’. One case dealt with a teacher for Catholic religious education who lost his job due to a civil divorce and another one dealt with the termination of a religious servant’s labour contract. The Catholic religious education teach‐ er entered the high school with the Church’s canon mandate, possession of which is the main prerequisite for teaching Catholic religious education according to the Concordat on cooperation in the field of education and culture. The mandate may be withdrawn by the respective Church’s au‐ thority in which case the person in question loses the right to teach Catholic religious education. The teacher in question became a public ser‐ vant and acquired all respective rights like any other public servant. Mean‐ while, the teacher divorced. When the Church found out about the divorce, it withdrew the mandate and the school terminated his labour contract since he did not possess the mandate anymore. He sued the school for the illegal notice and lost the case up to the Supreme Court. He submitted a constitutional complaint alleging the violation of his right to private and family life since he lost his work because of the divorce. During the con‐ stitutional procedure, the Court came to the conclusion that there are no precise regulations on the position, rights and obligations of religious teachers and that the state did not make a proper regulation on the conduct of religious education. The Court referred directly to the respective Con‐ cordat as the legal basis for possession of the mandate and concluded that it was not competent to review the Concordat’s provision on receiving and 45 The Decision of the Constitutional Court, no. U-I-642/09 et al., from 19 June 2009 (The Official Gazette, no. 76/09). Slavica Banić 354 loosing that mandate. Then, the Court confirmed the statement of the low‐ er courts that teacher did not lose his job exclusively because of withdraw‐ al of the mandate, but also because a school where he taught had no possi‐ bility to offer him another similar job. At the end, the Court was firm in the view that withdrawal of the mandate did not constitute a violation of his constitutional rights.46 However, a more accurate and profound ap‐ proach was given in the dissenting opinion of the president of the Consti‐ tutional Court who claimed the violation of the applicant’s right to respect private and family life because of the omission of the positive obligations of the state to form the normative frame which will accord the position of religious teachers with the international obligations and Croatian legal or‐ der. This case did not only reveal a grey zone in the field of implementa‐ tion of the Concordat and its compliance with the Constitution but also touched the issue of exercise of rights by individuals who enter the school system under privileged conditions which stem from the Concordat and continue to enjoy rights as other teachers who entered the school system under sever legal regime. The other case dealt with the issue of the religious servant who con‐ cluded the labour contract with his parish. After some disputes, the parish terminated the contract. The ordinary courts, including the Supreme Court of the Republic of Croatia denied its competence on ruling on this issue. They considered that such a situation did not fall into the jurisdiction of the courts because the competence of the respective religious community for its religious appointments, elections and assignment of the religious services comprised the competence for terminating the labour contract with the religious servant. The Constitutional Court accepted such inter‐ pretation of the Supreme Court and refused the constitutional complaint.47 However, the Court did not take into consideration the provision of the ALSRC 2002 which provides that for the execution of the religious ser‐ vices, the religious community may enter into legal relationships and con‐ clude the labour contracts with religious servants and other workers. Reli‐ gious servants exercise their rights according to the labour contract and on the basis of the provided work like all other (non-religious) workers. The restrictive attitude of the Constitutional Court could be explained by assuming that the Court was not yet ready to interpret the constitutional 46 The Decision of the Constitutional Court, no. U-III-702/2009 from 22 May 2013 (The Official Gazette no. 69/13). 47 Decision of the Constitutional Court, no. U-III-461/2009 from 30 January 2014. Political Community and Religion in Croatia 355 provision on separation between the state and religious communities which would demand a thorough analysis of the border line between the cooperation of the state and the religious communities and undue interfer‐ ence of the latter in the secular postulates of the state. Croatian Society Between the State and Religion The Croatian society has been in the process of re-examining values. Is it closer to Christian values, ethics and moral, or is it changing in accor‐ dance with the views of a liberal society? Like in many European coun‐ tries, issues like health (sexual) education, homosexual marriages, artifi‐ cial insemination or the ban on abortion occupy the Croatian social and political scene. Already in 1991, the Constitutional Court received the ini‐ tiative on the constitutional review of the Act on the Health Measures for Realization of the Right to Decide Freely on Birth of Children which was enacted in the socialist time, i.e. in 1978, and is still valid. In the public it is known as the Act on Abortion. The Court is still silent about it. From time to time conservative parts raise the issue of abortion and provoke the liberal parts which defend the right of women on a free choice. The health education at schools became a matter of interest when the Minister of Science, Education and Sports enacted the Decision on the health education curriculum with the content which disturbed a huge part of parents due to infringements of their ethical and moral stands. Behind the critics was the view of the incompatibility of the health education is‐ sues with the religious education. It was also stated that certain parts di‐ rectly disturbed the religious beliefs of parents and children. The Catholic Church stood beside the views of parents since they overlapped with its views if not even driven by it. The decision of the Minister failed at the Constitutional Court because of the lack of democratic, pluralist procedure in issuing it.48 The Government was in the procedure of the rearrangement of religious education at schools by replacing the hours of religious education on the beginning or at the end of school day in order to facilitate the position of the pupils and students who do not attend the religious education. The XI. 48 Decision of the Constitutional Court, no. U-II-1118/2013 et al. from 22 May 2013 (The Official Gazette, no. 63/2013). Slavica Banić 356 Church considered it an attack on it and stated how the government’s ap‐ proach is not in the interest of the children and the schools. The Catholic Church, supported by other religious communities clearly announced the disagreement about the possibility to extend the institution of marriage for homosexual couples. Although the Government did not clearly refer to marriage as such but to broadening of the rights of homosexual couples, the Church used its social and religious influence and supported the civil initiative for national referendum on the definition of marriage as the union of a man and a woman. The referendum succeeded proving that the Government underestimated and ignored the influence of the Church in the Croatian society. Although Croatian society has features of conservative and Christian oriented one, it cannot be said that it is not aware of the position of the largest religious community in Croatia, i.e. Catholic Church. The consid‐ eration of Croatian citizens being catholic did not deprive them of critical approach toward its legal position. This puts a task before the Catholic Church to reconsider the possible ways to reassert its position. Conclusion This paper tried to reveal the relationship between the Croatian state and the religion as well as religious communities in general. Throughout histo‐ ry, the Catholic Church has been an important factor in the construction of the Croatian identity. Its revitalization after the forced exile during the pe‐ riod of socialism was largely supported by politics which did not hesitate to use it for its legitimization. The Church did not succeed to resist such attitude and it developed a relationship with the state which, from that point onwards, threw a shadow on its position of a moral arbiter within the Croatian society. Even Catholic scholars pointed to this aspect and sadly admitted that the Croatian people perceive the Catholic Church as a part of the political power or as an ally of authorities.49 The burden of the Catholic Church for its sympathy toward the rightoriented party resulted in a lack of dialogue and mutual understanding, re‐ spect and appreciation with all political factors in the state. The Church B. 49 See Padjen, “Vjera u narod bez vlasti i vlasništva: Crkvena šutnja 1961-1971. i glasnost 1990-,” p. 179. Political Community and Religion in Croatia 357 expects the state to respect traditional family values and the opinion of the majority which expresses itself as religious, while in the state are forces (like the left-oriented party) which promote neoliberal values and resist to social role of the Church. As much as the Church is stuck in its own vision of how Croatian society should look like, as much the left-oriented Gov‐ ernment undermines the pure fact that the Catholic Church in Croatia en‐ joys a high percentage of trust among the citizens. This shows that both sides need to reset their own views and reached positions about issues that shape the Croatian values. The implementation of the Concordats poses too many questions on the position of the Catholic Church in the Croatian society, the relationship between the state and the Church as well as the position of other religious communities as a whole. A number of burdening financial provisions, un‐ clear limits of the independence of the Catholic Church within the Croat‐ ian territory, the impact on the legal order and public administration, the significance of the constitutional principle of the equality of all religious communities before the law and the separation between the state and reli‐ gious communities are the issues that soon will ask for their answers. On the other hand, the focus of the state on the Catholic Church slowed down the development of other religious communities and their rights. The ASLRC 2002 has basically implemented the freedom of religion but also provided many obstacles for an easy realisation of the granted rights. The Act itself showed that the state is much more involved in the activities of the other religious communities than it is with the Catholic Church. In spite of the fact that the state followed the rights granted to the Catholic Church by Concordat, it showed at the same time resistance to the full fol‐ low-up on it. All of this shows how both the Catholic Church as the domi‐ nant religious community and all other religious communities are striving to achieve a partnership with the state. While the Catholic Church was in more comfortable situation because of its historical influence on the essence of the Croatian identity and because of the international agree‐ ments which facilitated its legal status, the other religious communities needed to struggle for recognition and acceptance by the state as a social factor which contributes to the multiculture and diversity of the Croatian society. However, both of them want to be an equal interlocutor with the state in shaping the Croatian society as a society based on each religious community’s values. Slavica Banić 358 Bibliography Akmadža, Miroslav, Katolička crkva u komunističkoj Hrvatskoj, 1945-1980. Despot Infinitus d.o.o., Zagreb-Slavonski Brod, 2013. Badjun, Marijana, “Financiranje Crkve u Hrvatskoj: Trebaju li nam crkveni porezi?,” at Benačić, Ana, “Financiranje Katoličke Crkve u Hrvatskoj,” paper presented at the Foundation Centre for Public Law Conference, Secularism and Religion: Bosnia and Herzegovina and the Region, pp. 1-11, at n_ii_d/images/green/Ana_Benacic.pdf. Constitutional Court of the Republic of Croatia, Decision no. U-I-825/2001, 14 Janua‐ ry 2004. Constitutional Court of the Republic of Croatia, Decision no. U-I-3824/03, 28 April 2004. Constitutional Court of the Republic of Croatia, Decision no. U-II-3961/2005, 5 June 2007. Constitutional Court of the Republic of Croatia, Decision no. U-III-702/2009, 22 May 2013. Constitutional Court of the Republic of Croatia, Decision no. U-III-461/2009, 30 Janu‐ ary, 2014. Eterović, Nikola, “Ugovori između Svete Stolice i Republike Hrvatske,” 1997, pp. 181-186, at European Court of Human Rights, Savez Crkava “Riječ života” and Others v. Croatia (App. no.7798/08), Judgement, 9 March 2011. Jandrić, Berislav, “Položaj Katoličke crkve u Hrvatskoj u poslijeratnim godinama (1945-1953),” 1998, pp. 49-62, at Jelčić, Božidar, “Koliko košta Hrvate Crkva: prava istina o novcima koji se slijeva u crkvenu blagajnu,” 2013, at 1140 001/. Jerolimov Marinović, Dinka, “Društvene i religijske promjene u Hrvatskoj: teorijskohipotetski okvire istraživanja,” 2005, pp. 289-302, at show=clanak&id_clanak_jezik=52668. Karpov, Vyachesla, “Desecularization: A Conceptual Framework,” Journal of State and Church 52, 2 (2010): 232-270, at 232.full. Matijević, Margareta, “Religious communities in Croatia from 1945 to 1991: Social Causality of the Dissent Between Communist Authorities and Religous Communi‐ ties Leadership,” 2007, pp. 117-140, at Padjen Ivan, “Vjera u narod bez vlasti i vlasništva: Crkvena šutnja 1961-1971. i glas‐ nost 1990-,” Politička misao 49, 4 (2012): 175-211. Padjen, Ivan, “Veliko bezglavo ništa,” 1995, at / archive/data/199512/51201-001-pubs-zag.htm Political Community and Religion in Croatia 359 Ponoš, Tihomir, “Research: Croatians trust the most in the Church and military, the least in the Government and the political parties,” Novilist, July 2015, at http:// Smerdel, Branko, Ustavno uređenje europske Hrvatske, Zagreb: Narodne novine, 2013. Staničić, Frane, “The Legal Status of the Religious Communities in Croatian Law,”. Zbornik PFZ 64, 2 (2014): 225-254. Staničić, Frane, and Lana Ofak, “Registracija vjerskih udruga i vjerskih zajednica u svjetlu Europske Konvencije za zaštitu ljudskih prava i temeljnih sloboda,” in Vjer‐ nici, društva, pokreti, ed. Josip Šalković, Zagreb: Glas Koncila, 2011, pp. 217-242. Tanjić, Željko, “Uloga i značenje Katoličke crkve u Hrvatskoj,” OST-WEST Europäi‐ sche Perspektiven 3 (2013), at s/2013/10/OST-WEST-Uloga-i-znacenje-Katolicke-Crkve-u-Hrvats koj.pdf. Uzelac, Alan, “Od liberalizma do katolicizma: neki aspekti pravnih odnosa između crkve i države u Republici Hrvatskoj – novo pravno uređenje braka,” Zbornik PFZ 49, 3-4 (1999): 341-374, at %20do%20katolicizma_Zbornik.pdf. Vrcan, Srđan, “Religija i politika – simptomatičan primjer bivše Jugoslavije devedese‐ tih godina dvadesetog stoljeća,” Republica 15 (2003): 1-30, at http://postjugo.filg.uj er%20biv%C5%A1e%20Jugoslavije%20devedesetih%20godina%2020.%20stolje %C4%87a.pdf. Slavica Banić 360 State and Religion in Spain Javier Martínez-Torrón Some Historical Remarks Spain has been traditionally – and even more in the last five centuries – a nation in which the vast majority of the population is Catholic.1 In the late 15th century, after almost eight hundred years of wars between Christian and Islamic kingdoms (the so-called Reconquista), Spain forged its nation‐ al unity together with its religious unity. The unity of the new nation was shortly joined by a much more ambitious enterprise: the building of an enormous overseas empire, in which the binomial political unity/religious unity would also exercise a decisive influence.2 To be a Spaniard and to be a Catholic were understood as equivalent, as two sides of a single national identity. As a consequence, the faithful of other religions – Jews and Mus‐ lims – who refused to convert were expelled from the kingdom. And, fol‐ lowing the same political logic, pseudo-converts, and those who aban‐ doned Catholicism to profess a heresy – particularly the doctrines of A. 1 The following paragraphs contain a brief description of well-known facts. There‐ fore, a few and general bibliographical references will suffice here (although I will cite some more specific studies in due course). For an attractive summary of the same topic in the last centuries – in Spanish language – see Lombardía, “Prece‐ dentes del derecho eclesiástico español,” 1980, pp. 151-174. As a larger reference book on the history of the Catholic Church in Spain, see the seven volumes of His‐ toria de la Iglesia en España, ed. Ricardo García Villoslada, 1979-1982. For a for‐ eign historian’s perspective, see Payne, Spanish Catholicism: An Historical Over‐ view, 1984. For a Spanish historian’s perspective, written in English, on the last decades of Spain’s history, see Tusell, Spain: From Dictatorship to Democracy, 2007. 2 I am not suggesting that the Spanish kings were determined to guarantee the king‐ dom’s religious unity under Catholicism for merely political reasons. The Spanish monarchy – perhaps more than other monarchies of that period – was committed to defend the nation’s religion largely for strictly religious reasons, at least throughout the 16th century and probably also into the 17th century. Proof of this intent is found in the policy the monarchs followed for the incorporation of the American Continent into the Kingdom of Spain. 361 Luther or Calvin – were persecuted and, if they did not repent, publicly condemned (this function was in the hands of the Spanish Inquisition3). This fact explains why, in Spain, until recently, Protestantism was virtually inexistent and only a few residual, and concealed, groups of Jews and Muslims remained. We should note that, during the same historical period, national states were constituted all over Europe following analogous interpretations of the principle cuius regio eius et religio (the religion of the prince is the re‐ ligion of the nation). It is thus natural that the Catholic Church exercised a tremendous influence in Spain over the last five hundred years, in spite of the numerous sways of our internal politics – which witnessed some in‐ tense episodes of anti-clericalism – and in spite also of the repercussions that events occurred beyond the peninsula’s borders had in Spain – from the dismantling of the American empire to the influx of French-Style lib‐ eralism and its subsequent withdrawal after Napoleon Bonaparte’s Spanish adventure. From this perspective, the situation was not essentially different in the 20th century, which began marked by the disappearance of overseas Spain and by the social convulsions provoked by socialist and anarchist move‐ ments, fuelled by circumstances of severe economic shortage. A signifi‐ cant part of 20th century Spain’s politics revolved around church-state re‐ lations, which oscillated between two extremes: on the one hand, a confes‐ sional state (i.e., a state officially Catholic) that protected, and somehow also controlled, the Catholic Church at the cost of the freedom of other re‐ ligions or ideologies; and, on the other hand, an anti-religious, and more precisely anti-Catholic, hostility. We can find a clear and relevant example of the latter approach in the Spanish Second Republic (1931-1936), Spain’s last democratic experi‐ ment prior to the political transition of the 1970s.4 It is well known that the 1931 Republican Constitution, as well as subsequent legislation on re‐ 3 The Spanish Inquisition – which was controlled by the Spanish monarchy through the Dominican Order rather than by the Pope – had jurisdiction only over Christian heretics, i.e. over people who had been baptized. Therefore, they prosecuted Protes‐ tants and pseudo-converts from Judaism, but they could not prosecute Jews or Mus‐ lims that had never received baptism. 4 For a more detailed description with further bibliographical references, see Martínez-Torrón, “Derecho de Asociación y Confesiones Religiosas en la Constitu‐ ción de 1931,” 2000, pp. 91-120. Javier Martínez-Torrón 362 ligious issues, adopted a markedly hostile regulation of religious institu‐ tions, which severely restricted the Catholic Church’s freedom without ac‐ tually creating an environment of freedom for other religious denomina‐ tions.5 Republican legislatures and governments, especially at the begin‐ ning and at the end of the Republic, were determined to reduce the Catholic Church’s social influence, which they considered excessive and incompatible with a democratic and secular state. They failed to accept the incontrovertible fact that the Church had an enormous weight in Spain’s social structure. Consequently, they refused to enact moderate legislation that could reconcile the ecclesiastical influence with a democratic system and, at the same time, attract the ecclesiastical hierarchy towards the Re‐ publican cause.6 It seems that Second Republic politicians – especially those aligned with left-wing parties – were more interested in freeing the country from religion than in establishing the basis for freedom of reli‐ gion, resembling the attitude of the French government of the Third Re‐ public, especially from 1880 to 1905.7 That excessive anti-ecclesiastical reaction led to opposite reactions on the other side. Spanish society became divided in two halves from the reli‐ gious perspective. This fact seriously disturbed social peace and was one of the main causes that triggered the Civil War (1936-1939), which in turn ended with the dictatorship of General Franco, who ruled the country for the next thirty-six years. During that period, Spain remained largely dis‐ connected from the democratic nations of Europe that, after World War II, rebuilt their economies, their political life, and their cultural strength in a 5 For a complete and interesting study on the making of the Republican Constitu‐ tion’s provisions on religious issues, see Meer, La cuestión religiosa en las Cortes constituyentes de la Segunda República Española, 1975. 6 Although it is certainly difficult to judge the protagonists of history from a contem‐ porary perspective, it is very significant that neither the Republican Constitution’s provisions on religious issues nor the legislation later enacted to implement them would be permitted today in light of international documents for the protection of human rights. In any event, the attitude of the diverse Second Republic govern‐ ments was not always uniform with regard to religion in general and to the Catholic Church in particular. For some time, there were attempts to conclude some sort of agreement with the Holy See; see García-Peñuela, El intento concordatario de la Segunda República (1933-1935), 1999. 7 See in this regard, in the context of an interesting comparison between the constitu‐ tional principles on religion in France and in the United States, Chélini-Pont and Gunn, Dieu en France et aux États-Unis: Quand les mythes font la loi, : 2005, pp. 25-33. State and Religion in Spain 363 gradual process that developed alongside a series of increasingly signifi‐ cant supranational institutions. Only after Franco’s death in 1975 could Spain revive its connection with Europe. The religious policy of General Franco’s dictatorship produced, as a pendulum reaction against Republican extremism, an unmistakable return to the notion of a Catholic confessional state.8 It is likely true that the ac‐ ceptance and support of the anti-republican forces winning the civil war by large parts of the ecclesiastical establishment was more the outcome than the cause of the violence exercised against the Church during the Re‐ public,9 but the fact is that the Catholic Church and Franco’s dictatorship held each other for long years. The state declared itself officially Catholic (Estado confesional), and its protection of the Catholic Church permeated legislation and administrative praxis at all levels, at the cost of other reli‐ gions’ freedom. The mutual concession of privileges acquired an interna‐ tional dimension, as well as reinforcement in domestic law, with the 1953 Concordat between the Holy See and the Spanish state. This reciprocal support, however, did not prevent that a tension between the ecclesiastical hierarchy and Franco’s regime arose with the passage of time. This began especially in the 1960’s, as a consequence – among other reasons – of the change of perspective provided by the Second Vatican Council on the rela‐ tions between religious and civil society.10 8 See generally the studies by Hera, “Actitud del Franquismo ante la Iglesia,” and Lombardía, “Actitud de la Iglesia ante el franquismo,” 1987, pp. 43-70 and pp. 81-102. 9 See Rafael Navarro-Valls, “Cómo actuó la Iglesia frente a la Guerra?,” 2005, pp. 203 ff. 10 Significantly, the first Spanish law on religious freedom – which legalized non- Catholic religions’ public worship – was enacted in 1967, against Franco’s own re‐ luctance, as a consequence of the political pressure exercised by Spanish bishops. See Blanco, La primera ley española de libertad religiosa, 1999; Tusell, “El im‐ pacto del Concilio Vaticano II en la política y en la sociedad española,” 1988, pp. 377-390; and the study, written in moments close to the enactment of the law, by Corral, “Valoración comparada de la legislación española de libertad religiosa,” 1968, pp. 315 ff. Javier Martínez-Torrón 364 The Constitutional Framework of Religion The new Approach of the 1978 Constitution on Church-State Relations The current legal and political framework of religion in Spain was de‐ signed by the Constitution promulgated on 27 December 1978,11 which transformed the precedent regime into a democratic state that meets entire‐ ly the standards of freedom characteristic of Western democracies and in‐ ternational law. In the years that followed, the Spanish state signed the most relevant international documents regarding human rights, including the European Convention on Human Rights (in force in Spain since 1979) and the International Covenant on Civil and Political Rights (in force in Spain since 1977). Spanish society, in its largest part, accepted rapidly and enthusiastically the new model of political life. The increasing religious and ideological pluralism of society was soon no longer seen by Spaniards as a negative reality, or as contrary to the Spanish traditional identity, but rather as a normal effect of freedom. Inspired by the experience of other European countries, the system of relations between state and religion designed by the 1978 Constitution contrasted sharply with the record of religious and anti-religious extrem‐ ism described above. In this, as in other aspects of Spain’s political devel‐ opment, the Constitution was aimed at three fundamental objectives, which were absent in Spain’s previous constitutional experience: a high degree of freedom, a broad consensus among the Spanish population and political parties, and a reasonable chance of stability.12 The 1978 Constitution is the first Spanish constitution that has provided an adequate solution to the social and political conflicts that religious ideas have traditionally caused in Spain. With the constitutional change operated in 1978, religion ceased to be, for the first time in centuries, a major divisive factor in Spanish society. The reason for this success was the transformation of the confessional state into a regime based on reli‐ gious freedom, but without breaking abruptly with the nation’s historical tradition. The Constitution abandoned the customary Catholic confession‐ ality of the state – there is no more an official religion in Spain – but B. I. 11 The Constitution was officially published and entered into force on 29 December 1978. 12 See López Alarcón, “La superación de la ‘cuestión religiosa’ como tema clave de la transición: su expresión jurídica,” 2005, pp. 303-314. State and Religion in Spain 365 looked at religion as a positive social phenomenon and adopted a system of state cooperation with religion instead of a separationist model. This se‐ cured the support of the Catholic Church, of vital importance in those times of political transition to democracy, which were still full of uncer‐ tainties after thirty-six years of dictatorship.13 Constitutional Provisions Relevant to Religion Two articles of the 1978 Constitution deal directly with religion. Article 14 guarantees that no one can be subject to discrimination on the ground of religion (among others), and Article 16 recognizes the right to religious freedom and establishes the main principles that define the constitutional status of religion in Spain. Article 14: The Spanish are equal before the law and shall not be subjected to any dis‐ crimination on the ground of birth, race, sex, religion, opinion or any other condition or circumstance, personal or social.14 Article 16: 1. Freedom of ideology, religion and worship of individuals and communi‐ ties is guaranteed with no other limitations, in their manifestations, than those necessary for the maintenance of the public order protected by law. 2. Nobody shall be obliged to declare about his ideology, religion or beliefs. 3. There shall be no state religion. Public authorities shall take into account the religious beliefs of Spanish society and shall maintain the consequent relationships of cooperation with the Catholic Church and the other de‐ nominations. The terminology employed by both articles – especially Article 16 – is ex‐ plained in the light of the Spanish historical tensions with regard to reli‐ gion. Thus, in Article 16.1, ‘worship’ is explicitly mentioned because the past repression of this specific manifestation of religion in moments of an‐ ti-religious hostility. ‘Ideology’ was the word chosen to indicate that all beliefs are protected by the Constitution, and not only religious beliefs. Article 16.2 reflects the deeply felt need to prevent that any religious test II. 13 See Martínez-Torrón, “Religious Freedom and Democratic Change in Spain,” 2006, pp. 777-809. 14 Author’s translation from the Spanish original into English. Unless otherwise indi‐ cated, the author is responsible for all translations included in this paper. Javier Martínez-Torrón 366 could be used, once again, to discriminate people in public and social life. Article 16.3, whereas it abolished the traditional Catholic confessionality of the state, made clear that public authorities, at any level, cannot ignore religion as a social phenomenon – on the contrary, when organizing public life within the limits of their respective competences, they are obliged to take into account the religious choices of citizens. Other articles of the Constitution are also relevant to religion. Article 10.2 provides that the constitutional rules on fundamental rights and free‐ doms shall be interpreted in the light of international treaties ratified by Spain.15 Article 27, when recognizing the right to education, enshrines the rights of parents to guarantee that their children will receive moral and re‐ ligious teaching in accordance with their own convictions; and recognizes all natural and legal persons the freedom to create educational centres – this is of the utmost importance for a number of churches and religious or‐ ganizations. Article 30.2 recognized the right to conscientious objection to military service. Article 32.2 recognized the right of men and women to marry ‘with full legal equality’, and was interpreted since the beginning as implicitly accepting a plurality of religious marriages with civil effects in Spain (such interpretation was later confirmed, by a modification of the Civil Code in 1981,16 and by state cooperation agreements with the Catholic Church in 1979, and with the Protestant, Jewish and Islamic communities in 1992).17 We should also take into account that the religious choices of individu‐ als, as well as religious communities, enjoy the general constitutional pro‐ tection of freedom of expression (Article 20), freedom of assembly (Arti‐ cle 21) and freedom of association (Article 22). 15 As the Spanish state ratified the European Convention on Human Rights in 1979, Articles 16 and 14 must be interpreted in the light of Article 9 and 14 of the Euro‐ pean Convention on Human Rights, respectively, and also in the light of the rele‐ vant case law of the European Court of Human Rights. Those articles of the Con‐ stitution must be interpreted also in accordance with Articles 18 and 26 of the In‐ ternational Covenant on Civil and Political Rights, which was ratified by Spain in 1977. 16 See Arts. 59 and 60 of the Spanish Civil Code. 17 See below, subsection C.III. of this paper. State and Religion in Spain 367 Four Fundamental Principles Four principles constitute the basic structure of the constitutional frame‐ work of religion in Spain. Scholars often call them ‘fundamental’ or ‘in‐ forming’ principles (principios informadores).18 No strict hierarchical or‐ der governs the relationship between these principles, and they altogether establish a system of coordinates that define the plane of constitutional le‐ gitimacy to which legislator and government must limit their activity.19 Religious freedom The first principle is religious freedom. According to it, all state laws on religious issues must be aimed at protecting this fundamental right, which many international documents call ‘freedom of thought, conscience and religion’,20 and which Art. 16 of our Constitution names ‘freedom of ide‐ ology, religion and worship’ (libertad ideológica, religiosa y de culto).21 The exercise of religious freedom may be limited only when it is neces‐ sary for the protection of public order and of the rights and freedoms of others, according to international standards and to the doctrine of our Con‐ stitutional Court.22 III. 1. 18 The bibliography on the constitutional principles of the Spanish law on religious issues is abundant. For a more detailed exposition of the ideas mentioned in the following paragraphs, and for further bibliographical references, see Martínez- Torrón, Religión, derecho y sociedad. Antiguos y nuevos planteamientos en el de‐ recho eclesiástico del Estado, 1999, pp. 172-204. 19 See Ortiz, “Los principios constitucionales del derecho eclesiástico como sis‐ tema,” 1989, pp. 309-322. 20 See, for instance, the 1948 Universal Declaration of Human Rights (Art. 18), the 1950 European Convention on Human Rights (Art. 9), or the 1966 International Covenant on Civil and Political Rights (Art. 18). 21 We could also add the expression ‘freedom of religion or belief’, which has been gaining ground since the 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, especially within the OSCE environment. With regard to the conceptual questions implied in the use of that diverse terminology, see Martínez-Torrón, Religión, derecho y sociedad, pp. 126-139. 22 See Combalía, “Los límites del derecho de libertad religiosa,” 1994, pp. 471-510; Martínez-Torrón, “Limitations on Religious Freedom in the Case Law of the Euro‐ pean Court of Human Rights,” 2005, pp. 587-636. Javier Martínez-Torrón 368 Although this principle is not, strictly speaking, in a position of hier‐ archical pre-eminence with respect to the other principles, religious free‐ dom certainly constitutes the primary objective that should define the state policies in this realm. It is conceived as a sort of lodestar that gives sense to and delineates the true dimension of the other constitutional principles. Protection of religious freedom is not only a limit to the legislative or gov‐ ernmental activity – in the sense that unjustified restrictions on freedom of religion or belief are unconstitutional – but it serves also a positive teleo‐ logical function with regard to public policies. In other words, the higher the degree of guarantee of religious liberty provided by public policies the better they comply with the constitutional mandate. The other three principles, however, cannot be regarded simply as mere developments of the principle of religious freedom. On the contrary, those other principles define and cement the functional efficiency of religious liberty in Spanish legal order. And, at the same time, the right to freedom of religion or belief acquires a particular meaning when understood in the light of neutrality, equality and cooperation. Equality The second principle is equality and entails that all citizens and groups are equal before the law with respect to the exercise of the right to freedom of religion or belief. Equality’s immediate consequence is that the same de‐ gree of freedom must be recognized for all, and that religion or non-reli‐ gion cannot be factors of discrimination in Spain.23 In addition, the princi‐ ple of equality influences the rules governing more generally the legal position of churches in Spain. Thus, differences between the legal statuses of various religious denom‐ inations are legitimate only if they are not discriminatory. Such differences are allowed when a specific legal treatment is deemed necessary to pro‐ vide adequate guarantee of the freedom of a certain group or individual in accordance with their particular circumstances. In other words, according to the case law of the European Court of Human Rights and of the Spanish Constitutional Court, differences in legal treatment are legitimate when 2. 23 Public officials or employers who refuse to grant a service to certain people be‐ cause of their religion or belief commit an offence punished by the Spanish Crimi‐ nal Code (cf. Arts. 511-512). State and Religion in Spain 369 they are grounded on a reasonable and objective justification, when they pursue a legitimate aim, and when there is an adequate relationship of pro‐ portionality between the aim pursued and the means employed.24 Neutrality The third principle is state neutrality on religious matters,25 which appears to be the main instrument chosen by the Constitution to protect the reli‐ gious liberty of all citizens and groups in equal conditions. The deep meaning of neutrality goes beyond mere formal impartiality. Neutrality implies that Spain has no official religion and requires that the state, and its legal system, conceive themselves as incompetent with regard to purely religious questions and therefore unable to make value judgments on them. According to the Constitutional Court, neutrality prohibits all confusion between state and religious functions in society.26 The state must respect 3. 24 The first decision of the European Court of Human Rights establishing its doctrine on equality was the so-called ‘linguistic Belgian case’: Case “relating to certain aspects on the laws on the use of languages in education in Belgium”, 23 July 1968 (see especially ‘The Law’ n. 1.B.10). The European Court has subsequently reiterated this doctrine in numerous decisions, including some relating to religious freedom. The case law of the Spanish Constitutional Court on the equality princi‐ ple is directly inspired by the case law of the Court of Strasbourg. See, for in‐ stance, STC 49/1982, FJ 2; STC 144/1988, FJ 1; STC 45/1989, FJ 4, among many others. For further references, see Martínez-Torrón, “La protección internacional de la libertad religiosa”, 1994, pp. 229-237. With regard to the principle of equali‐ ty in the case law of the Constitutional Court of Spain, see Calvo Álvarez, Los principios del derecho eclesiástico español en las sentencias del Tribunal Consti‐ tucional, 1999, pp. 129-164; and Rodríguez Chacón, El factor religioso ante el Tribunal Constitucional, 1992, pp. 33-38. 25 Some authors, as well as some decisions of the Constitutional Court and other Spanish courts, often call this principle aconfesionalidad (aconfessionality) or lai‐ cidad (i.e., secularity, which is not exactly equivalent to the French understanding of laïcité). The use of one or other term implies certain differences with regard to how the meaning of this principle is understood. I prefer the expression ‘neutrali‐ ty’, which I deem more appropriate to avoid misunderstandings with respect to its content (Martínez-Torrón, Religión, derecho y sociedad, pp. 177-189). On the complexities inherent to the notion of state neutrality, see Palomino, “Religion and Neutrality: Myth, Principle and Meaning,” 2011, pp. 657-689. 26 See STC 24/1982, fundamento jurídico 1. Javier Martínez-Torrón 370 religious pluralism in society, and therefore may not favour the develop‐ ment of some religions while hindering the progress of others. Such notion of neutrality does not imply that public authorities must be indifferent to‐ wards the results produced by the exercise of freedom of religion or belief, or that they ignore completely the content of personal choices in this par‐ ticular area of human rationality. Neutrality means that public authorities cannot judge the truth or falsity of the dogmas or tenets of the diverse reli‐ gions. However, state action with respect to religion may be based on oth‐ er judgments. In particular, it may take into account the social effects of the religious activity, or the predictable effects of religious moral doc‐ trines, including the cases in which those effects conflict with the law or with values that the legal system considers essential. Two important consequences derive from the foregoing. First, state ac‐ tion with regard to religion must be, for the most part, a legal action – i.e., an action defined by law, with a narrow margin for public authorities’ dis‐ cretion that could lead in practice to value judgments on religious doc‐ trines or customs. Second, neutrality implies recognition of the reciprocal autonomy of state and religion and, therefore, state’s interference with re‐ ligious autonomy must be reduced to a minimum and its necessity must be clearly justified.27 We must keep in mind that, as indicated above, neutrali‐ ty – or laicidad – is conceived not as an aim in itself but as a means to guarantee and facilitate the exercise of freedom of religion or belief by all individuals and groups on equal grounds. Cooperation Finally, the principle of state cooperation with churches or religious com‐ munities provides a specific profile to neutrality. The reciprocal autonomy of state and churches is not understood in terms of strict separation but rather in terms of friendly relations and mutual cooperation – at least, co‐ 4. 27 The European Court of Strasbourg has often emphasized this idea since the late 1990s. See, for instance, Serif v. Greece, 14 December 1999; Hasan and Chaush v. Bulgaria, 26 October 2000; Metropolitan Church of Bessarabia v. Moldavia, 13 December 2001; or Agga v. Greece, 17 October 2002. However, some recent cases concerning the labour relations between churches and their employees demon‐ strate that defining the limits of religious autonomy is far from easy. See, for ex‐ ample, Obst v. Germany and Schüth v. Germany, both of 23 September 2010. State and Religion in Spain 371 operation of the state with religious denominations. In the words of Article 16.3 of the Constitution, “public authorities shall take into account the re‐ ligious beliefs of Spanish society and shall maintain the consequent rela‐ tionships of cooperation with the Catholic Church and the other denomi‐ nations”. This is consistent with Article 9.2 of the Constitution, which re‐ quires public authorities to create the conditions to make “real and effect‐ ive” the freedom and equality of individuals and groups. In the years after the Constitution was enacted, Spanish scholars widely discussed the potential legal effects of the specific mention of the Catholic Church by Article 16.3. The passage of time has demonstrated that the specific mention of the Catholic Church should not be interpreted as a sign of sociological confessionality of the state, but rather as recognition of the fact that Catholicism was part of “the religious beliefs of the Spanish soci‐ ety”. The mens legislatoris in that article seems to be explained by the need to achieve what could be described as a ‘tranquilizing’ effect. In brief, as the new regime of relations between state and religion implied a deep change in Spanish tradition and opening the doors to religious free‐ dom and state neutrality, the drafters of the Constitution wanted to avoid any suspicion on the part of the Catholic Church that the democratic change in Spain could degenerate into the anti-religious direction that characterized the 1931 Republican Constitution.28 Including the name of the Catholic Church in Article 16.3 was a way to prevent the risk of a neg‐ ative reaction on the part of the most conservative religious circles in Spain.29 The principle of cooperation poses some interesting questions with re‐ spect to which are, or should be, the criteria that determine state coopera‐ tion with churches. Two questions are particularly important: a) how, when, and in which areas, is the state obliged to cooperate with religions denominations? and b) which factors could, or should, be taken into ac‐ count to justify differences in state cooperation with diverse religious de‐ nominations? Scholars have endeavoured to answer the second question indicating that state cooperation should differ depending on three main elements.30 First, the particular characteristics of each religious denomination (e.g., 28 See above “Introduction” of this paper. 29 See Amorós, La libertad religiosa en la Constitución española de 1978, 1984, pp. 128 ff. 30 See Martinez-Torrón, Religión, derecho y sociedad, pp. 191-193. Javier Martínez-Torrón 372 some religions keep a strict observance of sabbatical rest and some others are more flexible; some religions have precise inhumation requirements and while others do not, etc.). Second, the social utility of religious de‐ nominations, including their specific contributions to educational, humani‐ tarian or charitable initiatives (this factor tends to me more and more used to define the state economic cooperation with religion, on equal grounds with other non-profit institutions without specific religious nature). And third, the social roots of each religious denomination, which, as indicated below,31 is one of the criteria used by the law to determine which religious communities can reach a formal cooperation agreement with the state. With regard to the first question, it is commonly understood that Article 16.3 of the Constitution imposes on the state a general duty to cooperate with religion but does not specify when, in which areas or through which channels state cooperation must materialize. There is an implicit agree‐ ment that public authorities have a wide discretion to decide how to con‐ cretize state cooperation, limited only by the principles of neutrality and equality. For instance, the alleged aim of cooperation would not allow the government to invade the realm of religious autonomy; all differences in cooperation with religious denominations must have an objective and rea‐ sonable justification, etc. Case Law of the Constitutional Court The Spanish Constitutional Court, since its establishment, substantially ac‐ cepted the prior description of the constitutional principles that govern church-state relations, although, naturally, the Court’s application of these four fundamental principles to actual cases has been sometimes problem‐ atic. Some of these problems involve the compatibility of the principles of equality and cooperation with the legal position of the Catholic Church, and some others relate to the Court’s interpretation of the neutrality princi‐ ple. For instance: religious symbols or religious ceremonies in public places, civil effects of religious marriages, religious assistance to members of the armed forces, religious education in public schools, state’s financial 5. 31 See below, subsection C.III.2. of this paper. State and Religion in Spain 373 support of religion, or the state’s attitude towards new religious move‐ ments.32 The Legal Framework of Religion The legal framework of religion in Spain is designed by two different types of norms. On the one hand, unilateral state laws (and regulations); on the other hand, bilateral norms negotiated between the state and some religious communities. The Organic Law on Religious Freedom Among state laws, the most important statute on freedom of religion, and more generally on the relations between state and religion, is the Organic Law on Religious Freedom (Ley Orgánica de Libertad Religiosa, here‐ inafter ‘LOLR’), enacted in 1980 with the aim of providing the framework for all future laws and regulations dealing with religious issues.33 This was the first organic law enacted to develop some of the funda‐ mental rights recognized by the 1978 Constitution,34 which reveals that there was a sense of urgency to pass a new law that settled the legal status of religion and replaced the law promulgated by Franco in 1967. Interest‐ ingly, the LOLR kept the spirit of consensus that prevailed in the political forces during the elaboration of the Constitution and was approved by an C. I. 32 For an analysis of these problems, in English, see Martínez-Torrón, “Freedom of Religion in the Case-Law of the Spanish Constitutional Court,” 2001, pp. 711-754. See also Martínez-Torrón, Religion and Law in Spain, 2013, pp. 92-100. For a more comprehensive study, in Spanish, see the books by Calvo Álvarez, Los prin‐ cipios del derecho eclesiástico español en las sentencias del Tribunal Constitucio‐ nal, and Chacón, El factor religioso ante el Tribunal Constitucional, passim. 33 Ley Orgánica 7/1980, 5 July 1980, de Libertad Religiosa. The text of the LOLR, and other legislation or regulations on religion, can be found in the Internet pages of the Ministry of Justice, at s-tematicas/libertad-religiosa/normativa-materia-libertad/legislacion-estatal, accessed 6 January 2018. 34 The so-called ‘organic laws’ require an absolute majority in Congress to be ap‐ proved, modified or abrogated. The laws governing fundamental rights and public freedoms must be organic. Cf. Art. 81 of the Constitution. Javier Martínez-Torrón 374 overwhelming majority of the Congress, indeed almost unanimously.35 This fact was indicative of the acceptance of the new constitutional system of church-state relations. Considering that, at the time, Spain hardly had any experience in the protection of religious freedom and that religious pluralism in the country was very limited, the LOLR was a great step for‐ ward and contributed immensely to the normalization of religious freedom in Spain and to secure the constitutional design of relations between state and religion. The 1980 LOLR is a short law, with only eight articles. Roughly speak‐ ing, it is possible to distinguish two parts in the text. The first half (Arti‐ cles 1-4) refers strictly to freedom of religion or belief, especially on its individual aspects, while the second half (Articles 5-8) deals with the ba‐ sic legal status of religious denominations in Spain and on the main coor‐ dinates and instruments of the relations between state and religion. Article 2 LOLR is particularly important, for it specifies the content of the right to religious freedom, which corresponds to the provisions of the most well-known international documents. It includes the following as‐ pects: freedom to profess any religion or to profess none; freedom to change religion or to abandon one’s own church; freedom to worship; freedom to express and disseminate one’s own beliefs (including prose‐ lytism effected by lawful means); parents’ right to choose the religious and moral orientation of their children’s education; freedom to meet pub‐ licly for religious purposes; right to receive religious assistance in the army, in hospitals or in prisons (which the state is obliged to facilitate). It also recognizes the churches’ right to establish places for worship and meeting, to appoint and instruct their own ministers or religious leaders, to spread their doctrines and to maintain relationships with their own organi‐ zations or with other churches, inside or outside Spanish territory. This ar‐ ticle also emphasizes (para. 3) that the state’s role in the protection of reli‐ gious freedom is not purely passive or negative but active and positive – the state must adopt appropriate measures to ensure that the right to reli‐ gious freedom can actually be exercised by everybody, which is consistent with Article 9.2 of the Constitution, where the same role is assigned to the state with respect to fundamental rights in general. 35 More precisely by 294 votes in favour, with only 5 abstentions and no votes against it. See, for a detailed description of the parliamentary itinerary of the LOLR, Ciáurriz, La libertad religiosa en el derecho español. La Ley Orgánica de Libertad Religiosa, 1984, pp. 31 ff. State and Religion in Spain 375 The 1980 LOLR, in line with the principle of cooperation between state and religion, is specifically intended for the protection of religious groups, which receive a special protection in respect to their autonomy.36 Indeed, article 3 specifically provides that the law is not applicable to non-reli‐ gious groups. Other articles of this law create some state offices with competence on religious issues and introduce a new legal figure in the Spanish legal sys‐ tem, the cooperation agreements between state and religious denomina‐ tions, which are explained in the following subsections II. and III. State Offices with Competence on Religious Issues The Registry of Religious Entities To control the religious character of groups or communities in Spain, Arti‐ cle 5 LOLR created a specific instrument: the Registry of Religious Enti‐ ties (Registro de Entidades Religiosas). The Registry of Religious Entities (RER) is a public registry in the Ministry of Justice, currently depending from the department of the government with competence to deal with reli‐ gious juridical persons and, in general, with competence on religious free‐ dom issues: the Vice-Directorate General of Relations with Religious Communities, which is part of the Directorate General of Foreign Juridical Cooperation and Relations with Religious Communities. The provisions of Article 5 LOLR on the RER were developed by a specific royal decree of 1981, which has been replaced by another royal decree of 2015.37 II. 1. 36 See article 6 of the Law; for an analysis of this article, see Jorge Otaduy, “Las cláusulas de salvaguarda de la identidad de las instituciones religiosas. Doctrina y jurisprudencia”, 1989, pp. 363 ff. 37 Real Decreto 594/2015, 3 July 2015, por el que se regula el Registro de Entidades Religiosas. For an analysis of the problems caused by the former configuration of the RER, see Olmos, “Personalidad jurídica civil de las entidades religiosas y Reg‐ istro de Entidades Religiosas,” 2009, pp. 577-620, and López-Sidro, “La cuestión de la reforma del Registro de Entidades Religiosas: examen de as propuestas reglamentarias de 2003 y 2004,” 2009, pp. 621-643. See also the more comprehen‐ sive and systematic study by Herrera Ceballos, El Registro de Entidades Religio‐ sas. Estudio global y sistemático, 2012. It is still too soon to say if the 2015 regu‐ lation has had an actual positive impact on the resolution of those problems. For a comment on the changes introduced by the 2015 royal decree, see Herrera Cebal‐ Javier Martínez-Torrón 376 Registration in the RER is necessary to be officially recognized and to acquire legal personality as a religious entity in Spain. Registration is an option and not a legal obligation. All religious groups or communities en‐ joy the freedom of ideology, religion and worship recognized by Article 16 of the Constitution, irrespective of the fact that they have or have not obtained legal personality as religious entities. In practice, however, most churches or religious communities are interested in obtaining legal person‐ ality specifically as groups of religious nature. Normally, registration in the RER is relatively simple and easy. Only li‐ mited evidence is required, and no minimum number of members or ad‐ herents is necessary. The process commences with a written application of the relevant religious entity, accompanied by authenticated document at‐ testing its creation or establishment in Spain, as well as other formal data, such as the name of the applicant entity, domicile, regulations, structure and legal representatives. Explanation of he entity’s religious nature and aims must be also provided. The fact that only entities with religious purposes can be registered in the RER has posed in the past some important questions about the notion of religion that pervades the Spanish law.38 Article 3.2 LOLR is of no much help in this respect. Apart from indicating that it is not applicable to non-religious entities and activities, this provision only mentions a few ex‐ amples of activities that must not be considered religious, such as the study of psychic and parapsychological phenomena or the dissemination of spiritualistic or humanistic values. Apparently, the LOLR departed from the assumption that it was easy to know what was religious and what was not. In this context, for many years the praxis of the RER, confirmed by the Spanish courts, was to perform a moderate filtering of applicant groups, based upon an explicit notion of religion elaborated for legal pur‐ poses and inspired in the Judaeo-Christian religious tradition of the West. More precisely, to be considered a religious community, the RER required los, “Hacia la construcción de un registro fiel reflejo de la realidad. La reforma del Registro de Entidades Religiosas,” 2015, pp. 1-35. 38 For a detailed analysis of the theoretical and practical challenges that a legal no‐ tion of religion implies for the protection of religious freedom in Spain, and gener‐ ally in Western societies, see Palomino, Religión y derecho comparado, 2007. By the same author, with specific reference to the notion of religious community in Spanish law, see Palomino, “Iglesias, confesiones y comunidades religiosas: el concepto legal de confesión religiosa en la LOLR y la doctrina,” 2009, pp. 556-575. State and Religion in Spain 377 three main elements: a) it had to be composed by a group of people that professed and shared a common and relatively homogeneous system of doctrines – dogmas and morals – derived from the belief in a supreme be‐ ing; b) they should have a collective worship expressed in external rites or practices; and c) they must be structured around an organization relatively clear and stable.39 On this conceptual basis, the Spanish courts confirmed the denial of registration of, for example, the Church of Scientology,40 the Monist Or‐ der of the Perfect Reflection41 and the Unification Church,42 holding that they did not meet the legal requirements to be deemed a religion in Span‐ ish law. Nevertheless, in 2001 a judgment of the Constitutional Court changed completely this situation.43 This decision of the Constitutional Court addressed the issue of the re‐ fusal of registration of the Unification Church in the RER, on the ground, among others, that it was not properly a religious group. The Court decid‐ ed in favour of the plaintiff and ruled that the Unification Church was enti‐ tled to register as a religious entity. The Court’s judgment, however, was not very illuminating. Instead of shedding light on the questions raised by the legal concept of religion in Spain, the Court opted for rendering this concept inoperative. According to the judgment, the authorities in charge of the RER do not have any discretion, or margin of appreciation, to ex‐ amine the religious nature of any group that has applied to register; they must limit themselves to confirm that this group is not excluded from reg‐ istration by Article 3.2 LOLR.44 The problem is that this legal provision specifically excludes not only entities focused on “the study of and experi‐ mentation with psychic and parapsychological phenomena, to the dissemi‐ nation of humanistic or spiritualistic values”, but also entities with “simi‐ lar non-religious aims”. Consequently, administrative authorities do of ne‐ cessity have to make, implicitly or explicitly, a judgment about the reli‐ gious nature and purposes of the applicant entity. In spite of the contradictions inherent in the holding of the Constitution‐ al Court, the judgment was sufficiently clear to be understood as prohibit‐ 39 See Javier Martínez-Torrón, Religión, derecho y sociedad, pp. 199-202. 40 See SAN of 23 June 1988, confirmed by STS of 25 June 1990 (RJ 5700/1990). 41 See SAN of 8 November 1985. 42 See SAN of 30 September 1993, confirmed by STS of 14 July 1996. 43 STC 46/2001. 44 See STC 46/2001, fundamento jurídico 10. Javier Martínez-Torrón 378 ing public authorities in charge of the RER from evaluating the religious nature of applicant entities. The consequence is that the Registry must ac‐ cept, without further inquiries, all applications from entities that claim to be religious, except in the unlikely hypothesis that the applicant group ex‐ plicitly presents itself as an organization for the study of psychic or para‐ psychological phenomena, or for the dissemination of humanistic or spiri‐ tualistic values. In application of these judicial doctrine and criteria, in 2007 the National Court held that the Church of Scientology in Spain was entitled to register in the RER.45 The Advisory Commission on Religious Freedom Article 8 LOLR created another public office with competence on reli‐ gious issues: the Advisory Commission on Religious Freedom (Comisión Asesora de Libertad Religiosa, CALR), which, like the Registry, depends from the Directorate General of Foreign Juridical Cooperation and Rela‐