Trends of Secularism in a Pluralistic World 9783954870929

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Jaime Contreras Rosa María Martínez de Codes (eds.) Trends of Secularism in a Pluralistic World

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Trends of Secularism in a Pluralistic World Jaime Contreras Rosa María Martínez de Codes (eds.)

Iberoamericana - Vervuert - 2013

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This volume is part of a research project I +D of the Ministry of Science and Innovation of Spain, HAR2009-14034-C02-01/02 that is coordinated by their editors.

Derechos reservados © Iberoamericana, 2013 Amor de Dios, 1 – E-28014 Madrid Tel.: +34 91 429 35 22 - Fax: +34 91 429 53 97 [email protected] www.ibero-americana.net © Vervuert, 2013 Elisabethenstr. 3-9 – D-60594 Frankfurt am Main Tel.: +49 69 597 46 17 - Fax: +49 69 597 87 43 [email protected] www.ibero-americana.net

ISBN 978-84-8489-711-8 (Iberoamericana) ISBN 978-3-86527-762-6 (Vervuert) Depósito legal M-38082-2012 Imagen de portada: The School of Athens (detail). 1509. Fresco. Stanza della Segnatura, Palazzi Pontifici, Vatican. Diseño de portada: Juan Carlos García Impreso en España

The paper on which this book is printed meets the requirements of ISO 9706

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CONTENTS

Jaime Contreras y Rosa María Martínez de Codes On Secularisms and Religions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . P A RT I: R E L I G I O N

AND

7

SECULARIST PRINCIPLES

David Little The Global Challenge of Secularism to Religious Freedom . . . . . . . . . . . . . .

31

T. Jeremy Gunn Secularism, the Secular, and Secularization . . . . . . . . . . . . . . . . . . . . . . . . . . .

59

Rex Tauati Ahdar Why Secularism Is Not Neutral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

107

J. Paul Martin Re-Thinking Secularism: A Paradigm Based on Non-Discrimination . . . . . . .

145

Nicholas P. Miller Competing Secularisms and the Place of Religious Freedom . . . . . . . . . . . . .

163

Rosa María Martínez de Codes Legal Dimensions of Secularism: Conflicts of Law and Conscience in the Field of Education in Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

177

P A RT II: T R E N D S

OF

SECULARISM

AND

DIVERSITY

Jaime Contreras Secularism Trends and the Arab World . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Zoila Combalía Secularisation, Human Rights, and Women in Islamic Societies . . . . . . . . . . .

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Philippe Portier Civil Religion in France: Returning to a Metamorphosis . . . . . . . . . . . . . . . .

257

Blandine Chelini-Pont Legal Secularism in France Today: Between Two Paths . . . . . . . . . . . . . . . . . .

281

Jean-Pierre Bastian Protestantism in the Latin World: Religion and Secularism . . . . . . . . . . . . . .

297

List of Authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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ON SECULARISMS AND RELIGIONS Jaime Contreras Rosa María Martínez de Codes

One of the most striking mutations occurring in our complex societies is one that affects the traditional relations between so-called ‘secularism’ and the religious confessions. During the last centuries in the West, these relations have been tense and conflictive. Currently, this relationship is taking on new forms that, moreover, extend to broader and more multifaceted scenarios. This work covers some of these changes, which manifest the enormous plurality of this long relationship. This introductory text reflects upon the key problems presented by the dialectic of secularism and religion in today’s societies. A number of these are dealt with extensively by the authors in this work.

1. P O L I T I C A L N AT I O N A L I S M

AND

R E L I G I O U S ‘F U N D A M E N TA L I S M S ’

“Far From Over.” In 1991 Kenneth Branagh, in his film Dead Again, predicted that the conflict between nationalist secularism and religion, a repetitive conflict from the moment the nation-state became consolidated in the nineteenth century, had not yet concluded, and consequently, that there were still environments and scenarios where the old duel would be forced to continue rearing its head with the toughness proper to an out-and-out battle.1

Zachary Karabell, “Religion,” in Richard W. Bulliet, ed., The Columbia History of the 20th Century (New York: Columbia University Press, 1998), p. 101. 1

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Kenneth Branagh, with this ‘prophecy,’ was simply expressing a profoundly sceptical and pessimistic union of underlying political and socio-cultural elements in both universes. Certainly the history of Europe during the last two centuries and its colonial background in areas outside Europe have repeatedly revealed the notorious excesses that both movements have covered their actions with over a long history —the consequences of which still colour many of the current political realities today. Indeed, there are good reasons to justify the pessimism of Director Branagh, as it is true that many of the repeated promises the different nationalisms made to their populations— promises of independence, social integration, and solutions to chronic and very elementary social dysfunctions —were not kept, causing great frustrations and distress to many communities. Indeed, many of the nationalisms that emerged in the decolonisation process in the so-called ‘Third World’ during the long period of the so-called ‘Cold War’ soon altered most of their promises of social redemption and political involvement, to succumb —always for necessary reasons of state in an excluding bi-polar world— to aggressive policies dominated by a rampant militarism that controlled the exercise of human rights while permanently monopolising the mining of natural resources. In this context the prevailing nationalist discourse threw religious spheres at once back into the ‘Dark Ages’: a traditional and archaic past, negating the time of progress, a concept imported from the West without the necessary understanding of the social implications that this idea entailed. Let us remember, in this regard, that famous speech by Muhammad Ali Jinnah, founder of the state of Pakistan to the Constituent Assembly in 1947, when he referred to the Founding Fathers who predicted: “(...) over time, Hindus will cease to be Hindus and Muslims will cease to be Muslims, not in the religious sense because that is the personal faith of each individual, but in the political sense as citizens of the state.”2

The state, that new institution in Pakistan, was based, according to the leader, upon secular, not religious, principles in the new nation. A nation, of course, with a Muslim cultural base, that did not require of the state any form of application of the Sharia, protected by the ulemas, and located in the 2

Mr. Jinnah’s presidential address to the Constituent Assembly of Pakistan, August 11, 1947. http://www.pakistani.org/pakistan/legislation/constituent_address_11aug1947.html/

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sphere of private life. This was how the new situation of Pakistan was to be seen; somewhat similar to the U.S. as a formula to rebalance the position of India that, at that time, was ‘flirting’ with the Soviet Union. Then came the problems: in 1971 Bangladesh seceeded and relations with India worsened, which eventually caused an elephantine military and the domineering development of civil institutions. Then, after this, came coups d’etat that undermined the principles of Pakistan nationalism, mainly those that clamoured for the secularity of the state and the confinement of the Islamic religion to the realm of private life. The radical Islamist party, the Jamaat-e Islami (JI), arose with force then, led by Mawdudi and divorced from the concept of a secular nation following the Western model —which was labelled imperialist—, and critical also of a Muslim cultural ‘civility’ that did not delegitimise the ‘democratic’ principles of the state. Mawdudi turned religion into a political instrument and preached the need for an Islamic state, whose sovereignty lay first in Allah, and who was to exercise this after enforcement of the Sharia. This scheme was called ‘theo-democratic,’3 which, as opposed to secular Western democracies based on ‘popular’ sovereignty, defined itself as the synthesis of the sovereignty of God and the people, their true reflection. The thinking of Mawdudi, along with other religious movements that took root in the Islamic area beginning in the 70s, reflects the multiple tensions that expressed themselves between secularism and state nationalism on the one hand, and religious worlds on the other. In those years, the 70s, large areas of population were left marginalised because of this first secular nationalism, and there was therefore no shortage of religious leaders, beyond the Islamic world, who led and directed policies of social aid aimed at the impoverished masses, in whom they also awakened spiritual needs that had lain dormant or been ‘privatised.’ The widely known move of the Muslim Brotherhood in Egypt is paradigmatic in this sense. The followers of al-Banna grew then, and multiplied to the same extent as the militarism supporting the nationalist utopia, arousing the hostility of the working classes, who accused the generals of serving imperialist interests with their secular policies. Similar phenomena spread worldwide and caused unbending and totalising religious expression that demonised the ‘secular’ milieu of the West. What happened, therefore, was that more than religious doctrines, social and cultural factors of a markedly iden3

Gilles Kepel, La Yihad. Expansión y declive del islamismo, (Barcelona: Editorial Península, 2000).

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tity-based nature operated in these areas, so that the religious ‘revival,’ while developing spiritual trends within it, also responded to political objectives. Consequently, in opposition to nationalistic secularism, what took root then very dominantly was religious fundamentalism tinged with political aims. But these fundamentalist expressions of the religious were not limited at that time only to the Islamic milieu. Few traditionally well-established religious confessions have remained divorced from radical movements both in their doctrines and practices of worship. There have been ‘fundamentalisms’ at the heart of Judaism (The Gush Emunsin and the Katch Party in Israel) and also Buddhism (Bharatija Yanata Party, the equivalent in Hindu nationalism to the Mawdudi Islamist party). Even in western Protestantism, in the 80s, programmes were drawn up that required rescuing not only the doctrinal principles of their credo but also building themselves into an ideology capable of achieving privileged positions of political influence. It would not be inappropriate to indicate that these demonstrations developed for reasons of profound social and political disenchantment with belligerent attitudes repeatedly reiterated by nineteenth century secularism.4 These attitudes dwell on the negative effects of widespread sceptical relativism that, together with the dramatic consequences of the implosion of ‘scientific’ socialism headed by the Soviet Union, has caused a certain crisis in positivist rationalism: a crisis balanced largely by a clear renaissance of religious feelings with notorious political connotations. Trade union movements such as Solidarnosc in Poland or ‘fundamentalist’ ideologies deeply rooted in the U.S. political establishment during the administrations of Ronald Reagan and George W. Bush are, among others, expressions of a certain political position of religions, also in the West. Religions, therefore, do not seem to have disappeared from the public arena. On the contrary, they remain active in many consciences, some with notorious connotations that shamelessly declare their intention to “(...) subsume public life to the dictates of religion.”5 The religious, then, has not lost the ‘war.’ Instead, it sometimes seems aggressive in its intentions and objectives. So, there are clear signs of religious ‘aggression’ often responded to in a similar way by ‘belligerent’ secularists strengthened and rooted in rather nineteenth-century principles that, as in the past, would be happy to go back to burying God in the depths. 4 5

Karabell, Religion, p. 99. Ibid., p. 100.

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Aggressiveness exists on both sides, then, which, nonetheless, is not as generalized as it seems, nor is it far from dominating most scenarios. It would appear, however, that the fierce and continuous fighting Kenneth Branagh was referring to is a thing of the past because, at least for more than 30 years (as a reference to this phenomenon, we can look to the fall of the Berlin Wall in November 1989), the universes of secularism and religions have come not only to coexist, but also to frequently talk to each other and, in the West at least, to live alongside each other. There is thus no bitter confrontation between these two concepts, and this, no doubt, is because the conceptual foundations of these two great movements are subject to harsh criticism and evident changes without it being easy to normally guess the evolution of the elements that change. No one is unaware at this present time that the incidence of powerful economic forces, expressed through large corporations, is of such magnitude that they not only cause radical changes in production structures but also generate substantial ‘cultural’ mutations with a real impact on millions of people. The dominant ‘culture’ at this time can be defined as ‘market culture,’ able to generate of its own accord a constant demand for ‘needs’ capable of creating ‘ethical-moral’ structures geared toward the principle of satisfaction. The creation and channelling of the so-called ‘public opinion,’ from the principles of ‘published opinion’ created and directed by corporation-controlled mass media, established as a main axiological value, leads to the doubtful equation that puts ‘public opinion’ on the same level as objective truth. On such imperative realities, and always playing with mistaken virtues, traditional strategies of secularising discourse —divorced from the faith of the public milieu— turn out to be very ineffective. This is because in the global world of the market the religious variable is, like others, an ordinary factor in the structures that comprise it. It can be just as necessary and often affirmed as denied and non-operational. It seems that the doctrinal principles of religions and the behaviour they generate are functional in so far as they are expressed as ‘goods’ that can therefore be needed. Secularism and religions can no longer be understood only from their own historical traditions, but rather also must be considered from the point of view of what ‘the market’ requests from them. This evolution may seem prosaic —obviously it is— but there is no doubt that these two universes are undergoing profound changes in the constituent elements that forged them in the past. There is general agreement that sees secularisation as the result of a longstanding historical process that stemmed from the positions taken by seven-

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teenth- and eighteenth-century natural philosophy. This process reached its full rational essence in the ‘republican’ idealism that Kant conceived. During that long journey, reason became fully autonomous from faith, forcing it to withdraw from the arena intended for science and progress. But also dominant, reason at that time was able to consolidate a rational law that sought to give a full sense of legitimacy to the political formations that the same reason inspired. And so, enlightened governments designed themselves as having independent and sufficient sovereignty, as creators at the same time of a natural ethics that inspired a full, civilising culture that was able to make inoperative the powers that faith, until then, had claimed without justification.

2. K A N T I A N S E C U L A R I S M A N D R E L I G I O U S R I G U E U R (D O S TOY EV S K Y ’ S E X P L A N AT I O N ) Reason was thus triumphant and the republic of letters paid tribute to it. For the first time, enlightened thought, as set out by Kant, believed that humanity was abandoning its chronic and imposed immaturity because this “(...) is not lack of intelligence but lack of courage to think without the guidance of another.”6 Religions were thus deprived of the moral authority they had always exercised to maintain their traditional institutional influence. This process of marginalisation was the result of the weight of a natural morality that did not need any type of repressive activity on the part of religions. Indeed, the eviction of religious confessions from the public arena did not, in Kant’s conception of ‘secularism,’ claim any anti-religious virulence, only the explicit manifestation that in the milieu where the dominance of the enlightened political community was needed, there was no need for a religious culture. Kant’s perfection of public ethics excluded, therefore, hostility to the speeches of faith. These principles inspired his enlightened rationalism that he underlined in his famous principles, known by the title of Perpetual Peace. No, in its initial philosophical principles, ‘secularism’ was not virulent towards fideist positions. It was later, during the complex turbulence of the nineteenth century, when fully hostile attitudes began to crystallize, not only to religion itself but also to religious denominations understood as the corporate social expressions of this. The nineteenth century saw the rise of aggres6

Jacques Barzun, Del amanecer a la decadencia. Quinientos años de vida cultural en Occidente, (Madrid: Taurus, 2001), p. 1206.

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sive nationalist movements structured around the idea of the state that met political resistance from some religious denominations. This secular awakening of the nation was soon joined by the socialist doctrines inspired in notoriously materialistic philosophical trends, presented as the logical outcome of a historical process from which they drew not only their legitimacy but also the attractiveness of their modernity. Secularism, liberal and nationalist in politics and socialising in its economic proposals, was modern and ‘objective’ in its outlook, while the religious world from a cultural standpoint represented what was archaic and obsolete. Modernity thus stood alongside the objective principle of truth, and its most faithful ally, consequently, was the idea of progress, very close also to the idea of emancipation. For those who thought so, and they were many and influential, the world did not need God so much because it was now material things that held the reins with regard to thinking, and dominated mankind; the freethinkers were the ones who could best interpret them. With arguments like these, progress was inevitable and expressed a projection inherent to the human condition. On the contrary, religions should be removed from the public arena and abandoned in pessimistic obscurantism, where their millions of faithful followers should be headed. Religions, in these times did not liberate; on the contrary, they oppressed. They were full of principles that reason did not understand, especially when many of these principles had been defended with extreme harshness. Consequently, many enlightened people did not hesitate to support the famous axiom that Dorothy Sayers enunciated on several occasions: “the first thing a (religious) principle does is kill someone.” 7 To properly understand those battles of the long nineteenth century, in which the religious universes were doomed to disappear, it may perhaps be advisable to remember the symbolic concessions published by this prevailing modern realism: these publications accused the church of denying the independence of the individual, free enquiry, and science; all aspects that the religions, which were founded on strong dogmatism, condemned as contrary to the true values they espoused. A harsh, theatrical expression of that secularist ideology was, without doubt, the famous painting drawn by F. Dostoevsky in his novel The Brothers Karamazov. In this highly unusual description he invents an Inquisitor from 7

Dorothy L. Sayers, The Mind of the Maker, (Great Britain: Continuum International Publishing Group, reprinted 2005), p. 1902.

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Seville in the sixteenth century who rebuked Jesus himself for appearing before the multitude that was rejoicing after the conclusion of an act of faith. This scene is constructed through the dialogue engaged in by two brothers: Ivan the unbeliever, creator of the tale, and Alyosha, the younger brother, a kindly lad with simple piety. The conversation revolves around two fundamental principles: freedom and security. The religious image is the framework within which both human needs express their demands. From the beginning Ivan Karamazov states outright that the message of Jesus is based on the individual optimism of freedom as opposed to the axiom of authority that churches practice, after ‘kidnapping’ the doctrine of the founder, and developing a complex interpretive code thereof. The Inquisitor of Seville, representative of all hierarchies, is convinced that authority is the first principle that any organised social group must impose because it permits certain happiness. The fact that this objective is the result of control and coercion means nothing more than accepting the certainty that most men are, by nature, very weak. There is an obvious contradiction, in the view of the Inquisitor, in the human condition, for all men claim to love freedom but express huge fear when exercising it: “Nothing pleases man more, the old man argues, than free will and yet there is nothing that makes us suffer as much.”8 But the fact is that the necessary security causes evident feelings of meanness and despair. To prevent this uncomfortable feeling, men resort to the trick of trying to calm the voice of their conscience with artificial and subjective arguments that give them a ‘reason to live’; devices, moreover, that make it easy to delegate the exercise of freedom, because the inclination to delegate this attribute is much more powerful than the desire to exercise it properly: “I repeat, he complains to Jesus, that there is in man no more ardent desire than to seek, as soon as possible, someone in whom to delegate that freedom that all miserable creatures bear upon birth.”9 Accordingly, explains Ivan to his brother, the churches have corrected the work of their founder and, renouncing the principle of freedom, they orientate it around the superstition and magic that give rise to miracles, mystery, and authority; principles unrelated to reason and one’s own conscience. Only from such ‘superstition’ is it possible to achieve the peace that comes from the magic exercise that Jesus exerts when, with force and coercion, he manages to turn ‘stones into bread’ in front of the hungry men. And authority clearly 8 9

Fiodor Dostoievski, Obras Selectas. Los hermanos Karamazov, (Madrid: Sopena, 2004), p. 523. Ibid., p. 522.

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knows and understands the project explained by the founder, but understands that it is insane and subversive. Thus, by transforming it, authority can fight back. It is not the desire for power, says the Priest Inquisitor, that motivates authority, but the pursuit of certain happiness, made of the convenient bread of the conscience. “I do not fear you, the Inquisitor threatens Jesus, I too have been in the desert eating roots, I also blessed the freedom you gave to the brothers and I dreamed of counting myself amongst the strong but soon gave up that dream, to that madness, to join those who were corrupting it. I left the strong to make the humble happy.”10 The story ends with the unanswered silence of Jesus and the frustrated wait of the old churchman. A warm look and gentle kiss from the prisoner make the old man shudder, and he opens the door of the prison where Jesus lies buried and firmly says to him, “Go and do not return.”11 There remained the Inquisitor, “with heart on fire but with his conscience clear,”12 because that old churchman, heir to a secular tradition, well knew that the idea of exclusive authority almost always rests in men who are at the forefront of popular movements. Clearly, the anthropological pessimism manifested in the dialogue between the brothers Karamazov makes no explicit reference to the individual himself but to the concept of “mass man,” with which the trends of modern sociology have been concerning themselves insistently. But Dostoevsky’s message, as a problem, launched from the crisis of the tsarist autocracy, has had the virtue of filtering through Western societies, even in recent times when what has predominated is the comfort of the welfare state. The problem stems from the difficulties of ensuring the need for security, in relation to the exercise of freedom and human rights, an impossible combination for the authoritarianism of the hierarchies whose structure of thinking does not seem to differ much from the principles that have always shaped the so-called ‘reason of state.’

10

Ibid., p. 527. Ibid., p. 525. 12 Ibid., p. 525. 11

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3. S TAT E S E C U L A R I S M : F R E N C H L A Ï C I T É In any case, nineteenth-century secularism understood the religious milieu with arguments very similar to those expressed above. Indeed the different confessions, albeit with notable differences, were considered as superstitious structures in which an obvious pessimistic authoritarianism dominated, against which secularity argued in favour of the optimism of reason that, among other things, involved the “disenchantment of the world,” in Weber’s sense of the phrase. And such disenchantment rejecting any alleged uncertainty arising from above not only encouraged strengthening individual autonomy with respect to any transcendental conception, but also had to ‘build’ a precise/necessary ethics able to unite an entire political community within the nation-state. The aim was to build a kind of ‘civil religion’ that the political and constitutional systems, particularly the French ones, attempted to draw up. It was here in France, the social and cultural domain of Catholicism, where the main axiom of radical secularism was drawn up: the political and cultural coexistence and culture of any developed society must be built upon the universal principles of reason alone. During the long period covered by the Second and Third Republics in France, the idea that natural reason alone and nothing else was to inspire ‘public’ ideas, feelings, and perceptions was professed ‘religiously.’ These ideas, understood and regulated by rules of positive law, settled in the solid foundations of a natural, universal, and unchanging law. It was, therefore, the code of nature, and not of God and his churches, that gave a legal structure to the entire moral framework and that served to cement the different particularities of society itself. These were the foundations of ‘civil religion’ that were regulated by ethical and moral standards from the state, and that should be pursued by all citizens. Of course, this did not mean the exclusion of personal beliefs or citizens’ religious practices, but the positive law of the state insisted that such experiences could not be expressed except in obscurantist milieus like those embodied by Dostoevsky’s inquisitor, beyond the reach of the state’s full influence. It was not, of course, a question of casting away religions into the catacombs but rather, preventing, by ‘cordoning off’, the strength of their cultural and historical heritage from hindering the necessary construction of the secular and civic imagination. Consequently, with this necessity, the French laïcité determined the nature of the secular programme that would regulate the relations between state

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and religion. The first principle of this programme was the separation of spheres of influence, milieus, and jurisdictions. By this principle, the state asserted its influence over the creation and consolidation of a secular morality, which meant taking over the monopoly of civic education. School, from then on, was to be public, and compulsory: a fundamental structure for the development of a citizen and ‘believer’ in the ethics of the Republican state and promoter of it. Driven by utilitarian impulses, the French laïcité, which served as a model in several states of Europe, kept up the presence of the religious culture in a utilitarian way, valid only in those public manifestations with a time-honoured tradition, such as holiday calendars and weekly days of rest. Nothing else or very little else. The new public ethics, based on natural reason, tried not to make the mistake of previous revolutionary excesses and, far from instituting explicit policies of hostility, tried to present itself in a pragmatic, utilitarian, and unruffled light. So this was the new public ethics, heir to the Kantian heritage, from which it established its own autonomy and legal legitimacy. It was consequently not possible for society to return once again to anthropological pessimism, and the authoritarianism of traditional church models. By contrast, the optimism of ‘civil religion’ protected by the secular state required ‘church’ religions to ‘recover’ some of their constituent principles, such as their postulates of the naturally occurring event, including freedom and independence. At the same time, the same state admonished religions so that they would reject some forms of superstition that had been operating from the past. In this regard the secular state, driven by its constitution, aimed to create and practice a list of political virtues that the solidarity-based consensus of all its members has conveniently socialized. But this consensus is not intended to monopolize, exclusively, what Jürgen Habermas calls ‘political memory,’ i.e. an organized and operational vision of history, culture, and religion, whose implications and effects in the public arena are evident. Indeed the legacy of such a ‘political memory’ is not fully secular but defines ‘conceptual networks’ of a religious nature that necessarily entail certain patterns of behaviour. This means that concepts such as responsibility, justification, autonomy, history, memory, renovation, reform, or even progress were fashioned in their temporality in ‘laboratories’ organised from strictly religious bases. Civic and rational ethics, which we make flow from Kantian thought, is not unfamiliar with more deeply entrenched trends where religious motives prevailed. The “disenchantment of the world,” therefore, was guilty of excessive servitude

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with respect to an arrogant and excessive secularism because it presented itself as proudly exclusive, making the same mistakes, due to its excesses, that it had itself been pursuing. Universal rationalism did not wish to arouse religious adherences but must not have rejected them entirely, unless it was seeking to deny some of its foundational roots. Ensuring these principles may be one of the notable achievements that secularism today has gradually added to its conceptual premises. This is because “recovering the memory of a tradition” means placing the presence of history within the milieu of representation, as expressed by Portier.13 And history, of course, has many requirements under which it refuses to be manipulated. So the claims of the secular state of forcing memory have proved to be not only pretentious but also obsolete. On the issue that concerns us, this means that the principle of separating the religious from the public cannot be a determining principle because, if there is a secular virtue that reinforces secularist positions, it is not difficult to find that same virtue adorned with religious customs that preach similar objectives. Civic virtues obviously have religious roots in many of their manifestations, so it is clear that the marginalisation of the religious sphere by the state cannot be maintained when reasonable doubts gather regarding the fact that reason, of its own accord, resolves the challenges of progress. Reason does not have sufficient ‘reasons’ to be only secular, nor did it earlier to be solely ‘religious.’ Reason in the individual seeks to be found in the objective consciousness that does not mean only agreeing with oneself “in accordo con l’ordine obggettivo delle cose, espresso nella legge natural.”14 To this sequence, the believer must add the ‘obvious’ agreement of this natural law with divine law. But in tracing that path described by reason, believers and non-believers must not hesitate to walk it together.

13

See Philippe Portier’s chapter in the volume. Graziano Borgonovo, “Prefacione”, in La Coscienza, Conferenza Internazionale sponsored by the Wethersfield Institute in New York: Orvieto, 27-28 May 1994 (Vatican City: Librería Editrice Vaticana, 1996), p. 9. 14

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4. ‘M O D E R N I T Y O F F

THE

19

RAILS’

Due to the acceleration of time and the overall interconnection of different factors, religions have broken the traditional principle of identifying themselves with a specific social and political community. The effects of the so-called ‘purification of the memory,’ which many confessions have undertaken, in the Catholic faith expressly, gives them a flexibility which they previously did not have. In fact, this means in some way overcoming the legal and political limits of the state, which has witnessed a vibrant religious pluralism growing within in, over which it is difficult to establish regulatory standards. Therefore, the state’s public secular sphere is forced to accept the fundamental right that freedom of conscience is expressed and manifested within the limits of its own jurisdiction. Secular political structures can wield few reasons when their specific functions are overwhelmed by a multitude of evidence, some religious and others profane. Natural reason, the first argument of the secular state, is also required as a foundation, though not alone, of the religious entity. There are therefore no excluding appropriations at this point. But there is clear evidence, moreover, showing the conceptual and practical deterioration of some manifestations of secularity, which J. Habermas defines as “derailed secularized modernity,”15 i.e., a modernity trapped by the harmful effects of a global economy whose “markets” are “sovereign,” without limits or precise regulations; markets and forces that act without submission to the forms of representation that constitute the basis of the legitimacy of representative public administrations. These forces cause noticeable damage to the ethical principles of the state and notoriously erode its structures of solidarity. Therefore, subject-citizens individualise their attitudes and, as a result, the collective will is left weakened and ineffective. Following immediately come regressive and therefore self-destructive phenomena. One of the most obvious characteristics of this trend is the ‘inflation’ of the idea of individuality that seeks, as a sociological phenomenon, to universally extend its projection of independence and, therefore, a huge range of rights without precise limits or authority that delineates and regulates them. Rights of everyone and everything; this seems to be the beginning of a collective trend in the West, following its long history of demands, that puts au15

Jürgen Habermas and Joseph Ratzinger, Dialéctica de la secularización. Sobre la razón y la religión, (Madrid: Ediciones Encuentro, 2006).

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thority on the defensive and, to boot, makes it into a concept that can be rejected. But guaranteeing the growing exercise of individual rights means extending the rules indefinitely to ensure the usufruct of conflicting rights, and this inevitably leads to the need to establish a fully legality-centred state. The next effect of this situation is that criminal court cases multiply exponentially, with purely casuistic trends appearing in court proceedings, as in other past times. Law, then, as a result of such trends, is gradually particularized, dangerously reducing its value as a legal expression of a universal ethics.This is the world of globalism, of opposing individualities and emancipations, all characteristic of the secular world, where the religious phenomena also express profound changes because their traditional expressions have lost representation and have also ceased to be coded. Religions in the West no longer identify with certain political structures, nor vice versa. It seems that the structural crisis of the nation-state, a unique feature of Europe, contributes particularly to this. It so happens that this state —the main secularising agent— can no longer perform the main functions that justified it. If it was a civilising agent, this task is now largely devalued by other novel agents that dispute this monopoly. The idea of collective identity, based on a utilitarian conception of history understood as stories of heroes and villains, has lost its authority due to the negative effects caused by its careless handling. Public education shows signs of deterioration, and no longer has the creative function of identities that it had. The abolition of compulsory military service has had similar effects. Lastly, the coercive mechanisms of the state, traditionally aimed at controlling social violence, are now targeted at trying to stop a huge tide of criminality that cannot in any way be detained or regenerated. Against the backdrop of the crisis of secularism, religions have also changed their roles and forms of representation in relation to states. Considered as ‘wells of memory’ and tradition, with certain legal and utilitarian content, they now ‘demand’ greater capacity of public representation because there is no objective reason to remain in the silence of the private sphere. And it is no longer a matter of negotiation to ensure separation or neutrality because the demands of the times tend towards cooperation. So it is no longer a question of returning to classic positions of faith and reason, but of the need to set up a mutual environment for involvement. In that milieu secular reason maintains the principle that its forms of knowledge have sufficient entity, but they also know they have been able to develop certain epistemic principles. And that does not mean, of course, denying the ‘lay’ authority of

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the sciences its pre-eminence as regards the knowledge of the profane. Therefore the classic ‘religions-secularism’ tension has diminished the strength of its time-honoured confrontation. In these areas of cooperation the interventionism of the state must modulate its ‘demands’ if these manifest themselves as devoid of ethical goals. The classic argument of secularising circles, alleging the seal of scientificness for their proposals, is no longer an ‘a priori’ because the ‘scientificness’ is not a reason in itself, if we move away from the natural environment that the subject itself recreates. The development, for example, of biogenetic knowledge that places in the hands of the scientist the possibility of manipulating the conception of life, is at the heart of the problem. The possible legitimacy each state has in this field should consider the ethical issues that religions demand. The achievements of reason should not exceed —state the religions— the domain of natural law, that domain in which nature and reason are complementary.

5. A R E A S

OF

C O L L A B O R AT I O N

What should the secular state do in such cases? Certainly, ‘demand’ from science a preparedness to share reflection with religions, so that the impermeability of the two worlds yields a more porous environment. In this respect, the reflection expressed by former President Sarkozy to Benedict XVI in 2008 should be noted: “Similarly,” said the former President, the rapid and significant scientific advances in fields such as genetics and procreation pose delicate bioethical issues to societies that affect our conception of man and life and can lead to changes in society. Democracies need to converse with religions. These, and notably the Christian religion, are the heritage of reflection and thought so these scientific aspects should not concern only the experts.16

The French president thus posed a novel horizon in which the belligerencies and omissions on one side or the other do not seem to make any sense. The reason of the state, therefore, comes to meet the knowledge that faith possesses and sets platforms where consensus is possible, consensus that does not eliminate the independence of both spheres, so that in many cases, persisting

16

Welcoming speech of the President, Nicolás Sarkozy. Eliseo Palace, Paris. Friday, 12 Sept. 2008, http://www.alfayomega.es/documentos/032/p2.php.

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in situations of dissent is not sufficient grounds for indefinite breaks. Sarkozy seeks, as a priority of the secularising project, a dialogue with religions, but also asks, when reaching out to human dignity, that they take less traditional positions. In this sense, memory, in one milieu or another must be ‘purified.’ The pessimistic fanaticism and dogmatic authoritarianism that defined them were born and maintained over time by an excessive manipulation of the doctrinal content, separated from the necessary debate with reason. Meanwhile the secular state, lay and hostile to religions, is not without fault because for a long time it infected spheres of reason and developed a ‘fideist’ doctrine of progress without a specific purpose and no ethical meaning. There are reasons, then, in the secular state for maintaining a democratic culture that is not merely the result, of course, of the ‘arithmetic sum of the votes’ nor the guarantor of an ocean of rights with which it would be impossible to comply. The democratic culture was born from argumentation, when all was myth and mystery, and also authority. For the same reason, the state cannot avail itself of totalitarian arguments claiming a need for them or appealing to emotional impulses, sometimes very irrational ones. The culture of democracy, exercised with basic and efficient common sense, has to return to a meeting point with the reason it emerged from and to that of the major sources of enlightened nature. This representative state, from the exercise of political culture, appeals for a secularising laicism, a ‘positive secularism’ in the words of President Sarkozy, which of course, should never mean absolute condemnation, such as in the ‘negative secularism’ of times past. The objective recovery of historical memory must prevent this. But ‘positive secularism’ means respectful secularism, not excluding or accusing. It is a secularism in search of a sense of future, attempting to find a consensus with religious universes. Once again, with these echoes appear the ideals of republican moral universalism proposed by Kant. Laicism in this way may thus acquire a moral sense. Building ethical consensus between secularism and different religions from this angle cannot be the result of parliamentary arithmetic or social majority as ‘constructed’ by the media, when these are given the excluding interpretation of the moral sense of mass society. Although argued in many ways, it is sufficiently well known that the so-called ‘welfare state,’ immediate objective of the political game that ‘drives’ the ethics that encourages economic development, involves generally fuzzy thinking. A fundamental principle of this thought is to raise the concept of majority, from its sociological formulation, to a plane of moral legitimacy; majority in each and every social body

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and also in each and every state institution. All are legitimate and good as they are made up of majorities. The concept of majority may be the result of a consensus, but it does not for that reason have legitimacy in itself. However, the temptation of this circumstance attributing meaning, not only ethical but also legal, is one of the main problems to be faced by the secularist state. The consensus that the majority makes possible may be the result of common convictions but does not give moral legitimacy since only truth and ethical reason can do this. Therefore, the majority consensus, without ethical reasons, cannot determine the law. The majorities or minorities of the secular state cannot create or organise legal standards and when they do so, they transgress the legitimacy of the representative state and find that this is not indeed the rule of law, but of majorities. This is a crucial question when the state, run on social principle under the rule of law, feels driven to address problems and situations in which the bases of objective conscience are present: issues such as abortion, euthanasia, experimenting with embryos, environmental aspects, etc. In these cases it seems necessary that the concept of ‘positive secularism’ in ‘search of meaning,’ to which President Sarkozy was referring, makes it possible to supplement religious arguments in the sphere of the rule of law, a state that cannot be built upon the strength of any digit-based percentage represented by the majority. Naturally, the foundation of this principle is based on the so-called ‘right reason’ (recta ratio). This so secular perspective must be seen by the different religions because there are ethical and natural values that, due to their intrinsic moral essence, are the foundation of law. These are the responsibilities of the religions that they have to exercise when claiming their presence in the public arena. In this sense, the political exercise is not alien to them because they know that this must be done under the measure of law. A law that can control and subject the excessive empiricism of positive law is one that religions, in the public arena, should support in their task of cooperation with secular society. It is these expensive ventures that make their exercise complex and difficult. Ordinarily, in our times, we witness the spectacle of social structures in which the individual appears overwhelmed by a morass of rules and surrounded, moreover, by an ocean of people with little time or opportunity to organise a milieu for contemplation of one’s self. This seems to be the worried individual that led Sartre to scream in anguish, “Hell is other people,” and that also causes citizens in a secular society to enter into permanent conflict with their fellow beings in a maze of regulations. In a society like that,

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religions obviously become ‘socialised’; all the more so as their frame of reference is global. 6. G LO B A L I S E D S O C I E T Y

AND

G LO B A L E T H I C S

There is no greater and more intense milieu of socialisation, in the present world, than the global supermarket. In this market, individuals construct their religious identities, somewhat marginalising traditional hierarchical models. It is true that the ‘well of memory,’ i.e., religious tradition, also works, but only to the extent that socialisation is recreated in the network and through the media. These agents substitute the family, so the logic of the market is no stranger to religious adherence. Secularised market society has altered the traditional institution of the religious phenomenon, rendering it more doctrinal and saving, and more empirical and emotional. We talk about religious events, unrelated to the moral leadership of their authorities and, therefore, critical of defining creeds and dogmas. These are religions of open environments; easy to enter and leave; religions that cross cultures, full of mystification, close to miracle-making sensationalism and almost totally divorced from any exegetical sign. Secularity in such circumstances deconstructs the traditional religions and does so unequally and complementarily; it hems them into the West, in the midst of indifference, while in Latin America, for example, it ritualizes them around the universe of magic and sensuality, as in the case of the Pentecostal phenomenon. Therefore, natural reason is also weakened in the religious world and the storehouse of doctrine is a prisoner of mystical trends of a popular nature. But in any case, in the milieu of the new relations of the two universes, the secular and the religious, what really matter are individuals, in that their attitudes may be able to develop both their secularity and their religiousness. It seems clear that this possibility is greater to the extent that the subject is protected by the structure of Human Rights —a structure that, it should be remembered— rests upon natural law and objective reason. Rights constituted within the conceptual framework of European natural philosophy, and therefore understood as derived from an enlightened, universalistic, and Western view. That does not mean taking on the principles of relativism in human rights but of understanding universality from a particular viewpoint because the environment surveyed by the eye, though not complete, can still be ‘universal.’ Universality also accepts what is diverse and even complex and controversial. This means, obviously, that the great cultures of the West are uni-

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versal —it is true— but they do not cover all that is universal, just as our secular rationality does not exclude all other expressions of ratio. The complementarity between faith and reason, a state achieved in the West, allows access to other milieus of other ‘rationalities’ and other ‘ethos’ interested in understanding and interpreting the world. Therefore, it is easy to deduce that human rights, recognised as universal, should not exclude other declarations, such as those founded on Islamic principles. On this delicate point, the conceptual foundations of human rights recognized in Islamic culture, of a religious structure, are not for that reason grounds for exclusion and non-recognition. In Islam, human rights, whose universality for believers is also recognised by their divine origin, are not conceived as rights of nature but as gifts granted by God and explicitly mentioned in the Qur’an and the Sunnah. So the perception of secularism, understood as the separation between the civil and religious sphere, has no place in the Islamic order, as detailed by the Sharia. Consequently, Islamic society is and should be, according to the Islamic culture that encompasses it, fully confessional, which of course does not mean that it would be arbitrated by this. As such, arbitrariness cannot appear in the milieu of such rights because these rights are granted as thanks given to men by Allah. This also makes it possible to visualise the set of corresponding duties because Allah also requires that duties and obligations be met. This would be, without doubt, the qualitative difference between the declarations of human rights, from an Islamic perspective, and the Universal Declaration of 1948. In the latter case, everyone is born within the milieu created by law and the natural reason of man. Their rights recognize the autonomy of the subject as opposed to the Islamic conception, where there is guardianship. Here God bestows, but also commands and forbids. Therefore, we conclude that the subject in the Islamic world exercises his rights by reference to his obligations. There is a tendency to seek a balance between the social and personal milieu on which the Holy Book develops a complex system of laws and principles that the Sharia defines in terms of guided codes of conduct. And behaviour needs to establish a structure not so much of the equality of individuals but, rather, of equity. Equity, writes Abdur Rahman Ash Sheha, “(...) does not mean that everyone (individuals) is exactly equal, since one cannot deny the natural differences that make diversity.”17 Equity or fair17

Abdur Rahman Ash Sheha, Los derechos humanos en el Islam y los errores de concepto más comunes, http://live.islamweb.net/esp/espanol_books/derechos%20humanos.pdf.

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ness corresponds better to complementing and correspondence. Fairness, he explains, fits better than equality with the distributive justice that makes it possible to grant each person what corresponds to him or he deserves. From all this, then, in Islamic law human rights and their corresponding duties are structured according to the principles of equity and in relation to functions. We are all equal in dignity but not in functions. The diversity of the latter, governed by the Sharia, sanctions rights and duties in a socio-political structure that the Almighty has previously determined. This principle of equity implies the existence of structural inequalities sanctioned by the ethics of Islamic Law. This, from the beginning, awakens notorious reluctance in the ‘enlightened’ view of the West. But the logic present in the denominational structure cannot be denied. And this, moreover, does not exclude the possibility of aggiornamiento in this cultural sphere, apparently reactive to reforms. The denominational nature of the Sharia is not incompatible with evolution and change because in universes such as the West the weight of history, with all its great density, does not reach the point of determining our behaviour today, nor that of the future. So in Islam not everything is pure archaeology and, consequently, many current thinkers of these milieus are committed to the possibility of updating some socio-cultural structures of the Sharia, which could develop intrinsically. Many Muslim scholars believe that a “vector-based interpretation” of the Sharia, understood more as a path than a precept, would enable their principles to be consistent with the entire Universal Declaration of Human Rights; even in those articles that pose principles further divorced from Muslim tradition, such as the famous Article 18: the one that defines the right of freedom of religion and belief as the right to change religion or not have any. Are there ‘theological’ reasons in Islam for not accepting this principle? The thinkers who sustain this interpretation believe that this is not the case and, therefore, think that modernity is no stranger to this perception. But all this does not mean at all that Islam embraces the principles of secularity or laicism as expressed in the West. Both terms indicate, basically, the ‘public absence of God’ and come from a long history of conflict in the West between the secular authorities and the Church. But Islam is not a church; rather it is a community of believers around the spiritual guidance of the Qur’an where the will of Allah is expressed. So there cannot therefore be an absence of God here. On the contrary, it is his express presence that, recreating his work, ‘demands’ the broadest application of Human Rights.

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There is nothing to object about, then, in this new global milieu where relations between secularism and religions seek a new, more interdependent and inclusive relationship. A new paradigm seems to be opening up at the dawn of this age of globalized society; one of its first requirements is to limit the exercise of hierarchical positions on either side and allow it to be the individuals themselves who interpret the best way to experience their religion, also experiencing, at the same time, its secularity. The states must overcome the old formulas of separation with religious confessions because their postulates are not reactive to these. Religions, on the other hand, give up the principles of domination they had and that they can hardly maintain today. They are no longer capable of delegitimising the authority of the sciences, as stated, in the milieu of profane knowledge; nor the premises that constitute the state; much less of ‘rejecting’ the imperative of the ‘masses.’ Secularism and religions have evolved to the point where confrontation is not possible, rather the there is a need for the construction of participatory universes. Both have an exciting adventure before them: to defend, from a standpoint of evolving, a globalised society inspired in global ethics.

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PART I: RELIGION AND SECULARIST PRINCIPLES

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THE GLOBAL CHALLENGE OF SECULARISM TO RELIGIOUS FREEDOM1 David Little Harvard Divinity School, USA

I N T RO D U C T I O N What do we mean by ‘secularism’ and ‘religious freedom,’ as well as by ‘the global challenge’ of the one to the other? I shall assume that religious freedom is in its broad outlines not all that controversial.2 It means, I would think, the various provisions stipulated in the international human rights codes (especially, the Universal Declaration of

1 This article is a revised version of a conference sponsored by the International Religious Liberty Association held at the University of Sydney Law School, Sydney, Australia, August 2224, 2012. 2 Nor should the admittedly vexed term, ‘religion,’ be all that controversial for our purposes. That is because human rights language, which we shall assume as the reference for ‘religious freedom,’ neatly sidesteps the need for a definition by including ‘or belief ’ alongside ‘religion’ as something that is protected. ‘Belief ’ is explicitly understood as encompassing nontheistic and atheistic convictions. The appropriate term to cover ‘religion or belief ’ in human rights language is, I propose, “comprehensive doctrine,” as introduced by John Rawls. For Rawls, a ‘comprehensive doctrine’ is a religious or philosophical system of belief intended to apply to a large, possibly unlimited, number of adherents, and that includes “conceptions of what is of value in human life, and ideals of human character, as well as ideals of friendship and associational relationships, and much else that is to inform our conduct,” and that applies, potentially, to life as a whole (John Rawls, Political Liberalism (New York: Columbia University Press, 1996), p. 13). The implication is that it is comprehensive doctrines that are protected by what I below call ‘belief rights’ as enumerated in the human rights corpus.

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Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the Declaration on the Elimination of Intolerance and Discrimination (DEID), the Equality and Human Rights Commission (EHRC), and the Inter-American Human Rights Commission (IAHRC)), as well as the jurisprudence, official and unofficial, that interprets and applies those provisions. (By official jurisprudence, I have in mind the rulings and interpretations of the Human Rights Committee (of the ICCPR) and the UN Special Rapporteur on Freedom of Religion or Belief, as well as the decisions and legal opinions handed down by the European Court of Human Rights (ECtHR) and (until 1998) the European Human Rights Commission. By unofficial jurisprudence, I have in mind the responses of legal scholars and others to various provisions and to their official interpretation and application.) I concede, of course, that when I get into the details, the subject will not likely remain quite so uncontroversial! To provide a common starting point, let me highlight in passing the five provisions guaranteeing religious freedom that are enumerated in the human rights documents. I call these ‘belief rights’: 1. Right of Free Exercise. “Everyone shall have the right to freedom of thought, conscience and religion. The right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public and private, to manifest his religion or belief in worship, observance, practice and teaching.”3 “No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.”4 “Freedom to manifest one’s religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”5 2. Right against Discrimination. “No one shall be subject to discrimination by any State, group of persons or person on the grounds of religion or other beliefs.”6 3. Protection of Minorities. “Persons belonging to [ethnic, religious, or linguistic] minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, and to use their own language.”7 3

ICCPR, article 18 (1). Cf. UDHR, article 18, and DEID, article 18 (1). ICCPR, article 18 (2). 5 ICCPR, article 18 (3), ICCPR; DEID, article 1 (3); UDHR, article 29 (2). 6 DEID, article 2 (1); ICCPR, article 2 (1). 7 ICCPR, article 27. 4

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Prohibition of Religious Hate Speech. Namely, “religious... hatred that incites to discrimination, hostility or violence.”8 5. Right to Parental Supervision of Religion. “Respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.”9 4.

Things are not so straight forward, even superficially, in regard to the term ‘secularism’. It is my conviction, a conviction that constitutes the central argument of this paper, that deciding what ‘the global challenge of secularism to religious freedom’ amounts to depends primarily upon how we understand ‘secularism,’ and what the reasons are for choosing one understanding over another. The problem is that there is no consistent understanding of what the term means. As far as I can tell, the word has at least two (and probably more) different meanings as it is currently used in political and legal discourse around the world. One recurring usage, set forth in the Short Oxford Dictionary, may be paraphrased as follows: a doctrine oriented toward human earthly well-being that excludes all consideration of religious belief and practice. Were a state officially to adopt this understanding, especially in its most extreme form, as was strongly advocated during and after the French Revolution, or as was regularly done by Communist states in the last century, the challenge to religious freedom (as defined) is obviously very substantial. Of the five, the only belief right that would be protected is 4. Prohibition of Religious Hate Speech. However, that is but the incidental result of a broader policy that systematically punishes all religious speech and practice, not just religious hate speech. Indeed, such a policy might well authorize inquisitional action, on the part of the state and others, which endeavors by coercive means to detect and punish even private or otherwise undisclosed belief. We may refer to this understanding as “Secularism 1.” The challenge to religious freedom represented by Secularism 1 would be ‘global’ to the degree that a growing number of states around the world succeeded in adopting the doctrine. If it can be proved that such a development is taking place, then Secularism 1 of course represents a significant global challenge. Let us hold in abeyance a discussion of that possibility for the moment.

8 9

ICCPR, article 20 (2). Cf. UDHR, article 7. ICCPR, article 18 (4), ICCPR.

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A second definition, if adopted by a state or by international legal institutions, would appear, at least, to imply very different consequences. Drawing on a distinction, long familiar in Western thought, between ‘temporal,’ ‘thisworldly,’ or ‘natural’ concerns, on the one hand, and different, if equally respectable, concerns considered ‘eternal,’ ‘spiritual,’ or ‘extranatural,’ on the other, this understanding might be stated as follows: a doctrine oriented toward human earthly well-being in a narrow or restricted sense that otherwise supports protection of religious belief and practice. The underlying idea is that the secular sphere is sharply limited to the regulation of certain basic matters of ‘earthly well-being’ called ‘public goods’ —e.g., order, health, safety, and rules of equal treatment— in which all members of a political community, regardless of religious differences, are assumed to share a common interest. Beyond that sphere, members of the community are guaranteed the right to follow freely the divergent dictates of their consciences in regard to religious matters.10 One key assumption: Because the secular sphere is considered distinctly separate, it must be administered on the basis of patterns of reasoning taken to be independent of religious premises. Such patterns are alternatively referred to as ‘secular reason,’ ‘civic reason,’ or ‘public reason.’11 By intention, at least, such patterns of reasoning do not rule out religious reasoning or attendant practices. It is only that religious thought and practice are subject to ‘outside constraints’ determined by patterns of reason independent of religious premises. Unsurprisingly, we call this understanding, ‘Secularism 2.’ As I say, if Secularism 2 is accepted and politically and legally institutionalized, the challenge to religious freedom appears to look very different from the challenge represented by Secularism 1. Prima facie, at least, all of the belief rights would seem to be supported. The whole point of Secularism 2 is, it would appear, to restrict the power of the state by containing its jurisdiction within a carefully delimited secular sphere, thereby greatly expanding the opportunity for religious freedom outside that sphere. 10 In the terms introduced in footnote 1, above, it is understood that the state regulates only the limited “secular” sphere encompassing the public goods, as mentioned, and leaves citizens free to articulate and pursue their various comprehensive doctrines as they see fit. 11 In respect to human rights language, ‘public reason,’ a notion associated with the work of John Rawls, is especially apposite because of the explicit allusion to ‘public goods’ (order, safety, health, and morals), and to the responsibility of the state to protect these common secular interests in the documents. At the same time, Rawls’s own elaboration of ‘public reason’ needs to be modified to bring it into accord with human rights language. See Little, “Religion, Human Rights, and Public Reason: The Role and Limits of the Secular” (forthcoming).

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I believe that the existing ‘human rights system’ (meaning internationally and regionally authorized human rights documents and institutions and much accompanying official and unofficial jurisprudence) is, generally speaking, compatible with Secularism 2. That is essentially, I think, what Johannes Morsink has in mind when, in his definitive study of the legislative history of the UDHR, he describes the UDHR (and, by implication, its progeny) as “a secular document by intent.”12 This means that the grounds for concluding, as the Preamble to the UDHR does, that “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind...,” are independent of religious premises. Otherwise, the drafting committee would not deliberately have excluded, as it did, explicit references to a deity and to the spiritual destiny of humankind. As was pointed out at the time, including particular religious references in the Preamble would imply that nonbelievers or others who do not accept the particular formulations are not covered by the Declaration. Such an implication, it follows, would be inconsistent with article 2 of the UDHR, which entitles “everyone to all the rights and privileges set forth in this Declaration, without distinction of any kind, such as...religion.” Importantly, Secularism 2 holds that accepting a secular doctrine, albeit as applicable only to a restricted range of state authority, is requisite for assuring equal freedom for religious belief and practice. Only if it is assumed that human beings share a common moral starting point capable of being apprehended independent of religious belief, and of being protected in spite of whatever religious differences there may be, is it possible even to conceive of a ‘level playing field’ upon which all religions (and comparable beliefs) equally compete. If no such secular space exists, then ‘it is every religion for itself ’ in a ceaseless struggle of one against the other to gain control of the state, wherein the winner at a given time arranges for religious freedom on its own terms. Is there, then, any sense in which Secularism 2 represents a global challenge to religious freedom, and, if so, what might that challenge be? A number of people around the world certainly think so, some of who are serious and thoughtful. It is even contended that Secularism 2 is really a disguised form of Secularism 1, and as such is really more insidious because it obscures 12

Johannes Morsink, Universal Declaration of Human Rights (Philadelphia: University of Pennsylvania Press, 1999), p. 289.

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its real effects by paying lip service to the language of religious freedom. If these claims are true, Secularism 2 does, after all, represent an important global challenge to religious freedom, however ironic that may be. The very arrangement that was established to protect religious freedom globally is supposed to be doing just the opposite. Moreover, if the charges are accurate, we do not need to wait until state after state adopts Secularism 1. We are right now in the throes of an international system that is already busy expanding the global reach of Secularism 1. In the remainder of the paper, we must try to decide how much, if any, validity there is to this alleged global challenge.

C H A L L E N G E : T H E T H R E AT

OF

SECULARISM

According to Malcolm Evans, a prominent human rights scholar,13 the international protection of religious freedom is “a matter of some doubt.” “The freedom of thought, conscience and religion may be protected as a human right: but this does not mean that the relationship between a secularist concept of human rights and religious perspectives of the rights and duties of the individual can, or should, be determined exclusively from and through [a secularist human rights perspective].”14 He speaks of “the extreme difficulty —some might say impossibility— of setting...religious and other life-defining concepts within the framework of a system of human rights which is premised upon universalist presuppositions with which [religious and other views] are not necessarily in harmony.”15 Citing statements by the UN Special Rapporteur for Freedom of Religion or Belief concerning the need to avoid “categorical, inflexible attitudes,” “blind obstinacy” and “gratuitous accusations,” Evans surmises that the prevailing human rights interpretation of religious freedom “does not include the right of others to adhere to a religion which is intolerant of the beliefs of others.” Therefore, he suggests, “‘human rights’ seems to have “become a ‘religion or belief ’ which is itself intolerant of other forms of value systems which may stand in opposition to its own central tenets...” “In seeking to assert itself in this fashion, the international [human rights] community risks

13 Malcolm Evans, Religious Liberty and International Law in Europe, (Cambridge: Cambridge University Press, 1997). 14 Ibid., pp. 375-376. 15 Ibid., p. 245.

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becoming the oppressor of the believer, rather than the protector of the persecuted.”16 Evans’s claim that the human rights system, with its ‘secularist’ and ‘universalist’ presuppositions, has itself become an intolerant and domineering form of religion or belief, potentially more persecutor than protector, is hardly new. But such views are, to say the least, unexpected from specialists like Evans. Legal and other experts in the field tend to engage in intramural or in-house debates and critiques, calling this or that legal judgment to account, pointing to this or that unclarity or shortcoming in the law or its interpretation, or advocating one change or another in the way things are done or understood. They do not typically assault the foundations of the human rights idea itself. And while they often echo the complaints of the former UN Special Rapporteur, Asma Jahangir, regularly decrying the serious failure around the world to match performance with standards, they do not normally lay most of the blame, as Evans appears to do, at the feet of the human rights system itself. On the contrary, specialists seem widely to share a fervent commitment to the basic provisions and framework of human rights law as it bears on religious freedom, and although they energetically debate its proper meaning and application, they seem to believe that the basic premises are secure, and that recent developments in the administration of the law are in general promising. I share this outlook, and feel the need to defend it against Evans’s challenges, even if there are specific areas of weakness that need to be addressed. A defense is important for three reasons: the challenges come from an eminent and influential specialist; they are the product of painstaking work; and they reflect fashionable complaints against the human rights system as a whole and the protection of religious freedom in particular. Since the attack is foundational, it will be necessary to make some comments about the human rights framework in general, including provisions for the international protection of religious freedom. That means looking both at the underlying premises of the framework as a whole, including key language and provisions, as well as at the practice of the implementing institutions such as the Human Rights Committee of the ICCPR, the UN Special Rapporteur, and the Human Rights Commission and Court of the European Convention, reconstituted, as of 1998, into a single Court. We shall also sample some recent expert commentary. 16

Ibid., pp. 260-261.

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R E S P O N S E : T H E RO L E

AND

L I M I TS

OF

SECULARISM

In reaction to the experiences of World War II, the drafters of the UDHR rather readily concurred that one did not have to be religious to condemn the record of “barbarous acts which have outraged the conscience of mankind,” as the Preamble put it. Regardless of differences of culture, ethnic or national identity, or religion, the majority of drafters held that all human beings —simply as human— may be expected to share a common “moral revulsion” to the violations of basic “inherent” and “inalienable” rights at the hands of the Hitler government and his fascist associates, and that an enforceable system protecting those rights is needed to prevent such violations in the future. As the drafters saw it, it is that system of human rights to which everyone, without regard to religion or comparable beliefs, may at once appeal and be held accountable. These assumptions are, at bottom, what makes the UDHR (and progeny) a “secular document by intent,” to recall Morsink’s description cited above. The drafters’ rationale would appear to rest on four firmly held propositions that underlie their diagnosis of the Holocaust and of their prescription for a cure and for preventing similar events in the future. First, the use of force, defined as the infliction of death, impairment, disablement, deprivation, destruction, severe pain, and/or involuntary confinement, begs strong moral justification wherever it occurs, both because of the obvious adverse consequences that result from using force and the powerful temptation in human affairs to use force arbitrarily (i.e., without “strong moral justification”). Second, no human being could reasonably doubt that Hitler’s grounds for the kind and amount of force used at his command were grossly self-serving and manifestly unfounded, and led to forms of arbitrary abuse that must be labeled “atrocities” (i.e., strongly condemnable). That should be plain to everyone; those who fail to recognize it are themselves under moral suspicion. Third, Hitler’s atrocities rested on a belief in total domination, namely, the right of a government to treat citizens in any way it sees fit, including the relentless and systematic enforcement of a particular comprehensive doctrine. Fourth, an indispensable means of inhibiting the recurrence of such practices, and of preventing “as a last resort” “rebellion against tyranny and oppression,”17 is the affirmation and enforcement of human rights as enumerated in the UDHR and subsequent documents. 17

Preamble, UDHR.

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As the drafters perceived, the effects of the fascist experiment of the midtwentieth century made transparently clear the deep conceptual divide between force and morality. Wherever it occurs, force, as here defined, inflicts highly unfavorable and unwanted consequences that obviously demand strong justification of a special kind. Giving as a reason only the self-interest of the one using force, thereby utterly disregarding the interests of others,18 or giving reasons that are unfounded, especially when done knowingly and avoidably, simply cannot count as valid justifications for actions with those consequences. In fact, using force for such ‘reasons’ constitutes the basic meaning of ‘arbitrary force.’ It follows that the idea of morality, which provides standards for protecting and advancing fundamental human welfare that are taken to be justified and of great importance, ‘self-evidently’ excludes arbitrary ‘reasons’ for the use of force. They are exclusive appeals to the self-interest of the user or knowing and avoidable appeals to mistaken evidence and argument. This was all so self-evident in Hitler’s case because he was so obviously the paradigmatic exemplar of arbitrary force.19 Accordingly, all human beings —as human— possess certain ‘non-derogable rights’ —inalienable enforceable entitlements— against arbitrary force. That applies in regard to taking life, inflicting pain or punishment, imposing forced labor, determining opportunities for due process, and propagating beliefs.20 Toward protecting those rights, additional ‘derogable rights’ to things like freedom of opinion and expression, association, and participation in gov-

18 A case of ‘necessity,’ where an innocent party must be killed for the sake of the survival of another, is not an exception to this statement since the reasons excusing an act of necessity must also include proof that there was no alternative course of action. Such a defense is not ‘only’ a reference to the self-interest of the one using force since it does not utterly disregard the interests of others. 19 See Little, “Ground To Stand On: A Philosophical Reappraisal of Human Rights Language” (forthcoming) for a fuller account of the self-serving, mendacious character of Hitler’s use of force. 20 ICCPR art. 4, along with the probation of “discrimination solely on the ground of race, colour, sex, language, religion or social origin,” mentions as non-derogable articles: 6 (prohibition of arbitrary life-taking); 7 (probation of torture and cruel, inhuman or degrading treatment or punishment); 8 (prohibition of slavery); 11, 15, 16 (certain due process rights); and 18 (freedom of thought, conscience, religion or belief ). Although there is no similar list of non-degrogable rights in the ICESCR, it seems reasonable, based on the fascist record, to conclude that the arbitrary violation of provisions guaranteeing an adequate standard of living, health, cultural opportunities, etc. would also constitute violations of non-derogable rights.

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ernment,21 are guaranteed. They may be abridged under conditions of national emergency, though since the Nazis so massively abused the emergency appeal, abridgement may happen only in accord with the most stringently defined conditions.22 Fascism typically violates all these rights, though of special interest to us is the subject of propagating beliefs. At the heart of fascist ideology was the impulse to prevent by all means necessary any dissent or independence in matters of religious conviction and identity. Together with their notorious policies of liquidating millions of Jews and ‘undesirable’ religious minorities, like the Jehovah’s Witnesses, the Nazis harassed Catholics, curtailing and suppressing most of their practices, and eventually came to dominate the Protestant church by means of ‘terroristic methods.’ In particular, fascism dedicates itself to imposing its own comprehensive doctrine on all citizens and conquered peoples, constituting an unrelenting assault on all five belief rights that were subsequently guaranteed in the documents, and that were explicitly formulated against the background of fascist offenses. Accordingly, there exists in the UDHR and subsequent documents what may be described as a ‘two-tiered’ or ‘bifocal’ approach to justification. The first tier involves a secular (or religiously neutral) pattern of reasoning taken to be moral and universal in character. It is limited to the interpretation and application of derogable and non-derogable rights enumerated in the documents and aimed at deterring violations associated with arbitrary force. It is assumed that there are certain ways of taking life, inflicting pain or punishment, enforcing labor, withholding due process, or propagating beliefs, as exemplified by the mid-twentieth-century fascist campaign, that are condemnable “in anyone’s language.” Similarly, there are certain threats to public order, health, safety, and morals, as exemplified, again, by the fascist record, that can readily be apprehended by “everyone” “without distinction of any kind such as...religion,” and that must be resisted at all costs, forcibly, if necessary, in the interest of common “human earthly well-being.”23 21

UDHR; ICCPR arts. 19, 20, 21. ICCPR, art. 4. 23 It is true that the Human Rights Committee, an eighteen-member supervisory agency mandated by the ICCPR (Pt. IV) for the purpose of monitoring State Party compliance and issuing General Comments on the meaning of the Covenant, has held that art. 18 of the ICCPR does not prohibit the recognition of a “state religion” or one that is “established as official or traditional.” However, the committee concomitantly imposes rigorous conditions that in effect threaten the standard prerogatives of a state or established religion; it declares that under a state 22

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The second tier of justification is provided for by the five belief rights contained in the UDHR and progeny. Those rights invite individuals and groups, as desired, to develop and embrace, according to conscience, their own comprehensive doctrines. These doctrines provide additional religious or secular reflection on the justification and interpretation of human rights and, of course, of much else. This two-tier approach imposes restrictions in two ways. It is intended to prevent the state from exceeding its limited secular role by usurping the functions of the second tier. Secondly, it is intended to prevent one or another comprehensive doctrine (religious or otherwise) from usurping the state’s special secular responsibility of standing guard against the violations of arbitrary force, including critical threats to public order, health, safety, and morals. Protecting the free and equal application of belief rights thus becomes one very important means of achieving these two objectives. Such a process, of course, also highlights certain very substantial ‘stress points’ in reconciling the two tiers. The best way to determine whether the system is working as intended is to examine and evaluate how the stress points between the two tiers are being negotiated. The results of such an inquiry are mixed, but there are some hopeful signs.

TRENDS

IN

C U R R E N T H U M A N R I G H TS J U R I S P RU D E N C E

Paul M. Taylor, in his recent book, Freedom of Religion: UN and European Human Rights Law and Practice,24 summarizes a widely shared dissatisfaction, up until recently, regarding the record of the European Commission and

or established religion there shall be no “impairment of the enjoyment of any of the rights under the Covenant...nor any discrimination against adherents of other religions or non-believers” “in accordance with the prohibition of discrimination based on religion or belief and the guarantee of equal protection under article 26.” In addition, it presumably raises serious questions about invoking religious or other fundamental belief as the exclusive basis for adopting laws or policies because of the obvious potential for discrimination. At the very least, such an action would assure the right of challenge under the equal protection article. In short, the Committee’s comment leaves established or majority religions but a shadow of their former selves. See United Nations Human Rights Committee, General Comment No. 22 (48), art. 18, in Religion and Human Rights: Basic Documents, Tad Stahnke and Paul Martin, eds., (Columbia University: Center for the Study of Human Rights, 1998), p. 94. 24 (Cambridge: Cambridge University Press, 2005).

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Court in protecting religious freedom. Mentioning the tendency to indulge states by granting them an overly wide “margin of appreciation,” or excessive discretion, Taylor draws what he believes is “the inescapable conclusion” that “the European Court [has been] more willing to accommodate State interference with religious freedom than affirm and uphold the measures of protection that have been entrusted to it.”25 Moreover, the “European institutions have undoubtedly accommodated clear instances of State intolerance (particularly against minority religions)...”26 But not all the news is bad. Over against this troubling record at the regional level, the Human Rights Committee and the office of Special Rapporteur have, according to Taylor, performed much better. The Committee “appears to have been far more consistent than the European institutions” “when applying Article 9 of the European Convention and, in particular, has not shown equivalent respect for State restrictions on religious freedom.” It has “made a number of critical advances in standards affecting religious freedom in the face of substantial obstacles posed by the demands of the States,” which, for Taylor, can provide constructive guidance.27 This is also true of the work of the Special Rapporteur, whose reports have effectively singled out areas of urgent concern and “could be of invaluable help in enabling the European Court to apprehend more fully the right to [freedom of ] religion or belief in the global context and in the light of recurring threats to such practices.”28 Nor is that all. Taylor, and others like Carolyn Evans,29 assemble evidence of changing opinion on the part of the European institutions so that there is now some “room for cautious optimism.”30 Taylor speaks of an “increasingly interventionist trend” in favor of advancing religious pluralism and minority protection and away from a “policy of least intervention and of accommodating State intolerance.”31 Some of the areas where these changes are taking place, possibly in response to initiatives by the international human rights organs and to continuing criticism by specialists, suggest crucial subjects for future investigation. We may sample three of them. 25

Ibid., p. 344. Ibid., p. 351. 27 Ibid., pp. 350-1. 28 Ibid., p. 338. 29 Carolyn Evans, Freedom of Religion Under the European Convention on Human Rights (Oxford, New York: Oxford University Press, 2001). 30 Ibid., p. 207 31 Taylor, Freedom of Religion, pp. 350-1. 26

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Forum Internum This idea, understood as “the internal and private realm of the individual against which no State interference is justified in any circumstances,”32 underlies the ‘first limb’ of Belief Right 1, Free Exercise: the aspect of freedom of thought, conscience, religion, or belief that is protected against all coercion that would impair one’s freedom to have or to adopt a religion or belief of one’s choice. The central legal issue is what constitutes a coercive infringement of the right to harbor and avow a religion or belief. Traditionally, the European Commission and Court have effectively ignored this issue, by construing it as a question of the manifestation of belief under the ‘second limb’ of the freedom of religion or belief. Three cases illustrate the point: In V. v. The Netherlands,33 the Commission denied the applicant’s appeal that he be exempted from participation in a compulsory professional pension scheme on religious grounds because “the refusal to participate in such a pension scheme, although motivated by the applicant’s particular belief, cannot... be considered as an actual expression of belief.”34 The Commission’s interpretation of the case as a matter of expression or manifestation of belief seems misplaced. A better interpretation is that the applicant objects because he is being coerced by state authority to violate the basic convictions of his forum internum. Valsamis v. Greece35 and Efstatiou v. Greece36 are a second example. In both, the Court rejected applications brought by Jehovah Witness children who were punished for their refusal, because of their religious commitment to pacifism, to participate in a military parade. The Court claimed that the children’s right to hold and manifest their beliefs free of coercion was still in tact. However, as Carolyn Evans remarks, “To be forced to act in a way that the individual considers a serious violation of his or her religious beliefs is arguably equivalent to being forced to recant a religion or belief. The neat distinction between the internal and external realm is difficult to maintain in such a case.”37

32

Ibid., p. 115. V.v.Netherlands, App. No. 10678/83 (1984) 39 D & R 267. 34 Ibid., p. 269. 35 Valsamis v. Greece (1997) 24 EHRR 294. 36 Efstatiou v. Greece (1997) 24 EHRR 298. 37 C. Evans, Freedom of Religion, p. 77. 33

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In 1993 the Human Rights Committee broke things open in regard to reconceiving the legal status of the forum internum, and complicated “the neat distinction between the internal and external realm” by issuing an official comment on the right of conscientious objection to military service. The [ICCPR] does not explicitly refer to a right of conscientious objection, but the Committee believes that such a right can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief.38

Until this comment, the prevailing assumption was that the forum internum is duly protected so long as people are not coerced to recant fundamental beliefs or to express beliefs contrary to their basic convictions. Now, by implying that certain actions, like being forced to use force, are covered not just by the right to manifest one’s religion or belief, but may, in fact, reasonably be construed as a direct violation of “the freedom of conscience” —the forum internum— is to open the door to an important new range of protections. According to Taylor, the implication is that “all forms of compulsion to act contrary to one’s beliefs prima facie raise issues for the forum internum where the necessary connection is established between a protected form of belief and compulsion contrary to the belief —a principle which could apply equally to the imposition of tax and social security schemes.”39 Incidentally, the Committee’s Comment helps to clarify some conceptual confusion created by careless drafting in regard to Article 18 in the UDHR and ICCPR. There was not much rhyme or reason for the way in which ‘thought’ and ‘conscience’ were combined with ‘religion’ and ‘belief,’ and therefore the notions may fairly be read as “supporting each other,” “rather than as separate concepts worthy of independent analysis and development.”40 The main objective was to make sure atheists and other non-believers were included along with religious believers under the protection of Article 18,41 but this left open, of course, the question of what distinguishes a 38

UN Human Rights Committee General Comment No. 22 (48) (Article 18) UN Doc. CCPR/C/21/Rev.1. Add. 4 (1993) (Stahnke and Martin 1998, p. 94; emphasis added). 39 Taylor, Freedom of Religion, p. 153. 40 Ibid., pp. 205-6. 41 Sydney Liskofsky, “The UN Declaration on the Elimination of Religious Intolerance and Discrimination: Historical and Legal Perspectives,” in James E. Wood, Jr., ed., Religion and State (Waco: Baylor University Press, 1985), p.456.

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belief protected under Article 18 from one that was not. The European Court has gone some distance in this respect by ruling that for purposes of Article 18, belief “denotes views that attain a certain level of cogency, seriousness, cohesion, and importance.”42 It might be pointed out that such a description comes close to the traditional understanding of ‘conscience’ and ‘conscientiousness,’ which only serves further to underscore the interdependence of the central concepts mentioned in Article 18. Such an observation also reminds us of the traditional significance of the doctrine of ‘sovereignty of conscience,’ entailing as it does the deference of the state to claims of conscience and its concurrent obligation to show cause wherever those claims are restricted or penalized.43 There is some evidence that the European institutions are ready, within limits, to think anew about the effects of coercion on the forum internum. In Darby v. Sweden,44 the Commission found for an 3applicant, a non-resident who requested an exemption from a church tax to the Lutheran Church with which he was not in agreement. It ruled that the failure to grant an exemption was a clear violation of the applicant’s “forum internum rights” under Article 9(1). The Commission considers that the applicant’s payment of church tax, on the basis of the legal obligation upon him, cannot be characterized as a ‘manifestation’ of his religion. What is at issue here is thus the applicant’s general right of religion under the first limb of Article 9, para. 1.45

It is true, of course, that the Commission refused to apply the Darby rationale to C. v. United Kingdom,46 a case in which a committed pacifist refused, on grounds of conscience, to pay that portion of his income tax designated for military purposes unless the government assured him that the

42

Campbell and Cosans v. United Kingdom (Ser. A) No. 48 (1982) ECtHR para. 36. Little, “Conscientious Individualism: A Christian Perspective on Ethical Pluralism,” in Richard Madsen and Tracy Strong, eds., The Many and the One: Religious and Secular Perspectives on Ethical Pluralism in the Modern World (Princeton: Princeton University Press, (2003), pp. 23233; cf. Little, “Religious Freedom and American Protestantism,” in Alec G. Hargreaves, John Kelsay, and Sumner B. Twiss, eds., Politics and Religion in France and the United States (Lanham, MD: Lexington Books, 2007), pp. 29-48. 44 Darby v. Sweden No. 187 (1990) ECtHR, annex to the decision of the Court, 24. 45 Ibid., 18-19, paras. 50-51, cited in Taylor, Freedom of Religion, p. 156. 46 App. No. 10358/83, 37 Eur. Comm. HR Dec.&Rep. 142 (1983). 43

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money would go for non-military activities. The pacifist’s application was denied because, according to the Commission, the “obligation to pay taxes is a general one which has no specific conscientious implications in itself. Its neutrality...is...illustrated by the fact that no taxpayer can influence or determine the purpose for which...tax contributions are applied...”47 The Commission appeared to hold that while being required to pay a specific tax to a religious organization that one opposed, as in Darby, does constitute a violation of the forum internum, there can be no similar exemption from neutral and generally applicable laws in matters of taxation or anything else. However, the reasoning of the Commission and the Court has not been altogether consistent in this respect48 and a more recent decision by the Court may betoken a promising “new approach”49 or a “marked shift in thinking.”50 In Thlimmenos v. Greece,51 a Jehovah’s Witness had been discharged from his job because he was convicted of a felony several years earlier as the result of conscientious objection to military service. Though the Court did not pass judgment on whether the earlier conviction was a violation of Article 9, it did rule that there were grounds for exempting the applicant from what was clearly a neutral and generally applicable employment law. The Court determined that the conviction in this case was no ordinary conviction, and therefore the applicant was being unfairly treated because of a conviction for a prior act of conscience. “The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat persons whose situations are significantly different.”52 Arcot Krishnaswammi had emphasized this point in his definitive study of discrimination in religious rights and practices: “Since each religion or belief makes different demands on its followers, a mechanical application of the principle of equality which does not take into account these various demands will often lead to injustice and in some cases even to discrimination.”53 Commenting on Thlimmenos, Carolyn Evans concurs: 47

Ibid., p. 147; emphasis added. C. Evans, Freedom of Religion, p. 184ff. 49 Taylor, Freedom of Religion, p. 189. 50 C. Evans, Freedom of Religion, p. 199. 51 Thlimmenos v. Greece (2001) 31 EHRR 411. 52 Ibid., para. 44. Cited in Taylor, Freedom of Religion, pp. 189-190. 53 Arcot Krishnaswami, “Study of Discrimination in the Matter of Religious Rights and Practices,” in Religion and Human Rights: Basic Documents, Tad Stahnke and J. Paul Martin, eds., (New York: Center for the Study of Human Rights, Columbia University, 1998), p. 14. 48

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The ruling that a general and neutral law may be discriminatory if it does not allow for exemptions for people on the basis of religion [or belief ] is unprecedented in the Article 9 case law...[I]t could revolutionize the approach of the Court to general and neutral laws...If the discrimination principle becomes used as a matter of routine in Article 9 cases it is possible that many types of claims that have been rejected routinely by the Court or Commission in the past will now be far more likely to succeed.54

The key implication is that this line of reasoning, if pursued and developed in regard to safeguarding the forum internum, represents new hope for minorities. It is they, of course, who are the chief victims of the familiar alliance between religious majorities and the state. The argument that the best hope of minorities is the legislative process, by which to change objectionable laws, is too often a counsel of despair —they are, after all, minorities. That argument also exhibits a failure to comprehend the critical role of public reason, which is the implicit obligation of judicial authorities to protect the rights of the forum internum as a guarantee against the encroachments of domineering comprehensive doctrines. There are, of course, good reasons for setting high standards for conscientious exemptions from general and neutral laws. The consequences for public order of extreme permissiveness are not hard to imagine. Still, up until recently, particularly in the European system, it is not the minorities and their conscientious claims that have been indulged. Rather it is the majorities and their state sponsors who have had the upper hand. The latest trends, while hopeful, have a considerable distance to go to improve the balance. However difficult it may be for judges to be assured that conscientious claims reach an acceptable “level of cogency, seriousness, cohesion, and importance,”55 there seems no alternative but to continue to try. Otherwise, we surrender the fundamental assumptions of the entire human rights system.

54 55

C. Evans, Freedom of Religion, p. 199. Campbell and Cosans v. United Kingdom (Ser. A) No. 48 (1982) ECtHR para. 36.

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Manifestation of Religion or Belief If the ‘first limb’ of the protection of religion or belief concerns safeguarding the internal forum against coerced submission to what are regarded as objectionable beliefs and practices, the ‘second limb,’ regarding the ‘manifestation’ of a religion or belief, concerns what might broadly be called a provisional right of free exercise. That is the right overtly to express or act upon a religion or belief “in worship, teaching, practice or observance,” “subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others” (Article 18, (1) and (3) of the ICCPR; Article 9 (2) of the ECHR adds, as we know, “necessary in a democratic society,” words similar to those in Article 29 (2) of the UDHR). On paper, the burden of proof clearly rests with the government in regard to applying these provisions. It must show that any limitation on the manifestation of religion or belief is both ‘necessary’ and ‘proportionate’; that is, the limitation must be designed and administered so as to impose the least restrictive burden consistent with addressing a compelling state interest or “pressing social need.”56 However, as with the protection of the forum internum, the European Commission and Court have until recently tended rather consistently to favor State interests over the free exercise of religion or belief by individuals or groups. While the Commission and Court are prepared to scrutinize State action with some care in cases where there has been overt and intentional discrimination against members of a religious group, they have generally given States a wide margin of appreciation in determining whether or not a restriction on the manifestation of religion or belief is necessary. In most cases it seems to be sufficient in practice for the State to show that it has acted in good faith in order for it to be able to justify limitations on religion or belief under Article 9 (2).57

Several cases dealing with the sensitive subject of religious apparel illustrate the point. In Karaduman v. Turkey,58 the Commission upheld a State law requiring that a photograph attached to a degree certificate depict the candi-

56 UNHRC General Comment No. 22, in Religion and Human Rights: Basic Documents, Stahnke and Martin, eds., para. 8, p. 93. 57 C. Evans, Freedom of Religion, p. 134. 58 Karaduman v. Turkey App. No. 16278/90 (1993) 74 D & R 93.

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date as bareheaded instead of wearing a Muslim headscarf, as the applicant had done. The Commission placed considerable weight on Turkey’s national commitment to the principle of secularity, and the resulting need, as they saw it, to limit religious manifestations that “may constitute pressure on students who do not practice that religion or those who adhere to another religion,” as well as represent a threat to public order from “fundamentalist religious movements.”59 Similarly, the Court decided in favor of the State in Dahlab v. Switzerland,60 where, according to Swiss law supporting religious neutrality, the applicant, a Muslim, might not wear an Islamic headscarf in the State school where she taught. While acknowledging her skill as a teacher and the absence of any disturbance, the Commission nevertheless worried about the possible “proselytizing effect” of such an exhibition, and the message of intolerance and gender inequality represented by the headscarf. Again, the Court ruled in the same way in Sahin v. Turkey.61 The case concerned a young Muslim female medical student at the University of Istanbul who, as the result of wearing her headscarf in violation of a 1998 law, was refused access to classes and examinations at the university. The Court ruled in favor of the government of Turkey, determining that the law against headscarves was necessary and proportionate in a democratic society, and that in such sensitive matters the State should be given a wide margin of appreciation. Particularly when it comes to regulating religious symbols in educational institutions, said the Court, “the role of the national decision-making body must be given special importance.”62 Consequently, there had been no violation of Article 9 of the ECHR. Decisions like Sahin v. Turkey, granting States a wide margin of appreciation in limiting manifestations of religion or belief, have been subjected to compelling criticism by specialists. The major objection is the failure of the Court in both Sahin and Dahlab to provide convincing evidence that the defendants represented a serious threat to public order. However, beyond that, there are a few hopeful signs of more scrupulous concern for protecting free exercise on the part of the European Court, and some very promising developments in that regard at the international level.

59

Cited by Taylor, Freedom of Religion, p. 254. Dahlab v. Switzerland (App. No. 42393/98), Judgment of Feb. 15, 2001. 61 Leyla Sahin v. Turkey. ECHR Grand Chamber, Application No. 44774/98. Nov. 10, 2005). 62 Ibid. 60

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The Court’s recent ruling in Metropolitan Church of Bessarabia and others v. Moldova63 is especially encouraging. The case addressed the highly sensitive problem of the legal registration of religious organizations. The applicants consisted of the Metropolitan Church of Bessarabia and several Moldovan members of the Church council who claimed that Moldovan State authorities violated Article 9 by denying official recognition to the Church, thereby preventing the practice of their religion. Not only were they prohibited from gathering for religious purposes, but there was also no legal protection of the Church’s physical assets. The Court held that “the refusal by the Moldovan Government to recognize the applicant Church... is an interference in the right of that church and of the other applicants to freedom of religion, as safeguarded by Article 9 of the Convention.”64 Of great consequence, the Court decided “that it was not for the State to determine [as it had claimed it had the right to do] whether or not there was a real distinction between these different groups or what beliefs should be considered distinct from others.”65 Moreover, in Metropolitan Church, the Court interpreted in a very significant way the meaning of the words, “necessary in a democratic society,” which constitutes one of general requirements concerning the limitation of free exercise mentioned in Article 9 of the ECHR. In order to determine the breadth of the margin of appreciation in this case the Court must take into account what is at stake, namely the need to maintain true religious pluralism, which is inherent in the notion of a democratic society. Similarly, great weight should be given to this need where it must be decided, as required by Article 9 (2), whether the interference meets a ‘pressing social need’ and is ‘proportionate’ to the legitimate aim pursued.66

In two other recent decisions, Hasan and Chaush v. Bulgaria67 and Serif v. Greece,68 cases in which the State also interfered in internal differences within a religious community, the Court has similarly ruled against the State on grounds of its commitment to the principle that “the autonomous existence

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Metropolitan Church of Bessarabia and others v. Moldova (2002) 35 EHRR 306. Ibid., at para. 105. Cited in Taylor, Freedom of Religion, pp. 222-3. 65 Ibid., p. 224. 66 Ibid., para. 119. Cited in ibid., p. 308; emphasis added. 67 Hasan and Chaush v. Bulgaria (2002) 34 (6) EHRR 1339. 68 Serif v. Greece (1999) 31 EHRR 633. 64

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of religious communities is indispensable for pluralism in a democratic society and is thus at the very heart of the protection which Article 9 affords.”69 Over and above these encouraging trends on the part of the European Court, the work of the Human Rights Committee and the Special Rapporteur are, in general, even more promising. In its General Comments on Article 18 of the ICCPR, the Committee has greatly strengthened the principles of religious pluralism and free exercise, comparable to the expanded protection it provided the forum internum by anchoring the right to conscientious objection to military service in the freedom of conscience, as we noted above. Along with affirming the inclusion of non-religious belief under the protection of Article 18, the Committee has asserted that: Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reasons, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility by a predominant religious community.70

Moreover, the Committee has helpfully clarified the meaning of “the freedom to manifest religion or belief ” in the following way: The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or headcoverings, participation in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group. In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as, inter alia the freedom to choose their leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.71

And while the Committee admits the permissibility of a “state religion” or a religion “established as official or traditional” or one including “the majority of the population,” these conditions

69

Hasan and Chaush v. Bulgaria at para. 62. Cited in Taylor, Freedom of Religion, p. 311. Stahnke and Martin, p. 92. 71 Ibid., pp. 92-93. 70

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shall not result in any impairment of the enjoyment of any of the rights under the Covenant,...nor in any discrimination against adherents of other religions or nonbelievers. In particular, certain measures discriminating against the latter, such as measures restricting eligibility for government service to members of the predominant religion or giving economic privileges to them or imposing special restrictions on the practice of other faiths, are not in accordance with the prohibition of discrimination based on religion or belief and the guarantee of equal protection...72

These sentiments are all in the direction of implementing the robust protection of the right to manifest religion or belief. According to Taylor, the Human Rights Committee, in carrying its duties “appears to have been far more consistent than the European institutions have been when applying Article 9 of the European Convention and, in particular, has not shown equivalent respect for State restrictions on religious freedom.”73 He also gives high marks to the contribution of the Special Rapporteur “in underscoring the significance of all forms of the manifestation of religion.”74 The attention given to the dangers of discrimination and mistreatment of minorities and ‘sects’ have been of particular importance in strengthening commitments to the international protection of religion or belief.75 Additionally, the Special Rapporteur has thoughtfully suggested that what constitutes a “manifestation” of religion or belief should be left primarily to believers, and not to the State.76 This is important because it would mean that the State and the human rights bodies would no longer be allowed to make judgments in matters where they have no competence, namely in regard to whether specific actions are compellingly related to a religion or belief, and therefore ought to be protected under the right to free exercise. The Special Rapporteur has also moved creatively in regard to modifying laws in countries like France that forbid wearing of Muslim headscarves in school. A recent report cites with approval concerns that laws banning the wearing of religious symbols in public schools “may neglect the principle of the best interests of the child and the right of the child to access to educa72

Ibid., p. 94. Taylor, Freedom of Religion, p. 350. 74 Ibid., p. 338. 75 Ibid., pp. 319, 336. 76 Report of the Special Rappoteur on Freedom of Religion or Belief, Asma Jahangir, E/CN.4/2006/5 9 January 2006, para. 41, p. 13. 73

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tion.” It also supports a proposal that States where such prohibitions exist consider “alternative means” to law, such as mediation and student participation in policy making, as a way of balancing state interests with the rights of children to religious liberty.77

Tolerance In his remarks quoted at the beginning of this essay, Malcolm Evans is particularly troubled by comments of the UN Special Rapporteur for Freedom of Religion or Belief made in the 1990s concerning the subject of religious tolerance. Evans interprets recommendations of the Special Rapporteur, regarding the need to avoid adopting attitudes toward members of other faiths that are “inflexible” or “obstinate,” and making charges that are “gratuitous” or “impulsive,” as an indication that freedom of religion does not include, as Evans says, the right “to adhere to a religion which is intolerant of the beliefs of others.” Evans raises an important question: When human rights officials tell religious believers what attitudes and opinions to have, and how to express them, are they not guilty of the very intolerance they accuse others of having? Evans’s worry is that the human rights system is itself taking on the form of a new orthodoxy —a new domineering comprehensive doctrine. It readmits through the back door what it is supposed to bar at the front. The meaning of tolerance and intolerance in the human rights documents is problematic. In one place in the DEID, intolerance appears to mean the same as discrimination.78 Elsewhere, however, a distinction between tolerance and discrimination is implied. States are instructed to “prohibit” discrimination by means of legislation, while they are supposed to “combat” intolerance by taking “all appropriate measures.”79 Nor is intolerance, unlike discrimination, defined anywhere in the documents, leaving the concept open to interpretation.80 77 Report of the Special Rappoteur on Freedom of Religion or Belief, January 2006, para. 46, p. 14. 78 Article 2(2) of DEID. See p. 15, above for the definition of discrimination. Cf. Articles 2 and 27 of the ICCPR, and Articles 2 and 7 of the UDHR. 79 Ibid., Article 4(2). 80 See David Little, “Rethinking Religious Tolerance: A Human Rights Approach,” in id., and David Chidester, Religion and Human Rights: Toward an Understanding of Tolerance and Reconciliation (Atlanta, GA: Academic Exchange, 2001), p. 9ff.

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Nevertheless, Asma Jahangir, the former Special Rapporteur on Freedom of Religion or Belief, has provided some thoughtful guidelines for thinking about this problem in a recent report, “Incitement to Racial and Religious Hatred and the Promotion of Tolerance,”81 written with Doudou Diene, the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance. By working out the implications of these guidelines, it is possible to eliminate some of the vagueness and misunderstanding that are attached to the ideas of tolerance and intolerance, and thereby to reduce Evans’s worries about human rights as representing a new intolerant comprehensive doctrine. Jahangir provides fresh clarity to the ideas of tolerance and intolerance. On her account, to be intolerant in a legally liable sense is to express views or to behave in ways that “constitute incitement to acts of violence or discrimination against individuals on the basis of their religion [or belief ].”82 This is Jahangir’s interpretation of Article 20 (2) of the ICCPR, which prohibits by law any advocacy of national, racial, or religious hatred that incites to discrimination, violence, or hostility.83 She clarifies her view with this important comment: The Special Rapporteur notes that article 20 of the Covenant was drafted against the background of the horrors committed by the Nazi regime during the Second World War. The threshold of the acts that are referred to in article 20 is relatively high because they have to constitute advocacy of national, racial or religious hatred [of the sort exemplified by the Nazis].84

She elaborates as follows: The right to freedom of religion or belief, as enshrined in the relevant international legal standards, does not include the right to have a religion or belief that is free from criticism or ridicule...Defamation of religions may offend people and hurt their feelings but it does not necessarily or at least directly result in a violation of their rights, including the right to freedom of religion. Freedom of religion primarily con-

81

A/HRC/2/3, 20 September 2006. Ibid., para. 47, p. 11; cf. para. 37, p. 10. 83 See p. 15 and fn. 15, above. It is noteworthy that Jahangir narrows the punishable acts to violence and discrimination, and leaves out reference to “hostility” that is included in article 20 (2). Unlike violence and discrimination, hostility, as an attitude or emotion, is notoriously hard to police. 84 Ibid., para. 47, p. 11; emphasis added. 82

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fers a right to act in accordance with one’s religion but does not bestow a right for believers to have their religion itself protected from all adverse comment.85

In short, outside a narrow range of behavior, namely direct incitement to acts of violence or discrimination, the expression of attitudes and opinions inspired by a religion or belief are not, on a proper human rights understanding, punishable by law.86 From a legal point of view, people have a wide margin of leniency to criticize the beliefs and practices of others, even including the “defamation of religions.” Accordingly, tolerance implies a disposition to “suffer” or bear with beliefs and practices regarded as deviant or objectionable without inciting to violence or discrimination.87 To violate the stipulation against incitement is to be intolerant in a legally liable way. Jahangir goes so far as to rule out applying Article 4(a) of the Covenant of the Elimination of All Forms of Discrimination to religion or belief. That article makes punishable by law “all dissemination of ideas based on racial superiority or hatred...” There is, she says, good reason why there is no such provision regarding religion or belief in any of the human rights documents. “The elements that constitute a racist statement are not the same as those that constitute a statement defaming a religion. To this extent, the legal measures, and in particular criminal measures, adopted by national legal systems to fight racism may not necessarily be applicable to defamation of religion.”88 Whatever the intention of earlier statements on religious tolerance by Special Rapporteurs, it should be clear that the current Special Rapporteur in no

85

Ibid., paras. 36 and 37, p. 10; emphasis added. Considering all of the relevant portions of the international instruments, we might criticize Ms. Jahangir for narrowing too much the range of legally liable behavior. Article 29 of the UDHR and Article 18(3) of the ICCPR, as well as Article 9(2) of the ECHR, which provide for limitations of the manifestation of religion or belief on the basis of public order, health, safety, morals, or the rights and freedoms of others, are undoubtedly also relevant to the determination of legally liable behavior. Nevertheless, even taking those additional limitations into account, Ms. Jahangir’s emphasis on a very high threshold for restricting religious or other fundamental beliefs or practices is welcome as a way of protecting freedom of religion or belief, and is distinctly pertinent to the interpretation and application of the limitations’ provisions. 87 See Little, “Rethinking Religious Tolerance,” p. 9. 88 There is warrant for concern about the article even as regards racist ideas; see Karl Josef Partsch, “Racial Speech and Human Rights: Article 4 of the Convention on the Elimination of All Forms of Racial Discrimination,” Striking a Balance: Hate Speech, Freedom of Expression and Non-discrimination, Sandra Coliver, ed. (Essex: International Centre against Censorship, Human Rights Centre, University of Essex:1992): “When article 4 was adopted, the clause con86

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way interprets human rights law as imposing a new comprehensive doctrine. She is far from suggesting that human rights officials go around proposing laws that tell religious believers what attitudes and opinions to have, and how to express them. She even states explicitly that however the matter is in regard to racist ideas, the mere dissemination of ideas of religious superiority, a practice very hard to disconnect from fervent belief, is not punishable by law. We emphasize that this interpretation connects in an important way to our broader argument concerning the grounds of the human rights system. Jahangir’s explicit reference to the Nazi background of Article 20 of the ICCPR, and to what counts as legally proscribed behavior, underscores our point that the human rights approach in general and the protection of religion or belief in particular aims at inhibiting all forms of comprehensive doctrine in keeping with a set of minimum, common protections contained in the idea of public reason. So long as the minimum, common protections —the constitutional essentials (basic rights, etc.)— undergirding the idea of public reason are observed, the system itself is expressly not comprehensive since it welcomes and allows for a diversity of comprehensive doctrines. In fact, it legally guarantees a wide range for competition among them, even including the expression of strong forms of disapproval and disdain. There is, it is true, another more expansive and exalted idea of tolerance contained in the human rights documents, and alluded to in the report by the two Special Rapporteurs. It is well expressed in Article 26 (2) of the UDHR, describing a central purpose of education as the promotion of “understanding, tolerance, and friendship among all nations, racial or religious groups....” In the report, the “promotion of tolerance” is articulated as a disposition to support “policies and programmes in the fields of education, social, economic and cultural life, favouring the interactions between communities,” as well as “the value of cultural and religious diversity associated with the promotion of unity within society,” and “the creation of conditions facilitating encounter, dialogue and joint action for harmony, peace, human rights, development and combat against all forms of racism, discrimination, and xenophobia.”89 On this understanding, intolerance, presumably, would mean opposing these objectives.

cerning the prohibition of ideas based on racial superiority met with the strongest opposition. It is indeed hardly possible to define or even imagine the direct effect which the mere dissemination of ideas may have on the enjoyment of human rights or freedoms” (p. 26; emphasis added). 89 Ibid., para. 47, p. 11; emphasis added; para. 49, p. 12.

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There is much more to be said on the relation of the two types of tolerance adduced here than we have space for. The most important point for our purposes is that the two types should always be considered together. The ideals of encouraging “interactions between the communities,” of valuing “cultural and religious diversity,” and of “facilitating...encounter, dialogue and joint action” ought never be advocated without conscientiously guaranteeing the first type of tolerance, and protecting expressions of strong disagreement and disapproval, short, of course, of incitement to violence or discrimination.90 While Jahangir urges member states to “avoid stubbornly clinging to free speech in defiance of the sensitivities existing in society with absolute disregard of religious feelings,” they should also avoid, she says, “suffocating criticism of a religion by making it punishable by law.”91 It is only by guarding against the preferential treatment of one religion or belief over others that the ideals of diversity and of an equal right to interaction and encounter can be achieved.

C O N C LU S I O N From a human rights perspective, what we labeled Secularism 1 —‘a doctrine oriented toward human earthly well-being that excludes all consideration of religious belief and practice’— represents a fatal challenge to religious freedom. The central question we have confronted in this paper is whether Secularism 2— ‘a doctrine oriented toward human earthly well-being in a narrow or restricted sense that otherwise supports protection of religious belief and practice,’ and one, we have claimed, that underlies human rights language— also represents a severe challenge to religious freedom, despite its promises. That it does constitute such a severe challenge is, as we saw, the charge of scholars like Malcolm Evans and others. Current trends in human rights jurisprudence, as regards the work of both international and European institutions, reveal, on balance, a more hopeful picture than Evans and his skeptical confreres admit. Although by no means are all indications positive, the system shows signs of beginning to work as designed, particularly when the contributions of the Human Rights 90

Ibid., para. 63, p. 15. Or the violation of the other limitations stipulated in the instruments. See fn. 54, above. 92 Ibid., para. 66, p. 15. 91

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Committee and the UN Special Rapporteur for Freedom of Religion or Belief are accounted for. Even the European Court of Human Rights has begun with greater frequency to decide cases favoring expanded protection of the belief rights of minority religions, while still protecting the “public goods” linked to “human earthly well-being” the state is responsible to guard. One important final comment. Far from abolishing ‘comprehensive’ forms of expression (religious and other) from the ‘secular sphere,’ as the usual complaint claims, sustained and expansive public consideration of such forms of expression is an indispensable feature of the continual negotiation between the ‘two tiers’ of justification introduced by human rights language. Without the abiding and judicious case-by-case consideration of religious and comparable forms of expression, it would be impossible to decide exactly what the role and limits of ‘the secular’ are in given circumstances.

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SECULARISM, THE SECULAR, AND SECULARIZATION T. Jeremy Gunn Al Akhawayn University, Morocco

I N T RO D U C T I O N In 1958, Richard Loving, a white man, and Mildred Jeter, a black woman, traveled from their native Virginia to marry each other in Washington, D.C. Five weeks after the newlyweds returned home, Sheriff R. Garnett Brooks broke into their bedroom at 2:00 a.m. and charged the couple with violating the state law forbidding interracial marriage. In 1959, Judge Leon M. Bazile convicted both Lovings and sealed their fate with a religious justification for his decision: Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.1

There is no reason to doubt that Judge Bazile believed that his Bible and his Christian religion prohibited race-mixing, and we can easily imagine that many of the legislators who enacted Virginia’s Racial Integrity Law shared similar beliefs about God’s opposition to interracial marriages. The Lovings challenged their conviction in state and federal courts for the next eight years. Finally, in 1967, the United States Supreme Court reversed their conviction 1

As quoted in Loving v. Virginia (1967) 388 U.S. 1.

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on the grounds that Virginia’s statute violated the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. Although we have no measure of the public response to the appropriately named Loving decision, it certainly would not be surprising if many people who lived in the 24 other states that, like Virginia, had miscegenation laws prohibiting interracial marriage, believed that the United States Supreme Court had replaced God’s law with man’s law and that the decision provided yet another example of the Warren Court’s attempt to drive religion out of the public sphere.2 In 2007, 40 years after the Supreme Court’s decision, and after Richard had died in a car accident, Mildred Loving issued a statement saying: I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all.

Mildred Loving’s opinion supporting the right of gay people to marry is not shared by many people who have strong religious convictions. In 2012, for example, Monsignor Keith Newton, formerly an Anglican Bishop who converted to the Roman Catholic Church, declared in the Vatican that the “problem of the ordination of women and gay marriage are symptoms of the problem —the problem I think is liberalism in religion, secularism.”3 Secularism and liberalism, for Monsignor Newton, are enemies of religion and the push for gay marriage is a clear example of an assault on the sacred. Interracial marriage is no long illegal anywhere in the United States. In 2010, three years after Mildred Loving issued her plea for “the freedom to marry for all,” the Pew Research Center issued a report on American attitudes toward interracial marriage. In its survey, Pew found that more than 14% of all new marriages in the United States are between interracial couples and that more than one-third of the families in the United States now include 2

The era known as the “Warren Court” (1953-1969) was famous for several U.S. Supreme Court decisions that were understood by its critics as undermining religion in the public sphere, including decisions against state-sponsored prayer and Bible reading in public schools, the posting of the Ten Commandments in public schools, and restricting state financial aid to religious schools. 3 “Former Anglicans Celebrate Mass in St. Peter’s, Give Thanks to Pope,” Catholic News Service, Feb. 29, 2012, http://www.catholicnews.com/data/stories/cns/1200760.htm.

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people of different races. More than 60% of Americans have no objection to interracial marriages within their own families.4 We can thus imagine that the children and grandchildren of those who believed that God’s law prohibited interracial marriage in 1967 today would likely see no religious objection to whites and blacks marrying each other. If this were true, would the change be better understood as secularism triumphing over religion, or, as the lessening of racist attitudes of religious believers? In public opinion surveys conducted during the first decade of the twenty-first century, the Pew Forum on Religion & Public Life noted a dramatic shift in public attitudes toward gay marriage in the United States. Although there was a 22-point spread in opinion about gay marriage in 2001 (57% opposed to 35% supporting), by 2011 support and opposition were statistically even (46% to 45%). Furthermore, the strongest opposition to gay marriage was in the older population while the strongest support was among the young, suggesting that for demographic reasons alone the future likelihood of broad acceptance of gay marriage. Other surveys have found that that the children of Evangelical Christians, much to the dismay of their parents, are increasingly supportive of gay marriage. It can thus be imagined that within a few years after Monsignor Newton’s statement, gay marriage will be widely accepted by religious communities in the United States and Europe. It is entirely possible that the grandchildren of those who now believe that gay marriage should be blamed on secularism and liberalism, as does Monsignor Newton, will find no religious objection whatever to gay marriage, just as the grandchildren of Judge Bazile may see no religious objection to interracial marriage. If this were to happen, we can well imagine that Monsignor Newton might well describe this as the triumph of secularism over religion in the public sphere. But would he be correct? Might future generations of religious believers explain that what really happened was not a decline of religion, but the reduction of human prejudices from true religion? And, supposing that religious people of the future believe that the real reason behind their grandparents’ opposition to gay marriage was not sacred religion but human homophobia, who would be right —Monsignor Newton or those hypothetical religious believers of the future?

4 Curiously, the Pew Study, which did not even ask about possible religious objections to interracial marriage, did ask about objections to interreligious marriage, and found that Americans were much more accepting of mixed-race than mixed-religion marriages, and that the objection was strongest to marriages with atheists.

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It is often asserted that the so-called ‘secularization theory’ of the 1960s and 1970s —which argued that religious adherence was in decline— has been refuted by the ‘return to God’ and the ‘re-enchantment of the world’ that is observable around the world since the 1980s. The ‘Muslim world’ has been cited as the most obvious counterexample to the secularization theory. There is, it is argued, a resurgence of interest in Islam that is now evident by the percentage of women wearing the veil (hijab), by the increase in religious language by political figures, and by the growing influence of Islamist and Salafist groups throughout the Muslim world. Supposing that these examples are factually correct, are they in fact evidence of growing religious devotion, or, might they merely be examples of the increasing use of religious language and religious symbols to express other concerns? Are we witnessing a return to authentic Islam (however that may be understood) or an increase in the use of religious symbols as markers of Muslim identity? The ancient medina of Fez, Morocco, is widely believed by Muslims in North Africa and beyond to be a ‘sacred city.’ Today’s medina in Fez, however, probably has fewer mosques than it did 100 years ago.5 Football matches are now broadcast on televisions throughout the medina to audiences that certainly appear to be more passionate about a match pitting Manchester United against Real Madrid than Friday sermons or the Qur’an recitations that also appear on televisions in the medina. Should this be understood as some evidence that the great-grandparents of the Fez football fans were more ‘religious’ than their descendants or that the public sphere in the medina was more ‘religious’ in 1900 than it is today? Although we can observe from photographs and glean from written accounts that the earlier generation appeared to be more ‘religious,’ we also should ask in what religion did they believe? Was it a religion of deep personal piety, powerful experiences of prayer, and a devotion to God that was based on intimate familiarity with the Qur’an and the hadith of the Prophet, or might the illiteracy of the majority of the former population have meant that they were less knowledgeable about the Qur’an? Was the comportment of the earlier generation based more on superstitions and social pressures? Perhaps the most devout and informed Fezis of today, if transported back in time, would find that their ancestors were people ignorant of the basic

5 Unofficial figures place the number of mosques in the Fez medina today at 170. During the reign of the twelfth century’s Yaqub Al-Mansur, 785 mosques were located with the same geographical space. Ali ibn-abi-Zar, Rawd Al-Kirtas: Histoire des Souverains du Maghreb et annals de la ville de Fès, trans. Auguste Beaumier (Rabat: Editions La Porte, 1999), p. 48.

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tenets of the ‘true Islam’ and that they were influenced by superstitions claiming that speaking to a black cat would transform the feline into a frightening Jinn and that pouring hot water in the sewer would provoke angry Jinns to spring from the underworld and torment the perpetrator.6 Would any of these examples, real or hypothetical, help explain whether Fez has become more religious or more secular? The earlier generation might think that the latter is more secular and less religious, while the latter generation might think that the earlier was more superstitious, gullible, and influenced by folk myths and social pressures rather than true Islam. Looking toward the Christian world, we have the curious example of the seventeenth century’s Princess Elizabeth Charlotte of the Palatine, the Duchesse d’Orléans (married to Louix XIV’s brother) who refused to believe that “in all Paris, clerical or lay, there are more than a hundred people who have the true faith and even who believe in our Lord.”7 Supposing that she was correct, would not this undercut any theory that presupposes a relatively more religious seventeenth century and a relatively more secular twenty-first? More recently, should Vatican II (1962-1965) be understood as the triumph of modern secularism over traditional Catholic orthodoxy, or as the reinfusion of traditional doctrine into a Church that had lost its way? Or as a restatement in modern language of the eternal and unchangeable religion? Is the Catholic Church in the twenty-first century on a path of moving away from the secularism of Vatican II toward a pre-Vatican II religious consciousness? Perhaps any conclusions we might reach about one era being ‘more religious’ or ‘more secular’ than another says more about our own presuppositions than any actual changes in religion or secularization in the Christian or Muslim worlds. If we focus on how people over time have explained the causes of infant mortality we are probably safe in concluding that secular explanations of illness and death have become increasingly prevalent, even when they are not the only explanations offered. In most countries today, including those deemed most religious, infant mortality is increasingly likely to be analyzed through a secular lens that focuses on factors such as pre-natal medical care, genetic predisposition, sanitation, nutrition, and environmental pollution rather than in terms of the inscrutable ways of the Divine or of God calling

6 For the continuation of such beliefs in modern Morocco, see Tahir Shah, The Caliph’s House (New York: Bantam Dell, 2006). 7 Quoted in Owen Chadwick, The Secularization of the European Mind in the Nineteenth Century (Cambridge: Cambridge University Press, 1977), p. 9.

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his children home. Yet the parents of an infant who dies prematurely or the members of a religious community that loses one of its young may well continue to frame their understanding of the loss in terms much like their ancestors. The secular explanation is not necessarily incompatible with the religious belief that is linked to the past by a “chain of memory.”8 On the one hand there are many powerful indicators of what certainly seem to be an increasing reliance on scientific explanations of events, but on the other hand there is also an unwillingness of a substantial part of the world’s population to let go of God entirely. The conclusion about whether the world is becoming more secular may hinge on which of the many possible factors one chooses to emphasize: the frequency of references to God by politicians? The percentage of women who are veiled? Having as first recourse for an illness a visit to a priest or to a medical doctor? Popular beliefs in Jinns and angels? This chapter argues, in part, that the terms secular, secularism, secularization, lay, laïque, laïcité, the separation of church and state, and religion may be just as likely to distort our understanding of whether parts of the world are in fact undergoing secularization (whatever that is) as well as our understanding of disputes about the meaning of a ‘secular state’ or a ‘secular public sphere.’ The confusion is due, in part, to the fact that these terms are widely and inconsistently used to describe a vast range of phenomena that do not readily lend themselves to one-word labels. In addition, the terms are often used with strong moral judgments attached. Monsignor Newton and other opponents of what he considers to be secularism and liberalism understand that they are not neutrally describing a specific social phenomenon. Rather, they are self-consciously offering valueladen religious objections to what they see as morally harmful trends. Those who first used the words secularism and secularist in mid-nineteenth century England to describe their ideological movement similarly did not intend their choice of words to be neutral. For them, the words bore positive connotations and they identified a world-view that favored the improvement of mankind and the reduction of suffering in the world. And yet when we in the twenty-first century read the pamphlets of self-professed Victorianera secularists, we are likely to be struck less by their secularism and more by the fervent moral and quasi-religious tone that, by comparison, makes many famous television preachers of modern times appear to be both more secular and more political. It is possible that England’s famous eighteenth century 8

Danièle Hervieu-Léger, Religion as a Chain of Memory, trans. Simon Lee (New Brunswick: Rutgers University Press, 2000).

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preacher George Whitefield would be appalled by the comparative materialism, egoism, and secularism of his modern-day admirers, including the televangelists Jerry Falwell, Oral Roberts, and Robert Schuller. The disputed meanings of terms such as secularism, secularization, and laïcité have had particularly important consequences on our understanding about whether the world is becoming more ‘secular,’ as suggested by the ‘secularization theory’ and denied by its opponents, as well as whether the state should be secular and whether the separation of religion and the state promotes or undermines the freedom of religion.

E T Y M O LO G I E S

AND

ORIGINS

OF

TERMS

Etymological Roots of Secular and Lay To begin our analysis, we will examine the origins of the words secular and lay (and their cognates), as well as the separation of church and state, prior to the conflicts that came to surround these terms during the nineteenth century and that have continued thereafter. Secular, seculariser, saecularizatio, and secularization. The word secular, in both English and the Romance languages, derives from the Classical Latin saeculum, alternatively meaning an era or an age.9 It was sometimes taken to mean the longest potential lifespan of a person, variously identified as 100 to 110 years. During the Roman Republic, theatrical games (ludi saeculares or ludi scaenici) were set to occur at 100-year intervals. The expression saecula saeculorum, which appears more than a dozen times in the fourth century Vulgate Bible, has been translated into English as meaning “world without end” or “forever and ever.” Saeculum is also the etymological root of the word for “century” in Romance languages: siècle (French), siglo (Castilian Spanish), secolo (Italian), secol (Romanian), segle (Catalan), and século (Galician). Thus the original Latin root of secular (and its cognates) refers to periods of time. According to the Oxford English Dictionary (OED),10 the earliest English use of the word secular appeared in 1290 and differentiated among those who had taken vows (holy orders) by whether they lived in a monastic life separated from the world, or lived and worked in the world. Although both had 9

The eighteenth-century American motto “novo ordo seclorum” may be translated as “the new order of the ages.” 10 The Oxford English Dictionary, 2nd ed. (Oxford: Oxford University Press, 1991).

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taken vows (such as to live in poverty, chastity, and obedience), some were cloistered in monasteries (and called regular or religious) while those living in the world (secular) were not. Coincidentally, in the same year (1290), secular was also used to signify something “belonging to the world and its affairs as distinguished from the church and religion.” It meant “civil, lay temporal. Chiefly used as a negative term, with the meaning non-ecclesiastical, non-religious, or non-sacred.” In the 16th century secular was used to describe educational subjects that were non-religious in nature and that partook of “reason.”11 Thus, from as early as the late thirteenth century, secular came to have two distinguishable meanings: first, separating those living under divine orders into two categories (cloistered versus living in the world), and second, things belonging to the world that were not in the religious realm. According to the Centre National de Ressources Textuelles et Lexicales (CNRTL),12 séculier was also introduced into the French language in the thirteenth century, where it was used to mean he “who lives during the century (or in time), in the world” (“qui vit dans le siècle, dans le monde”), with the cited example being that of a “secular canon.” As with English, it was understood to mean “temporal” or “in the world.” According to Le grand Robert de la langue française, such meanings continued into the eighteenth century.13 The principle meanings of séculaire in the nineteenth century Littré dictionary were associated with the passage of time, particularly with references to the span of a century.14 Although deriving from the root word secular, the fifteenth and sixteenth centuries saw the use of the French words séculariser and sécularisation as bearing the specific meaning of the transfer of that which had been owned by the church (particularly the Roman Catholic Church) to the state, private persons, or sometimes other religious communities (such as a Protestant church). During the sixteenth century, the English word secularization meant the “conversion of an ecclesiastical or religious institution or its property to 11 Over time, secular came to be used to describe the civil law as opposed to ecclesiastical law. William H. Swatos and Kevin J. Christiano, “Secularization Theory: The Course of a Concept,” Sociology of Religion 60 (1999), p. 211. 12 http://www.cnrtl.fr/ 13 Le grand Robert de la langue française, 2nd ed., (Paris: Le Robert, 1992). According to Albert Dauzat, Jean Dubois, and Henri Mitterand in their Dictionnaire étymologyique et historique du français (Paris: Larousse, 1994), sécularité was introduced in 1170, séculaire in 1550 (from Latin saecularis (century)), and seculariser in 1586. 14 É. Littré, Dictionnaire de la langue française (Paris: Librairie Hachette et Cie., 1873).

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secular possession and use; the conversion of an ecclesiastical state or sovereignty to a lay one” (OED). These terms were associated with the transfer of property ownership, as when agricultural lands or buildings of a monastery were seized by the state or sold to the aristocracy. According to Franco Ferrarotti, the Latin word saecularizatio first came into use during the negotiations that culminated in the Peace of Westphalia (1648). The word was offered by the French legate Longueville as a term to signify the expropriation of Roman Catholic Church properties for other uses, including granting them to Protestant churches.15 The 1806 Webster defines secularization as “the act of converting from an ecclesiastical to a secular use.”16 The 1873 Littré gives this same meaning to secularization, identifying Voltaire as having employed it as such in 1743: “I do not believe that the Prussian king wanted France to become involved in the secularization of ecclesiastical lands for the benefit of Austria.”17 It will be this meaning of “the transfer of ownership of property” that will play a significant role in France between the Revolution of 1789 and the 1905 Law on the Separation of Churches and the State. It was not until the late nineteenth century that secularization came to acquire the additional meaning of the rejection of a religious world-view in favor of one without religion, as will be described further below. Lay, Laic, and Laïque. The English lay as well as the French laïc and laïque derive from the Greek laikos (of the people) as opposed to klêrikos (of the clergy). In Latin, laicus (laica/laicum) meant “unconsecrated.” The OED identifies lay as appearing as early as 1330 and as referring both to “people as contradistinguished from the clergy” or as meaning “not in orders; non clerical.” The first use of the term lay with the pejorative connotations of “unhallowed; unsanctified; unspiritual, secular, worldly” came in 1609. Where as secular may be understood as implying different living arrangements for those who were living under vows, lay came to differentiate ordained clergy (priests, bishops, hieromonk) who were authorized to perform sacramental services from all people who were not so ordained. Laïque in French followed the same meanings as lay in English, separating the ordained clergy from those who were not ordained. Increasingly, the more common reference was to

15

Ferrarotti, pp. 77-78. See also Shiner, p. 208. Noah Webster, A Compendious Dictionary of the English Language (1806 edition) (N.P.: Bounty Books, 1970). 17 “Je ne crois pas qu’il [le roi de Prusse] voulût que la France se mêlât de cette sécularisastion [de principautés ecclésiastique en faveur de l’Autriche].” 16

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people who had no religious duties or responsibilities as opposed to all church officials. The Separation of Church and State. While the concept of separating church and state in Christian thought might be traced back to Jesus’s call to “render unto Caesar that which is Caesar’s and unto God that which is God’s,” the introduction of the metaphor “wall of separation” to divide religion from the secular world is generally credited to Roger Williams in 1644: First the faithful labors of many Witnesses of Jesus Christ, extant to the world, abundantly proving, that the Church of the Jews under the Old Testament in the type, and the Church of the Christians under the New Testament in the Antitype, were both separate from the world; and that when they have opened a gap in the hedge or wall of Separation between the Garden of the Church and the Wilderness of the world, God hath ever broke down the wall itself, removed the Candlestick, and made his Garden a Wilderness, as at this day. And that therefore if he will ever please to restore his Garden and Paradise again, it must of necessity be walled in peculiarly unto Himself from the world, and that all that shall be saved out of the world are to be transplanted out of the Wilderness of the world, and added unto His Church or Garden.18

Professor David Little has forcefully argued that the seventeenth century’s Roger Williams offers a full-bodied, modern concept of the separation of religion and the state that is based on the premise of the two worlds of religion and the state: the wilderness Williams fears is the condition of an established religion where both church and state are mutually degraded and corrupted by failing to observe the critical distinction between the inward and outward forums. A state where there is no establishment —where conscience is free to exercise itself as it should— is, to be sure, a place in which ‘the gardens of Christ’s churches’ can exist as intended; but it is also a place in which the state can perform its duties as intended as well. It is such circumstances that exhibit the desirable degree of consonance and harmony between religious and the civil organizations, thereby fulfilling the proper vocations of each.19 18

Roger Williams, “Mr. Cotton’s Letter Lately Printed, Examined and Answered,” (London, 1644), in Reuben Aldridge Guild, ed., The Complete Writings of Roger Williams (New York: Russell & Russell Inc., 1963) 1:108 (emphasis added). 19 David Little, “Roger Williams and the Puritan Background of the Establishment Clause,” in T. Jeremy Gunn and John Witte, Jr., eds., No Establishment of Religion: America’s Original Contribution to Religious Liberty (New York: Oxford University Press, 2012), p. 112.

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Writing a century and a half after Roger Williams, American President Thomas Jefferson used the same metaphor, but with an alternate meaning suggesting not the fear that the garden of church will be harmed by the corruption of the world, but that separating the church and the state would benefit the integrity and health of both. In his famous 1802 “Letter to the Baptists of Danbury, Connecticut,” Jefferson quoted the First Amendment to the U.S. Constitution and added his own interpretation of its meaning. “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”

N I N E T E E N T H C E N T U RY P O L E M I C S : R E L I G I O N

VERSUS

IRRELIGION

Prior to the mid-nineteenth century, the words secular and its cognates (including secularization) were reasonably straightforward terms used to describe the transfer of ownership of property from a religious entity to another owner. Similarly, the words lay and its cognates were used to identify religious men who had taken sacred vows and who lived “in the world” (such as Franciscan friars), as opposed to other religious men who had taken sacred vows, but who lived a monastic or cloistered existence (such as Dominican or Augustinian monks). The words secular and lay were generally not used to denote an “unreligious” frame of mind nor were they used to describe societal attitudes that departed from a religious world-view to one devoid of religion. Neither the famous encyclical Mirari Vos (Gregory XVI, 1832) nor the infamous Syllabus of Errors (Pius IX, 1864) condemned any of these terms. Although the Syllabus denounced pantheism, naturalism, rationalism (in both its absolutist and moderate varieties), indifferentism, latitudinarianism, socialism, communism, liberalism, and Protestantism, it said nothing about secularism —a word that was coined a little less than 20 years earlier. Nevertheless, during the course of the nineteenth century, terms such as secularism, secularization, and laïcité, along with the separation of church and state, came to acquire additional new —and often pejorative— connotations ranging from a non-religious world-view to a more strident anti-religious world-view. In some cases new connotations were consciously advocated by those who sought to attach a positive meaning onto an old root word, as was the case when Jacob Holyoake introduced the term secularism in 1851. In

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other cases pre-existing terms were given sharply polemical meanings, such as when the previously positive connotations of the word liberal (meaning generous) became used in a pejorative way when British Tories began to describe their opponents as liberals (suggesting dissolute and undisciplined). It is indeed revealing to see the chronological order in which the modern connotations of several terms were first introduced during the course of the nineteenth century. Liberalism, according to Chambers Dictionary of Etymology, first appeared in English in 1819, one year after libéralisme made its first appearance in French.20 The word derived from the Latin liber (“free”). The fourteenth-century root liberal bore the positive meaning of “befitting free men.” The 1806 Webster defined the word liberal with this same sense: “generous, bountiful, free, genteel.” According to the Encyclopedia of Philosophy, the word liberal “was first heard in a political sense in England in the early nineteenth century, when ‘liberals’ were thus named by their Tory opponents.”21 One of the leading modern scholars of the Victorian period, the former Regius Professor of Modern History at Cambridge, Owen Chadwick, began his study on secularization in Europe in the nineteenth century with a chapter on liberalism. Confused, vague, contradictory, the idea of liberalism dominated the nineteenth century, more a motto than a word, more a programme of what might be than a description of what was; a protean word, which some claimed to rest upon coherent philosophies and economic theory and others saw as the destruction of the stable structure of a reasonable society.22

The person who perhaps more than any other associated with the term liberalism in France during the first third of the nineteenth century was Félicité de Lamennais, a Catholic priest who sought to reform the church from within. There were, before Lamennais, self-described liberals who formed part of the opposition to the restored Bourbon regime (1815-1830).23 The term nevertheless became prominently associated with Lamennais. His Des 20

Chambers Dictionary of Etymology, Robert K. Barnhart, ed. (Edinburgh: Chambers,

1988). 21 Encyclopedia of Philosophy, vol. 4, Paul Edwards, ed. (New York: Macmillan Publishing Co., Inc., 1967), p. 458. 22 Chadwick, Secularization, p. 21. 23 See René Rémond, The Right Wing in France: From 1815 to de Gaulle, trans. James M. Laux (Philadelphia: University of Pennsylvania Press, 1969).

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progrès de la révolution et de la guerre contre l’église (1829) repeatedly used the term favorably and it appeared with regularity in his correspondence of that year and thereafter. On August 19, 1829, for example, he wrote to Le Marquis de Coriolis saying that “henceforth, there is a fight to the death between liberalism and the Bourbons.”24 Lamennais was the principal force behind the publication of the newspaper L’Avenir (1830-1831) and he was one of its principal contributors as well.25 In one of his many paeans to liberalism, Lamennais praised “a liberalism that is true, enlightened, generous, and which presses against all oppression and which strongly favors true liberty; a liberty that is equal for all and entirely for all.”26 L’Avenir was known for promoting not only liberalism and urging an alliance between liberals and Catholics, but also reform of the Church, freedom of conscience, democracy, economic justice, the separation of church and state, freedom of education, and the freedom of the press.27 Although Lamennais hoped to win the support of Pope Gregory XVI to the cause of liberalism, he failed. The Pope ordered L’Avenir to cease publication in 1831, an order that Lamennais immediately obeyed, albeit with resentment. The Pope went one further step and issued the encyclical Mirari Vos in 1832 to condemn exactly the ideas that had been promoted in L’Avenir. Although mentioning neither the priest nor the newspaper by name, there was no question about who the target was. The encyclical condemned “liberalism and indifferentism” in the official English subtitle (“libéralisme” in the official French). The text of Mirari Vos did not include the word liberalism itself, but criticized instead what it apparently perceived to be three constituent components of liberalism: “freedom of conscience,” “freedom of religion,” and “freedom of the press” —each of which had been praised in the pages of the newspaper. In official Vatican circles, liberalism

24

Lamennais, Correspondence, vol. II (Paris: Didier et Cie., 1863), p. 71. See Peter N. Stearns, Priest and Revolutionary: Lamennais and the Dilemma of French Catholicism (New York: Harper & Row, 1967), p. 72. 26 Oeuvres de F. de la Mennais, Journaux ou articles publiés dans le mémorial Catholique et l’Avenir (Paris: P.D. Cailleux et Cie., 1836-1837), p. 267. 27 See Stearns, Priest and Revolutionary, pp. 64-97; Guido Verucci, ed., L’Avenir (18301831), (Roma: Edizioni Di Storia et Letteratura, 1967). It was in this same sense that the Centre National de Ressources Textuelles et Lexicales, (CNRTL) noted Alphonse de Lamartine’s definition of libéralisme in 1835 as meaning “Independence of spirit, particularly with regard to religious dogmas.” (“Indépendance d’esprit en particulier à l’égard des dogmes religieux.”) (Lamart., Voy. Orient, t. 1, 1835, p. 37). http://www.cnrtl.fr/definition/liberalisme 25

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would henceforth be stripped of its positive connotations of free and generous and would thereafter be tainted by papal condemnation. The most famous papal condemnation of liberalism appeared in the Syllabus of Errors, which was released as an addendum to the encyclical Quanta Cura, promulgated on December 8, 1864. The conjoined documents were prepared at a particularly difficult time for the papacy. King Victor Emmanuel II had succeeded in uniting most of Italy with the exception of the Papal States, which were then occupied by French troops ostensibly protecting the Pope. “The mortal enmity between the Church of Rome and Italian liberals was only a tense example of a clash which was found in Prussia, Austria, France, Spain and sometimes England.”28 The Italian parliament had declared in 1861 that Rome should be the capital of the new Italian state, a decision strongly denounced by Pope Pius IX and rendered effectively impossible by the French troops loyal to the Pope. But in September 1864, an agreement was reached between the French ruler, Napoleon III, and Victor Emmanuel, which provided that the new Italian capital would be in Florence and that the French troops would leave within two years. The compromise was bitterly denounced by Italian patriots, who continued to insist that Rome should immediately become the capital, as well as by the Pope, who feared that the withdrawal of French troops would ultimately lead to the final loss of his states. Quanta Cura and the Syllabus of Errors promulgated by the beleaguered Pius IX contained a litany of “heresies and errors” of the modern world that were denounced under the rubric of liberalism. The Pope’s language was not temperate. The identified errors were “evil opinions” resulting from the “nefarious enterprises of wicked men, who, like raging waves of the sea foaming out their own confusion” offered “deceptive opinions and most pernicious writings” designed to seduce “deprave[d] persons, and especially inexperienced youth...” (QC, para.1). The errors were condemned for being “monstrous portents of opinion which prevail especially in the age” (QC, para.2). These liberal ideas were “totally false” and it would be necessary to “exterminate [these and] other evil opinions.” The idea of “liberty of conscience” was “insanity” and “naturalism” was “absurd” (QC, para.3). The Syllabus, which listed 80 distinct errors, concluded by identifying the “errors having reference to modern liberalism.” One such error was that the “Roman Pontiff ought to, reconcile himself, and come to terms with progress, liberalism and modern 28

Chadwick, Secularization, p. 45.

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civilization” (SE, 80). Other condemned errors falling under liberalism included the possibility that Catholicism should not be the only religion of the state (SE, 77) and allowing non-Catholics the right to practice their own religion (SE, 78). The Syllabus also condemned the doctrine of separation of church and state, which will be discussed further below. The liberalism that was denounced by the Holy See in the nineteenth century did, however, evolve. During the last quarter of the nineteenth century, Catholics started to see liberalism as their ‘friend.’ “German Catholics appealed to it as early as the 1870s, French Catholics not until the 1890s. From the end of the 1880s, Pope Leo XIII started a policy of encouraging Catholics to take part in democratic elections...”29 Once the Italian (or French) state became the opponent of Catholicism rather than its supporter, Catholics themselves adopted the liberal position of freedom of conscience as their defense against what had now become a non-religious state. “Like the liberal, the Christian maintained the faith that legal right can be moral wrong and that a legislator cannot reject appeals to an ethical standard not derived from his laws.”30 The ‘liberty of conscience’ that was once a reviled heresy became the foundation of the modern Catholic doctrine of human rights as explained in Dignitatis Humanae (Paul VI, 1965). What Professor Chadwick described above as the beginning of secularism in Europe, the liberal claim of the primacy of conscience, was fully embraced by the Second Vatican Council. In all his activity a man is bound to follow his conscience in order that he may come to God, the end and purpose of life. It follows that he is not to be forced to act in manner contrary to his conscience. Nor, on the other hand, is he to be restrained from acting in accordance with his conscience, especially in matters religious.31

Just as we saw a transformation of religious attitudes toward allowing interracial marriage on the part of Americans, so we see a transformation of official Catholic doctrine on the sanctity of conscience. Is it more appropriate to understand this as secularization or as the purification of religion? As described above, President Thomas Jefferson introduced the term separation of church and state in the nineteenth century as a shorthand characterization of the U.S. Constitution’s religion clauses. The term thereafter crossed

29

Ibid., p. 46. Ibid., p. 47. 31 Dignitatis Humanae, para. 3 30

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the Atlantic and became a topic of discussion among Europeans. Lamennais, as previously mentioned, particularly praised the concept of the separation of church and state in L’Avenir.32 In 1830 he published an article entitled “On the Separation of Church and State,” where he took a position not unlike that of Jefferson. “We believe that today religion must be totally separated from the state and the priest from politics.” He argued that people “demand the total separation of church and state” and that this principle significantly implicates “freedom of conscience.” Lamennais’s concern, like Jefferson’s, derived not from antagonism toward the church or the state, but from the fear that each might inappropriately interfere with the legitimate activities of the other. “The government should not interfere with religions or their teachings or discipline. The spiritual order should be outside of such involvements and be completely free from temporal control.”33 As with his attempt to promote liberalism within the church, Lamennais’s effort to aid religion by promoting the separation between church and state similarly was condemned. Mirari Vos denounced the separation of church and state because it would “break the mutual concord between temporal authority and the priesthood” —a relationship that “always was favorable and beneficial for the sacred and the civil order” and that had been deceitfully promoted by “the shameless lovers of liberty.”34 In the year between the publication of the Lamennais article on the separation of church and state in 1830 and the promulgation of Mirari Vos in 1832, Alexis de Tocqueville decided to make his own inquiry into the issue during his fact-finding visit to the United States in 1831. In America, Tocqueville discovered a widespread American consensus in favor of the separation of church and state. Although the report on his findings did not appear in published form until 1835, Tocqueville found that Americans “thought that the main reason for the quiet sway of religion over their country was the complete separation of church and state. I have no hesitation in stating that throughout my stay in America I met nobody, lay or cleric, who did not agree about that.”35 Other foreign visitors to the United States in the nineteenth

32

See especially Lamennais, “De la séparation de l’église et de l’état,” in Guido Verucci, ed., L’Avenir (Rome: Edizioni Di Storia et Letteratura, 1967), pp. 25-31. 33 Oeuvres de F. de la Mennais, Journaux ou articles, pp. 151, 152, 155. 34 Mirari Vos, para. 20. 35 Alexis de Tocqueville, Democracy in America, J. P. Mayers and Max Lerner, eds., trans. George Lawrence (New York: Harper & Row, 1969), pp. 271-72.

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century, both Catholics and non-Catholics, made observations similar to those of Tocqueville. The Hungarian patriot and statesman Louis Kossuth wrote in 1852 that some countries are endangered by the “direct or indirect amalgamation of Church and State. [However,] of this danger, at least, the future of [the United States] is free.”36 Writing in 1862, Tocqueville’s fellow Frenchman, the Count Agenor de Gasparin, declared that the United States had “proclaimed and loyally carried out the glorious principle of religious liberty” while at the same time adopting “another principle, much more contested among [the French], but which I believe destined also to make the tour of the world: the principle of separation of Church and State.”37 Another European count, the eccentric Pole Adam De Gurowski, concurred: “Religious liberty, the absolute separation of Church and State, has become realized in America far beyond the conception, and still more the execution, of a similar separation in any European Protestant country. This separation, and the political equality of all creeds, constitute one of the cardinal and salient traits of the American Community.”38 Some American Catholics who traveled to Europe told their co-religionists that one of their best guarantees of religious freedom in the United States was the separation of church and state. One of the leading Catholic publications in the United States heartily endorsed Thomas Jefferson’s 1802 interpretation of the U.S. Constitution. “The state [according to Jefferson’s theory], is a purely political organism, and is not in any way concerned with religion; and this soon came to be the prevailing sentiment in the Democratic party, whose acknowledged leader Jefferson was, which may explain why the great mass of the Catholics in this country have voted with this party.”39 Catholics in America “owe the freedom which they now enjoy to the operation of the general laws [on religion].”40 Far from feeling themselves to be the victims of a polemic, Catholics, like their fellow countrymen, embraced the concept. During the course of the nineteenth century in America, Jefferson’s phrase “separation of church and state” came to be broadly accepted as a 36 Louis Kossuth, The Future of Nations, In What Consists Its Security: A Lecture Delivered in New York, June 21, 1852 (New York: Fowler and Wells, 1854), p. 32. 37 Agenor de Gasparin, The Uprising of a Great People: The United States in 1861 (London: S. Low, 1861), pp. 63-64. 38 Adam G. De Gurowski, America and Europe (New York: D. Appleton, 1857), p. 323. 39 “The Catholic Church in the United States: 1776-1876,” Catholic World (July, 1876): pp. 440-41. 40 Ibid., p. 441.

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shorthand description of American constitutional doctrine.41 In 1878, the United States Supreme Court officially adopted Jefferson’s “wall of separation of church and state” as the guiding interpretation of the religion clauses of the First Amendment.42 Observations such as these, by Catholics and non-Catholics, were no more persuasive with the Vatican in the Syllabus of Errors than had been Lamennais earlier in the nineteenth century. The Syllabus’s error number 55: “The Church ought to be separated from the State, and the State from the Church.” The condemnation of this doctrine continued. In the encyclical Libertas Praestantissimum (Leo XIII, 1888), the “separation between Church and State” was designated as a “fatal theory” whose “absurdity” is “manifest.” (LP, paras. 18, 38, 39). In 1905, the French —the one-time protectors of Pius IX in 1864 when he promulgated the Syllabus of Errors— adopted a new law pointedly entitled “On the Separation of Churches and the State” (la loi de 9 décembre 1905 concernant la separation des Églises et de l’État). The term séparation occurs solely in the title of the law and, like the term laïcité, does not appear anywhere in the text itself. The statute provided for the transfer of church lands to the state. The new French law was immediately denounced in the encyclical Vehenter Nos (Pius X, 1906). The Holy Father “condemned” this law, which was based on a theory that was “eminently disastrous and reprehensible” and was “absolutely false.” (VN, paras. 3, 4)

41 For the use of “separation of church and state” in nineteenth-century America, see T. Jeremy Gunn, “The Separation of Church and State versus Religion in the Public Square: The Contested History of the Establishment Clause,” in No Establishment of Religion, Gunn and Witte, eds. 42 Reynolds v. United States (1878) 98 U.S. 145. Seventy years later, the Supreme Court reaffirmed the separation metaphor as a guiding standard in constitutional interpretation in Everson v. Board of Education (1947) 330 U.S. 1. In the wake of Everson, some scholars began to attack the appropriateness of Jefferson’s metaphor in constitutional interpretation. Increasing public opposition to the concept of “separation of church and state” did not emerge until the 1980s, coinciding, not coincidentally, with the rise of the religious right and the Moral Majority (founded in 1979). Perhaps the ultimate, albeit misdirected, attack on the concept was in Philip Hamburger, The Separation of Church and State (Cambridge: Harvard University Press, 2002). Hamburger argued that the real originators of the modern concept of separation were jingoists, racists, nativists, free-thinkers, anti-Catholics, and the Ku Klux Klan. For a response to Hamburger see my “The Separation of Church and State versus Religion in the Public Square” cited at note 41 above. The U.S. Supreme Court has ceased using the term as an explanation of the meaning of the Constitution and political leaders have become increasingly vocal in their denunciation of the term.

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Writing in 1910, the great historian of the French revolution, Albert Mathiez, wrote a lengthy article criticizing the anachronistic use of the concept of separation de l’église de l’état that had crept into historians’ writings during the previous decade.43 Historians writing in the first years of the twentieth century had made the mistake, according to Mathiez, of retroactively applying the modern concept of the separation of church and state to the beliefs and actions of eighteenth-century philosophers and revolutionaries. On some occasions, Mathiez argued, they simply mischaracterized the beliefs of those whom they were describing. On other occasions, they mistakenly criticized their subjects for failing to articulate clearly the doctrine of separation, despite the fact that they did not actually have such beliefs. While the 1905 law may have helped launch the term ‘separation’ into modern French consciousness, with the resulting historical errors that Mathiez identified, the important term laïcité appears nowhere in the 1905 law —a law that for many is the legal foundation of laïcité in France.44 According to the OED, anticlerical first appeared in the English language only in 1845, and at that time signified a person who was “opposed to clericalism.” By 1886, anticlericalism bore an even sharper tone as suggesting the world-view of freethinkers in opposition to the clergy. Surprisingly, anticlérical failed to appear in the Littré of 1873 or 1877. Le grand dictionnaire universel du XIXe siècle (Le grand Larousse) introduces anticléricalisme as late as 1866 under the definition of a belief “opposed to the influence and to the intervention of the clergy in public life.”45 Réné Rémond, apparently having missed the entry in Le grand Larousse, dates its first appearance to 1876 (in the Journal officiel of 27 June). Anticlérical was, of course, never understood to be a neutral term. According to Chadwick, “Anti-clericalism in France was first, a feeling in republican bellies.”46 Although the word did not come into common usage until the end of the nineteenth century, the concept of course had deep roots in European history.47 The instigation of the growth of anticlericalism after mid-century can, to some extent, be traced to the increas43 Albert Mathiez, “Les philosophes et la séparation de l’église et de l’état en France à la fin du XVIIIe siècle,” Revue Historique, vol. 103 (1910): pp. 63-79. 44 See the discussion of laïcité below. 45 Opposé à l’influence et à l’intervention du clergé dans la vie publique.” 46 Chadwick, Secularization, p. 39. 47 See Henri Plard, “Anticlérical, anticlericalism: Évolution de ces termes,” in Aspects de l’anticléricalisme du moyen age à nos jours, ed. Jacques Marx (Brussels: Editions de l’université de Bruxelles, 1988), pp. 15-21.

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ingly reactionary pontificate of Pius IX. Although he had been widely praised as a reformer upon his elevation to the papacy, the revolutionary year of 1848 pushed him into a deep conservatism. In France, the increasingly reactionary Vatican reminded the French of the return of the Jesuits in 1814, when the clergy aligned itself with the restored Bourbon throne. In addition, the Risorgimento in Italy, which had seized virtually all of the lands of the Papal States by 1860, increasingly pushed Pius IX and his defenders toward the right. The establishment of the French Third Republic in 1870-1871 and its growing anticléricalisme created a potent mixture when, for many Republicans, the Church became toxic and the consequences were the laicization of public schools in the 1880s and, ultimately, the seizure of church properties by the Law on Separation of Churches and the State of 1905. According to the OED, the word secularism was first published by George Jacob Holyoake in the Reasoner on 10 December 1851. To the contrary, the North American Review had already published an article in January of 1846 that referred to “the alleged secularism of the last age” without defining the term, which suggests that its meaning was already reasonably understandable to the reading public. The word also had appeared in two earlier issues of the Reasoner in 1851.48 Professor Chadwick credits Holyoake with having “put into the English language that new word … secularism. In June 1851 a friend and backer, the lawyer W.H. Ashurst, advised [Holyoake] to call himself a secularist, with the special object of freeing himself from the imputations of atheism and infidelity.”49 The difference between 1846 and 1851 is, of course, of little significance. The important point is that secularism can be identified with reasonable precision as having come into English usage in the middle of the nineteenth century and it was understood as identifying a doctrine (or world view) that relies upon this-worldly reasoning rather than on faith or on adherence to tradition.50 Holyoake, unlike some later proponents of secularism, did not 48

The Reasoner and Theological Examiner, vol. XI (25 June and 16 July, 1851): pp. 88, 118. Owen Chadwick, The Secularization of the European Mind in the Nineteenth Century (Cambridge: Cambridge University Press, 1977), p. 91. For Holyoake and ‘secularism,’ see the discussion below. For a study of Holyoake’s activities and influence, see Edward Royale, Victorian Infidels: The Origins of the British Secularist Movement, 1791-1866 (Manchester: U.P., 1974). 50 It is probably fair to say that Holyoake is using ‘secularism’ as what Charles Taylor would describe as an “external dyad.” Unlike an “internal dyad,” which would define secularism in relationship to something else (that is religion), Holyoake wants to treat it as a concept in and of itself that does not need to refer to something else. 49

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overtly attack religion nor make metaphysical assertions denying the existence of God or an afterlife, but asserted simply that his focus of concern was on what reason and science could reveal about the observable world. The OED describes the first meaning of secularism to be the “doctrine that morality should be based solely on regard to the well-being of mankind in the present life, to the exclusion of all considerations from belief in God or in a future state.” One of the first full-bodied explanations and defenses of the newly coined secularism appeared in a public debate in 1853 between the activist George Holyoake and the Reverend John H. Rutherford of Newcastle-on-Tyne.51 In that debate, Holyoake made a concerted effort not to attack, insult, or denigrate religion or faith, but to argue instead that public policies and political actions should be based on reason, science, and phenomena observable to everyone rather than on the individual’s personal feelings about scripture or faith in an afterlife. Holyoake did not deny the existence of God nor make any claims about what might exist after death. He argued only that public policies should be founded on what can be observed and understood by the rational mind rather than by means of the ineffable sentiment of faith. The 1853 Holyoake-Rutherford debate was transcribed, and we have Holyoake’s original definition of secularism as it emerged (haltingly) from that debate: it will perhaps be useful to state briefly what is intended by what we call Secularism; and you will see how out of this grows the importance which I attach to the proposition we have to debate. Secularism is a development of free thinking, including its positive as well as its negative side. Secularists consider free thinking as a double protest —a protest against speculative error, and in favour of specific moral truth. The term Secularism has not been chosen as a concealment or disguise, or as an apology for free inquiry but as expressing a certain positive, ethical element, which the terms infidel, atheist, sceptic, do not express.52

Holyoake’s secularism, as he defines it, is earnest, serious, humanitarian, and moral. While the Reverend Rutherford responded with his own earnestness based on fidelity to the Christian scripture, in reality the two men dif-

51

Christianity versus Secularism. A Public Discussion in Newcastle-on-Tyne, between The Rev. J.H. Rutherford and Mr G.J. Holyoake (London: Ward & Co., 1854). 52 Ibid., p. 3.

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fered less on how people should behave toward their fellow men and more on the underlying rationale for their differing worldviews. According to Chadwick, the “more carefully we examine secularist groups the more they look like a little religious denomination...”53 Holyoake’s opponents nevertheless seized upon the words secular and secularism and used them as pejoratives in contrast to their firm religious values based on faith in God, the scriptures, and the Church. The subtitle of the Reverend Woodville Woodman’s 1852 pamphlet attacking Holyoake says it all: The Fallacy of Infidel Arguments Exposed and Refuted. Almost immediately, ‘secularism,’ like ‘atheism,’ ‘agnosticism,’ and ‘free-thinker’ aroused the outrage of the pious classes. Later having tired of defending ‘secularism’ as a neutral term, Holyoake’s successor at the Secular Society, Charles Bradlaugh, embraced secularism as a polemical term to be used in bold opposition to religion and carried his fight to the masses. Interestingly, the French took more time incorporating sécularisme into their language than it took the British to incorporate laïcité. Sécularisme failed to make an appearance in the Littré of either 1873 or 1877, and Le grand Robert (1992) identifies its first appearance as not coming until 1889. The word agnostic was coined in 1869 by the biologist T.H. Huxley. Already famous as the most public champion of Darwin’s theory of evolution, Huxley introduced the term to describe his skeptical worldview that it was impossible to know whether God exists. He later wrote that “Agnosticism is not a creed but a method, the essence of which lies in the vigorous application of a single principle... Positively the principle may be expressed as in matters of intellect, do not pretend conclusions are certain that are not demonstrated or demonstrable.”54 Although the words socialism and communism are not synonyms for secularism, they also made their first appearances in the mid-nineteenth century. Socialism first appeared in print in English in 1837, six years after first being used in France to describe the teachings of Saint-Simon, according to Chambers. The French communisme first appeared in print in 1840, followed three years later by the English communism.55 Karl Marx’s Communist Manifesto was published in 1848. Charles Darwin’s On the Origin of Species was first published in 1859. Seven months after Darwin’s book was published, the fa-

53

Chadwick, Secularization, p. 92. Atheism is defined in the 1806 Webster’s as “a disbelief of the being of a God.” 55 Chambers Dictionary of Etymology. 54

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mous Oxford debate of 1860 on evolution pitted T.H. Huxley against Bishop Samuel Wilberforce. The theory of evolution would, of course, have an enormous affect on how religion defined itself. Nevertheless, “Darwin and Darwinianism had no direct influence whatever in the secularization of the British working-man, and probably not much in that of any other worker of the nineteenth century.”56 The words Marxism and Darwinism appeared shortly thereafter.57 The encyclical Quod Apostolici Muneris (Leo XIII, 1878) explicitly condemned socialism, communism, and nihilism. The differences between Marxism and ardent Christianity should not be ignored —nor should their similarities. John Winthrop’s “City on a Hill” speech provides a compelling reference point: We must be willing to abridge ourselves of our superfluities, for the supply of others’ necessities. We must uphold a familiar commerce together in all meekness, gentleness, patience and liberality. We must delight in each other; make others’ conditions our own; rejoice together, mourn together, labor and suffer together, always having before our eyes our commission and community in the work, as members of the same body.58

Secularization was first used as a term describing societal changes from a religious to a non-religious orientation in 1863. It nevertheless was a relatively modest innovation: “The giving of a secular or non-sacred character or direction to (art, studies, etc.); the placing (of morals) on a secular basis.” The earliest example that the OED cites with the full-bodied modern connotations of secularization appears in William Lecky’s 1865 publication A History of the Rise and Influence of Rationalism in Europe. Throughout the two-volume work, published in several editions between 1865 and 1910, Lecky used the words rationality, science, and secularization as synonyms that he juxtaposed to religion, customs, superstition, persecution, and magic. He described “the successive transformations” in European thought that furnish “striking examples of that process of gradual secularisation which, under the influence of the rationalistic spirit, is displayed in turn in each department of thought and action. Besides this, there are few more powerfully destructive

56

Chadwick, Secularization, p. 106. “Marxism was the most powerful philosophy of secularization in the nineteenth century.” Chadwick, Secularization, p. 66. 58 John Winthrop, A Model of Christian Charity (the “City on a Hill” sermon), 1630. 57

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agents than customs or institutions, no matter how little aggressive, which a Church claiming supreme authority endeavours to suppress and which have nevertheless secured their position in the world.”59 The 1864 Syllabus of Errors and the 1865 History of the Rise and Influence of Rationalism in Europe each draws a battle line between truth and honesty on the one side, and falsity and error on the other. Only ten years had passed since the spirited debate between Holyoake and Rutherford that took place before a respectful and earnest audience. Holyoake’s secularism was not the enemy of religion; Lecky’s secularization was. According to the Centre National de Ressources Textuelles et Lexicales (CNRTL), the first published French use of secularisation as meaning the “process of progressive elimination of all religious elements” appeared in Ernest Renan’s L’Avenir de la science, published in 1890.60 Renan had actually written the book as a young man during the revolutionary year of 1848, but it did not appear in print until more than 40 years later, after he had become the director of the Académie Française. Thus it seems that the first written (though not published) appearances of the words anticlerical (1845), secularism (1846), and secularization (1848) all appeared within three years of each other. Interestingly, as will be described below, it was also Ernest Renan who first introduced in France the modern meaning of laïcité as a term to describe a doctrine about the proper relationship between religion and the state. The word laïcité has obvious roots in the Greek and Latin terms identified above. It increasingly came to mean, according to Le grand Robert, “those who are not part of the clergy” (“qui ne fait pas partie du clergé”) or something that is “independent of all religious confessions” (“indépendant de toute confession religieuse”). One of the definitions offered by the 1873 Littré is “someone who is neither ecclesiastical nor religious” (“Qui n’est ni ecclésiastique ni religieux”). In 1882, Ernest Renan spoke of laïque as being “separate from religion.” The word laïcité itself first appeared in the Littré dictionary in its 1877 supplement, where it was defined as something having a “caractère laïque” —virtually the same definition as the modern Littré (1967): “Having a laic character. The subject of laic teaching” (“Caractère laïque. Au sujet de l’ensignement laïque”). The 1967 Littré identifies laïcité as having first appeared in print on 11 November 1871. Surprisingly, the OED identifies

59

W.E. H. Lecky, History of the Rise and Influence of the Spirit of Rationalism in Europe, 2d ed. (London: Longmans, Green, and Co., 1865), vol. 2, p. 353. 60 “Processus d’élimination progressive de tout élément religieux.” (Renan, Avenir sc., p. 82).

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the English laicize as having been introduced into English in 1870, one year before its first appearance in French, with the meaning of “to commit (a school, etc.) to the direction of laymen; to make (an office) tenable by laymen.” The English word laicity was first employed in 1909, presumably being a direct loan word from the French laïcité. It is important to note that even though the specific word laïcité (and its English-language variations) first appear in the nineteenth century, they are introduced originally largely in the same sense as laïque and secular from earlier generations. They do not, at that point, refer to a doctrine or philosophy on the relationship between religion and the state. It is somewhat difficult to identify exactly when laïcité acquired its current meaning of identifying a doctrine about the relationship between religion and the state. Modern French scholars, such as Jean Baubérot, commonly employ the term laïcité when describing the nineteenth-century French laws on public schools, including the famous 28 March 1882 Establishing Compulsory Primary Education and the 30 October 1886 Law on the Organization of Primary School Instruction. Notably, however, those laws themselves do not use the word laïcité and the 1882 law does not use any cognate of laïque.61 The 1886 law did, however, use the word laïque as an adjective to identify female instructors (institutrices) at the public schools in order to underscore that they must not be religieuses (nuns). The 1886 law’s procedures for converting formerly religious schools into state schools is described as laïcisation, thus using the term consistently with one of its meanings going back to (at least) the sixteenth and seventeenth centuries and the first uses of laïcité in the 1880s. Although some writers may have emphasized that the laic state should be “neutral” and “tolerant” towards all religions prior to the 1870s, others injected an anti-Catholic or anti-religious bias into the word. The word anticlerical is often associated with these negative connotations of laïcité that are not inherent to the word but are often implied in the subtext or in the context. The earliest example that I have found where laïcité was used in its modern, broad sense of identifying several aspects of the relationship between church and state occurred in 1880. In an unfortunate injury to French pride, this first instance appeared not in Paris, but in Brussels. The final report of

61

For an example of the use of the word laïcité to describe these laws that did not themselves use the term see, for example, Jean Baubérot, “Laïcité,” in Encyclopaedia Universalis vol. 13 (Paris: Encyclopaedia Universalis, 1994), p. 416.

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the proceedings of the 8th Rationalist Congress of the Belgian Federation of Rationalist Societies proclaimed: This liberty of conscience, this independence of reason from all religious dogma, logically leads to the more or less radical suppression of all religious figures from directing any public affairs of things [choses] that are the responsibility of the state, of the province, or the town: humanity, in a word, seeks the laïcité of all public institutions, the complete sécularisation of all public services.62

Two years later, Ernest Renan, whose Life of Jesus used historical sources to undermine the scriptural version of Christian history, offered a somewhat less broad but nevertheless modern description of laïcité when he referred to the “continued progress of laïcité, that is to say a State that is neutral among religions and is tolerant of all religions [cultes] and that forces the Church to obey this principal point.”63 Renan, while calling for the state to show neutrality among religions, nevertheless insisted that the Roman Catholic Church [l’Église] be forced to accept state neutrality. We can see in Renan’s statement an early example of the rhetoric of generous neutrality combined with the warning that the state should be ready to coerce those who do not accept it. Renan is, in any case, no longer using the word to describe a transfer of property from a religious to a non-religious owner, but to identify an institutional relationship between religion and the state. By the 1890s, laïcité was increasingly being used in a way that combined the rhetoric of neutrality with anticlerical sentiments and anticlerical language. In an article published in 1895 on education in the university, the authors understood laïcité to “imply the ideas of liberty and justice” implemented by “a laïque state that has freed social life from all dependency on mysticism and that has given birth to the sentiment of human dignity that is founded not on metaphysics, but on self-reliance.”64 Here, as with Renan, the 62

Fédération des Sociétés Rationalistes de la Belgique, Compte-Rendu du VIIIe congrès rationaliste (Bruxelles: Typographie de D. Brismée, 1880), p. 27. 63 “Le premier, c’est le progress continu de la laïcité, c’est-à-dire de l’État neutre entre les religions, tolerant pour tous les cultes et forçant l’Église à lui obéir en ce point capital.” Renan offered these words in his position as the director of the Académie Française in his speech welcoming the scientist Louis Pasteur into membership in the august body in its meeting on 27 April 1882. Discours de reception de M. Louis Pasteur; Réponse de M. Ernest Renan (Paris: Calmann Lévy Éditeur, 1882), p. 51. 64 H. Marion and Raymond Thamin, “L’Éducation dans l’université,” Revue de Métaphysique et de Morale, vol. 3 (November 1895): pp. 708-722, 720.

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state is not being entirely neutral with regard to religions and religious beliefs, but is understood as playing a role that competes with religion by demystifying the world and by placing the dignity of human beings into the space previously occupied by religion. The word laïque was first incorporated into French constitutional law in 1946. The preamble of that Constitution provided that public education in France is to be “free and laïque” while Article 1 provided that “France is a Republic that is indivisible, laïque, and social.” The 1958 Constitution establishing the Fifth Republic announced in its Article 1 that “France is an indivisible Republic, laïque, democratic, and social. It assures the equality before the law of all its citizens without regard to origin, race, or religion. It respects all beliefs.” Contemporary proponents of the doctrine of laïcité continue to describe its qualities as being “neutral,” “tolerant,” and as separating religion and the state. It is in this sense that the doctrine has been widely accepted in France by both Catholics and non-Catholics as the consensus French model that shines as an example for the entire world (just as the doctrine of separation of church and state largely united American Catholics and Protestants in the nineteenth century). But another aspect of the doctrine is never far from the surface. Laïcité is also used as an ideological justification for the state to suppress religious activities and beliefs that challenge the tranquility of the general public. In this regard, laïcité provides a legitimizing rationale for the non-neutral and sometimes intolerant state to suppress, undermine, or circumscribe religious beliefs and religious activities that are disfavored by the general public. In this context, the power of the state is unsheathed (often with broad public support) to attack unpopular religious trends, whether it be Muslim schoolgirls wearing headscarves, New Religious Movements (pejoratively and broadly derided as dangerous ‘sectes’), or at times even the Catholic Church. While the term laïcité has come to be broadly accepted in France as a characterization of neutrality of the state, there remains not far beneath the surface the ongoing potential of its antireligious dimension to arise. Prior to the early nineteenth century, the words lay and secular (and their cognates), as well as the term separation of church and state, were generally employed as neutral terms. Although the course of the development of the words and terms varied across the nineteenth century, liberalism and the separation of church and state emerged as salient terms by the time Mirari Vos was promulgated in 1832. The years between Mirari Vos and the 1864 Syllabus of Errors saw the first appearances of the words socialism, communism, anticleri-

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calism, secularism, and Darwin’s evolution —words tinged with ideological meanings that continue to evoke polemical responses. The first dozen years following the Syllabus witnessed the emergence of the word agnosticism by T.H. Huxley, Darwin’s principal public advocate, as well as the new word laïcité. The debates about the best relationship between church and state were often exacerbated by the deep underlying tensions about the merits of religion itself. Modern polemical debates about secularism, secularization theory, and religion in the public sphere may themselves continue to suffer from the polemical residue of nineteenth century-culture wars.

A N A LY S I S AND THE

S E C U L A R I S M , S E C U L A R I Z AT I O N T H E O RY, S E PA R AT I O N O F R E L I G I O N A N D T H E S TAT E

OF

The terms secular, secularism, secularization, and separation of religion and state all acquired pejorative meanings in the nineteenth century, and they continue to be value-laden with both positive and negative connotations today.65 In contemporary Germany, for example, a secular state is generally understood as a positive attribute, while in the United States a candidate for political office who has a secular world-view would be treated with suspicion by a majority of the electorate. The term laïcité has legal meanings in France, where it is widely praised, and in Turkey, where it is becoming increasingly controversial. For many Europeans and Americans, the separation of religion and the state is understood as a positive development, although an increasing number of Americans are becoming hostile to the concept. For some scholars, secularization has the positive connotation of a world that is becoming more rational and less superstitious. For others, however, secularization signifies hostility to religion, God, and morality. Many people believe that religion in the public sphere is a necessary element of religious freedom, while others 65 It should be added that an entirely new word based on the root word has now appeared in the academic landscape: postsecular. According to the trenchant analysis of Professor James Beckford, the word appears to have appeared as early as 1966, though it did not become widely used until many years later when it might be said to have become ‘trendy,’ a word that Beckford himself does not use. Beckford identifies six “clusters” of ways in which the word has been used and suggests that there has been such a proliferation of inconsistent uses that it cannot be described as having any particular or coherent meaning in and of itself. This chapter will not probe further into this particular use of the word. James A. Beckford, “Public Religions and the Postsecular: Critical Reflections,” Journal for the Scientific Study of Religion, 51 (2012): pp. 1-19.

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see it as an abuse of both religion and freedom. Taking the word secularism as one example, each of the following interpretations is perfectly legitimate with historical and philosophical justification: 1. 2. 3. 4. 5.

Secularism implies hostility toward religion, Secularism implies state neutrality and tolerance toward religion, Secularism implies indifference toward religion, Secularism implies anticlericalism, Secularism implies a decline in religious explanations for the origin of the world, 6. Secularism implies the liberation of individuals from the dogmatism of religion, or 7. Secularism implies the privatization of religion and the removal of religion from the public sphere.

Depending on who is speaking, each of these seven different meanings of secularism could be understood positively or negatively. Thus, for some, a secular state (or public sphere) is necessarily bad because it is antagonistic to religion, while for others a secular state (or public sphere) has a positive connotation of state neutrality toward religion and the removal of the state from interfering in matters that should be left to religion itself. These competing and highly contested interpretations of secularism make it difficult both to formulate public policy as well as to make a rigorous assessment of whether the world is becoming more secular. I propose to examine three distinct but interrelated problems surrounding secularism that might be clarified by a careful and systematic use of language. Of course it is impossible to resolve all of the difficulties surrounding these three problems because of the philosophical disagreements that underlie them. Nevertheless, I hope to reduce some of the confusion by reframing and recharacterizing the issues. The three distinct yet interrelated problems are: First, articulating and clarifying three distinct levels of analysis when the word secular is used as an adjective modifying the words (a) state, (b) societal institutions, and (c) human beings (both individually and collectively). Second, questioning the coherence of part of the debate involving secularization theory as an explanation of possible societal changes from religion to irreligion. Third, following from the first point above, offering a clearer meaning of the term separation of religion and the state.

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Although it is obviously impossible to resolve the many legal, political, and philosophical difficulties surrounding the term secularism and related concepts simply by clarifying the usage of terms, it may be possible to eliminate some needless controversies and unproductive disputes.

T H R E E L EV E L S O F A N A LY S I S : T H E S TAT E ; S O C I E TA L I N S T I T U T I O N S , A N D H U M A N B E I N G S There are three levels of analysis to which the word secular (and its cognates) might be applied: 1. the state, 2. societal institutions (as defined below), and 3. human beings (both individually and collectively). By clarifying the discussion at each of these three levels it may help avoid unproductive discussions about trivial issues and facilitate analysis about secularism where it might better be applied. After this introduction, I will offer some thoughts about how policy and law might be better formulated by constantly keeping in mind the exact level that is under analysis and avoiding the application of ideologically-weighted words at inapposite levels of analysis. 1. The State. The term state is used to include all of the institutions of government and public administration within a polity, whether in a unitary or federal system. Thus the state includes national and federal legislatures, the executive and the judiciary branches, and other institutions ranging from independent agencies to central banks. It also includes institutions of government at the regional level (provinces, regions, Länder, départements, federal states), and the local level (cities, towns, municipalities, arrondissements, counties, prefectures, communes, et cetera). For our purposes here, there are four types of state: (a) secular and neutral, (b) secular and interventionist, (c) theocratic, and (d) hybrid. (These may be understood as something of ‘ideal types,’ and it is of course possible to imagine other types of state or states that blend the constituent elements in different ways.) (a) A secular and neutral state will be understood to be one where the state does not assert any religious competence or authority to make decisions based on religious law nor the relative merits of different theologies and religious beliefs. A hallmark of the secular and neutral state is its separation of religion and the state. It provides broad autonomy to religious institutions to conduct their own affairs provided that they do not violate neutral laws of the state (such as laws against embezzlement, murder, child abuse, or enslavement).

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(b) A secular and interventionist state will be understood to be one where the state does not assert any particular religious competence to make theological judgments, but one where the state nevertheless intervenes in religious matters and does not grant broad autonomy to religious institutions. The secular and interventionist state might, for example, control religious education and play a role in the appointment of clergy, even though it claims no theological authority. Communist states typically are secular and interventionist. (c) A theocratic state asserts its competence to make theological judgments, to decide religious questions, and to implement religious decisions as it deems appropriate based upon its religious authority. The theocratic state may grant some measure of autonomy to religious institutions depending on the circumstances, but it retains the ultimate power to control religious matters. Not all decisions of a theocratic state are necessarily premised upon religious authority, and one may reasonably question whether some decisions are really based upon religion (as officially proclaimed) or might be a result of political expediency. In characterizing a theocratic state, the analytical question is not whether religion in reality forms the basis for state decisions, but whether the state asserts its competence to make religious decisions and whether the population of the state to some extent accepts the state’s religious authority. Many Muslim-majority states are theocratic in this sense, although there is a wide range of practices among them. (d) A hybrid state is one that declares it has some competence to make theological judgments or to favor one religion over another, but that in reality exercises this authority rarely or in a very limited way. Like the interventionist state it may interfere in religious activities, or, like the neutral state it may abstain from doing so. An example of the hybrid state is the United Kingdom, where the reigning monarch is the Governor of the Church of England and where Parliament has the ultimate authority to decide Anglican doctrine. 2. Societal Institutions in the ‘Public Sphere.’ The second level of analysis pertains to non-state (or predominantly non-state) institutions that operate in the public sphere. These include an extremely broad range of entities, including business corporations, markets, religious organizations, social clubs, hospitals, restaurants and cafes, places of entertainment, NGOs, political clubs, sporting events, non-state schools, et cetera. It should be underscored that the emphasis here is on institutions rather than the human beings who work in them, receive services from them, own them, or patronize them. To be clear, these institutions operating in the ‘public sphere’ are non-govern-

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mental and may or may not be affiliated with religion. Catholic cathedrals and Buddhist temples are societal institutions that are religious while cafés or sports arenas are secular. Of course some institutions may be hybrid in that they are owned and operated by religious institutions even though they provide secular services, such as medical care.66 One of the confusions that arises with the use of the term public sphere is the ambiguous and inconsistent meanings of the words public and private. ‘Public,’ in contexts other than how I am using it here, could be an adjective designating the state, such as in the cases of “public schools,” “public administration,” “public libraries,” “public parks,” or “public servants.” On the other hand, private institutions that are not owned or operated by the state may be very active in the so-called ‘public sphere.’ For example, a privately owned movie theatre screens films for the “general public” and a preacher may deliver a sermon to the ‘public’ without the word ‘public’ having any reference to the state. Sony is a ‘private corporation’ that is one of the world’s largest manufacturers of electrical products for the public. It engages in public advertising and its presence is quite visible on the public airwaves. McDonald’s and Coca-Cola are ‘publicly owned’ and ‘publicly traded’ on the New York Stock Exchange, even though they are ‘private corporations.’ Thus, the phrase ‘religion in the public sphere’ can be deeply ambiguous and confuse the underlying issues. It is quite a different thing to suggest ‘religion in the public sphere’ means that religion should be sponsored or supported by the state (the first sense above) rather than meaning that religion is accessible and visible in public domain (the second sense). The terminology that I am proposing here refers to the second sense and thus ‘religion in the public sphere’ is not state-sponsored or state-promoted. 3. Human Beings (Individually and Collectively). The final level of analysis consists of the living human beings, individually and collectively, who think, speak, engage in religious and political activities, buy, sell, and argue with each other in the marketplace, and who associate with other human beings in the full range of human activities as families, friends, colleagues, congregations, and companions. An individual may be more religious than her sister or her parents. A family may, as a whole, be more materialistic or pious than its neighbors. Some individuals may pursue wealth, fame, or power, and oth-

66

There are of course many such hybrid institutions with sharply differing characteristics. The point here is not to identify all possible institutional arrangements, but to initiate a basic framework for analysis.

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ers may pursue salvation. Some may obtain fame and wealth by preaching about salvation. It is likely that most human beings consist of some mixture of religious and secular sentiments and beliefs. Owen Chadwick makes the insightful observation that the real origin of secularism in Europe was not rationality, modernism, or science, but the conscience of the individual. “Christian conscience was the force which began to make Europe ‘secular’; that is, to allow many religions or no religion in a state, and repudiate any kind of pressure upon the man who rejected the accepted and inherited axioms of society. My conscience is my own. It is private.”67 This original secularism is symbolized in Martin Luther’s “Here stand I, I can do no other...” The adjective secular may of course be applied to each of the three different levels, although there is a substantially different meaning between secular states and secular societal institutions on the one hand, and secular human beings on the other. Whereas human beings may believe in God (or not) and pray (or not) and fast (or not), institutions do not have minds, bodies, or souls, and do not have the capability of engaging in any of these activities. States and societal institutions will neither go to paradise nor hell. Although we can understandably refer to a state as being secular or an institution as religious, what we really mean when we attach these adjectives to them is that human beings have either endowed these entities with the ability to sponsor religious activities or have not so endowed them. If we look back to the fifteenth and sixteenth century meanings of séculariser as described above, where property ownership was transferred from a religious institution to another institution, it is very much in accordance with this meaning of secular societal institution. I suggest at this point that although political debates and academic discussions may argue about whether states should be theocratic or secular or whether societal institutions are increasingly secular, the principal (though not exclusive) subject of concern for most is whether human beings are or are not becoming more or less religious. It is the potential secularization of human beings that animates the emotions and enlivens the debates. We can speculate at this point that religious believers who want the state to be more ‘religious’ feel this way not because they want the state to be recognized as holy, but because they believe that a more religious state will reinforce and 67

Chadwick, Secularization, p. 23.

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support the religion of human beings. When the arguments are clarified, I believe, the real concern is not the salvation of the state but the salvation of its citizens.

S E C U L A R I Z AT I O N T H E O RY A S A WAY O F U N D E R S TA N D I N G S O C I E TA L C H A N G E During the 1960s, secularization theory was the reigning theory in the field of the sociology of religion.68 Despite the inevitable disagreements among scholars, the proponents of the theory generally argued that with the increase of rationality, developments in science and medicine, and the continuation of aspects of modernity such as materialism, urbanization, industrialization, mass communications, globalism, and pluralism, religion would have less of a hold on the popular imagination and that society would become increasingly more secular. Although the leading advocates of the theory did not predict a steady decline in religion nor its inevitable disappearance, they were impressed by signs that religion had already been losing its influence in the modern world, particularly in Europe. They offered evidence of this decline in such factors as the decreasing rates of church attendance, as well as public opinion surveys that revealed a decreasing belief in the existence of God and a weakening of trust in religious institutions. Among the names most famously associated with the secularization theory in the 1960s were professors David Martin, Bryan Wilson, Thomas Luckmann, and Peter Berger. During the 1960s, acceptance of the secularization theory was so broad that it became part of the prevailing wisdom in the academic world. Max Weber is generally credited with introducing the modern concept of secularization into academic usage. Weber’s most famous articulation of the concept first appeared in his essay “Science as a Vocation,” based upon a lecture that he delivered in 1918, as World War I was coming to an end. In it, Weber famously wrote that the “fate of our times is characterized by rationalization and intellectualization and, above all ‘the disenchantment of the world.’”69 This

68 I fully agree with Professor Steve Bruce’s suggestion that it would be more appropriate to call this the ‘secularization paradigm’ rather than the ‘secularization theory.’ I will, however, use the more conventional term in this discussion. 69 “Science as a Vocation,” in Max Weber: Essays in Sociology, trans. and ed. by H. H. Gerth and C. Wright Mills (New York: Oxford University Press, 1946), p. 155.

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latter phrase, die Entzauberung der Welt, was borrowed from Friedrich Schiller.70 Weber argued elsewhere that there is a “steady progress of the characteristic process of ‘secularization,’ to which in modern times all phenomena that originated in religious conceptions succumb.”71 Although Weber also argued that charisma has the power to re-enchant and to ignite imagination and belief, and although he nowhere predicted the inevitable disappearance of religion, he did believe that rational thought, exemplified in thinking, analyzing, bureaucratizing, intellectualizing, and by the scientific investigation of nature, undermines the influence of superstition and erodes beliefs in magic, mystery, and the supernatural. Based upon the thoughts described above, whether appropriate or not, Weber is credited by many with launching the secularization theory. In the 1980s, the secularization theory came to be challenged by scholars who saw a “resurgence of religion” that was alternatively described as the “revenge of God” and, in response to Weber, the “re-enchantment of the world.” The events of the year 1979, whether symbolically or actually, may be seen as launching a sea change in perspectives. In that year, a revolution overthrew the secular regime of the Shah of Iran and replaced it with a theocracy led by the Ayatollah Ruhollah Khomeini. Later that year, Muslim militants seized the Grand Mosque in Mecca during the Hajj, which led the Saudi government to launch a bloodbath at the holiest shrine in the Muslim world. In December of 1979, the Soviet Union invaded Afghanistan, which produced the rise of the Mujahedeen — holy warriors who later would be equipped in part by the Central Intelligence Agency as the United States and Muslim fundamentalists engaged in a common battle against the Evil Empire. In 1979, inside the United States, the Christian Coalition came into existence. This organization, which helped make Jerry Falwell and Pat Robertson household names and political forces, was founded in 1979 and became the most famous of the groups associated with the new ‘religious right.’ It brought together Protestant Fundamentalists, Evangelicals, conservative Catholics, and others to help “bring God back to America” and to help elect Ronald Reagan to the presidency. The 1980s and the 1990s provided additional salient examples of an energized religious world. The longstanding ‘Troubles’ in Northern Ireland pitted the Roman Catholic IRA against the Reverend Ian Paisley’s many paramilitary groups. The Likud Party in Israel adopted religious language to

70

For Schiller, see H. H. Gerth & C. Wright Mills, “Bureaucracy and Charisma: A Philosophy of History,” in Glassman & Swatos, 1986, pp. 11-15; see especially p. 11. 71 Weber, “The Protestant Sects and the Spirit of Capitalism,” in Essays in Sociology, p. 307.

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challenge the secular Labor Party at the same time that the militant Islamist Hamas movement challenged the secular PLO in Palestine. The fighting between Israelis and Palestinians increasingly came to be characterized as one of Jews against Muslims. Although the civil war in Sri Lanka involved political and nationalist issues, and although the leaders of the Tamil Tigers proclaimed their atheism and socialism, the religious identity of Tamil Hindus fighting Sinhalese Buddhists figured prominently in the public’s understanding of the struggle. Even if the Yugoslav civil war of the 1990s might best be understood as having been a political struggle that politicians manipulated by their use of religious imagery, religion nevertheless came to be understood as the salient factor in the battle between Serbian Orthodox Christians against Bosnian Muslims. In Algeria in 1991, the Islamic Salvation Front won the first round of the country’s parliamentary elections, only to be suppressed by the military’s declaration of a state of emergency. The Hindu nationalist Bharatiya Janata Party (BJP) came into prominence and then into political power in India in the 1990s. Observations across the world of Muslims, whether in the Middle East or elsewhere, suggest that women are wearing the headscarf (hijab) in increasing numbers. Religion certainly appeared to be more visible than a generation earlier. Elsewhere in the 1990s, a wave of Christian missionaries traveled to the formerly communist countries of Eastern Europe and the former Soviet Union. Although they had little success in winning converts to their beliefs, they did raise the profile of religion as a factor in society and contributed, indirectly, to the growing influence of the Russian Orthodox Church — which promoted itself as the bastion against these supposedly ‘totalitarian sects and cults.’ The perceived rise of New Religious Movements in Europe, the southern hemisphere, and Asia similarly contributed to the perception that religion was on the rise. Pentecostalism was on a rapid path of growth both in Africa and South America. In the late 1990s, international ‘freedom of religion’ was squarely placed on the international agenda by the enactment of the “International Religious Freedom Act of 1998” in the United States. Since that time, religious freedom has become a salient topic in international human rights, where the beliefs and activities of religious persons are weighted against the repressive actions of states. This international trend toward a newly charged religious world appeared to give the factual lie to an academic theory that presumed that the world was becoming more secular — and particularly to any theory that postulated a steady path of decline or the inevitable disappearance of religion.

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Academic challenges to the secularization theory based on this seeming rise in religious activity appeared in the late 1980s and increased in the 1990s. University of Virginia sociologist Jeffrey K. Hadden was in the forefront with his pejoratively entitled article, “Toward Desacralizing Secularization Theory” (1987). Other prominent theorists quickly joined in with their attacks on the received wisdom, including Roger Finke, Laurence Iannaccone, Grace Davie, and others. Rodney Stark concluded the decade, if not the century, by throwing what he believed to be the last shovel of dirt on the theory’s grave with his “Secularization, R.I.P.” (1999).72 Perhaps the most salient event in the challenge on the conventional wisdom of the secularization theory was the conversion of Professor Peter Berger, who previously had been one of the most prominent scholars associated with secularization theory. He confessed his mistake and acknowledged that the world was indeed becoming more religious in his writings, including “Secularization in Retreat” (1997) and “The Desecularization of the World: A Global Overview” (1999). Some sociologists, in attacking secularization theory, wrote less as dispassionate observers and more as enthusiasts for the transformative power of a rediscovered faith. By the beginning of the twenty-first century, and particularly after the events of September 11, it was common in international settings for speakers to begin their discussion of religion by criticizing those who had wrongly asserted the world was becoming more secular. Often underlying the criticism was something more than a factual or academic observation about the perceived growing importance of religion in the world. Added to this was the assumption that it was good that religion was playing a more prominent role. Luke Bretherton, for example, argued that “the recent resurgence of religion in public life, and in particular in urban life... represents the ‘salvation’ of politics.”73

72

Professors Finke, Stark, and Iannaccone are famous for their “rational choice” and “supply-side” theories of a “religious economy” that form a substantial part of their joint argument against the secularization theory. For a variety of reasons, this author is not persuaded by these arguments completely apart from whatever strengths or weaknesses the secularization theory might possess. My argument with the rational choice model is, however, outside the scope of this chapter. Grace Davie is known for arguing that what might appear to be secularization is better explained by people redirecting their deep religious proclivities in new directions. Her catch-phrase formulation of this phenomenon is “believing [in spirituality] without belonging [to a religious organization].” 73 Luke Bretherton, “Religion and the Salvation of Urban Politics: Beyond Cooption, Competition and Commodification,” in Exploring the Postsecular: The Religious, the Political and

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Religiously motivated terrorism, the obvious counterexample to the assertion that religion is good, was alternatively treated as either: (a) an additional reason to take religion seriously, as former Secretary of State Madeleine Albright argued, or (b) denounced because violence could not come from genuine ‘religion’ (the position taken by then-President George W. Bush, who assumed that religion qua religion must be good). Many presumed that genuine religion was a positive force in the world and that it should be taken more seriously in academe, domestic politics, and international affairs. The secularization theory, although dethroned from its position as the ‘received wisdom’ in sociology, never completely disappeared. A new generation of scholars that included Steve Bruce and Mark Chaves refined and clarified the arguments that had been made by their predecessors. Prominent scholars continued to argue that the core of the secularization thesis was correct: the importance that religion once held to people continues to erode, despite all of the seeming counterexamples that newly energized religion reveals. Some scholars responded to the onslaught against the secularization theory by asserting that its critics had caricatured it by falsely asserting that it had rigidly predicted the inevitable decline and eventual disappearance of religion —a position that had in fact been taken by only the most extreme and unrepresentative of secularization theorists. The most illustrative example of this phenomenon was Rodney Stark’s repeatedly citing the straw man example of Anthony F. Wallace’s 1966 college anthropology textbook that asserted the inevitable extinction of religion.74 Wallace’s textbook serves quite nicely as a rhetorical foil, but Stark’s argument would have been more impressive and less polemical had he been able to show that Wallace’s opinion was widely shared rather than repeatedly cite the same textbook to make his point. Berger’s move to join the anti-secularists was no doubt a significant symbolic victory against the once-dominant theory, but it is not necessarily true that Berger’s switch was to the right side of history. By the twenty-first century, the Iranian theological revolution that helped launch the reexamination appears to be stalled and kept in place not by popular demand but by the same repressive tools that were once employed by the Shah. The conflicts in Northern Ireland and the Balkans have largely abated. Muslim extremism,

the Urban, Arie Molendijk, Justin Beaumont, and Christoph Jedan, eds., pp. 207-22 (Leiden: Brill, 2010), p. 207. 74 See Philip S. Gorski and Ates Altinordu, “After secularization?” Annual Review of Sociology 34 (2008): pp. 55-85, 56.

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which is far from a spent force, increasingly appears to be an erratic force that wreaks destruction on Muslim victims. Moderate Islamist parties have come to power or are on the verge of power in several countries, but there is no one on the horizon whose influence compares to that of Khomeini. The religious right in the United States continues to have a role, but appears to be increasingly fragmented along a series of divisive social issues. The Republican Party’s leading candidates for president against Barack Obama in 2012 did not include figures typically associated with the religious right, but Roman Catholics and a Mormon. Nevertheless, the answer to the question of whether the world is becoming more or less secular cannot be resolved by reference to a few anecdotal examples, however telling or salient they might appear. There is a need to look more seriously and deeply. It is probably easier to establish somewhat objective criteria to determine whether a state is secular and neutral or whether a societal institution has been secularized than it would be to determine whether human beings are religious, secular, or even what those terms even mean with regard to humans. The introduction to this chapter already raised the difficulty of determining what the markers of religiosity are in relationship to attitudes about interracial marriage, gay marriage, and belief in superstitions. If a married couple with four boys decides to stop compelling their children to attend church and the boys stop going, family church attendance drops by 66 percent. If church attendance were a measure of secularization of human beings, this would suggest a significant decline for the family. But is this a useful measure of secularization? By this hypothetical example, nothing really has changed in terms of the religious sentiments of human beings; it is only that parental coercion has stopped forcing the uninterested from doing something that they do not want to do. Having identified and defined the three levels of analysis, we are now better equipped to be clearer about the some of the different and competing meanings of secular and secularization. In brief, and as will be elaborated below, it should be helpful to understand and differentiate: 1. A secular state is one that does not assert any religious competence or authority to make its decisions. It may be a neutral secular state that grants religious autonomy to human beings (individually and collectively) as well as to societal institutions that are religious. A secular interventionist state is one that, although claiming no religious competence, interferes in religious activities and doctrines. Within this definition, it is imagined that most Americans and Western Europeans, for example, would likely support a neutral

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secular state that provides religious autonomy and does not purport to have religious competence. A debate that is now occurring broadly in the Muslim world is whether the state should be a neutral secular state or a theocratic state —although the words used inside these debates are not necessarily those that I have used here. 2. Societal institutions in the public sphere may or may not be religious and there may (or may not be) an increase in the actual number of religious (or non-religious) institutions in the public sphere. Similarly, there may be an increase (or decrease) in the relative percentage of religious (or non-religious) societal institutions in the public sphere. These do not, however, necessarily say anything about changes to the religious beliefs of individuals. 3. Human beings (individually and collectively) may or may not be increasingly religious or secular, whether in actual numbers or on a percentage basis. We can imagine, for example, that there are more ‘secular individuals’ living on the earth now than ever did so previously in part because there is a larger total number of human beings now living. The same can be said for religious individuals. It may be possible to say that there are more religious Muslims now living at any time in history if for no other reason than that there are now more living Muslims. This is a separate question from asking what percentage of Muslims is religious and what percentage is secular. So it might be that while the total number of living Muslims who are religious is higher than at any point in their history, at the same time the percentage of religious to secular Muslims is on the decline. There remains, of course, the complicated if not unanswerable question of deciding how it should be determined what constitutes a ‘secular’ Muslim and what constitutes a ‘religious’ Muslim. While these questions are difficult and maybe incapable of being answered, it is important to distinguish them from whether societal institutions are decreasingly religious and whether appearances of religiosity in the public sphere necessarily tell us anything about whether individuals are more or less religious. When scholars debate the merits of the secularization theory with regard to the public sphere, they may unintentionally be confusing distinct concepts such as: (a) whether the number (or percentage) of individuals is increasingly secular, or (b) whether societal institutions —particularly schools and hospitals— are increasingly being transformed from religious control to state control, or (c) whether manifestations, appearances, symbols, and language of religion are increasingly apparent in public. By framing the issues as described

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above, the purpose is to be able to speak with more clarity about the arguments underlying secularization theory as well as the favored relationship between religion and the state. Ultimately it may be impossible to have any objective measure to evaluate the secularization theory, but there is good reason to be clear about the issue before assuming it can be proved or falsified. Professor Chadwick argues that secularization should not be understood to be “change of fashion or custom” or a “change in habits” regarding what is acceptable to society.75 To illustrate the point, he offers the example of Prime Minister Balfour’s playing golf on Sunday in 1905, an action that elicited much unfavorable comment at the time. Despite Chadwick’s rejection of this example, we might question whether the event was as meaningless as he suggests. The issue for Lord Balfour was not the stylistic question of whether his golfing knickers matched his argyle socks or whether he should have completed his outfit with a Tam o’Shanter, but whether it was appropriate for the head of government of the British Empire, an empire that justified its military actions on its Christian mission, to publicly ignore the Anglican church’s fourth commandment to keep the Sabbath day holy. While it may well be the case that a Sunday golf outing constituted nothing more than a change of fashion for the Prime Minister and the Regius Professor of Modern History at Cambridge, calling this a “change of fashion” may itself be a profound indicator of secularization. In 1967, at the time when the secularization theory was rising to predominance, a perceptive article by Professor Larry Shiner challenged the empirical evidence upon which the theory was based.76 Shiner questioned whether the word secularization was in fact a useful or productive term, as well as whether it was in fact possible to measure whether something like secularization was occurring. A half-century after he made his argument, most of his criticisms and observations still stand —in spite of the fact that the prevailing consensus may have shifted from one supporting the theory that postulated an increase in secularization to one that now maintains that it is religion that is on the rise. In words as true then as now, he observed that during “its long development the term ‘secularization’ has often served the partisans of controversy and has constantly taken on new meanings without completely losing old ones. As a result it is swollen with overtones and implica-

75

Chadwick, Secularization, pp.14, 15. Larry Shiner, “The Concept of Secularization in Empirical Research,” Journal for the Scientific Study of Religion 6 (1967): pp. 207-220. 76

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tions, especially those associated with indifference or hostility to whatever is considered ‘religions.’”77 Regardless of whether one finds greater support for the secularization theory or for the resurgence of religion analysis, the Shiner article offers a cautionary warning that continues to challenge any empirical claim that either religion or secularism is on the rise, whether in the United States, Europe, the Muslim world, or the world generally. In the spirit of Shiner, but with a different way of framing the question, I would like to pose two problems that confront any theory that asserts a rise (or decline) in religion. First, which specific factors should be seen as revealing a rise or decline? Second, how may these factors be measured? In response to the observation that there has been a resurgence of religion as revealed by the growing number of women wearing headscarves and the increasingly prominent role of religion in politics, it might be fair to question the value of the particular factors that are cited to justify this observation. Has there been, for example, a notable rise in acts of religious kindness? Are the amounts of alms and zakat distributed to the poor increasing on a per capita basis? Would most devout religious believers prefer to spend their hard-earned money on a new iPhone or a religious organization? Are cathedrals packed to overflowing for mass on Sunday mornings in Segovia and Smolensk? Are football stadiums increasingly empty on Sunday afternoons in the United States, Europe, and South America in growing respect for the explicit Commandment to keep the Sabbath day holy? Is the Catholic Church opening or closing more seminaries for its clergy? Do religious sermons speak to a growing television audience in comparison to programs such as “Arabs Got Talent” and “Big Brother”? Do teenagers (and their parents) spend more time posting and reading messages on walls on Facebook or reading the Holy Scriptures? Are the majority of people behaving better than they did a generation ago in accordance with the venerable teachings of Jesus, Hillel, the Guru Nanak, the Buddha, and the Prophet Mohammad? The evidence of the resurgence of religion in the contemporary world may be based more upon the frequency of apparent selected symbols of religion and on salient examples of religious politics than by a heartfelt increase in religious piety by the majority of people in the world. It may be that the secularization debate is oblivious to genuine religious devotion (however meas-

77

Ibid., p. 218.

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ured) and has much more to do with worldly manifestations of religiosity that have no relevance to the original teachings upon which the world’s great religions were founded. Perhaps we are observing not the resurgence of God in the world, but another form of worldliness that is now justified in the name of God. While it is easier to identify the secularization of the state and societal institutions, these do not necessarily tell us anything about the real interest — whether human beings are becoming more or less secular. There are many factors that could be selected to serve as indicators of the increase (or decrease) of secularization of human beings,78 including: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

78

the wearing of religious garb (such as the hijab or the crucifix); attendance at religious services (at the church, mosque, temple, or synagogue); attendance at ‘secular’ events (e.g., sports, entertainment, political); daily activities (e.g., religious and non-religious reading; religious and nonreligious viewing of mass media); self-reporting of religious beliefs and values in public opinion surveys; adherence to commands of religious authorities (e.g., counseling against the use of contraceptives or against abortion); contributions to religious organizations and religious causes (e.g., tithing, zakat); adherence to (original) religious doctrines regarding usury and interest; the number of times a person prays per day (or per week); the number of times per day (or week) that a person has a feeling of religious connectedness to God; voting preference on the basis of the religious position of the candidate; the observance of religious obligations (e.g., abstaining from alcohol or other prohibited foods); the number of clergy (or other religious officials) in training for the ministry; and the tendency to explain medical events (e.g., the death of a child) in religious terms.

As argued above, the focus of secularization in this chapter is on human beings rather than on the more abstract concepts of state or societal institutions. If one were to attempt to apply a secularization thesis to the state or societal institutions, then the task would be to measure such factors as the relative number of ‘secular’ and ‘religious’ institutions that operate in society or the relative frequency of religious versus state institutions that perform functions such as registering births, conducting marriages, conducting burials, or operating hospitals and prisons.

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As far as this author is aware, and for understandable reasons, no rigorous or systematic effort has been undertaken to measure secularization (or religiosity) in a comprehensive way that takes into account this broad range of possible factors.79 Rather, one or two individual elements are selected for analysis as if they were sufficient to determine whether something as complex as secularization is increasing in human beings. Many religious believers who denounce secularism, and who often believe that it is increasing, frequently attribute its apparent growth to the harmful influence of non-religious people (including atheists, agnostics, free-thinkers, and secular humanists), a secular state (which promotes secularism in public schools and suppresses religion in the public sphere), and to influential people in the mass media (Hollywood, the entertainment industry, and the liberal media). The relative influence of these sources on secularization is debatable. But focusing on ideological opponents probably misses the most influential sources that undermine religious adherence. Possibly first and foremost is materialism and consumerism. While religious figures often denounce the evil of materialism, they sometimes seem to save their harshest criticism for their ideological opponents. As has been discussed above, other factors that presumably contribute to whatever secularism is taking place include sports, other forms of entertainment (including most powerfully television), technology, transportation, medicine, indifference, and laziness. If the electrical power is cut, the modern person is more likely to call the electrical provider than to pray to God. Diseases are increasingly associated with germs and viruses rather than the will of God. Perhaps the greatest new threats to religion are what Pascal would call distraction: the Internet, Twitter, the smart phone, and the availability of McDonald’s and KFC.

T H E S E PA R AT I O N

OF

RELIGION

AND THE

S TAT E

The discussion above identified four ‘ideal type’ states with regard to the relationship between religion and the state: 1. the secular-neutral, 2. the secular-interventionist, 3. the theocratic, and 4. the hybrid.80 There are, of 79 The most impressive attempt to provide a broad analysis of a wide range of factors appears in Ronald Inglehart and Pippa Norris, Sacred and Secular: Religion and Politics Worldwide (Cambridge: Cambridge University Press, 2004). Unfortunately, Inglehart and Norris rely principally on self-reporting about attitudes, which are not entirely reliable indicators. 80 See discussion above.

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course, other possible arrangements, with these four categories having been introduced not because they provide a comprehensive description of the range of possibilities, but because they may help clarify understanding about some important issues. It is not difficult to understand why authoritarian rulers intent on enhancing their powers would likely prefer to rule either in either a category 2 or 3 state. It is also easy to understand why a religious authority might prefer category 3, but also possibly 1 or maybe 4 (but not 2). We can imagine that dominant religious groups might prefer the theocratic state or the hybrid state, as they would presumably find the state to be supportive of their religion. Of course they might also prefer to have a secular neutral state if they feared that state authorities might abuse their power. It is understandable why a public that had some suspicions of religion and confidence in the state would prefer category 2. We also can understand why religious minorities would likely prefer living in a category 1 state, with the possible exception of where state authorities shared the same religion as the minority and would support the minority (as perhaps in Syria, Iraq, and Lebanon). But if they did not have the ability to control state decisions, they too would presumably, on average prefer category 1. What about religious groups that are suspicious of political figures potentially being used to interfere with their religious practices? It would seem that the most obvious choice for them also would be a category 1 state. If we combine these answers, understanding that we are speaking only of very general categories and simple responses, some patterns emerge. Those who want the state to control religion are likely to be either authoritarian leaders or dominant religious groups. Minority groups (usually) and those suspicious of the motives and actions of people in political power are likely to favor category 1. All of these answers were made without regard to the role of secularization. We can ask under which of these four systems is the state best able and least able to promote secularization of religion? The answer would seem to be that only category 1 is exempt; each of the other four categories has a greater power to promote secularization —though that does not mean that they necessarily would. Under this analysis, category 1 is most likely to be protective of religious independence and least likely to trust political authorities to make religious decisions. Finally, we should ask the ultimately unanswerable question of how well do theocracies do when it comes to avoiding the confusing of religious decision-making and political expediency? Asked another way, do theocracies

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avoid becoming entangled with the very secular world of power politics? While our answers to such questions may reflect our own preconceptions, it certainly is arguable that the most salient example of a modern-day theocracy (excepting the Holy See) is Iran. It is difficult to imagine that a majority of the population in any country of the world would look to Iran as a successful example of the union of religion and the state. This analysis seems to point in the direction of suggesting two things. First, that the state that is least likely to harm or to secularize religion is the category 1 state. Second, religion is also most likely to prosper unencumbered by political calculations under the category 1 state. Although this issue is far more complicated than space permits here to resolve, the examination of the issues through this particular lens may be of value. This does suggest, in a way, that Jefferson’s wall of separation may indeed be good, as he imagined, for both religion and the state. This is not dissimilar from nineteenth century struggles. “Most of the men who tried to separate the Churches from the State [in Victorian England] wanted to make society more Christian even while they made the state more secular.”81

C O N C LU S I O N This chapter has argued essentially five points. First, we should clarify our understanding of how we are using terms such as secular and secularization. Second, that we distinguish among three different levels of secularization (state, societal institutions, and human beings), and recognize that while useful things can be analyzed under the first two, the real focus of interest is whether human beings are or are not becoming more secular. Third, that it is difficult —and perhaps even impossible— to actually say anything definitive with regard to whether human beings are becoming more secular. As said in the beginning, does an increase in acceptance of interracial marriage and homosexual marriage mean that those who accept them are becoming more secular, or that our notions of what is ‘really’ religious and what is secular are constantly evolving? Fourth, even if we were able to identify the factors that identify what is secular and what is religious, it is perhaps impossible to measure them in any meaningful way. Finally, despite the impossibility of identi-

81

Chadwick, Secularization, p. 93.

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fying the factors of secularism or speaking with certainty about its recent increase or decline, it is meaningful that science and medicine have increasing explanatory power, and even the most religious of societies rely on developments in those fields. Nevertheless, the capacity to reinterpret what is and is not religion also remains powerful and it would be naïve to imagine its disappearance any time soon. The civilized debate about secularism described above between Holyoake and Rutherford in England in 1853 resembles a much more recent public discussion in Germany between Joseph Cardinal Ratzinger and Professor Jürgen Habermas. Their conversation, which took place in 2004, appeared in published form with the title Dialects of Secularization (Dialektik der Säkularisierung). The future Pope Benedict XVI, who at that time was the prefect of the Sacred Congregation for the Doctrine of the Faith (formerly known as the Roman Inquisition), condemned neither the secular nor secularism. The future pontiff, speaking to Professor Habermas, appealed to “the reason we share in common” and advocated a joint effort to “seek the basis for a consensus about the ethical principles of law in a secular, pluralistic society.”82 Recognizing that “the secular culture is largely dominated by strict rationality,” Ratzinger nevertheless identified it as “an important contributory factor” not only to Western culture, but to the world as a whole.83 Indeed, the Cardinal identified “the two main partners” in the intercultural debate as “the Christian faith and Western secular rationality.”84 Rationalism, after wandering for 140 years in the Syllabus of Errors’ wilderness, was baptized by the future pope as if it were a prodigal son. Moreover, Ratzinger recognized secular rationality, along with the religious faith, as being one of the two pillars of Western civilization. It may be more helpful to understand religion and secularism as fluid concepts that are constantly interacting with each other rather than as clearly defined antagonists engaged in a battle —even when partisans of religion and secularism believe themselves to be at war. Indeed, the real enemy of religion may not be the principled and vigorous secularist, but the person who lacks genuine personal piety but uses religious language in the public sphere in order to obtain power and influence.

82 Jürgen Habermas and Joseph Ratzinger, The Dialects of Secularization: On Reason and Religion, trans. Brian McNeil (San Francisco: Ignatius Press, 2005), p. 69 (emphasis added). 83 Ibid., pp. 74, 75 (emphasis added). 84 Ibid., p. 79.

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WHY SECULARISM IS NOT NEUTRAL1 Rex Tauati Ahdar University of Otago, New Zealand

I N T RO D U C T I O N It is my contention that secularism is not neutral. Both key terms, ‘secularism’ and ‘neutrality,’ are rich, multifaceted, contested, elusive concepts, and each needs further explication. Indeed, this essay is largely an exercise in definition and clarification. Once properly delineated, the non-neutrality of secularism is, I suggest, unimpeachable. Actually, it is quite a banal, ‘is that all you’re saying’, conclusion. The really interesting question is the extent to which a secular state (a different thing) can be neutral, a point I will also address, albeit more briefly. I need to begin with some closely related concepts to the two main concepts under discussion (secularism and neutrality).

T H E ‘S E C U L A R ’ F A M I LY L E X I C O N The word ‘secular’ is from the Latin saecularis, from saeculum (generation, age, unit of time), and in Christian thought it denoted the ‘world’, ‘of this age’, the profane as opposed to the ‘other-worldly’ and the age to come. “It is

1

This is a revised version of a paper presented at the International Religious Liberty Association, Thirteenth Meeting of Experts, Sydney University, Australia, 23 August 2011. A shorter version of this Sydney paper, entitled “Is Secularism Neutral?” is forthcoming in Ratio Juris.

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the world of human temporality in which we all must live until the Second Coming.”2 Originally it did not mean ‘unconnected to religion.’3 The notion was used in contrast not to religion but to eternity.4 Medieval times witnessed secular clergy and the regular clergy, the former being those who were not under monastic discipline.5 Nonetheless, today, the Oxford Dictionary gives the primary meaning of the adjective as ‘not connected with religious or spiritual matters.’6 ‘Secularity,’ the condition of being secular, has been helpfully clarified by Charles Taylor. It has, he argues, three senses. Secularity 1 is the secularization of ‘public spaces.’ These have been allegedly emptied of God, or any reference to ultimate reality... as we function within various spheres of activity —economic, political, cultural, educational, professional, recreational— the norms and principles we follow, the deliberations we engage in, generally don’t refer us to God or to any religious beliefs: the considerations we act on are internal to the ‘rationality’ of each sphere — maximum gain within the economy, the greatest benefit to the greatest number in the political area, and so on.7

The second sense of secularity is the decline in personal religious belief and practice, “in people turning away from God, and no longer going to Church.”8 Secularity 3 refers to the environment (my term, not Taylor’s) in which we search and think (or fail to do so) about spiritual and religious matters:

2

Craig Calhoun, “Rethinking Secularism,” Hedgehog Review, 12.3 (2010): pp. 35, 39. Charles Taylor, A Secular Age (Cambridge MA: Belknap Press, 2007) p. 194. 4 Calhoun, “Rethinking Secularism,” p. 38. Calhoun (at p. 35) insists: “working within a sharp binary of secularism versus religion is problematic. Not least, it obscures (a) the important ways in which religious people engage this-worldly, temporal life; (b) the important senses in which religion is established as a category not so much from within as from ‘secular’ perspectives like that of the state; and (c) the ways in which there may be a secular orientation to the sacred or transcendent.” 5 Calhoun, ibid., pp. 39-40; Julian Rivers, The Law of Organized Religion: Between Establishment and Secularism (Oxford: Oxford University Press, 210), p. 328; Nikkie R. Keddie, “Secularism and its discontents,” Daedalus 132 (2003): p. 14. 6 See: . 7 Taylor, A Secular Age, p. 2. 8 Ibid. 3

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The shift to secularity in this sense consists, among other things, of a move from a society where belief in God is unchallenged and indeed, unproblematic, to one in which it is understood to be one option among others, and frequently not the easiest to embrace... there are big differences between societies [namely, Muslim societies and the U.S.] in what it is to believe, stemming in part from the fact that belief is an option, and in some sense an embattled option in the Christian (or ‘post-Christian’) society, and not (or not yet) in the Muslim ones.9

In Peter Berger’s phrase, the “plausibility structure”10 today is different: believing in God is a different thing now than 500 years ago (Taylor’s reference point). There has been, as Jurgen Habermas notes, “a change in the form of religious consciousness.”11 A ‘secular state’ has been defined in various ways. James Wood, for instance, observes: The secular state is one in which government is limited to the saeculum or temporal realm; the state is independent of institutional religion or ecclesiastical control and, in turn, institutional religion is independent of state or political control. It is a state that is without jurisdiction over religious affairs, not because religious affairs are beneath the concerns of the state, but rather because religious concerns are viewed as being too high and too holy to be subject to the prevailing fallible will of civil authorities or to popular sovereignty.12

For Jeroen Temperman: “A secular state declares that it will not be bound by religious laws or principles. In establishing itself as a non-religious and non-denominational state, the state denies any form of positive identification with religion.”13 9

Ibid., p. 3. P. Berger, The Social Reality of Religion [i.e., The Sacred Canopy] (London: Faber & Faber, 1969). C. S. Lewis, writing last century, suggested God was now ‘in the dock’, so to speak, and had to explain Himself (C. S. Lewis, God in the Dock, Walter Hooper, ed., (London: Fount, 1979). By implication, we might say those who would follow Him are similarly situated — the burden is on the believers to justify why society should accord their beliefs weight. 11 J. Habermas, “Religion in the Public Sphere” European Journal of Philosophy 14 (2006): pp. 1, 13. 12 J. Wood, “An Apologia for Religious Human Rights” in John Witte Jr and Johan van der Vyver, eds., Religious Human Rights in Global Perspective: Religious Perspectives (The Hague: Martinus Nijhoff, 1996) pp. 455, 470. 13 J. Temperman, State-Religion Relationships and Human Rights Law: Towards a Right to Religiously Neutral Governance (Leiden: Martinus Nijhoff, 2010) p. 122. 10

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A secular state must necessarily have a demarcation between religion and government. The separation of church and state, or ‘separationism’, is again a deceptively simple term.14 We can speak of at least two distinct types of separation: structural (or institutional) separation and ‘transvaluing’ (or ideological) separation. Regarding structural separation, the very notion of dividing religion from the polity finds its origin in Christianity, commencing with Jesus’ teaching to “render to Caesar the things that are Caesar’s,”15 through Augustine’s two cities, on to Luther’s ‘two kingdoms’ and other similar dualisms of allegiance to authority.16 Following the Reformation we see two contrasting rationales for structural separation, one political, the other theological. Separation works, according to one view, to safeguard the state from the potency, unpredictability and divisiveness of religion and, inversely, according to another view, to protect religion from the intrusions and corruptions of temporal rulers. For Enlightenment separationists, separating church and state ensured dangerous religious passions and ‘superstitions’ would be confined to the private sphere. The pietistic separationists advocated separation to protect the faith.17 Quite distinct from structural separation is ideological separation or, as Paul Weber dubs it, ‘transvaluing separation.’18 This is the attempt to remove all religious influences from the public sphere and public institutions. Religion is, according to this view, a purely private, personal matter; political culture and public institutions are to be a ‘religion free’ zone. This form of separationism is really the institutional expression of the philosophy of ‘hard,’ hostile secularism.

14 Paul J. Weber, “Separation of Church and State: A Potent, Dynamic Idea in Political Theory” in Robert Wuthnow, ed., The Encyclopedia of Politics and Religion, vol 2 (London: Routledge, 1988), p. 684ff. Douglas Laycock helpfully traverses the complexities in “The Many Meanings of Separation” University of Chicago Law Review, 70 (2003): p. 1667. 15 Matthew 22:21; Mark 12:17; Luke 20:25. 16 See Rex Ahdar and Ian Leigh, Religious Freedom in the Liberal State (Oxford: Oxford University Press, 2005), ch 1. 17 Arlin Adams and Charles Emmerich, A Nation Dedicated to Religious Liberty: The Constitutional Heritage of the Religion Clauses (Philadelphia: University of Pennsylvania Press, 1990), pp. 28-31; John Witte, Jr, “The Essential Rights and Liberties of Religion in the American Constitutional Experiment” Notre Dame Law Review, 71 (1996): pp. 371, 381–3. 18 “Separation of Church and State,” p. 685.

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S E C U L A R I Z AT I O N ‘Secularization’ is an ambiguous term19 but, again, we may discern at least two related conceptions.20 The ‘macro’ version, as some call it,21 gives the term a broad meaning: it refers to the diminution of religion and religious influence at the societal level and in public life. Bryan Wilson contends secularization is that process by which religious thinking, practice and institutions lose social significance, and become marginal to the operation of the social system. In advanced societies, religion has now lost that presidency over social activities which once it exercised, as various institutional orders of social life (the economy, the polity, juridical institutions, education, health, recreation) have ceased to be under religious control, or even to be matters of religious concern.22

Sociologists also refer to this as religious ‘differentiation’ —“the process whereby social structures and institutions once suffused with religious significance are transformed into secular entities.”23 This ‘deinstitutionalization’24 or ‘desacralization,’ yet more synonyms, is incontestable. There has been a decline in the social significance and influence of religious institutions and the gradual (but incomplete) extirpation of religious symbols and ritual from 19 David Yamane, “Secularization on Trial: In Defense of the Neosecularization Paradigm,” Journal for the Scientific Study of Religion, 36 (1997): pp. 109, 112, observes that secularization “has come to mean so many different things to so many different people that it has in certain respects become meaningless,” but ultimately he decides the concept is salvageable, if carefully redrawn. 20 There may be even more than two. Peter Berger, in his “Postscript” in Linda Woodhead and David Martin, eds., Peter Berger and the Study of Religion (London: Routledge, 2001), p. 196, for instance, explained that as well as ‘institutional secularization’ and ‘the secularization of consciousness’ (which correspond, roughly, to macro and micro secularization in my discussion), there is a third important dimension to the concept: “the secularization of culture.” A culture permeated by “religious cognitive style[s]... habits [or] constellation[s] of emotions” may, over time, become less so. 21 See Rodney Stark and Roger Finke, Acts of Faith: Explaining the Human Side of Religion (Berkeley: University of California Press, 2000) pp. 59, 200. 22 “‘Secularisation’: Religion in the Modern World” in Stewart Sutherland, Leslie Houlden, Peter Clarke, and Freidhelm Hardy, eds., The World’s Religions (London: Routledge, 1988), pp. 953, 954 (italics added). 23 Rick Phillips, “Can Rising Rates of Church Participation be a Consequence of Secularization?” Sociology of Religion, 65 (2004): pp. 139, 140-141. 24 Stark and Finke, Acts of Faith, pp. 59-60.

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public life. As Steve Bruce observes, the West is “vastly more secular” than it used to be in this sense, a view “held by almost everyone who has given the matter a moment’s thought.”25 A critical point of difference among sociologists, however, is the second, ‘micro,’ version of secularization.26 Traditional secularization theories link the deinstitutionalization process to the widespread erosion in personal religious belief, piety, and practices among individuals. “The decline in the societal significance of religious institutions and the decline in religious beliefs and practices are structurally related. Supposedly, one necessarily leads to the other.”27 Belief in spiritual beings, forces, and realms will, the prediction says, die out, and with it, religion itself. Religion, as the Enlightenment prophets foretold, is doomed as modernization proceeds.28 The micro version is seriously questioned these days. The most prominent recantation is probably that by Peter Berger: “The big mistake... was to believe that modernity necessarily leads to a decline in religion.”29 Charles Taylor points out that the “emptying of religion from autonomous social spheres is, of course, compatible with the vast majority of people still believing in God, and practicing their religion vigorously.”30 The fact that Taylor, writing in 2007, can use the phrase ‘of course’ indicates the seismic shift in intellectual thought in this regard. Habermas is even prepared to say this marks the ushering in of a ‘post-secular society.’31 Micro secularization has been forcefully rejected by the supply-side and rational choice sociologists (who apply basic microeconomic theory to reli-

25

Choice and Religion: A Critique of Rational Choice Theory (Oxford: Oxford University Press, 1999), p. 1. 26 See Stark and Finke, Acts of Faith, pp. 59-60, 199-200. 27 José Casanova, “Beyond European and American Exceptionalisms: Towards a Global Perspective” in Grace Davie, Paul Heelas, and Linda Woodhead, eds., Predicting Religion: Christian, Secular and Alternative Futures (Aldershot: Ashgate, 2006), pp. 17, 18. 28 See Pippa Norris and Ron Inglehart, Sacred and Secular: Religion and Politics Worldwide (Cambridge: Cambridge University Press, 2004), pp. 1, 7. Habermas, in “Religion in the Public Sphere,” p. 15, explains that “religious views will melt under the sun of scientific criticism and... religious communities will not be able to withstand the pressure of some unstoppable cultural and social modernization.” 29 “Protestantism and the Quest for Certainty,” Christian Century, 26 August-2 September, p. 782. 30 Taylor, Secular Age, p. 2 (italics added). 31 Habermas, “Religion in the Public Sphere,” pp. 4, 15.

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gious ‘markets’32). They believe —and this is highly controversial— that demand for religion is relatively constant across societies, nations, and history.33 They point to the persistently high levels of ‘subjective religiousness.’34 There are, they note, continued high measures of spiritual belief —in an afterlife, god, heaven and hell, angels, and so on— in nations well down the path of deinstitutionalization or macro secularization. Deinstitutionalization does correlate with a decrease in public participation in organized, institutional religion. It does not, however, mean that most individuals are atheists or that they are no longer interested in or desirous of religious ‘goods.’

SECULARISM Secularism may indicate a worldview, an ideology, a political doctrine, a form of political governance, a type of moral philosophy, or a belief that the scientific method is sufficient to understanding the world in which we live.35 Secularism is often treated as a sort of absence. It’s what is left if religion fades. It’s the exclusion of religion from the public sphere but somehow in itself neutral. This is misleading. We need to see secularism as a presence, as something, and therefore in need of elaboration and understanding. Whether we see it as an ideology, a worldview, a stance toward religion, a constitutional approach, or simply an aspect of some other project —of science or a philosophical system— secularism is something we need to think through, rather than merely the absence of religion.36

A Political Philosophy or Ideology ‘Secularism’ can mean many different things and, not infrequently, “those involved in the discussion assume they are talking about the same idea when

32

See Rex Ahdar, “The Idea of ‘Religious Markets,’” International Journal of Law in Context, 2 (2006): p. 49. 33 See Anthony Gill (1999) “Government Regulation, Social Anomie and Protestant Growth in Latin America: A Cross-National Analysis,” Rationality and Society, 11 (1999): p. 287. 34 Stark and Finke, Acts of Faith, pp. 71-2. 35 Slavica Jakeliæ, “Secularism: A Bibliographic Essay,” Hedgehog Review, 12.3 (2010): p. 49. 36 Calhoun, “Rethinking Secularism,” 35.

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in reality they have rather distinct concepts in mind.”37 It is my contention that the primary and natural meaning of ‘secularism’ denotes a political philosophy or ideology,38 one that denies the existence or relevance of a transcendental or divine dimension to public affairs.39 Its use in philosophy refers to a rejection of the transcendent and metaphysical in favor of the material and empirical, whilst in sociology it takes on the meaning of secularization40 in the sense of the waning influence of religion (in both social institutions and the personal realm). The political meaning is the one that I wish to focus upon. Whereas secularization is a process, secularism is a political project.41 The term ‘secularism’ was coined by George Jacob Holyoake in the middle of the nineteenth century and was described by him as ‘a series of principles’ that “relate[] to the present existence of man, and to action, the issues of which can be tested by the experience of this life.”42 37 Nader Hashemi, “The Multiple Histories of Secularism: Muslim Societies in Comparison,” Philosophy & Social Criticism, 36 (2010): pp. 325, 25. 38 Or ‘cluster of ideologies’: John Finnis, “On the Practical Meaning of Secularism,” Notre Dame Law Review 73 (1998): pp. 491, 492. 39 I agree (with one major caveat) with Judge Andras Sajó’s characterization that secularism “merely assumes a social, political, and legal arrangement that does not follow considerations based on the transcendental or the sacred.” A. Sajó, “Preliminaries to a Concept of Constituional Secularism,” 6 I.CON (2008): pp. 605, 607. His use of the word ‘merely’ is controversial however, for he also contends that secularism “does not require agnostic background assumptions” nor does it have “any preliminary position on the proper place of religion in society.” I disagree: see the discussion infra at text accompanying n ##. 40 Hashemi, “Multiple Histories,” pp. 326-327. 41 Lorenzo Zucca, “The Crisis of the Secular State — A Reply to Professor Sajó,” 7 I.CON (2009): pp. 494, 498. He continues (on p. 499): “secularization is not an intellectual project but an organic development of a society in response to the gradual waning of religion in the lives of people. Secularization does not set standards according to which the public square can be considered a neutral space.” 42 Sajó, “Constitutional Secularism,” 607 n 3. For Holyoake: “Secularism is the study of promoting human welfare by material means; measuring human welfare by the utilitarian rule, and making the service of others a duty of life. Secularism relates to the present existence of man, and to action, the issues of which can be tested by the experience of this life... inculcating the practical sufficiency of natural morality apart from Atheism, Theism, or Christianity: engaging its adherents in the promotion of human improvement by material means, and making these agreements the ground of common unity for all who would regulate life by reason and ennoble it by service... Secularism is a series of principles intended for the guidance of those who find Theology indefinite, or inadequate, or deem it unreliable.” G. J. Holyoake, The Principles of Secularism Illustrated, 3rd rev. ed. (London, 1871), p. 11. This work is available at: .

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We know that all ‘isms’ are really ‘compounds’ or ‘complexes’, not ‘simples.’43 As Veit Bader observes: Secularism is not only, obviously, a very complex, polysemic and —as all our basic concepts— an essentially contested concept, but also a ‘fuzzy’, chameleonic, highly misleading or ‘cacophonous’ concept. If we are able to discuss the substantive issues of state-religion relations with less fuzzy concepts we should do so instead of translating all and everything into the language of ‘secularism.’44

To prove his point, Bader creates a taxonomy with 12 different meanings of the term. His taxonomy is, in my view, unduly elaborate and hairsplitting and I do not intend to outline it in full here. Some meanings of the term are plainly erroneous or redundant. For example, Bader’s secularism 3 is a type that protects freedom of conscience and individual religious freedom, while secularism 4 safeguards religious minorities against aggressive secular majoritarian governments. These confuse the concept with religious freedom.45 Secularism 1 is the ‘secularity of the state,’ one that rules out theocracy and a confessional state. I prefer to simply call this the secular state. ‘Secularity of the state’ is equivalent to what Temperman dubs ‘state secularism’: both are descriptions of the secular state. Temperman comments: Although the historical underlying incentives that accompanied the establishment of a secular state may have been characterized by criticism of certain religious doctrines or practices, presently a state of secularity in itself does not necessarily reflect value judgements about religion. In other words, state secularism does not

43 Arthur O. Lovejoy, The Great Chain of Being: A Study of the History of an Idea (Cambridge, MA: Harvard University Press,1936), pp. 5-6: quoted in Steven Lukes, Individualism (Oxford: Basil Blackwell, 1973) p. 43. For Lovejoy: “They stand, as a rule, not for one doctrine, but for several distinct and often conflicting doctrines held by different individuals or groups to whose way of thinking these appellations have been applied... and each of these doctrines, in turn, is likely to be resolvable into simpler elements, often very strangely combined and derivative from a variety of dissimilar motives and historical influences.” 44 V. Bader, “Constitutionalizing Secularism, Alternative Secularisms or Liberal Democratic Constitutionalism? A Critical Reading of Some Turkish, ECtHR and Indian Supreme Court Cases on ‘Secularism,’” Utrecht Law Review 6 (2010): pp. 8, 9. 45 A point most pungently made by Judge Bonello in the Lautsi case, to be discussed later: Lautsi v Italy, European Court of Human Rights, Grand Chamber, App No 30814/06, 18 March 2011, [2.2],[2.5].

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come down to an official rejection of religion. State secularism denotes an intention on the part of the state to not affiliate itself with religion, to not consider itself a priori bound by religious principles (i.e. unless they are reformulated into secular state laws) and to not seek to justify its actions by invoking religion. Such a state of secularity denotes official impartiality in matters of religion rather than official irreligiosity.46

Similarly, Julian Rivers explains: secularism must be understood as an attempt to transcend the diversity of religious and non-religious systems of belief and practice, including atheism and agnosticism, by creating a public sphere which is not committed to any of them.47

Of more interest is Bader’s secularism 11, a “foundational or justificatory secularism” that entails the attempt to justify liberal democratic politics and policies on secular and not religious grounds. A mark of a secular state is the requirement that political decisions be “justified in light of generally accessible reasons, in other words equally justified vis-à-vis religious and non-religious citizens, and citizens of different confessions.”48 Generally accessible reasons (Rawls’ ‘public reason’) are secular reasons. Habermas contends that deployment of religious reasons alone (minus accompanying accessible secular justifications) may mean the exercise of political power takes on a ‘repressive’ character.49 Secularism 12 is a secularism of the ‘generalized, meta-narrative’, ‘a competing Weltanshauung’. It offers a full panoply of Enlightenment style answers to the fundamental worldview questions. For all practical purposes God does not exist; man has evolved and must now use reason and science to overcome life’s challenges. Clearly the meaning of secularism differs according to the historical and cultural context. French laïcité is different from the Turkish, American, or Indian varieties.50 Nader Hashemi’s point is well taken: “one way of advancing

46

State-Religion Relationships, pp. 150-151 (italics added). Rivers, Law of Organized Religions, p. 329. 48 Habermas, “Religion in the Public Sphere,” p. 5. 49 Ibid., pp. 5, 12. 50 See Charles Taylor, “The Meaning of Secularism” Hedgehog Review 12.3 (2010): p. 23; Ahmet Kuru, “Passive and Assertive Secularism: Historical Conditions, Ideological Struggles and State Policies toward Religion,” World Politics 59 (2007): p. 568; Ahmet Kuru, Secularism 47

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conceptual clarity with respect to secularism, especially its political variant, is to be sensitive to the different histories of secularism, of which there are many.”51 One can delineate two broad versions of secularism, what I will call a ‘benevolent’ form and a ‘hostile’ form. The literature is replete with dichotomies that label the distinction differently, but let us stay with this for now, adding the others as we go along. Benevolent (or ‘Soft,’ ‘Moderate,’ ‘Passive,’ ‘Negative,’ ‘Procedural’) Secularism Secularism of the benevolent sort is a philosophy obliging the state to refrain from adopting and imposing any established beliefs —whether they be conventional religious or non-religious (atheistic) beliefs— upon its citizens. Drawing upon Isaiah Berlin, Wilfred McClay calls this ‘negative’ secularism. This understanding is ‘negative’ for it is “a freedom ‘from’ establishmentarianism imposition.”52 Benevolent secularism contemplates a non-confessional state; it “suggests the possibility of a nonestablished secular order, one equally respectful of religionists and non-religionists alike.”53 It accepts that the religious impulse is not confined solely to individuals and thus recognizes religious associations and communities. It accords such religious impulses, individual and communal, due standing and equal participation in the public square. It permits, as the Canadian Supreme Court clarified, religious voices to be heard in the public square, albeit they must not be permitted to drown out all others.54 Religion ought not be seen as inherently dangerous, a view and State Policy toward Religion: The United States, France and Turkey (Cambridge: Cambridge University Press, 2009); Rajeev Bhargava, “States, Religious Diversity, and the Crisis of Secularism,” Hedgehog Review 12.2 (2010): p. 8 (extolling the Indian model of secularism). 51 “The Multiple Histories of Secularism,” p. 335. 52 Wilfred M. McClay, “Two Concepts of Secularism,” Wilson Quarterly 24 (2000): pp. 54, 64. The debt to Berlin’s famous essay, “Two Concepts of Liberty” in his Four Essays on Liberty (Oxford: Oxford University Press, 1969), is acknowledged by McClay (ibid., p. 65). For a similar analysis of the two kinds of secularism through Berlin’s positive/ negative prism, see Brett Scharffs, “Four Views of the Citadel: The Consequential Distinction between Secularity and Secularism,” Religion and Human Rights 6 (2011): pp. 109, 112-114. Scharffs calls what I dub benevolent secularism ‘secularity,’ and hostile secularism he calls ‘secularism.’ For a similar use of the two terms, see Pope Benedict XVI, “Religious Freedom, The Path to Peace,” 1 January 2011, [8], [13]. 53 McClay, “Two Concepts of Secularism,” p. 63. 54 See the Canadian Supreme Court in Chamberlain v Surrey School District No. 36 [2002] 4 SCR 710, 2002 SCC 86. The minority opinion of Gonthier J (Bastarache J joining) clarifies (at [137]: “In my view, Saunders J. below erred in her assumption that ‘secular’ effectively

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expounded by French President Nicolas Sarkozy, who adopted the term laïcité positive, meaning ‘an open secularism, an invitation to dialogue, tolerance, and respect.’55 Tariq Modood characterizes benevolent secularism as “moderate, accommodative and pragmatic,”56 Rajeev Bhargava calls it ‘contextual,’57 whilst the Archbishop of Canterbury, Dr Rowan Williams, prefers the label ‘procedural.’58 Ahmet Kuru adopts the term ‘passive secularism,’ a form that sees the secular state adopting a passive role insofar as it eschews the firm formal establishment of any religion but allows for the visible public expression of religion.59 ‘Soft secularism,’ for Leon Wieseltier, is secularism that separates

meant ‘non-religious.’ This is incorrect since nothing in the Charter, political or democratic theory, or a proper understanding of pluralism demands that atheistically based moral positions trump religiously based moral positions on matters of public policy. According to the reasoning espoused by Saunders J., if one’s moral view manifests from a religiously grounded faith, it is not to be heard in the public square, but if it does not, then it is publicly acceptable. The problem with this approach is that everyone has ‘belief ’ or ‘faith’ in something, be it atheistic, agnostic or religious. To construe the ‘secular’ as the realm of the ‘unbelief ’ is therefore erroneous. Given this, why, then, should the religiously informed conscience be placed at a public disadvantage or disqualification? To do so would be to distort liberal principles in an illiberal fashion and would provide only a feeble notion of pluralism. The key is that people will disagree about important issues, and such disagreement, where it does not imperil community living, must be capable of being accommodated at the core of a modern pluralism.” See similarly the majority at [19] and [59] per McLachlin J and L’Heureux-Dubé, Iacobucci, Major, Binnie, and Arbour JJ. 55 President Nicolas Sarkozy, “Allocution de M. le Président de la République dans la salle de la signature du Palais de Latran,” 20 December, 2007, a speech at St. John Lateran Palace, Rome: available at http://www.lemonde.fr/politique/article/2007/12/21/discours-du-presidentde-la-republique-dans-la-salle-de-la-signature-du-palais-du-latran_992170_823448.html . See also President Nicolas Sarkozy, “Allocution du président de la République, M. Nicolas Sarkozy devant le conseil consultatif saoudien-Riyad,” 14 January 2008, a speech in Riyadh, Saudi Arabia: available at http://www.ambafrance-dz.org/spip.php?article1840. See further Fr Evaldo Xavier Gomes, “Church-State Relations from a Catholic Perspective: General Considerations on Nicolas Sarkozy’s New Concept of Laïcité Positive,” Journal of Catholic Legal Studies, 48 (2009): pp. 210, 213-215; Robert Royal, “Sarkozy and Secularism,” First Things, 3 January 2008. 56 Tariq Modood, “Moderate Secularism, Religion as Identity and Respect for Religion,” Political Q 81 (2010): pp. 4, 5-6. 57 “Crisis of Secularism,” pp. 19-20. 58 R. Williams, “Secularism, Faith and Freedom,” lecture delivered at the Pontifical Academy of Social Sciences, Rome, 23 November 2006, available at: . 59 Kuru, “Passive and Assertive Secularism,” p. 571.

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religion from politics based on indifference to the truth or falsity of religion.60 I will return to Dr Williams’ definition for it articulates the core elements clearly: Procedural secularism is the acceptance by state authority of a prior and irreducible other or others; it remains secular, because as soon as it systematically privileged one group it would ally its legitimacy with the sacred and so destroy its otherness; but it can move into and out of alliance with the perspectives of faith, depending on the varying and unpredictable outcomes of honest social argument, and can collaborate without anxiety with communities of faith in the provision, for example, of education or social regeneration.61

Some scholars are adamant that this benevolent conception of secularism is not a philosophy at all, but rather ‘a pragmatic political principle’62 or ‘a constitutional principle.’63 Thus The confusion arises from a disregard for the various conceptions of secularism and... our starting point should be secularism as a constitutional principle and not as a philosophical ideology... secularism is often misrepresented as defining the relations between the state and religion, while it is in fact concerned with finding the correct response to diversity and with protecting each person’s liberty and equality. It must... be borne in mind that secularism, as a constitutional principle, should not be an aim in itself but rather a means to achieve an end: ensuring equality between all religious and non-religious believers living in a pluralistic society... secularism is not an ideology that prefers one position over all others, but a principle that all peoples of all convictions and beliefs can support, precisely because its aim is equality.64

60

L. Weiseltier, “Two Concepts of Secularism” in Edna and Avishai Margalit (eds), Isaiah Berlin: A Celebration (London: Hogarth Press, 1991), ch 5, p. 86ff. 61 Williams, “Secularism, Faith and Freedom.” 62 Kuru, “Passive and Assertive Secularism,” p. 571. 63 Some courts refer to secularism as a principle: see, for instance, the constant allusion to ‘the principle of secularism’ operating in Turkey in Refah Partisi (The Welfare Party) v Turkey (2003) 37 EHRR 1, [66],[67],[83],[93],[105],[125]. 64 Syijn Smet, “Lautsi v Italy: The Argument from Neutrality,” 22 March 2011: . See also David Pollock, “Secularism is neutrality towards all religion – including atheism,” Guardian, 7 July 2011.

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A ‘principle’ in this context seems to suggest a mere technique or device to achieve valued societal goals, a sort of tuning fork to produce a better running pluralist democratic engine. ‘Accommodation,’ ‘neutrality,’ and ‘voluntariness’ are constitutional principles, but it strikes me as wrong to say that secularism is. Secularism does define the relationship between the state and religions: at the very minimum they are to be kept structurally separate — and in hostile versions, the religious voice is totally excluded from the formation of public policy. The correct ‘response’ to diversity could equally be termed the best ‘philosophy or beliefs’ towards diversity. The use of the epithet ‘constitutional’ attempts to subtly transform secularism into a purely legal doctrine. This is, in my view, unconvincing. Calling it ‘constitutional’ simply points to the fact that the philosophy applies to and shapes the constitutional framework. If it is principle, it is not (as I will argue later) of the Rawlsian ‘thin’ variety, but instead resembles a very ‘thick’ principle whose practical workings are indistinguishable from the way a philosophy or ideology, properly called, operates.65 Hostile (or ‘Hard,’ ‘Radical’, ‘Assertive,’ ‘Programmatic’ ) Secularism The other version of secularism is quite different. ‘Hostile’ secularism says the state should actively pursue a policy of established unbelief. It is ‘positive,’ notes McClay, in that it seeks to free human beings from the stultifying illusion of irrational myths so they are free to shape their own destiny.66 This “more robust, more assertive, more ‘positive’” understanding, affirms secularism as an ultimate faith that rightfully supersedes the tragic blindness and destructive irrationalities of the historical religions, at least so far as activity in public is concerned. By understanding religious liberty as a subcategory of individual expressive liberty, it confines religion to a strictly private sphere, where it can do little public harm —and little public good.67

65 On John Rawls’ ‘thick’ versus ‘thin’ theories of the good and their application to conceptions of secularism, see the illuminating discussion by Scharffs, “Four Views of the Citadel,” pp. 118-121. 66 McClay, “Two Concepts of Secularism,” p. 66. 67 McClay, ibid., p. 64.

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“Secularism as a philosophical notion can indeed be construed as an ideological defence of the secular cause, which might include criticism of or scepticism towards religion.”68 The state plays “an ‘assertive’ role as the agent of a social engineering project that confines religion to the private domain.”69 It is laïcité de combat.70 Williams explains that ‘programmatic secularism,’ his preferred label, is driven by an anxiety that assumes... that any religious or ideological system demanding a hearing in the public sphere is aiming to seize control of the political realm and to override and nullify opposing convictions. It finds views of the human good outside a minimal account of material security and relative social stability unsettling, and concludes that they need to be relegated to the purely private sphere. It assumes that the public expression of specific conviction is automatically offensive to people of other (or no) conviction. Thus public support or subsidy directed towards any particular group is a collusion with elements that subvert the harmony of society as a whole.71

This kind of secularism resembles a fully-fledged worldview or Rawlsian ‘comprehensive doctrine.’72 Secularism of this stripe, argues Brett Scharffs, “tries to do too much... it insists that everyone accept a ‘thick’ theory [of the good] that is infused with questionable content, it posits a comprehensive doctrine and insists that anyone who resists it is irrational or in the grip of self-deception, it seeks to impose rather than develop consensus.”73 This secularism is a justificatory secularism with strong epistemological constraints. Religious thinking and reasons have no place in the public and political sphere, the latter being the exclusive domain of reason and rationality. Judge András Sajó is an advocate of this kind of political philosophy: Secularism, an institutional arrangement, provides protection to a reason-based polity against a social (dis)order that is based on dictates of religious doctrine and emotions. When constitutionalism insists on secularism it insists on the possibility of a reason-based society.74 68

Temperman, State-Religion Relationships, p. 151. Kuru, “Passive and Assertive Secularism,” p. 571. 70 Gomes, “Sarkozy’s New Concept,” p. 214. 71 Williams, “Secularism, Faith and Freedom.” 72 Ibid. On ‘comprehensive doctrines’ see John Rawls, Political Liberalism (New York: Columbia University Press, 1993). 73 “Four Views of the Citadel,” p. 121. 74 Sajó, “Constitutional secularism,” p. 624 (original italics). 69

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Reason, he continues, has had it doubters of late, but there must be no backsliding, for “the alternative to reason is emotional politics and an arbitrary system, where the emotional dictates of religion will rule human choices.”75 According to this view, reason is necessarily a secular commodity and rational arguments are accessible to the many; religion, by contrast, is an emotion-laden, arbitrary creature, and it is accessible only to the (believing) few.76

NEUTRALITY “We can agree on the principle of neutrality,” suggests Douglas Laycock, “without having agreed on anything at all.”77 Neutrality is not a selfdefining concept,78 but, along with its close cousin, equality, requires further amplification and context: neutral in what sense (purpose, effect, opportunity); in which ways (funding, prohibition, exemption, symbolic reception); for whom (believers, employers, state officials); and for which purposes (to advance separation, religious liberty, civil order and so on)? Some have become impatient with the concept entirely: “neutrality is an indeterminate and vacant idea”79 charges one American writer. Nevertheless, neutrality is a key element in liberalism and liberal democracies. It is not going to go away.80 75

Ibid., pp. 625-626. Ibid. 77 “Formal, Substantive, and Disaggregated Neutrality toward Religion” DePaul Law Review, 39 (1990): pp. 993, 994. See also Adams and Emmerich, A Nation Dedicated, p. 65. See also Robert Audi, “Natural Reason, Natural Rights, and Governmental Neutrality Toward Religion,” Religion and Human Rights, 4 (2009): pp. 157, 172: “Neutrality toward religion is, to be sure, a rather elusive notion.” 78 Laycock, “Formal, Substantive and Disaggregated Neutrality,” pp. 994-8; Kent Greenawalt, Religion and the Constitution, volume 2: Establishment and Fairness (Princeton: Princeton University Press, 2008), p. 444. 79 David Cinotti, “The Incoherence of Neutrality: A Case for Eliminating Neutrality from Religion Clause Jurisprudence,” Journal of Church and State, 45 (2003): pp. 499, 500. Others have come to similar conclusions: see eg Steven D Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (New York: Oxford University Press, 1995); Stanley Fish, “Mission Impossible: Settling the Just Bounds between Church and State,” Columbia Law Review, 97 (1997): pp. 2255; Frank Ravitch, “A Funny Thing Happened on the Way to Neutrality: Broad Principles, Formalism, and the Establishment Clause,” Georgia Law Review, 38 (2004): p. 489. 80 See Ahdar and Leigh, Religious Freedom, pp. 42-46. 76

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Its omission from the constitutional text makes no difference for it lurks there as a foundational premise. The First Amendment’s pithy religion clauses make no reference to ‘neutrality’ (nor ‘secular’ or ‘secularism’ for that matter), but neutrality is a given in the decisions of the courts. Thus Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine and practice. It may not be hostile to any religion or to the advocacy of nonreligion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.81

Likewise, no reference to ‘neutrality’ appears in the religion articles of the European Convention on Human Rights, namely, Article 9 and Article 2 of the First Protocol (stipulating respect for parents’ religious and philosophical convictions). But the concept is well entrenched in the Convention jurisprudence. The European Court of Human Rights has consistently affirmed a member state’s “role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs,” indeed, its “duty of neutrality and impartiality.”82 One meaning of neutrality83 is the duty of state officials to behave impartially, that is without judging between the merits of different religions and in a non-discriminatory way. Few if any would reject this as lying at the core of the notion. Beyond that, however, conceptual controversy begins and at least a further four variants can be identified with different implications both for individuals and religious organizations.84 One strand stresses neutrality as the equi-distance of the state from all religions so they are treated even-handedly and none is favored. A second version focuses on strict equality of treatment of religions by the state. A third strand, equal respect, permits differences in treatment by the state in situations either where fundamental rights are not 81

Epperson v Arkansas, 393 US 97, 103 (1968) (Sup Ct). See eg Refah Partisi (The Welfare Party) v Turkey (2003) 37 EHRR 1, [91]; Church of Scientology Moscow v Russia (2008) 46 EHRR 16, [72]. 83 I am grateful to my colleague Ian Leigh for this taxonomy: see Leigh, “The European Court of Human Rights and Religious Neutrality” in Malcolm Evans, Tariq Modood, and Julian Rivers, eds., Religion in a Liberal State (forthcoming). 84 Leigh, “Religious Neutrality.” 82

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engaged or where differences in treatment can be justified. A fourth sense of neutrality, as objectivity, can also be identified: religions are treated equally as subjective belief systems so that, at best, the state is indifferent towards them or, at worst, they are all seen as irrelevant or misguided. Pluralist or Open Neutrality: Equi-distance An alternative approach strives for religious neutrality but does so by recognizing and embracing the public dimension to religion. It attempts an “even-handed co-operation”85 with all religions and worldviews held by individuals and groups in society. As Julian Rivers explains: “It recognises the ultimate significance of faith in people’s lives and where the functions of the state and religious concerns overlap.”86 One commentator dubs this ‘open neutrality’ for it opens up the public square by allowing all religions and worldviews equal access.87 Rajeev Bhargava coined the term ‘principled distance’ to describe the sort of accommodating non-Enlightenment, Indian model of secularism that recognizes the public character of faiths and permits both assistance and restriction, as the case may be, to advance societal goals such as liberty and equality.88 Principled (or structural) pluralism was most coherently developed by Dutch thinkers such as Abraham Kuyper and Herman Dooyeweerd who coined the term ‘sphere sovereignty.’89 The created order sees a rich diversity of structures or institutions (schools, churches, families, unions, the state, and so on), with each having its own authority and duties. Due to this structural pluralism or plurality of spheres, no one institution ought to usurp the power or functions of the other.

85

Rivers, “Irretrievable Breakdown?” p. 3. Ibid. 87 Smet, “Argument from Neutrality.” 88 “Crisis of Secularism,” pp. 15-18. 89 The following account draws from Gary S. Smith, ed., God and Politics: Four Views on the Reformation of Civil Government (Phillipsburg, NJ: Presbyterian & Reformed, 1989), pp. 75–7; Gordon Spykman, “The Principled Pluralist Position,” in Stephen Monsma and J. Christopher Soper, eds., The Challenge of Pluralism: Church and State in Five Democracies (Lanham, Md: Rowman and Littlefield, 1997), ch 5; D. McIlroy, “Subsidiarity and Sphere Sovereignty: Christian Reflections on the Size, Shape and Scope of Government,” Journal of Church and State, 45 (2003): p. 739; Julian Rivers, “Liberal Constitutionalism and Christian Political Thought,” in Paul Beaumont, ed., Christian Perspectives on the Limits of Law (Carlisle: Paternoster, 2002). 86

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There is also another kind of pluralism at work —confessional pluralism. Society is made up of persons possessing a wide range of beliefs, worldviews, and ideologies. While structural pluralism is, according to these Reformed theorists, normative, confessional pluralism is not; it reflects the ‘fallen’ nature of humankind. Nonetheless, state attempts to enforce a single religious orthodoxy, even a Christian one, are to be resisted.90 Instead: the New Testament teaches that governments should accept the presence of conflicting faith communities within their borders and not discriminate against people because of the religious convictions they espouse. Therefore, the state should insure [sic] that all its citizens, whether they are Christians, Jews, Muslims, Hindus, Buddhists, or secular humanists, receive equal rights. Public justice must prevail; Christians should not have special privileges in society. All faith communities should have the legal right to worship, to evangelize, and to establish associations... to promote their way of life.91

Government is to be even-handed not because it is expedient to do so, but because this is the principled response. Structural pluralists deny that the state is ipso facto ‘neutral’ simply because it privatizes religion. Indeed, by failing to treat non-governmental entities performing similar functions to state institutions the same as their governmental equivalents, the state discriminates: “pluralism means that no individual or institutional structure is [to be] discriminatorily dealt with by the state based on his or her world view.”92 The principled pluralist model is illustrated by the Netherlands. Under ‘pillarization,’ many areas of life —political parties, unions, schools, social services, clubs— were separately organized reflecting the different religious and secular worldviews.93 Stephen Monsma and Christopher Soper observe: The Dutch seek to attain government neutrality on matters of religion not by a strict church–state separation... but by a pluralism that welcomes and supports all religious and secular structures of belief on an evenhanded basis... The... system can be seen in two basic beliefs or assumptions that undergird it. One is a pluralistic

90

Monsma and Soper, Challenge of Pluralism, p. 12; Carl Esbeck, “A Typology of Church–State Relations in Current American Thought” in Luis Lugo, ed., Religion, Public Life and the American Polity (Knoxville, Tenn, 1994), p. 17. 91 Smith, God and Politics, pp. 75–6. 92 Esbeck, “Typology of Church–State Relations,” p. 15. 93 Monsma and Soper, Challenge of Pluralism, p. 61.

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view of society that sees a variety of religious and philosophical movements —even when full participants in the public life of the nation— as normal and no threat to the unity and prosperity of society... A second underlying belief or assumption is that nonreligious, ‘neutral’ organizations are not truly neutral —as is often assumed within the liberal Enlightenment view of society— but are yet another richting, or direction, equally legitimate but no more legitimate than a host of other religious and nonreligious philosophies or directions. Public policies that respect, accommodate, and support public roles for a plurality of religious and secular belief structures emerge out of these beliefs.94

Formal Neutrality: Strict Equal Treatment Formal neutrality or ‘religion-blindness’ holds that the state should engage with the religious believer without ‘seeing’ her faith.95 Religion is to be treated no differently than anything else. The American scholar, Philip Kurland, posited the best-known formulation of this kind of neutrality: The [religion] clauses should be read as stating a single precept: that government cannot utilize religion as a standard for action or inaction because these clauses [in the First Amendment], read together as they should be, prohibit classification in terms of religion either to confer a benefit or to impose a burden.96

Christopher Eisgruber and Lawrence Sager incorporate a formal neutrality component in their much-discussed recent model of ‘Equal Liberty.’ Since they believe that religion is not unique or special, they go on to stipulate that “we have no constitutional reason to treat religion as deserving of special benefits or as subject to special disabilities.”97 They advance a theory of ‘equal regard’ that seeks to treat religion the same as secular analogues —no better, no worse.

94

Ibid, p. 80. Marie Failinger, “Wondering after Babel: Power, Freedom and Ideology in US Supreme Court Interpretations of the Religion Clauses,” in Rex Ahdar, ed., Law and Religion (Aldershot: Ashgate, 2000), ch 5, pp. 84–5. 96 “Of Church and State and the Supreme Court,” University of Chicago Law Review, 29 (1961): pp. 1, 96. 97 Religious Freedom and the Constitution (Cambridge, MA: Harvard University Press, 2007), p. 52. For a strong defense of formal equality in matters cultural and religious, see Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge, MA: Harvard University Press, 2001). 95

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Such an approach promises much but, in my view,98 its practical application is formidably difficult. The problem here, as Abner Greene so ably notes, is that, on the one hand, secular equivalents are not always obvious.99 If the government wishes to erect a cellphone tower that would desecrate an indigenous people’s sacred mountain, what is the appropriate analogy? On the other hand, the universe of secular analogies is potentially boundless.100 If, for example, the police refuse to allow its officers to wear beards, is the appropriate comparison those who wish to wear alternative headgear or jewellery (thus implying no accommodation is warranted)? Or is it the exemption for those who, for medical reasons, cannot shave due to skin sensitivity (thus implying an exemption is deserved)?101 In simple terms, which things are really alike and serve as an appropriate benchmark? There is a simple elegance to formal neutrality yet its administrability is questionable. More importantly, it also has a blunt edge when it comes to preserving religious liberty. So long as the purpose of government policy is neither to advantage nor disadvantage religion, the fact that the consequences of state action may be to substantially burden the religious practice of certain believers is irrelevant. “Equality of form can be accompanied by inequality of effect.”102 So a Prohibition statute banning all consumption of liquor is formally neutral —it is irrelevant that it would be unlawful for a church to celebrate the Eucharist by means of partaking in wine.103 Substantive Neutrality: Equal Respect Substantive neutrality is concerned with the consequences or effects of state action upon religion. It has two related prongs: first, the government should minimize the degree to which it interferes with religion (for good or ill), and, second, it should strive to leave religion, as far as possible, to individual choice. Laycock’s version reads: 98 Also our view, viz, Ahdar and Leigh, Religious Freedom in the Liberal State, 2nd ed (Oxford University Press, 2012) (forthcoming). 99 A. Greene, “Three Theories of Religious Equality... and of Exemptions,”Texas Law Review, 87 (2009): pp. 963, 1003-6. 100 Ibid. 101 Ibid. 102 Steven Shriffin, The Religious Left and Church-State Relations (Princeton: Princeton University Press, 2009), p. 30. 103 Laycock’s example: “Formal, Substantive and Disaggregated Neutrality,” pp. 1000-1.

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My basic formulation of substantive neutrality is this: the religion clauses require government to minimize the extent to which it either encourages or discourages religious belief or disbelief, practice or nonpractice, observance or nonobservance... Religion is to be left as wholly to private choice as anything can be. It should proceed as unaffected by government as possible. Government should not interfere with our beliefs about religion either by coercion or by persuasion. Religion may flourish or wither; it may change or stay the same. What happens to religion is up to the people acting severally and voluntarily; it is not up to the people acting collectively through government.104

Substantive neutrality seeks even-handedness between all systems of religious belief, including those anti-religious belief systems that reject or doubt the existence of the divine, such as atheism, secularism, and agnosticism. Substantive neutrality is also called by some ‘positive neutrality,’ for it underscores the point that to achieve neutrality it will not always be enough for the government to simply abstain from certain activities; “it will sometimes have to take certain positive actions.”105 In the example given earlier, the state ought to grant exemptions for sacramental consumption of wine. Although this initially appears to be a case of the state favoring religion, this is not so. Rather: “Substantive or positive neutrality, properly understood and applied, merely levels the playing field; it assures that government is not making following the dictates of one’s religion either easier or harder to follow.”106 It may look like special treatment but it is merely a limited corrective to invasive and indiscriminate government policy that has unwittingly discouraged religious practice. Substantive neutrality seeks to minimize government incentives to change religious behaviour in either direction. Ideally then, as Laycock submits, “the underlying criterion for choosing among baselines depends on the incentives that government creates.”107 This, in turn, means adopting different baselines in different contexts.108

104 “Formal, Substantive and Disaggregated Neutrality,” pp. 1001–2. See also D. Laycock, “The Underlying Unity of Separation and Neutrality,” Emory Law Journal, 45 (1997): pp. 43, 70. 105 Stephen Monsma, “Substantive Neutrality as a Basis for Free Exercise-No Establishment Common Ground,” Journal of Church and State, 42 (2000): pp. 13, 26–7. 106 Ibid., p. 31. 107 Laycock, “Underlying Unity,” p. 71. 108 See ibid., pp. 70-3; Laycock, “Theology Scholarships,” p. 244; Monsma, “Substantive Neutrality,” pp. 32-3.

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In situations where state largesse is at issue, the appropriate baseline would seem to be all analogous, secular activities (including the non-religious). So religious hospitals, day-care centres and schools ought to get the same funding as their secular counterparts.109 A university student seeking to undertake theology studies should get the same state scholarship funding as one undertaking a degree in zoology or linguistics.110 In situations where general laws impinge upon individual freedom, the correct baseline would seem to be all religious persons, groups, and activities, and their secular equivalents, but not all human activities.111 Thus Anglicans and Rationalists, but not rock climbers, might be granted an exemption from a facially neutral law that seriously impinges upon their convictions. Sometimes substantive neutrality may require religion to be treated worse than broadly similar secular activities112 —the state can directly fund particular sporting or musical projects but not specific churches; it can insist upon physical exercises in public schools but not prayers. Epistemological Neutrality: Objectivity This version of neutrality is where the state treats religion objectively. Religion is a subjective, non-rational opinion or preference that must remain in the private sphere. The state is acting impartially insofar as it treats all nonrational belief systems the same: religion along with astrology, New Age, belief in UFOs, leprechauns, taniwha (Maori dragons), are of the same cloth. This type of so-called neutrality is the alter ego of ‘hard’ or ‘hostile’ secularism of the type advocated by Judge Sajó earlier.

109

Laycock, “Underlying Unity,” p. 70; Monsma, “Substantive Neutrality,” pp. 30, 32. The majority of the US Supreme Court, by seven to two, held otherwise in Locke v Davey (2004) 540 US 712. 111 Laycock, “Underlying Unity,” p. 70; Monsma, “Substantive Neutrality,” pp. 32-3. 112 Laycock, “Underlying Unity,” p. 71. 110

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T H E N E U T R A L I T Y M I R AG E Unequal Effects A secular baseline is commonly admired by many liberals as a neutral, impartial one, but that depends entirely upon one’s viewpoint. Increasingly fewer religious people believe that secularism is really neutral, at least in terms of its effects. As Tariq Modood observes: “There may be a neutrality between religions, but there is less of an even-handed division of spoils between those who believe religion is a matter of private faith, that the transcendental relates only to the non-political dimensions of the human condition, and those who deny this.” Secular constitutions, he continues, “seem to be the political expression of a particular philosophy about religion and life.”113 Robert George concurs, noting that, increasingly, many religionists quite reasonably reject secularism’s claim to constitute nothing more than a neutral playing field on which other worldviews may fairly and civilly compete for the allegiance of the people... secularism is itself one of the competing worldviews. We should credit its claims to neutrality no more than we would accept the claims of a baseball pitcher who in the course of a game declares himself to be the umpire and begins calling his own balls and strikes... secularism itself is a sectarian doctrine with its own metaphysical and moral presuppositions and foundations, with its own myths, and, one might even argue, its own rituals.114

A benevolent secularism can, over time, unerringly slide into a hostile secularism. There is, as Rivers characterizes it, a “slippage from secularism-asseparation to secularism-as-indifference, [one that] is hard to resist.”115 The continued drift from the former to the latter “risks becoming worryingly oppressive.”116 Jonathan Chaplin suggests why this is so: Where society is pervasively secularized —where public life and institutions are principally governed as if transcendent religious authority is irrelevant— it will in practice almost invariably lean towards programmatic secularism, if only by de113

“Introduction: Establishment, Reform and Multiculturalism,” in Tariq Modood, ed., Church, State and Religious Minorities (London: Policy Studies Institute, 1997), ch 1, p. 13. 114 “Clash of Orthodoxies,” First Things, August/September 1999, pp. 33, 34–5. 115 Law of Organized Religions, p. 332. 116 Ibid., p. 347. He adds (ibid.): “At its worst, it may yet prove to be a Trojan horse for a State-sponsored atheism.”

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fault. Equally, in a society where public life and institutions are principally governed as if biblical authority were binding, it will in practice almost inevitably appear to be Christianised, also by default.117

Whether secularism takes a benevolent or hostile form will depend on the nature and extent of secularization in the nation concerned, which itself is a matter of historical contingencies. There is an intimate symbiotic relationship between the two concepts, one reinforcing the other. Secularism (the internal, the ideological) is reflected in secularization (the external, the sociological), and vice versa.118 The more thoroughgoing the secularization process, the more unreflectively (‘by default’) a hostile, closed form of secularism takes root. Critics of traditional religious festivals, rituals, symbols, and so on, point to the ostracism or alienation experienced by those not adhering to the ‘established’ faith, to those who are ‘outsiders.’ Yet, it is easy to focus on alienation on one side only: believers may feel equally alienated by a secular political regime that extirpates religious symbolism and practice from the public square.119 This kind of secularism is experienced by religionists as “a competing partisan position.”120 “Secularism, in this context, looks less and less like a neutral or common ground that stands outside religious controversy, and more like a particular worldview that dominates the public sphere because of the political power of its adherents.”121 There are those like Modood who “worry about an intolerant secularist hegemony” in Europe.122 Far from being neutral or inclusive, it resonates as an ordering of life in accordance with the

117 J. Chaplin, Talking God: The Legitimacy of Religious Public Reasoning (Pardubice: Theos, 2008), ch 1, p. 23 (original italics). 118 Rex Ahdar, Worlds Colliding: Conservative Christians and the Law (Aldershot: Ashgate 2001), p. 58. 119 Smith, Foreordained Failure, p. 114. 120 Richard Moon, “Liberty, Neutrality, and Inclusion: Religious Freedom under the Canadian Charter of Rights and Freedoms,” Brandeis Law Journal, 41 (2003): pp. 563, 571. 121 Richard Moon, “Government Support for Religious Practice” in Richard Moon, ed., Law and Religious Pluralism in Canada (Vancouver: UBC Press, 2008), ch 9, p. 231. 122 “Moderate Secularism,” p. 12. See also Calhoun, “Rethinking Secularism,” p. 47: “we should recognize the prominence of a secularist ideology that goes beyond affirming the virtues of the ostensibly neutral. The demarcation between religion and the secular is made not just found. The secular is claimed by many not just as one way of organizing life, not just as useful in order to ensure peace and harmony among different religions, but as a kind of maturation. It is held to be a kind of developmental achievement. Some people feel they are ‘better’ because they have overcome illusion and reached the point of secularism.”

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non-religious values of some (often the few) of the community at the expense of the spiritual values of others (often the many). Seen in this light, for a modern state to remain entirely impartial or evenhanded is an impossible feat. Some liberal theorists openly concede liberalism is not impact neutral,123 and it is “unreasonable, indeed, incoherent”124 to expect this.125 In many situations it cannot avoid ‘taking sides’ between the religious people and the atheistic and rationalist communities. It cannot ‘win,’ for to keep a religious symbol in the public sphere alienates sincere atheists (and believers of a different faith), and to remove a symbol alienates the devout citizens who cherish that icon. It can add religious symbols from other faiths, but that would still upset the atheists. It could, one imagines, include the religious symbols and rituals of all stripes as well as those dear to the atheist and rationalist. So, the cross could be accompanied by the Star of David, a crescent (but not a depiction of Muhammed), as well as a three-dimension model of the atomic particle and busts of Darwin and Marx. A cluttered public square indeed. The recent lawsuit by American Atheists against the erection of the crossshaped 17-foot steel beams left intact amidst the rubble of the World Trade Center in a public museum (the National September 11 Memorial and Museum) comes to mind.126 Tom Flynn, Executive Director, Council for Secular Humanism, commented: Since I maintain that the cross should be avoided in any publicly-funded memorials, it should be pretty obvious that I don’t think a cross’s inclusion can be made more palatable by including ‘symbols of all faiths, including atheism.’ Let’s leave

123

Take Rawls, Political Liberalism, p. 195: “The principles of any reasonable political conception must impose restrictions on permissible comprehensive views, and the basic institutions those principles require inevitably encourage some ways of life and discourage others, or even exclude them altogether.” See also Eisgruber and Sager, Religious Freedom and the Constitution, pp. 74-75, 209-211. 124 Eisgruber and Sager, Religious Freedom and the Constitution, p. 210. 125 See Audi, “Natural Reason, Natural Rights,” p. 172, who explains that neutrality “is a normative, not a causal, notion; it concerns the range of justi?able positions that governments or institutions may make, not their actual e?ects on existing religions. Neutrality might, in some societies, result in enhancing religious a?liation and commitment and, in others, in reducing them” (italics added). 126 Elissa Gootman, “Atheists Sue to Block Display of Cross-Shaped Beam in 9/11 Museum,” New York Times, 28 July 2011; American Atheists Inc v Port Authority of New York and New Jersey, NY Co Sup Ct, filed 25 July 2011.

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aside where we’d find authentic pieces of Twin Towers debris that happen to be shaped like the Star of David, the Star and Crescent, or the yin-yang symbol... the proposal is ludicrously impractical. How many symbols do all faiths claim? Hundreds? Thousands? Where would there be space to display them all? If we admit that the goal of displaying symbols of all faiths is manifestly impossible, who draws the line? By what criteria do we choose which faiths to include and which to exclude? Who pays for the lawsuit if Scientology is left out?127

It is important to remember that discussions of secularism and neutrality do not take place in an aseptic ahistorical setting. States are not presented with a carte blanche but inherit a culture that already has religion deeply embedded in it. The Empty, Contentless, Value-Free Center? There is another sense in which neutrality seems unattainable. The idea of a purely neutral state in which there is no official endorsement of the good, of a political community that eschews the notion that it acts on the basis of substantive values of what it regards as real, true, and good, is a mirage. As John Milbank puts it: “There is never any truly ‘neutral’ procedural ground (of a Habermasian variety). Something always rules, and this something is always substantive.”128 Chaplin explains: “substance will bleed into procedure however tight the constitutional tourniquet. The religious ‘neutrality’ or ‘even-handedness’ of a procedurally secular state will always be a neutrality ‘from the standpoint of ’ some particular contested political vision.”129 Leslie Newbiggin contends: “No state can be completely secular in the sense that those who exercise power have no beliefs about what is true and no commitments to what they believe to be right.”130 The state may be ‘religiously neutral’, in the sense that it “does not establish any of the world’s 127 T. Flynn, “9/11 cross a private symbol, not public monument,” Washington Post, 3 August 2011: < washingtonpost.com/blogs/on-faith/post/911-cross-a-private-symbol-not-publicmonument/2011/08/03/gIQAhyOsrI_blog.html>. 128 “Shari’a and the True Basis of Group Rights: Islam, the West and Liberalism,” in Rex Ahdar and Nicholas Aroney, eds., Shari’a in the West (Oxford: Oxford University Press, 2010) ch 9, p. 146. 129 Talking God, p. 23. 130 Foolishness to the Greeks: The Gospel and Western Culture (Grand Rapids, Mich: Eerdmans, 1986) p. 132.

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religions,”131 but, continues Newbigin, “the state is not neutral in respect of world-views, meta-narratives or whatever term one may use for the framework which gives overall coherence to our understanding of what it is to be human.”132 And, at the risk of laboring the point, McClay observes: Just as nature abhors a vacuum, so the polity seeks unifying and binding principles. There has to be a ‘final say’ in a durable political order, and it is hard to keep a ‘final say’ potent with nothing more than an avowedly neutral proceduralism. On the contrary: Everything we know about the functioning of a healthy political entity suggests the need for governing assumptions, legitimating myths, and foundational narratives.133

The government’s stance on a whole range of issues —defense, welfare, refugees, education, health, narcotics, prisons, environmental protection— will reflect some notion of what is true, good and valuable.134 Michael McConnell is correct: Once government shakes off its limited role and concerns itself with the general welfare of the people, including their cultural and intellectual lives, it has leapt the ‘Wall’ and entered the traditional sphere of religion. In contrast to many of our Founders, [Edmund] Burke had a more modern conception of the jurisdiction of the State, which did not permit him the easy answer of a ‘Wall of Separation.’ If the government is ‘a partnership in all science; a partnership in all art; a

131 Lesslie Newbigin, “Activating the Christian Vision,” in Lesslie Newbigin, Lamin Sanneh, and Jenny Taylor, eds., Faith and Power: Christianity and Islam in ‘Secular’ Britain (London: SPCK,1998), ch 18 p. 152. 132 Ibid., p. 151. 133 McClay, “Two Concepts,” p. 71, ponders whether “the possibility that a decent and sustainable secularism cannot ever exist entirely as a nonestablished order, i.e. without the assumption of an orderly and given world undergirding it. This is not just a matter of the need for some kind of social and political axioms and norms. It is also a matter of having the right axioms —axioms that provide a coherent idea of what it means to be a human person.” 134 Paul Rishworth articulates it this way: “The reality, of course, is that states must inevitably pursue or affirm ideologies upon which opinions may reasonably differ amongst its citizens. A government’s position on matters such as free trade, universal access to public health and pensions, employment law, the way it should treat its citizens, and so on will all reflect some underlying vision and values.” “Liberty, Equality and the New Establishment,” in Paul Rishworth and Grant Huscroft, eds., Litigating Rights: Perspectives from Domestic and International Law (Oxford: Hart Publishing, 2002) ch 6, p. 93.

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partnership in every virtue and in all perfection’ then it necessarily will be conveying a collective teaching on science, art, virtue and perfection (whether we label the teaching a ‘religion’ or not). It follows not that an establishment is desirable, but that it is inescapable.135

In a society where the role of the state is a minimal, night watchman-like one, a commitment to secularism arguably does not present great difficulties. But modern, liberal democracies are complex welfare states with pervasive networks of state involvement into virtually every area of life.136 The state’s position and resultant public policies on myriad questions will reflect its conception of the good, its implicit worldview. It will have a ‘metaphysic,’ a set of tacit metaphysical assumptions that guide its behavior; “states cannot be neutral towards metaphysical claims.”137 If, as Robert Audi suggests, government neutrality requires the state to engage in “abstention from taking metaphysical positions, at least of a theological kind —including, of course, atheism,” then the secular state would seem to fail this demanding version of neutrality. Audi continues: “Even agnosticism, for instance, conceived as the higher-order position that there is (or can be) no knowledge of God or justi?ed belief affirming God’s existence violates a reasonable neutrality, since it is both negative toward theistic religion and goes beyond the proper authority of government concerning religion.”138 McConnell resurrects the term ‘establishmentarianism’ to describe what is happening here.139 While establishmentarianism (both de jure and de facto) is ordinarily associated with a religious orthodoxy, the orthodoxy may come in secular forms (de jure and de facto) as well.140 To reiterate, in terms of effects, the established position will inevitably exclude the worldviews of some citizens. 135 M. McConnell, “Establishment and Toleration in Edmund Burke’s ‘Constitution of Freedom,’” Supreme Court Review (1995): pp. 393, 444 (emphasis added). 136 John Witte Jr, Religion and the American Constitutional Experiment, 2nd edn (Boulder, Col: Westview Press, 2005), pp. 226, 256; Rivers, Law of Organized Religions, pp. 329-330. 137 Iain T Benson, “Notes Towards a (Re)Definition of the ‘Secular,’” UBC Law Review, 33 (2000): pp. 519, 520. See also pp. 532-34, 543-44. 138 Audi, “Natural Reason, Natural Rights,” p. 173. 139 “The New Establishmentarianism,” Chicago-Kent Law Review, 75 (2000): p. 453. Note, however, that attempts in the US courts to argue that teaching of ‘secular humanism’ violates the Establishment Clause have failed: see eg Smith v Board of School Commissioners of Mobile County, 655 F Supp 939 (S D Ala 1987), reversed by the Eleventh Circuit Court of Appeals, 827 F 2d 684 (11th Cir 1987). 140 McConnell, “New Establishmentarianism,” p. 453.

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Take the state’s view on education. Is the public school system to be strictly secular? If so, a pupil is likely to learn the lesson that religion is irrelevant to the subject matter taught. This is, as McConnell says, a lesson about religion and is not ‘neutral’: “Studious silence on a subject that parents may say touches all of life is an eloquent refutation.”141 Issues of life and death, such as abortion and euthanasia, will turn on fundamental moral and metaphysical understandings “of whether bodily life is intrinsically good, as Judaism and Christianity teach, or merely instrumentally good, as orthodox secularists believe.”142 Non-neutrality went unnoticed and uncriticized for a long period while the state favored Christian interests. Bias exercised in one’s favor is usually invisible.143 With their cultural establishment rapidly eroding, however, many Christian theorists now question the alleged neutrality of the state. The privatization of religion is now being experienced with full vigor.

S U P P O RT

F RO M T H E

E U RO PE A N C O U RT T H E L AU T S I C A S E

OF

H U M A N R I G H TS :

Lautsi v Italy explored the legal propriety of the display of crucifixes in Italy’s state primary schools.144 In 2002 Ms. Soile Lautsi, on behalf of her two children, aged 11 and 13 at the time, contended that this display in all classroom walls of the state school attended by her children in Abano Terme was unlawful. She sought their removal but the school board refused to do so. The practice, she argued, infringed on the principle of secularism and the religious freedom guarantees under both the Italian Constitution and the ECHR. Both the Administrative Court, in March 2005, and the Supreme Administrative Court, in April 2006, held there was no infringement. The lower court stated the crucifixes did not offend against the principle of secularism nor did they infringe the applicant’s religious freedom. The symbol was more “a symbol of a historical and cultural development,” an emblem of “a value

141 McConnell, “Neutrality under the Religion Clauses,” Northwestern University Law Review, 81 (1986): pp. 146, 162. 142 George, “Clash of Orthodoxies,” p. 35. 143 Ahdar, Worlds Colliding, p. 112. 144 Lautsi v Italy, Eur Ct HR, Grand Chamber, App No 30814/06, 18 March 2011.

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system” comprising such civic virtues as “liberty, equality, human dignity and religious tolerance.”145 The appeal court agreed. The crucifix symbolized the best virtues that characterized Italian civilization (“tolerance, mutual respect, valorisation of the person, human solidarity” and so on) and could fulfil “a highly educational symbolic function irrespective of the religion professed by the pupils.”146 Ms. Lautsi was undeterred and appealed successfully to the Second Chamber of the European Court of Human Rights. In a unanimous judgment on 3 November 2009, a court of seven147 held there had been a Convention violation, specifically her right under Article 2 of the First Protocol to guide her children’s education in accordance with her “own religious and philosophical convictions” and her religious freedom under Article 9. The predominantly religious character of the crucifix could not be downplayed. Crucifixes were capable of being ‘emotionally disturbing’ for non-Christian pupils and such persons were placed in a situation where they could only extricate themselves with some effort.148 The compulsory display of a symbol of a particular faith did not respect the parents’ rights of religious upbringing and violated the state’s duty to respect neutrality. The matter was appealed to the Grand Chamber who, on 18 March 2011 held, by 15 votes to 2, that there had been no contravention of the Convention. It ruled that the Italian government’s policy on crucifixes in state schools was a matter falling within the state’s margin of appreciation.149 A crucifix on a wall was “essentially a passive symbol.”150 The government was not engaged in proselytism. Its neutrality was evident by the way it accommodated and respected other religions. Pupils were allowed to wear headscarves or other religious symbols or apparel; Ramadan was often celebrated in schools. Judge Power and Judge Bonello’s concurring opinions are of the most interest for our present discussion. The platform for their reasoning was likely laid by the submission of the Italian Government. It argued that the Second Chamber had confused neutrality (an ‘inclusive concept’) and secularism (an

145

Lautsi at p. 6. Ibid., p. 9. 147 Including Judge András Sajó. 148 Lautsi p. 15. 149 Ibid., pp. 31[76]. 150 Ibid., pp. 29 [72]. 146

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‘exclusive concept’).151 It had “deriv[ed] from the concept of confessional ‘neutrality’ a principle excluding any relations between the State and a particular religion.”152 This was wrong; rather, In the Government’s view, neutrality meant that the States should refrain from promoting not only a particular religion but also atheism, ‘secularism’ on the State’s part being no less problematic than proselytising by the State. The [Second] Chamber’s judgment was thus based on a misunderstanding and amounted to a favouring an irreligious or antireligious approach...153

In a scathing opinion, Judge Bonello emphasized that the removal of crucifixes would ‘hardly’ be a neutral step by the Italian Government. No, their “removal would have been a positive and aggressive espousal of agnosticism or of secularism —and consequently anything but neutral.”154 It “would be an act of intolerance by agnostics and secularists.”155 The fact that political measures do not operate in an ahistorical context is a key point for his honor. He inveighed against ‘historical Alzheimers,’ ‘cultural vandalism,’ the disregard for “the cultural continuum of a nation’s flow through time,” and the temptation to ‘rob’ Italians of part of their ‘cultural personality’ and ‘national identity.’156 I spoke before of alienation cutting both ways. Judge Bonello noted that the Convention rights of the parents of the other pupils in the Abano Terme school should not be overlooked: Ms Lautsi cannot award herself a licence to overrule the right of all the other parents in that classroom who want to exercise the same right she has asked this Court to inhibit others from exercising. The crucifix purge promoted by Ms Lautsi would not in any way be a measure to ensure neutrality in the classroom. It would be the imposition of a crucifix-hostile philosophy of the parents of one pupil, over the crucifix philosophy of the parents of all the other twenty-nine.157

151

Ibid., pp. 16 [35]. Ibid. 153 Ibid. 154 Ibid., pp. 41 [2.10]. 155 Ibid. 156 Ibid., p. 36 [1.1]-[1.4]. 157 Ibid., p. 413 [3.5]-[3.16]. 152

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Judge Power was concerned that the Grand Chamber majority had failed to correct the interpretation of neutrality that had been erroneously adopted by the Second Chamber. That (lower) Chamber had reminded itself of the state’s duty of neutrality in public education. So far so good. However, it [the Second Chamber] proceeded to conclude, incorrectly, that this duty required the effective preference or elevation of one ideology (or body of ideas) over all other religious and/or philosophical perspectives or world views. Neutrality requires a pluralist approach on the part of the State, not a secularist one. It encourages respect for all world views rather than a preference for one. To my mind, the [Second] Chamber Judgment was striking in its failure to recognise that secularism (which was the applicant’s preferred belief or world view) was, in itself, one ideology among others. A preference for secularism over alternative world views —whether religious, philosophical or otherwise— is not a neutral option.158

C O N C LU S I O N Is Secularism Neutral? Properly defined, secularism is a political ideology or philosophy, a set of beliefs, about the nature and basis of the state and its ordering with regard to religion. It is not a process (secularization), nor a state of affairs, nor a structural design (the secular state). In its soft or passive variant, benevolent secularism advocates treating religious and secular worldviews even-handedly. This a particular philosophy with specific beliefs: all religions are equal or at least are worthy of equal re-

158 Ibid., p. 45 (emphasis added). For support of this stance (that predates the Grand Chamber judgment) see Joseph Weiler, “Lautsi: Crucifix in the Classroom Redux,” 21 (1) EJIL: Talk, Editorial, 1 June 2010: “In a society where one of the principal cleavages is not among the religious but between the religious and the secular, absence of religion is not a neutral option. Some countries, like the Netherlands and the UK, understand better the dilemma... in the conditions of our societies, the naked public square, the naked wall in the school, is decidedly not a neutral position, which seems to be at the root of the reasoning of the [Second Chamber] Court. It is no more neutral than having a crucifix on the wall. It is a disingenuous secular canard, the opposite of pluralism, which has to be dispelled once and for all if we are serious about teaching our children, religious and secular, Christian, Muslim and Jew, to live as a harmonious society in mutual respect.” Professor Weiler was counsel for the third party interveners (Greece, the Russian Federation, etc.) in the Grand Chamber appeal.

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spect; none, not even the oldest, most culturally embedded, or numerically large ones, are be privileged; the unity of society does not require unity of faith and religion; governments are ill-suited to identify religious truth and error; any form of state coercion of religious practice is wrong; the state is to be concerned with men’s temporal needs not their souls; and so on. A state that adopts benevolent secularism is not standpoint neutral for it has adopted this ideology as its preferred standard. It is a non-neutral stance that still manages to, or attempts to, treat other stances on a par with itself. It accords religious institutions and entities respect by permitting them to operate in the public sphere. Religious schools, hospitals, welfare agencies are treated equally (and funded on the same basis) to secular ones. Religious citizens are exempted from general laws where the burden on them is disproportionately heavy and the derogation from societal goals is slight. Religious voices are equally admissible alongside secular ones in the formation and alteration of law. We commonly approve of this philosophical stance since the effect on religious and other (non-secular) worldviews is muted. It seems fair. For a long time it treated most branches of organized Christianity well. Hostile secularism teaches that religion is a potentially dangerous, irrational thing, and thus ought to be confined in the private sphere. It excludes religious reasons and arguments from shaping public policy. It struggles to see why religious people deserve special exemptions from the law of the land. It views religious symbols and practices as relics of a bygone era that continue to exert coercive power. It sees funding of faith-based entities as unfair and divisive. This form of assertive or hard secularism does not even try to be even-handed. Just the opposite: rationalistic, scientistic secularism is given a privileged position. It is ‘established’ or adopted by the state as the guiding standard. This may be a de jure establishment or, more frequently, a de facto one, but an establishment it is. Unlike benevolent secularism, the effect on religious and other non-secular belief systems is drastic and keenly felt. It seems now, to many religionists, to be unfair and the supposed neutrality is castigated as bogus. But neither form of secularism is truly fair. It is just that with one form the impact was for many decades tolerable, and with the other it now grates. Is a Secular State Neutral? A state that subscribes to secularism, that adopts this standpoint, either soft or hard, cannot be neutral, any more than a state that commits itself to Catholicism, non-denominational Evangelical Christianity, Islam, Hinduism,

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or Marxism can say it is neutral. Its very position or stance is anchored to an ideology, political philosophy, or ‘ism.’ First, a secular state and its myriad policies cannot be impact neutral for its consequences will disadvantage some ways of life and worldviews (those with ‘illiberal’ teachings) more than others. Now, it might be readily accepted that a state adopting hostile secularism is not neutral. When benevolent secularism slides into its hostile variant, the effects on religious and other nonsecular belief systems are often drastic and keenly felt. When hard, programmatic secularism asserts itself, many religionists cry foul and the supposed neutrality is castigated as bogus. But is it going too far to say that a secular state that subscribes to benevolent secularism is not neutral? After all, soft, procedural secularism was designed to be fair to all belief systems, religious and secular. Surely the charge of non-neutrality is misplaced with regard to a state adopting this open, passive, accommodative political ideology? Historically, many citizens, secular and religious, have approved of this political stance since its practical outworking was tolerable. Whilst not perhaps perfect, it seemed to them to be more or less fair. For a long time it treated most, but by no means all, branches of organized Christianity well. It accorded religious bodies respect by permitting them to operate in the public sphere. Religious schools, hospitals, welfare agencies furthered societal aims and were funded on the same basis as secular ones. Religious citizens were usually exempted from general laws where the burden on them was disproportionately heavy and the derogation from societal goals was slight. Religious voices were equally admissible alongside secular ones in the formation and amendment of law. Therein lies benevolent neutrality’s non-neutral impact. For on some accounts it has treated organized Christianity too well —to the detriment of freethinkers, atheists, strict separationists (some of whom are religious), and others. For atheists, a secular state ought to exclude religious reasons and arguments from shaping public policy. For them, the religious voice is the voice of benighted irrationality and superstition and ought not to play any part in public and political life. A state that allows religious rituals on state occasions (for example, parliamentary prayers) is genuinely experienced by rationalists as coercive. State schools that permit crucifixes on classroom walls are truly offensive to sincere atheists. In the United States, the ACLU vigilantly polices these instances of ceremonial deism to safeguard the sensibilities of nonChristians. Non-religious citizens like Ms. Lautsi have taken up the cudgels in the European context.

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Neither form of secularism is perfectly fair, nor can the consequences of the philosophy ever be evenly spread among all modes of life. With one form (the benevolent) the impact is, and has been for many decades, beneficial for many streams of the Christian faith. Atheists and certain religious minorities (Jews for example) have felt alienated and outsiders. Now the other form of secularism (hostile) is asserting itself, and the boot is on the other foot: it grates with those same majoritarian religionists who were once favored. A second objection is that the secular state may be neutral or even-handed as between major faiths, religions and worldviews, but it is not neutral in terms of the way it treats religious truth claims. Judge Sajó has responded vigorously to those religious critics who charge that liberal secularism is a militaristic, biased position: Secularism as a constitutional concept does not require agnostic background assumptions. The term reflects no specific position regarding the truth of religion nor any preliminary position regarding the place of religion in society. It is not a form of atheism or secular humanism. It merely assumes a social, political and legal arrangement that does not follow considerations based on the transcendental or the sacred.159

Secularism most certainly does have a preliminary position on the social place of religion: no religion has the right to be in command. In its soft, open form, it allows religion public participation and input, whereas in its hard, closed, form it excludes this; but in both variants religion must ‘know its place.’ From a religious stance, a polity that does not follow considerations based on the divine or sacred is not neutral. It has a specific position on the claims of religion, for it has denied the existence of and relevance of the Truth (capital “t”) that would speak to the governing of society, as much as matters of personal piety. It is, by definition, god-less.160 From a theistic standpoint, it is a species of idolatry. Secularism says, with its fingers crossed behind its back: ‘We do not know whether religion is true or not, but, in any event, it is irrelevant to the task at hand. We must govern without God.’ This, from the theists’ perspective, is tantamount to practical atheism.161 Theists recall that the

159

“Constitutional Secularism,” p. 607. Finnis, drawing upon Plato, identifies three characteristic forms of modern secularism: atheism, deism, and a secularized ‘soft-spirited’ religiosity: “Practical Meaning,” pp. 492-93. 161 Robert Wilken, “Serving the One True God,” in Carl Braaten and Robert Jenson, eds., Either/Or: The Gospel or Neopaganism (Grand Rapids, Mich: Eerdmans, 1995), pp. 49, 50. 160

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very terms ‘secularism’ and ‘agnosticism’ were created (by Holyoake and T. H. Huxley, respectively) as respectable euphemisms for systematic unbelief by the free thinkers, rationalists, and atheists of the day.162 “Secularism, it shouldn’t need emphasizing, is not the same as atheism.”163 So defends Richard Dawkins. But one wonders why he insists so.164 After all, he and others have mounted a sustained apologia for atheism as a coherent and respectable position. Christianity of Catholic165and neo-Calvinist166 varieties maintains there can be no neutral ground. One is either for or against God. This applies to kingdoms and nation-states as well individuals, families, and tribes. From a political perspective, it is doubtful that a state can be agnostic and uncommitted. It is hard to conceive of a state that is not tied to a particular philosophy or philosophies, that can survive on a purely ‘thin’ minimalist consensus of the kind that agrees that theft is wrong, sewage and sanitation systems are essential, red means stop, and 2+2=4.167 A state without any coherent and consistent vision of humanity, society, good and evil, knowledge —that is agnostic as to these ‘big questions’ or background assumptions— would surely be nihilistic, anarchistic, and inherently unstable. There is always an established worldview, always tacit yet fundamental ontological, epistemological, moral, and ethical premises that guide those in the corridors of power, whether or not they are consciously aware of them.168 The worldview may be hard to label, and it might be a hybrid of various ideological and religious strands. But it will exist. No state is neutral in this sense.

162

See Keddie, “Secularism and its discontents,” p. 15. R. Dawkins, “Rick Perry Betrays a Great American Principle,” Washington Post, 13 July 2011. He continues: “Secularism is the belief that religion is private, and should not intrude upon the governance or politics of the nation.” 164 French philosopher Michel Onfray scolds contemporary atheists for their temerity in not proudly bearing the badge ‘atheism,’ a term that has for too long been given an unmerited pejorative meaning by religionists: M. Onfray, The Atheist Manifesto: The Case Against Christianity, Judaism and Islam (Melbourne: Melbourne University Press, 2007). 165 See eg John Finnis, “Secularism, Morality and Politics,” L’Osservatore Romano, 29 January 2003, 9: < http://www.ewtn.com/library/ISSUES/SECULAR.HTM>. 166 See eg James Skillen, “Public Justice and True Tolerance” in James Skillen, ed., Confessing Christ and Doing Politics (Washington, DC: Association for Public Justice, 1982), ch 5. 167 Stanley Fish, “Stanley Fish replies to Richard John Neuhaus,” First Things, February 1996, p. 35. 168 For an elaboration of the ‘Wellington worldview,’ the worldview of New Zealand’s political, business, and intellectual elite, see Ahdar, Worlds Colliding, ch 2. 163

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Secularism as an ideology may be defended, and has been defended, on a number of grounds. Some would say it best maintains civic order. Others would say it is the only ‘rational’ basis for government. It may, as Charles Taylor observes, be “a good faith attempt[]” to maximize basic goals of liberty of conscience, equality between religions and beliefs, and maintenance of harmony and comity between adherents of different religions and weltanshauungen.169 Still others would say it is the best and fairest default or secondbest position given the fact of ineradicable and increasing religious pluralism. Since no one religion can, or ought, to rule the roost, the next best thing is peaceful coexistence alongside one’s rivals. Yet others might point out that it enables most religious ways of life to still flourish, subject to the odd narrow but necessary limitation. And even if pure neutrality is unattainable, it does not follow, defends Kent Greenawalt, that the term is ‘empty’ or that schema based on concepts of fairness and even-handedness are not worth pursuing.170 Defenders of secularism can mount a very good case for the liberal state to hitch itself to this ideological wagon.171 The one thing defenders cannot say is that a state committed to secularism (a secular state) is neutral, anymore than secularism is itself.

169

Taylor, “Meaning of Secularism,” pp. 33, 23. Religion and the Constitution, p. 445. 171 For comprehensive treatments see eg William Galston, Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State (Cambridge: Cambridge University Press, 1991). Stephen Macedo, “The Politics of Justification,” Political Theory, 18 (1990): pp. 280, 298, comments: “The liberal must, in the end, defend his partisanship and not evade it.” 170

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RE-THINKING SECULARISM: A PARADIGM BASED ON NON-DISCRIMINATION J. Paul Martin Barnard College, Columbia University, USA

I N T RO D U C T I O N This paper argues that the major global, social, and political changes that have taken place during the last thirty years have put in question the continuing use of secularism as a paradigm, policy, practice, or ideology to define the place of religion in public life and especially in international affairs. Religious ideas and institutions simply can no longer be ignored on the basis of an a priori ideology. Religions represent complex de facto forces in both domestic and international affairs. There may have been reasons in the past to exclude religions from the public political space, but the world has changed radically. There are two basic changes favoring this argument. Firstly, in the West religions are no longer the political forces they once were. The fragmentation of Christianity following the Reformation initially brought about states characterized by a dominant, state-linked version of Christianity, such as Catholicism in France and Italy, Calvinism in Scotland, and Lutheranism in the Scandinavian states. However, following the example of the US Constitution and post-1789 France, more states slowly recognized the need to accommodate peacefully the diverse religions espoused by their citizens, resulting in various approaches to separation of religion and the state, secularism, and state neutrality. Today there are no state-dominating religions in the West. Thus there is no longer any need to exclude on principle religion and religious organizations from the public sphere simply because they are reli-

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gious. In other words, now that religions in the West have lost their power to dominate the civil authorities, the question can be raised of why religious organizations should not be treated like other civil society institutions and thus not be excluded a priori from the political arena, as is the central thrust of secularism. The second change is the rise of Islam coupled with the ongoing changes in the world associated with globalization. The economic forces associated with globalization are bringing about an unprecedented degree of international migration and religious inter-mingling. Major migration flows from South and East Asia bring Hindus and Christians from the Philippines into once exclusively Muslim societies in the Middle East. Population flows from across the Muslim world are reaching all parts of Europe and North America. At the same time Islamic states in diverse ways are asserting a stronger international political presence, one defined by their own deeply rooted traditions that link state and religion. Together these forces call for a re-thinking of the place of religion in domestic and international affairs. Before proceeding, two distinctions are important. In this paper secularism differs from secularization in that the latter describes actual empirical changes and processes, the former describes a social agenda or an ideology. Similarly, state neutrality differs from separation of religion and the state.1 The former allows for active state and religion exchanges, provided the state assures parity to all religions. These arguments based on recent changes in global relations are complemented by the increasing critiques of secularism in academic literature that show that secularism is limited conceptually on account of its heterogeneous interpretations.2 Secularism is defined more by what it seeks to exclude, namely religion in the public sphere, than what it offers to enable the state to deal with the de facto roles played by religions in the modern world. It is generally accepted that modern secularism grew up as a creature of Western societies seeking to free themselves from the religious, civil, and political hegemonies that characterized the Middle Ages. These hegemonies were weakened first by the divisions within Christianity associated with the Refor-

1

The different modalities of religion state relations are well illustrated in the work of W Cole Durham. See for example, “Patterns of Religion State Relations” in Religion and Human Rights, John Witte and M. Christian Green, eds., (Oxford: Oxford University Press, 2012), pp. 360ff. 2 See Timothy Samuel Shah and Daniel Philpott, “The Fall and Rise of Religions in International Relations,” in Jack Snyder, ed., Religion and International Relations Theory (New York: Columbia University Press, 2011), pp 24ff.

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mation, and then by the growth of knowledge and culture associated with the Enlightenment. Like the religions they seek to exclude, the resulting secularist traditions each exhibited different composites of beliefs, practices, values, historical interpretations, social theories, and institutional arrangements, all of which were deeply marked by their Western, largely Christian, roots. Outside the Western world, secularism took on different forms. The most radical, virulently anti religious were those enforced in states such as Stalinist Russia, early Communist China, and contemporary North Korea. Elsewhere the search was more for state neutrality or for different models of mutual accommodation such as in India or Indonesia. These and other formerly unified state-religious systems, such as that in Tibet, have been slowly refining relations between religion and the civilian authority. Nevertheless, other than in virulently anti-religion states such as North Korea and China, religious phenomena such as festivities, special events, favoring legislation, special protections, and interest groups are still visible in the public sphere.3 Secularist principles, goals, and strategies range from those that seek to eliminate every trace of religion from public affairs to those that seek merely a neutral civil authority. The question raised here is whether in practice or in theory any of the strands of secularism can act as a basis to reach wider international understandings and ‘rules of the road,’ in order to grapple with the diversity of, and relations among, the world’s religions today. In response, this paper argues (a) that states and international agencies will move past secularist ideologies that ignore and exclude the religious forces at work in the world today, and (b) that authentic state neutrality is best achieved by treating religions like any other interest group in civil society, no more, no less. Thus it is proposed (a) that secularism be interpreted in terms of state neutrality rather than as separation of religion and state, (b) that a secularism that favors excluding religion from the public sphere is no longer adequate for international affairs, (c) that states look afresh at religions and religious institutions in the modern world and consider them legitimate political actors in civil society, and (d) that the enormous global social changes of the past thirty years eliminate any reason either to continue to privilege religion in public life, or to exclude it. Religion and religious institutions can now be treated like other ideologies and non-governmental interest groups in both domestic and international affairs, rather than be excluded a priori as advocated by most traditions of secularism. 3

See Alfred Stepan “The World’s Religious Systems and Democracy: Crafting the ‘Twin Tolerations,’” in Arguing Comparative Politics (Oxford: Oxford University Press, 2001).

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This examination begins with a brief assessment of certain major changes in recent social history, and an equally brief examination of secularism and its history. The target of the argument is a review of the place of religion and the state in both international and domestic affairs. The final section is devoted to identifying the elements of a new paradigm that looks beyond the traditional focus of religious freedom to a more inclusive normative structure that takes into account the international human rights regime and the roles that religion actually plays in both domestic and international affairs. The underlying premise is that religious forces de facto play a major role in both domestic and international affairs, and therefore they cannot be ignored “a priori” in the public sphere. This leads to the conclusion that, just as in the case of women, the UN needs to create an entity that focuses on religion in the context of international security.

TWENTY YEARS

OF

MAJOR SOCIAL CHANGE

Much has happened in international affairs during the last sixty eight years, since the end of World War II, and especially during the last twenty or so years since the end of the communist domination of Eastern Europe. Most significant for the topic of this paper is the degree to which political power in the world is now more shared. Where once states were seen as completely independent and equal sovereign actors, international relations theory now recognizes more patterns of dependency and that the power of individual states varies dramatically. Moreover, political analysts now assign significant political weight to the world’s non-state actors,4 notably the economic powers in the form of the huge multinational corporations, many of whose financial resources exceed those of a large proportion of states by dramatic proportions. In addition, the modern world also can no longer be interpreted using international relations theories that do not take into account the explosive growth of non-governmental agencies in such sectors as humanitarian aid, environmental advocacy, and human rights. Again, many of these groups have larger budgets and greater influence in international affairs than some states. However, their relative political power is not the major characteristic of this sector. It is their numbers and continuing growth in virtually all parts of the world. They are now actors in both domestic and international spheres. They derive 4

See Snyder (2011).

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their power and effectiveness from their members, from their social service agenda rather than economic gain, and from their strategies associated with advocacy, data collection, monitoring, public education, and social mobilization.5 There are simply no reliable figures yet on account of their numbers and their spontaneous patterns of growth and demise. In most countries, including many in Africa like Egypt, Kenya, Nigeria, Uganda, South Africa, and Tanzania, they will number in the thousands, but only a small percentage, typically those in the capital cities, will enjoy extensive overseas relations. In contrast to the growth of the new non-religious sectors of civil society outside the Islamic world, the world’s religions have lost the political and social power they once had. The causes are complex. They include the continuing fragmentation of the religious organizations, the growth, in addition to traditional political parties, of the non-governmental sector, and the more general forces of secularization (the historical process, as opposed to secularism). With the NGO explosion over the last thirty years, religions in the Western world have had to share their once unique role as source of moral legitimacy and as representative of the common people and the voiceless. This is not to say that religions are dying out, that their followers are less numerous, or that religions can no longer motivate their followers to die for the cause. The argument is that today religions are only one part of a growing and increasingly vocal civil society that now provides many of the social and humanitarian services once provided mostly by the religious organizations. With few exceptions in the Western world, the political power of religions has also dissipated due to processes of secularization and competition. They no longer function as a major challenge to the domestic civilian power. In other words, in the Western world there is no visible danger of domination of the public sphere by the religions. World society is thus now composed of three major groupings: states, business corporations, and civil society. International relations are now defined by all three, each of which is a substantial political force in both domestic and international affairs. This huge change in context between 1945 and 2012 raises the question of how religion in particular should be treated in the public forum in the future. Are there any remaining reasons to use secularism to continue to try to exclude religion, unlike any other human institution, from the public sphere? Now that religion is no longer the only social force able to challenge the state in the West, as it was for many centuries, and as it is not likely to regain that position in any Western society, should not re5

John Keene, Global Civil Society? (Cambridge: Cambridge University Press, 2003).

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ligions then be allowed to follow the same rules as other members of civil society when they participate in the public sphere? Moreover, looking at the role of Islam, is it not also better to engage Islam as a religion, not just a potentially hostile political force?

TERMINUS

A QU O :

T H E P RO B L E M S

OR

SECULARISM?

Re-thinking secularism requires examining the old premises and a new assessment of contemporary social conditions. Tensions certainly remain between religions and the state. In the modern Western world, the state for example must establish norms, policies, and practices that assure the minimum of common standards to ensure that its diverse citizenry can live together peacefully and productively. There will be issues and contexts where religious and common norms can come into conflict. The questions are, therefore, what are these contexts, and how well is the state equipped to solve as opposed to ignore or suppress them. Rather than starting with the paradigm or ideology defined by secularism as a given, re-thinking requires looking at the real problems as they present themselves in this rapidly globalizing world. Current tensions can grouped into three categories: (a) those that arise from the ways in which a state imposes rules and requirements on religious persons and institutions, (b) those that arise from the ways in which religious beliefs and practices are imposed on persons and institutions that do not hold or subscribe to those beliefs and practices, and (c) those that arise from the ways in which states or other social actors co-opt religion for political goals. The current problems that fall in the first category include rules, policies, and practices that govern marriage, families, gender, military service, reproduction, and health services, as well as other social services such as education and social welfare. Many states also regulate the use of property owned by religious groups, as well as access of religious persons and institutions to public political and other common spaces and services. Some governments also require religious groups to obtain permits to hold worship services, even in private houses. Education, whether it is provided by the government or a religious group, is likely to be a sensitive sector as teaching certain topics in both the humanities and the physical sciences can conflict with religious beliefs and ethics. All of the sectors can result in discrimination against religion, that is the denial of such human rights as freedom of speech, conscience, movement, and assembly. Severe restrictions, such as those faced by Baptists and

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Jehovah Witnesses in Russia and by some Christian, Muslim, and other religious groups in China, verge on persecution. Current problems that fall in the second category, namely impositions by religion on non-members or on dissident members, include the religious use of common public spaces, lobbying and voting mandates by religious authorities, as well as religious activities designed to recruit new members. Also of concern to governments are activities on the part of religious groups that generate discrimination and hostility towards other religious groups. Blasphemy and defamation of religion laws have created a special problem as they have resulted in hate speech and communal violence. Finally in a world of rapidly changing norms, differing views of gender roles and expectations accompanied by religious sanctions have also give rise to tensions involving public authorities and different religious traditions. The third category is no less important, namely where the state or another non-state actor closely associates its agenda, its mission, and its authority with religious fidelity to the extent that non-compliance with the policies of the political entity on the part of citizens is portrayed as non-conformity to core religious beliefs. Indeed most forms of social activism in Islamic countries, both for and against the established authority, can and are authenticated in religious terms and sanctions. However all religions, their symbols and practices, can be used by authorities or others to define a social agenda and to label those hostile to their goals as hostile to the religion. Such appeals to religious as well as to anti-religious loyalties easily lead to socially destructive actions such as discrimination, hate speech, and scapegoating. In more secularized and religiously diverse societies, however, such social activism is more likely to be authenticated by appeals to more generally accepted norms such as humanitarianism, human rights, or international peace and security. Faced with these real-life religion-state tensions, if not conflicts, is the secularist paradigm still the best approach? The birth and growth of the conceptualization and practices of the modern Western state are traditionally traced back to the 1648 Westphalia agreements. These were driven by the need to move beyond the violent conflicts caused by communities defined by their different religious affiliations. The agreements allowed the various heads of state in Europe to establish a state religion, but they also provided for the free exercise of other Christian traditions. The net effect was to guarantee sovereignty and independence to states with respect to all their internal affairs, including religion. During the same period in Britain, religious freedom was promoted on both religious and economic grounds. The religious freedom

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argument was based, as Locke said, on the grounds “that the case of each man’s soul belongs only to himself.”6 The economic argument made the case that a society would never progress commercially if the government were not stable and its officers were subject to the vagaries of the religious preferences of an individual monarch. These provisions slowly evolved into various forms and degrees of separation between religion and the state in Britain, the United States, and elsewhere in the Western world. The separations, however, were never absolute. The general tendency was towards reducing the influence of religion in the public sphere. The goal of secularist thinking and practice has been to separate religion and the state. Charles Davis has traced in detail the evolution of the various secularist traditions over the centuries. The single common denominator has been the principle that, unlike other ideologies such as socialism or communism, the state has to be protected from religion and religious influences. This tradition reflects the peculiar history of the role of the Christian churches in the history of Western Europe. Since the time when the Roman Emperor Constantine became a Christian and allied his secular power with that of the Christian church, the symbols and ambitions of the Christian religion have been co-opted by many political authorities. Through the same centuries, putting aside the most egregious abuses, religious authorities such as the Pope, individual bishops, and the heads of large monasteries have exercised unfettered sway over the lives of ordinary people in ways no different from that of the civil authority. The Reformation and the resulting weakening of the power of the religious entities coupled with the growth of the modern state opened the way to differing models that over the last four hundred years have defined and generally increased the separation of state and religion. In the process, secularism has functioned as a generic concept, selective and susceptible to different definitions, itself a complex of ideological premises, social science axioms, political affiliations, and influential scholars and political theorists, each of which bears the marks of its respective cultural and historical gestation.7

6 For extended discussion see Richard Ashcraft, “Religion and Lockean Natural Rights,” in Irene Bloom, et al., Religious Diversity and Human Rights (New York: Columbia University Press, 1996). 7 Charles Taylor, A Secular Age (Cambridge, MA: Harvard University Press, 2007), covers this ground with respect to the secularism defined by the West’s Christian heritage.

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At the same time, secularism became the language of public servants and scholars in the Western world,8 enabling both groups to work and live as though religions were irrelevant to their respective enterprises. This perspective meant that religious phenomena in international relations theory and in diplomatic practice, for example, were ignored or subsumed within other categories such as culture, civil society, humanitarianism, or as part of a definition of ‘civilization.’ Reinforcing this perspective were the ideas that religions were negative factors responsible for social ills such as discrimination, hate speech, forms of identity politics, fanaticism, the persecution of minorities and violent conflict, and that they were dying out. The scholars and diplomats who have subscribed to these secularist principles are, like the religions they seek to sideline, not a homogeneous entity. There are many secularisms and many motivations for espousing secularism. Indeed, it has been called a black box.9 Secularism thus became an umbrella for those who objected to the presence of religions and religious concerns in public politics. With increasing economic and normative globalization, short of the radical exclusions of all forms of visible religious activity such as those that have been adopted in North Korea, secularism has not found a single model that could be called universal or normative.10 The main reason is the fact that religion still plays a major role in public affairs in virtually every Western state. Other than states like North Korea, every state tolerates manifestations of religion in their public spheres. The result is that the last decade has seen a rise in publications noting the growing visibility and influence of religion in the public arena.11 Secularism has also met with internal critiques and calls for re-thinking such as those advanced by gender studies. This challenge is mapped out in a

8 Douglas Johnston and Cynthia Sampson, eds., Religion The Missing Dimension of Statecraft (Oxford: Oxford University Press, 1994). The rehabilitation of religion goes back to Peter Berger A Rumor of Angels, Modern Society and the Rediscovery of the Supernatural (New York: Double Day, 1969). More recently, Peter Berger, ed., The Desecularization of the World (Washington, DC: The Ethics and Public Policy Center, 1999). 9 Elizabeth Skakman Hurd (2008), “Secularism and International Relations Theory,” in Snyder (2011). 10 For example, Alfred Stepan (2001) 11 See Peter L. Berger (1999), Giles Kepel, The Revenge of God, The Resurgence of Islam, Christianity and Judaism in the Modern World (Cambridge, UK, and Malden, MA: Polity Press, 2004); Pippa Norris and Ronald Inglehart, Sacred and Secular, Religion and Politics Worldwide (Cambridge: Cambridge University Press, 2004).

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recent publication edited by Janet Jakobsen and Ann Pelligrini.12 They point to the cultural as well as ideological bias of secularism, while at the same time wanting to defend and redefine secularism by minimizing, if not eliminating, the patriarchal patrimony inherited from the religions it sought to exclude from the public sphere. They characterize secularism in the West as a marketbased incarnation, a specifically Protestant form of secularism. They conclude, however, that “we cannot even begin to take up this collective challenge (to imagine just social relations in a post-secular world) as long as we remain tied to either the descriptive or moral components of the standard secularization thesis.”13 Their analysis is structured around different narratives of secularization, notably those of rationalization, universalism, emancipation, privatization, and progress. Among the contributors, Kathleen Sands examines admitting religion back to the public sphere on an equal footing in the US. She calls for eliminating the privileges, special protection, privileges, and freedoms enjoyed by religion in the US, even such as those that have been derived from the First Amendment,14 but also for eliminating the ways in which religions are excluded from the public sphere.15 As a feminist, she argues that this would make possible a necessary, more open debate and encourage religions to move away from past dogmatism and absolutism. Her analysis is, however, limited to the US domestic sphere. It is there that the resurgence of Islam has shown the degree to which Western secularism is still deeply defined by its Jewish and Christian heritage.

RELIGION

AND THE

S TAT E

IN

I N T E R N AT I O N A L A F FA I R S

The international human rights regime has respected the principle of the separation of church and state. The 1948 UN Universal Declaration of Human Rights (UDHR) and the numerous international and regional treaties, institutions, campaigns, and national constitutions form the most widely recognized and comprehensive code and regime of social justice in the history of 12

Janet R Jakobsen, Ann Pellegrini, eds., Secularisms (Durham: Duke University Press, 2008), p. 3. 13 Jacobsen (2008), p. 17. 14 “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” 15 Jakobsen (2008), p. 325.

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the human race. Religion is addressed specifically under the rubrics of freedom of belief and non-discrimination. There exists, for example, the 1981 Declaration on Discrimination Based on Religion or Belief, and there are still calls for a formal treaty or convention to govern religious freedom. The most recent activity at the UN has been pressure to proscribe acts and words deemed to be a defamation of religion. This project has stalled as it appeared to Western countries not only to limit free speech but also to criminalize it when it criticized religion.16 The common doctrine of the various other human rights treaties affirms freedom of thought, conscience, and religion, of assembly, and the freedom to manifest in public one’s religion. The right to change one’s religion was included in the 1948 UDHR but excluded in the subsequent 1966 Covenant on Civil and Political Rights on account of opposition from Islamic countries. Freedom of religion was also part of the negotiations with the former socialist countries that led to the Helsinki agreements and the continuing work of the Organization of Security and Cooperation in Europe.17 In its day-to-day activities, the UN Secretariat maintains a separation of religion in its own legislative and administrative work, but recognizes both religious and non-religious NGOs without discrimination. The Economic and Social Council, for example, grants consultative status to religious and non-religious NGOs. Where applications have been rejected, they tend to have been a reflection of political or ideological considerations rather than religion as such. Eight articles of the 1981 Declaration on the Elimination of All forms of Intolerance and Discrimination Based on Religion or Belief spell out in greater detail than the UDHR or the Covenant general principles of non-discrimination and tolerance. Later comments of the Human Rights Committee (the treaty body set up to monitor the implementation of the Covenant on Civil and Political Rights) emphasize the fundamental character of the principles of non-discrimination and equality before the law, the ius cogens, erga omnes, and nonderogable character of rights such as freedom of thought, conscience, religion, or belief, although not necessarily their expression in public, and the impermissibility of the promotion in public schools of a particular religion.18

16 Information available at the US Commission on International Religious Freedom, see http://www.uscirf.gov/issues/defamation-of-religions.html. 17 See Report on 1990 Conference on the Human Dimension of OSCE. 9,4, found at http://www.osce.org/odihr/elections/14304. 18 UN Doc HRI/GEN/1/Rev.1 at 35 (1994).

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In international debates on religion and the state, the major dissenting voice comes from the Islamic world. One major response to Western ideas about human rights was the 1990 Islamic (or Cairo) Declaration of Human Rights approved by the Organization of the Islamic Conference, which at that date had a membership of about 50 states. This document enshrines many of the rights espoused by the UDHR but places them within the framework of Shari’a, the body of Islamic law based on the Koran and sayings of the Prophet. The document begins by emphasizing the principle that all human beings form one family, that they are all equal in terms of basic human dignity and obligations and responsibilities (Article 1), that life is a God-given gift (Article 2), and that it is the duty of the state to protect human life. It goes on to emphasize many other rights, including, for example, the importance of the family and a child’s rights to proper nursing, education, and material hygienic and moral care (Article 7). With respect to religious freedom, following an article on the rights to religious and worldly education, Article 10 of the Declaration reads, “Islam is the religion of unspoiled nature. It is prohibited to exercise any form of compulsion on man or to exploit his poverty or ignorance in order to convert him to another religion or to atheism.” The final article, number 25, repeats the phrase that is also incorporated into many individual articles, namely that Islamic Shari’a is the only source of reference for the explanation or clarification of any of the articles of this Declaration. One interesting characteristic of the Declaration is the fact that, in spite of the document having been written and approved by the representatives of fifty states, it gives limited visibility to the role and obligations of the state in the formulation and enforcement of rights. The obligation on states is mentioned only with respect to access to work and access to marriage, the protection of children, and the right to education. This contrasts with the formulations of UN treaties, in which virtually all the articles define the human right involved in terms of obligations on states. Moreover, while the Cairo document sees human rights as rooted in and to be interpreted by Shari’a, it does not answer the question of who speaks authoritatively for Shari’a or the Ummah in the worldwide community of Islamic believers. This issue of interpretation is much debated among Islamic thinkers. Certainly the Islamic state is required defend Shari’a and to promote the laws and practices it prescribes. But in what ways does the state have the power to define Shari’a and to authenticate state policies and practices under the mantle of Shari’a? Some Islamic scholars argue that once the state becomes involved, Shari’a loses its

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divine sanction and becomes subject to error.19 They mostly agree, however, that within Islam, human rights and public policy as a whole are subordinate to Islamic religious laws. There is more dissent on how in practice Islamic states define their own relationship and responsibilities with respect to religious authorities and practices in the domestic sphere. Certainly these definitions are very different from those accepted by the modern state in the West. In many Islamic states, including the ostensibly secular Turkey, government officials monitor and even prescribe the messages to be heard at Friday prayers. While political leaders in both a Western and an Islamic state use religion as a means to mobilize their people to social action, Islamic states, however, can make a stronger claim, defining acceptance of their policies and practices as equivalent to observing Shari’a. The Cairo document does not go that far. Although developed by states with the assistance of their religious leaders, the document sets out only general principles, and subjects all interpretation to Shari’a. Islamic views of human rights, the relationship between religion and the state and religious freedom, especially with respect to the right to change one’s religion, are removed from those of Western secularism. Real-life problems of religion and public affairs arise in the domestic spheres of states where there are significant Islamic and Christian communities and where there are major conflicts within one or the other tradition. Major, that is violent or close to violent, communal religious tensions can be found in many countries such as Egypt, Ethiopia, India, Indonesia, Iran, Iraq, Kenya, Lebanon, Nigeria, and Pakistan. The search for new paradigms and institutional models are therefore not just a theoretical or an international relations problem. Tensions among their diverse religious communities are a domestic challenge for these and many other nations. If escalating inter-religious violence attracts the attention, if not also intervention, on the part of the aggrieved parties in international friends and allies, it will raise regional if not also international security concerns. In other words, how should the international community and individual nations prepare to prevent the escalation of situations like that of present day Nigeria?

19 Abdullahi an Naiem, Islam and the Secular State, Negotiating the Future of Sharia (Cambridge, MA: Harvard University Press, 2010). In the book he seeks to separate the promotion of Islam from the coercive powers of the state, and thus argues for increased independence of religion and state.

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While less dramatic than the communal violence in other countries and less likely to result in international problems, Western countries have their own points of religious tension on account of the increasing diversity of their populations. In the domestic sphere, one social institution where the secularist model has been adopted in many Western states is the public or state school.20 The aim has been to exclude religious instruction from public schools primarily to avoid indoctrination or students being forced to accept a particular version of religion. Each country tends to have its own formula, with practice varying considerably within the general model depending on what is acceptable or demanded by the local community. The debate in the US, for example, focuses on the role of the public school as a cherished institution seen by many as the major source and incubator of shared national values and loyalties. In general, minority religions in the US support the official absence of religious teaching in public schools. In practice, there are many topics such as sex education and certain topics in the natural sciences and social studies that even when taught from a secular or neutral perspective are seen by Muslim and even some Christian parents as impinging on their own and their children’s religious convictions. One important difference between this range of problems and those faced in other parts of the world is the presence in Western countries of multiple social, political, and legal institutions where the tensions can be debated and hopefully at least ameliorated. Tensions can also be alleviated through education about the religions of newly arriving populations in increasingly pluralistic societies. The important impact of increasing pluralism is to emphasize the need for policy makers to recognize that there are two dimensions to the religion and state problem: the vertical relationship between religions and the state, and the horizontal relationships among religions and their members living and interacting in the same spaces. Policies based on secularism focus on the vertical relationship and have little to offer on inter-faith and international relations. In practice, Muslims, for example, want to build mosques where local communities object. Their women want to wear certain garbs that are seen as hostile in the eyes of their new neighbors. Parents of different religious persuasions object to sex and even some aspects of science education in public schools. Religion can easily become a mobilizing force for an aggrieved minority. In spite of secularism, Christian religions still enjoy many privileges 20

Kent Greenawalt, Does God Belong in Public Schools (Princeton: Princeton University Press, 2004).

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in Western societies. An alternative, rights-based approach would call for societies to seek to move beyond Western secularism by reducing the privileges extended to Christianity and extending those that remain to other religions. Without such adjustments to ensure a degree of equality, minority religious communities will continue to claim discrimination and violations of their religious freedom.

AN

T E R M I N U S A D QU E M : I N T E R N AT I O N A L P A R A D I G M B A S E D O N H U M A N R I G H TS

Whether it has been the fight against slavery or for the emancipation of women, the ongoing fights against racism and violence against women, or for religious freedom, the common human rights core has been the norm affirming “the recognition of the inherent dignity and the equal and inalienable rights of all members of the human family.” Thus, all the states that have signed and ratified the major human rights covenants agree to guarantee that the enunciated rights “will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other social status.”21 This standard of radical non-discrimination affirms that all human beings, no matter what their individual status, enjoy equality and the right to be treated equally with all other human beings. The article identifies and proscribes the various ways in which discrimination has taken place in history. A sub-text might show how historically patterns of discrimination such as slavery, colonialism, and German National Socialism have led to major human rights abuses and bloody wars. This principle is designed to govern the policies and practices of all states that have signed, ratified, and thus obligated themselves and all their officials to the terms spelled out in these and the other treaties. Thus this article and the more detailed provisions of each treaty become criteria to be adopted by, and to judge the performance of, public authorities in the government of their citizens in general, and with regard to religious issues in particular. These treaties establish a very different starting point from the ideologies and practices that have developed variously under the umbrella of secularism, or even that of pluralism. Human rights norms enjoy the force of international and domestic 21

UN Covenant on Economic, Social, and Cultural Rights, Art. 2; UN Covenant on Civil and Political Rights, Art. 2.

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law. They also define in some detail the enforcement of non-discrimination in such areas as freedom of speech, assembly, association, conscience, and expression. Their enforcement becomes even more necessary in modern societies as they become increasingly diversified as a result of migration. If the principle of radical non-discrimination calls for treating, for example, newcomers according to the same standards as the previously established communities, modern societies cannot simply look to the vague and culturally limited standards of secularism. On the other hand, a rights-based framework does not call for unlimited tolerance of all and every religious practice(s). Religions need to find and adopt modes of operation that also recognize the principle of non-discrimination, to which they have been committed as citizens of a state that has ratified certain treaties. Adjusting to religious pluralism and religious diversity calls for processes of public debate and political compromise that enable diverse religions to function peacefully in the same spaces. This is, however, both a domestic and an international process. States and many international organizations, including religious groups, are not going to stand on the sidelines when members of religious organizations allied to them or strong domestic constituencies suffer discrimination or persecution in other countries. Reducing domestic tensions along religious lines, such as in Saudi Arabia, Nigeria, India, Iraq, and Uzbekistan, requires positive state actions such as facilitating dialogues and negotiations among the religious and other stakeholders in the very different circumstances within each state, or across states, where religious tensions are erupting or in danger of erupting. Such dialogues will need to examine and develop domestic and international legal and political dispositions. Simple separation of religion and the state is not enough. Each state has to undertake at least a re-definition of principles and practice that assures that its public institutions and policies minimize all patterns of discrimination, not just those based on religion.22 Similarly, the international community, that is the world’s governments, is also faced with the challenge of finding new common ‘rules of the road’ to enable the world’s diverse religions to mingle peacefully in an increasingly globalized world. This calls for a more sophisticated approach to both freedom of religion and belief and inter-religious relations than is espoused in the 1981 UN Declaration on the Elimination of Intolerance or Discrimination Based on Religion and Belief. It is no longer just a question of the vertical dimensions where states seek 22

Alicino, Francesco, “Constitutionalism as a Peaceful ‘Site’ of Religious Struggles,” Global Jurist, (2010): 10, 1, Art. 8. DOI: 10.2202/1934-2640.1340.

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to ensure non-interference in religion. Rather, it calls for international agreements that guide both non-discrimination in state services and peaceful relations among the religions of its citizens. The motivation for this task is to avoid threats to international and regional security arising from conflicts and crimes against humanity motivated by religious, ethnic, or other identities and loyalties. Moreover, missing in the UN system is an institution, similar to that recently created for women (UN Women) or that on corporate social responsibility (The Global Compact), that would bring together UN personnel, resources, and knowledge to focus on the unique dimensions of religions in the public sphere. Such an institution would be equipped at least to monitor religious tensions such as those now visible in Nigeria, Egypt, and in the other UN member states mentioned above. It could also draw on the experience and knowledge in the field of international organizations, such as the Organisation for Economic Co-operation and Development (the OECD), and organizations in civil society that use political as well as legal advocacy. In the process they have acquired extensive alternative knowledge and experience working on the problems facing religions that has yet to be analyzed and digested so that it could be incorporated in public policies and practices. It is obvious to point out that the world’s major religions are also powerful international networks in their own right. Many religious groups support well-funded international relief and development agencies linked closely with home governments and the major international agencies. They are also a visible presence at the UN. They are all important stakeholders if there is to be a concerted attempt to reduce religion as a cause of conflict or major human rights abuses. Missing is an institution that gathers this expertise and provides a space for dialogue outside the moments and locations of major crisis. Finally, the role of the world’s states is crucial to both tasks, the domestic and the international. They alone have the resources to build the dialogues and coalitions, to allocate the funds, to set priorities for the United Nations and other inter-governmental bodies. Their challenge will be to learn the most from the past by promoting research that evaluates past successes and failures. Once again, this cannot be achieved within a framework of secularism where religion is kept outside the public sphere in both domestic and international affairs. However, religion is not a stand-alone problem. In international affairs, Washington, for example, cannot stand by and watch attacks on the Coptic community in Egypt. Moreover, religious tensions will always reflect and be influenced by other political economic forces. The recent downturn in the economy found religious or other groups being blamed in some countries by the public authorities. These tensions are problems to be

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solved. 23 In other words, the emerging domestic and diplomatic goals are to engage with and to accommodate the previously ignored religious forces, to take seriously the deep and powerful political presence of religions in public life, and to focus on common interests and collaborative solutions. It is no longer possible to ignore the presence and influence of religious forces. Rather, it is a question of acknowledging its influence and seeking policies and practices that maximize its constructive rather than its divisive forces. Thus the paradigm needs to change from one of separation of religion and the state to one based on equality and non-discrimination for all religions, as well as for all other segments of civil society.

C O N C LU S I O N This paper has argued that, as an approach to relations between the state and religion in the modern world, secularism is no longer adequate to address the place of religion both within individual states and in international affairs on account of changed social conditions caused by the increasing intermingling of religious communities across the world. There is no longer any overall benefit to be gained by treating religion differently from other entities in civil society. Communal violence in states like Pakistan, India, Egypt, and Nigeria could easily become triggers for major threats to international and regional security. Lurking in the background in these situations may also be constructions of national identity that benefit a nation’s particular religious heritage. Rather than the culturally limited paradigms associated with secularism, the international human rights regime, with its emphases on non-discrimination and on legal process, offers a more objective and universally accepted framework. Missing, however, is an inter-governmental institution to monitor and address situations where communal violence could lead to international or proxy conflicts. In the domestic sphere, the human rights regime calls for policies and practices that treat religions in terms of privileges and obligations comparably to other civil society organizations, and thus promote peaceful relations among the religions and other members of civil society.

23

See Chicago Council of Global Affairs (2010), “Engaging Religious Communities Abroad: A New Imperative for US Foreign Policy” found at http://www.thechicagocouncil. org/taskforce_details.php?taskforce_id=10.

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COMPETING SECULARISMS AND THE PLACE OF RELIGIOUS FREEDOM Nicholas P. Miller Andrews University, USA

We tend to think of the battle between religion and secularism as a distinctly modern one. We often see it as arising in the early-to-mid 20th century, or at the earliest, in the late 19th century, with the rise of Darwinism and philosophical positivism. But the conflict is a lot older than that, even if we limit our view to post-medieval Western Europe. Even before the skeptical philosophes of the French Revolution, such as Voltaire and Rousseau, the ideas of Hume and Spinoza were challenging conventional views of religious revelation. But an even more important point than the age of the conflict is its originally tri-part, rather than dual, nature. It was not religion versus secularism, but rather one kind of medieval-like church/state arrangements versus various kinds of ‘enlightened’ ideologies that promoted the idea of a state that was neutral in matters of religion. Some of these ‘enlightenment’ ideologies were overtly hostile towards ideas of revelation and theistic religion. For these systems, separation of church and state was required to protect a reasoned, enlightened state from the superstitions and misguided zeal of religious fanatics. But other versions of these ‘enlightenment’ systems of thought were sympathetic towards religious claims. Indeed, some versions of enlightenment thinking seemed to be products of certain kinds of dissenting religious thought. These sought a separation of church and state out of a mutual respect for the dual but differing spheres of sovereignty assigned to each one. Both powers, it was thought, should protect and respect the role of the other.

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I am certainly not the first to make this observation about the diversity of enlightenments, or what we have come to call ‘secular thought.’ In the 1970s, Henry May wrote his famous book The Enlightenment in America, which identified four strands of the Enlightenment. Of interest to us is his “Skeptical Enlightenment,” which was much like the stereotypical, anti-religious, skeptical kind of secularity found in revolutionary France. But there was also the “Moderate Enlightenment,” a much more religiously-sympathetic, even influenced, system of thought found in Scotland and England. There was also the “Didactic Enlightenment,” flowing from Scotland to America, which was also very religious in perspective, with many of its primary thinkers being Protestant clergymen. I raise this point about the diversity of secularities in early America to draw the contrast with today, when secularism seems all on the anti-, or at least non-, religious side. In today’s battles over religious freedom between the religious and the secular, the differences between how different religious believers view church and state has become overshadowed by the apparent gulf between skeptics and believers. The implication of May’s work on the Enlightenment, however, is that the modern contest is not two-sided, but threesided. There is a moderating position between the so-called religious right and secular left, one based on the dissenting Protestant heritage that came to be forcefully expressed at the constitutional founding. An understanding of this position can be helpful to communities and societies outside the American experience as they seek to bring culturally religious peoples into an acceptance of the freedoms and tolerances offered by a secular government. It can show a pathway to how secular does not need to mean anti-religious. This middle position can be understood by examining the differing approaches of each contrasting ideology of reason and revelation to the relationships between the individual, church, state, and God. To understand our possible futures, it will be helpful to revisit the past. Specifically, the end of the seventeenth century, when the revocation of the Edict of Nantes sent legal thinkers to their libraries to prepare defenses of religious toleration. These positions were ably expressed by three of the most brilliant legal and theological minds of that time. The three were Samuel Pufendorf, a Lutheran natural rights lawyer and counselor to the King of Sweden; John Locke, a political philosopher whose acquaintance we have already well made; and Pierre Bayle, an influential French Huguenot theologian and philosopher. In their writings can be found the basic outlines of the Puritan, semi-theocratic model; a dissenting-protes-

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tant separationist model based on the right of private judgment; and a secular, liberal separationist model.1 We will begin with Pufendorf, and then move on to look at Locke and Bayle.

PUFENDORF

AND

M E D I EVA L P R I V I L E G E S

Pufendorf’s church/state thought did not stray far from the medieval world whose lingering influence still overshadowed the early 17th century. Born in 1632 in Saxony, Pufendorf was best known for his works on international law, especially The Law of Nature and Nations. 2 Published in 1672, this work was widely influential on the continent, in Scotland, and in the newly formed American colonies.3 When the Edict of Nantes was revoked, Pufendorf took the opportunity to write what has been described as an ‘appendix,’ which applied his natural law theory to issues of church and state.4 Entitled Of the Nature and Qualification of Religion in Reference to Civil Society (“Religion and Civil Society”), Pufendorf’s work was published in 1687. It set out a principled basis for what was ultimately a pragmatic, anemic toleration. It represented the magisterial Protestant continuation of the medieval view of the roles of church and state. Pufendorf dedicated the book to the elector of Brandenburg-Prussia and used it to recommend himself for a post in the elector’s Berlin court, which he indeed received.5 The intended audience perhaps helped shape the work. He sets out a high view of the state and its power, and a rather limited and weak basis for religious toleration. The work begins with apparently strong principles of separation between ecclesiastical and civil spheres, as well as a commitment to individual rights. But the last third of the book returns spiritual powers and oversight to the

1 This article includes material originally published in Nicholas P. Miller, “The Dawn of the Age of Toleration: Samuel Pufendorf and the Road not Taken,” Journal of Church and State, 50 (Spring 2008): pp. 255-275. 2 Samuel Pufendorf, Of the Nature and Qualification of Religion in Reference to Civil Society (Indianapolis: Liberty Fund, 2002), pp. xii-xiii. A discussion of Pufendorf and his views on toleration can be found at Simone Zurbuchen, “From Denominationalism to Enlightenment: Pufendorf, Le Clerc, and Thomasius on Toleration,” in John Christian Laursen, ed., Religious Toleration: “The Variety of Rites” From Cyrus to Defoe (New York: St. Martin’s Press, 1999), pp. 191-204. 3 J.B. Schneewind, The Invention of Autonomy (Cambridge: Cambridge University Press, 1998), p. 118. 4 Pufendorf, Religion in Reference to Civil Society, p. xi.

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‘Christian’ ruler that is denied to secular rulers in the first portions of the book. To simplify his thinking in a useful way, we can diagram it. The diagram contains four basic elements: God/Truth, the church, the state, and the individual. Pufendorf’s arrangement of these elements would look like this: T/G | / \ C — s | i

Here, God and the accessibility of truth are recognized. A distinction between church and state is also accepted, but that distinction allows for a great deal of cooperation, especially when the ruler is a Christian. The importance of the individual is minimized, because of his or her need to go through the organs of church and state to obtain truth, whether spiritual or civil. It represents the world of the divine right of kings and popes, where no individual rights exist, but only privileges extended by the rulers. It is one where church and state are distinct entities, but play a role in cooperating to civilly enforce the majority religious beliefs and practices of society. Under this system, the church in theory has a superior position in society, as kings and ruler are subject to the superior spiritual authority of church. Bishops and Popes at times provided legitimacy to the claims of leaders to civil authority, at times crowning them, as Pope Leo III did for Charlemagne. This relationship is shown by the capital “C” and lowercase “s.” Pufendorf criticized the revocation of the Edict of Nantes, but not because the Huguenots had some sort of natural right claim to religious liberty. Rather, he believed that the crown, once having extended the toleration, should keep its word and not withdraw it. It was a question of honoring agreements and contracts, and the social stability protected by that practice. Pufendorf had no principled or moral argument for why the Edict should have been entered into in the first place. That was a policy calculation that brought political peace against an aggressive and armed minority. In Pufendorf ’s model, religious liberty became a question of policy, a privilege to be extended or denied at the inclination of the ruler. His philosophical fruit fell not far from the medieval tree.

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LOCKE

AND

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P ROT E S TA N T R I G H TS

John Locke’s political philosophy represented a break with the past, and it represented one of the more widely influential attempts to articulate a political theory in the context of Protestant theological principles. Locke’s church/state principles were most clearly outlined in his Letter on Toleration published in 1789. His views show the shape of the new world that Luther helped create in proposing that each person should access God through prayer and Bible study. The priesthood of all believers inverted the bottom half of Pufendorf ’s diagram. The belief vaulted the individual to a position above the church and the state, with direct access to God and truth. Locke’s model of these four elements would look like this: T/G | I / \ C | S

This model accepted, like the medieval model, that God exists and that certain truths can be ascertained about both the world and spiritual things. But the new, Protestant view placed the individual above church and state. Each person now had the duty and right to seek this truth from God, through both the Bible (especially about spiritual things) and through nature (especially political matters and civil morality). The church and the state existed to support and protect the rights of the individual, one as a member of the spiritual world, the other as a citizen of the temporal world. There was a separation between these two powers, since their jurisdiction is limited to their separate spheres of concern, whether spiritual or civil. It is a separation of equality and mutual respect, with each entity respecting the sovereignty of the other in its own sphere. Hence, both are represented by the capital symbols “C” and “S.” The individual’s rights against the state, in turn, derived from the duties that he or she owed to God. This is essentially the political expression of the Protestant model of the priesthood of all believers. It serves as a robust foundation for individual rights, hence the individual is shown by a capital “I.” This is the model that we have traced through the early modern West and that is seen to be an important part of the impulse to disestablishment in colonial America.

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B AY L E

AND

S K E P T I C A L R I G H TS

The third writer during this period was Pierre Bayle. Rather than continuing the medieval past, or even the Protestant present, Bayle’s views foreshadowed those of the skeptical future. While ostensibly a Calvinist theologian, Bayle was actually a strong skeptic who based his view of toleration on broad epistemological skepticism. Bayle was accused by fellow Calvinist theologians of supporting atheism, and was deprived of his professorship at his Protestant university as a result.6 Rather than an heir of Calvin and ancestor of the New England Puritans, Bayle was more an heir of Pyrrhonius and ancestor to Hume, Voltaire, Rousseau, and eventually Franklin and Jefferson.7 Bayle largely shared Pufendorf’s view on the supremacy of the state over the individual. He rejected Locke’s notion of a reciprocal contract between ruler and people, denied the right of rebellion, and upheld a strong duty of obedience to the ruler.8 But unlike Pufendorf, Bayle held a skeptical view of the world. Especially in the area of speculative truths, including religion, he affirmed a strong difference from mathematical or empirical truths. For the former, he believed one could only attain a “reputed” truth, rather than actual truth.9 This led Bayle to defend the notion of individual conscience. Other thinkers of the day often spoke of the rights of conscience, but it was generally understood that they were not talking about erroneous conscience or acts against one’s conscience. Bayle was one of the first to propose that rights of conscience should extend to consciences that were believed to be in error—the so-called ‘erroneous conscience.’10 Even if one could know that someone else was in error, argued Bayle, how could one know that the

5

Ibid., p. xiii. Perez Zagorin, How the Idea of Religious Toleration Came to the West (Princeton: Princeton University Press, 2003), p. 285. For an extended discussion of the opposition to Bayle within French Protestant circles see Guy H. Dodge, The Political Theory of the Huguenots of the Dispersion (New York: Columbia University Press, 1947). 7 Pierre Bayle, Political Writings, Sally L. Jenkinson, ed. (Cambridge: Cambridge University Press, 2000), back cover; for a helpful overview of Bayle’s thought in relation to toleration see Sally Jenkinson, “Bayle and Leibniz: Two Paradigms of Tolerance and Some Reflections on Goodness without God,” in John Christian Laursen, ed., Religious Toleration: “The Variety of Rites” From Cyrus to Defoe (New York, NY: St. Martin’s Press, 1999), pp. 173-186. 8 Zagorin, How the Idea of Religious Toleration Came to the West, p. 270. 9 Ibid., pp. 282-283. 10 Ibid., pp. 280-281; Bayle, A Philosophical Commentary, pp. 219-233. 6

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other person was convinced of that error?11 This question was a central point of contention in the debate between Roger Williams and John Cotton over the issue of toleration and persecution. Bayle’s strong defense of conscience, then, was based on a weak view of truth, or at least of the human ability to know truth. This led him to view individual judgment and conscience as important. Thus, he held a strong view of the duty of the state to tolerate religious differences. To put Bayle’s view into our diagram would look like this: tttttttttt | i / \ c | S

The lowercase “t”s represent the individualistic conception of truth, where no universal view of truth exists, but everyone conceives his or her own truth. Church and state are still separate, but it is not a separation of mutual equality and sovereign spheres. Rather, it is a separation based on a suspicion of the truth claims made by religious people. The tolerance in this scheme is dependent on a commitment to skepticism —from the logic that if truth cannot be known, then no one can or should enforce it. The real threats to this system are those who claim knowledge of absolute truths. Churches and people who believe in special revelation are such a threat. Therefore, religious people and their beliefs are to be kept far away from politics and the public square generally. Separation of church and state, rather than being based on a view of separate sovereignties, becomes founded on hostility to the truth claims of religious people and their views of special revelation. Religious people and their ideas are kept not only out of government, but on the fringes of the public square generally. The attitude under this view of the state towards the church was symbolically expressed by Napoleon when, in contrast to Charlemagne, he crowned himself emperor in the presence of the pope. The marginalization of the church and religion in this system is represented by a lowercase “c.” Rights in this system are not quite as secure as under the Lockean view. Individual autonomy is a somewhat fragile thing when it is based merely on 11

Bayle, A Philosophical Commentary, pp. 145-149.

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skepticism, rather than on individual duties to, and rights before, God. The solitary autonomy of the individual becomes fairly quickly outweighed by the interest of the group once accommodation of the individual becomes anything more than a slight inconvenience. This is seen very clearly in the skeptical/atheistic communist systems, where respect for the individual is very quickly submerged to the common good. A similar thing happens in a democracy, we have seen, when terrorism threatens national security. Hence, the “i” for individual is lowercase. Under this model, there is no real reason why religious claims to truth should obtain greater protection than claims to convictions in other areas. Why should religious claims have special protection beyond that received by a wide range of special interest claims, such as those made by environmentalists or animal rights supporters or advocates of unions and labor? People feel strongly about all these issues. If it is the individual conviction only that provides the basis for rights, as this model suggests, then all these convictions should be treated equally. But ultimately, if all convictions are equally protected, none can be meaningfully protected, or democracy will ultimately become gridlocked amidst a cacophony of clashing rights claims.

T H R E E V I EW S

IN

A M E R I C A N H I S TO RY

My discussion of the third view has moved beyond what Bayle himself would have suggested into how at least parts of modern liberalism have developed this view. All three of these views, the Pufendorfian, the Lockean, and the Baylean models, have been influential at various times in American history. A side-by-side comparison of these models, a representative advocate, the historical periods they represent, and their time of greatest influence in America, is represented in the diagram below.

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Samuel Pufendorf Medieval Model Puritan New England T/G | / \ C — s | i

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John Locke Dissenting Protestant Constitutional Period to mid-20th Century

Pierre Bayle Skeptical Model mid-20th Century to 9/11/2001

T/G | I / \ C | S

tttttttttt | i / \ c | S

The American Puritans developed a Pufendorfian-like church/state arrangement in early New England, with a civil magistrate involved in enforcing ecclesiastical rules and discipline. Thus, the earliest American colonies were founded on the theory of the Medieval model on the left, with the exception of Rhode Island. Some later ones, especially New Jersey, Pennsylvania, Delaware, and North Carolina, were founded basically on the Protestant theory in the center box, which also guided the formation of the national constitution. Despite Pufendorf ’s enormous influence in both Scotland and the American colonies, the founders of the American republic explicitly rejected his form of church/state arrangement.12 At the time of the Revolution and the formation of the Constitution, Pufendorf ’s model of toleration was limited to two or three New England states, and within a few years vanished from even there. It was Locke’s formulation, mediated by Madison, Witherspoon, and other key American thinkers, of dissenting Protestantism that carried the day in the founding of the American republic. Their views of the separate roles of the two powers were the ideological victors on the topic of tolerance and religious freedom in the early Republic. It is this shift from a medieval, paternalistic, hierarchical model to an individualistic, egalitarian, rights-based outlook that Gordon Wood so ably documents in his justly famed The Radicalism of the American Revolution.13 Wood broadly and convincingly documents the change from hierarchy, patriarchy, aristocracy, and patronage to democracy, equality, republicanism, and the rule of law in colonial America.

12 13

Schneewind, The Invention of Autonomy, p. 118. (New York, NY: Alfred A. Knopf, 1992).

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This chart can perhaps shed light on one of the puzzles in Wood’s book. In his sub-title, he asserts that the book shows “How a Revolution Transformed a Monarchical Society into a Democratic One Unlike Any Other That Had Ever Existed.” While he is right about the uniqueness of American society, it seems apparent from the story in his book that the Revolution did not cause the shift from monarchical to republican ethos. Rather, the Revolution was a symptom of a shift that had already occurred in American culture and society. Wood does an excellent job of describing that shift from a monarchical to a republican outlook, but offers, in my view, less than convincing arguments for the reasons or causes of the shift. He focuses on the Enlightenment, arguing that “for the revolutionary generation America became the Enlightenment fulfilled.”14 This raises the problem of trying to explain a movement with tremendous popular appeal by appeal to an elite affinity and state of mind. Wood is unwilling to give religious thought much, if any credit for the paradigm shift to a republican outlook, instead crediting Enlightenment and rationalistic sources. Indeed, he views religion as a conservative force that largely resisted that shift.15 But it seems that Wood is looking at only one version of religion in telling this story, that of magisterial Protestantism. This is most obviously displayed when he describes the belief in “liberty of conscience and separation of church and state” as an “Enlightenment belief ” that was resisted by “many religious groups.”16 Indeed, there were religious groups that opposed religious liberty and the separation of church and state. But the dominant religious groups in early Republican America had taken on a dissenting Protestant perspective, which Wood seems to miss almost completely. Wood’s larger story becomes much more explicable when religion and religious belief are given their due weight in shifting popular views along from a medieval to a Protestant outlook on church, society, and the individual. The religious support for American independence as well as religious liberty was well understood by those closer to the Revolution, such as Edmund Burke, the British parliamentarian. Burke famously explained the independent character of the American colonists by the fact that “the people are Protes-

14

Wood, The Radicalism of the American Revolution, p. 191. Ibid., pp. 330-331. 16 Ibid., p. 331. 15

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tants, and of that kind which is the most adverse to all implicit submission of mind and opinions... All Protestantism, even the most cold and passive, is a sort of dissent. But the religion most prevalent in our northern colonies is a refinement on the principle of resistance: it is the dissidence of dissent, and the Protestantism of the Protestant religion.”17 Burke, a strong critic of the Enlightenment-driven ideology of the French Revolution, saw very different, and much more religious and Protestant principles at work in America. But by the late nineteenth century, the rise of uncertainty in theology, science, and philosophy undermined the American Protestant outlook, and laid the groundwork for a toleration based on skepticism. John Stuart Mill’s view of skeptical individualism increasingly became the prism through which Locke was understood. As a consequence, the twentieth century saw a wholesale move, at least in the elite centers of thought, to toleration based on epistemological uncertainty and moral relativism. After the Civil War, the rise of Darwinism, and the growth of philosophical uncertainty, many American elite institutions, including colleges and universities, the professions, and the media, began to move towards the much more skeptical view represented by Bayle. This shift did not happen overnight, and much has been written on the involved process of secularization in American history.18 The Protestant umbrella broadened to include an even more generic and diffuse sense of American spiritual identity. The influence of German higher idealism, with its attendant historicism and philosophy of relativism, in the mid-to-late-nineteenth and early twentieth century called into question the natural law foundations of the country. This philosophy also undercut the Protestant model of church and society that was based on these views of natural law and natural rights. New approaches to the law based on social and pragmatic concerns accompanied the gradual acceptance of legal positivism. These ideas gained ground in the early

17

Edmund Burke, The Portable Edmund Burke, Kramnick, Isaac, ed. (New York: Penguin Books), p. 263 (emphasis added). 18 A good overview is provided by Christian Smith, The Secular Revolution: Power, Interests, and Conflict in the Secularization of American Public Life (Berkeley, CA: University of California Press, 2003). Helpful works dealing more generally with secularization in the west include: Callum G. Brown & Michael Snape, eds., Secularization in the Christian World: Essays in Honor of Hugh McLeod (Burlington, VT: Ashgate, 2010); Hugh McLeod & Werner Urstorf, eds., The Decline of Christendom in Western Europe, 1750-2000 (Cambridge: Cambridge University Press, 2003); Steve Bruce, ed., Religion and Modernization: Sociologists and Historians Debate the Secularization Thesis (Oxford: Oxford University Press, 1992).

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twentieth century, and especially influenced legal thought in the second-half of the twentieth century.19 These new ideas made progress to different degrees in differing parts of society. They made greater inroads earlier in “elite” institutions, such as colleges and universities, and in the press and media. Old paradigms continued to hold sway at more popular levels. The civil rights movement of the 50s and 60s could be described as the last gasp of Protestant-style natural rights/public morality arguments at the popular level, which combined with a more modern, liberal rights perspective among its leadership, the media, and the courts. But the cycle of ideas has continued to roll, and now a vocal segment of the American public, especially after the events of 9/11, is vigorously rejecting the skepticism and relativism that has come to be associated with our current system of rights. Rather than returning to a pre-Mill, Lockean view, however, there are many who appear ready to embrace a model more like that of Pufendorf.20 In this post-9/11 world, significant segments of American society are simultaneously rejecting moral relativism as well as seeking for the security provided by a stronger government. This rejection of the modern paradigm moves society from the right side of the tolerance diagram generally leftward. It does not require a conscious repudiation of the importance of the individual to move over from the Locke column into the Pufendorf column. The difference between Locke and Pufendorf was not over their ostensible commitment to the individual and freedom to worship. Rather, it was that a strong view of the supremacy of the state generally negated Pufendorf’s theoretically positive view of the individual.

19 Steven Green documents the rise of the substitution of secular theories for natural law foundations occurring as early as the mid-19th century in a wide range of legal areas, from oaths, to probate law, to church property disputes, to Sunday closing laws. Green, The Second Disestablishment, pp. 204-247. 20 Scholars who would largely reject the stricter separation between church and state and would be sympathetic to a model of greater church-state cooperation would include Robert N. Bellah, The Broken Covenant: American Civil Religion in Time of Trial (Chicago: University Of Chicago Press, 1992); Daniel Dreisbach, Thomas Jefferson and the Wall of Separation Between Church and State (New York: New York University Press, 2003); Philip Hamburger, Separation of Church and State (Cambridge; MA: Harvard University Press, 2002); Richard John Neuhaus, The Public Square: Religion and Democracy in America (Grand Rapids, MI: Wm. B. Eerdmans Publishing Company, 1986); Harold J. Berman, Law and Revolution, II, The Impact of the Protestant Reformations on the Western Legal Tradition (Cambridge, MA: Belknap Press, 2006).

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But the point of all this for overseas observers is that a ‘secular’ version of government that has a healthy and robust freedom of religion can exist in a highly religious community. France, with its de-religioned public square, is not the only, or most attractive, model of a ‘secular’ government that exists. The traditional American system offers a philosophical framework that is sympathetic towards religion and claims about a Supreme Being, while offering respect and accommodation to all religious claims that respect the well being of the state and other individuals. In this system, while the state should not promote your religious view, you and your fellow believers should be free to do so, even within the public square, as long as you respect the rights and freedoms of others to do the same. In this sense, a fair and balanced state secularism can actually lead to a greater and more robust religiosity, as witnessed in America’s history and present.

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LEGAL DIMENSIONS OF SECULARISM: CONFLICTS OF LAW AND CONSCIENCE IN THE FIELD OF EDUCATION IN EUROPE Rosa María Martínez de Codes Complutense University of Madrid, Spain

I N T RO D U C T I O N The aim of this study is to highlight the challenges faced by the secular state in our pluralistic societies. Some of these challenges have to do with how secularism is projected within the political and legal sphere of the Rule of Law, and the tensions created by applying two of their basic principles. I refer here specifically to freedom of religion and conscience, on the one hand, and the separation between state and religious confessions on the other. One of the achievements of the 20th century was to project and guarantee the right of freedom of religion and conscience within the constitutional and international order;1 protection which has, without a doubt, meant for many states a major advance in the process of secularising their institutions and legal codes, and has materialised into different practical solutions and agreements over possible formulae for separating the state from institutionalised religious beliefs. Effective proof of this is the diversity of systems of separation that reveal Western legal codes and experts’ interest in establishing a typology that, in spite of differential nuances, does not enable us to conclude which is the op1

Bahiyyih Tahzib, Freedom of Religion or Belief. Ensuring Effective International Legal Protection (The Hague: Martinus Nijhoff, 1996).

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timal model.2 In this sense one can speak of the different versions of the socalled French ‘läicité,’3 the ‘positive secularism’ of the systems of separation in Italy, Spain, or Portugal,4 and the ‘open secularism’ of the Canadian model.5 However, none of these appear to resolve the challenges that, in practice, face the state in its development. I refer in particular to the role for religions in contemporary society; to what extent states are prepared to accept the growing relevance of religions within their legal systems, and whether or not constitutions provide adequate instruments to govern the role of religion in the public arena. By way of example I will point out the opposing stances of two European constitutional law lecturers that sum up the arguments of many others. Andrés Sajó defends the stance that the excess of concessions and commitments the state has reached with religious groups leads to a weakening of secularism and its constitutional roots. In his opinion, the guarantee and enjoyment of fundamental rights requires the strength of a secular constitutionalism that would put the brake on religious claims and eradicate them from the public arena.6 Opposing this focus, Lorenzo Zucca upholds that the causes of the crisis of the state do not lie in the threat posed by religion, nor in its desire to get involved in the public sphere, but rather in the secular state’s very inability to face the diversity and plurality of its social framework. The solutions to the crisis, argues Zucca, are not to be found in an excluding secularism that would silence religious manifestations: on the contrary, these manifestations require developing a strategy that would promote communication and mu2

Kevin Boyle, ed., Freedom of Religion and Belief: World Report (London: Routledge, 1997), pp. 9-10. 3 Jaqueline Lagrée and Philippe Portier, La modernitéì contre la religion?: pour une nouvelle approche de la lai?citeì (Rennes: Presses universitaires de Rennes, 2010). 4 Giovanni Fornero, Laicità debole e laicità forte (Milano: B. Mondadori, 2008); Isidoro Martín Sánchez, “El modelo actual de relación entre el Estado y el factor religioso en España,” in Juan Ferreiro Galguera ed., Jornadas jurídicas sobre libertad religiosa en España (Madrid: Ministerio de Justicia, 2008), pp. 55-115. Alejandro Torres Gutiérrez, El derecho de libertad religiosa en Portugal (Madrid: Dykinson, S.L. 2010). 5 Consultation Commission on Accommodation Practices Related to Cultural Differences (CCAPRCD), “Bulding the Future: A Time for Reconciliation,” 2008, p. 20, accessed 15/11/2011, available at http://www.accommodements.qc.ca/documentation/rapports/rapport-final-integral-en. pdf. 6 “Preliminaries to a concept of constitutional secularism,” 6 I.CON, 3 & 4, (2008): pp. 605-629.

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tual understanding between all groups in society, at the same time as ensuring their coexistence in cases of persistent disagreement and conflict.7 The transformations that have been seen on the European map, derived in part from the migratory movements of the last three decades and the consequent changes taking place in Europe’s religious demography, appear to point to the advisability of adopting new focuses. The secular state should not be seen as a bastion against the threat of religious majorities and their objective of recovering an active protagonism in the public sphere; but as a political entity capable of guaranteeing and extending the legal benefits of religious freedom to all groups and removing existing discrimination. Similar to this position is the one that sees democratic society as demonstrating its strength when the majority refuses to impose its will over the minority. From this viewpoint it is interesting to note recourse to conscientious objection as a legal instrument that enables both the individual and groups to channel ethical conflicts of conscience that result in their submitting to the law. Along these lines it can be affirmed that this recourse guarantees one of the main political principles that lies at the basis of the democratic system. i.e., respect for minorities.8 The broad spectrum of conscientious objection observed in recent decades is directly related to greater religious and ideological pluralism in our societies and the legislator’s intervention into new spheres not previously covered, such as marriage between homosexuals, biogenetic experimentation, participation on juries, and so on. It should be noted that conscientious objection is essentially an individual phenomenon that places the individual before a serious internal conflict: to submit either to the rule of law or the ethical standards of one’s own individual conscience; these are therefore not cases of civil disobedience or violation of law but rather particular situations of a collision between different legal interests that require a case-by-case analysis. Moreover, the motivations underlying the behaviour of conscientious objection are now more numerous and diverse. Conscientious objection has developed to foster an ethical content of conscience, not necessarily linked to religious beliefs,9 and therefore one could speak of an unprecedented ‘secularisation of 7

“The Crisis of the Secular State: A Reply to Professor Sajo”. I.CON, (2009): p. 4, accessed 15/11/2011, available at http://ssrn.com/abstract=1343099. 8 Andrés Ollero, Derechos humanos y metodología jurídica (Madrid: Centro de Estudios Constitucionales, 1989), p. 199. 9 Kent Greenawalt, Conflicts of Law and Morality (Oxford and New York: Oxford University Press, 1987).

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conscientious objection,’ particularly in pacifist or tax-based cases, which has produced new forms of objection hitherto unforeseen by the legislator.10 But it is in the context of justification for objection that there is an interesting development: private citizens object to certain laws, not so much because they consider that these laws prejudice their religious convictions, but rather that they are an affront to their beliefs, whatever these may be. This trend is particularly visible in the field of religious education in Europe, where 43 of the 46 member states of the Council of Europe offer some kind of religious education in public schools, whether it be denominational or nondenominational, compulsory or optional. The European Court of Human Rights (ECHR), based in Strasbourg, is a standard-setting forum for egregious examples of conflicts between different obligations stemming from fundamental rights. It is my view that the European Court has developed a specific transitional jurisprudence concerning freedom of religion and belief and the right to education, which deserves further attention. This transitional jurisprudence enables one to analyse the changes in trend that are occurring in the area of conscientious objection to educational content. In fact the Court has, over the last thirty-five years, admitted a number of cases of conscientious objection against certain educational content, which highlight the collision between different legal interests, such as the right to education and its guarantee by the state; the right of parents to have their children educated in line with their religious and philosophical choices; and the respect for freedom of religion and conscience. Modern secular states distinguish clearly between the public and the private sphere, however the rise in new demands in the sphere of conscientious objection, which are at odds with non-religious laws, make the distinction between the private and public spheres weaker. Sometimes legal obligations are deemed as paramount —and conscientious objectors have to yield to that. Other times, religious or conscientious obligations can be recognised as paramount and therefore justify exemptions within existing legal systems. This paper explores the range of practical conflicts between law and conscientious objections in the field of education, and the tricky assessment of the importance of obligations within the European legal framework. Although the cases we shall be looking at are not very numerous, they are, however, sufficiently interesting and illustrative of the difficulties presented by 10

Rafael Navarro Valls and Javier Martínez Torrón, Conflictos entre conciencia y ley. Las objeciones de conciencia (Madrid: IUSTEL, 2011).

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secularism, where this is interpreted rigidly. The European Court on occasions concedes a wide margin of discretion over decisions taken by the signatories to the European Convention, and adopts secularist arguments that upset the healthy balance between the different rights in question —as in the case of the complete prohibition of home-schooling in Germany. However, its jurisprudence provides a set of doctrines that makes it easier to clarify other similar cases that have arisen in European states, and highlight the difficulty of enforcing secular laws across the complex map of education in Europe.

I N T E R N AT I O N A L

AND

E U RO PE A N L AW

The right to education is undoubtedly one of the most notable achievements of the twentieth century. The document that enshrined this right/duty in a novel way was the Universal Declaration of Human Rights (UDHR), Article 26, under the formula: “Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. (...)” It was in the post-war context of 1948 when the Member States pledged to ensure universal respect for and observance of human rights and fundamental freedoms. Among these, it did not hesitate to enshrine the right to education, taking on board the commitment to free primary education, and making this compulsory. It is interesting to note this formula, not only because it proclaimed the universality of the right to education but also because it attributed significant powers to the state in order that education should be free. To avoid confusion over the aim of such education, paragraph 2 of Article 26 stated, Education shall be directed at the full development of the human personality and the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations and racial groups, and shall further the activities of the United Nations for the maintenance of peace.

In other words, the education to be provided is one that is predetermined by precise values, such as respect for human rights and fundamental freedoms, tolerance, and understanding between all ethnic and religious groups. And then later it includes precept 3: Parents have a prior right to choose the kind of education that shall be given to their children.

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The Declaration’s signatories did not omit the affirmation of the right of the third subject of this new legal relationship, i.e. parents’ right to compulsory education, as part of everyone’s right to education. The mention of Article 26 of the UDHR and its subsequent clarifications in other covenants or agreements remind us of the long journey covered in the search for ways to bolster and add to the corresponding right of parents to predetermine their children’s education. Looking at this process, it is interesting to note the First Protocol to the European Convention on Human Rights (PECHR) of 1952, not only because it was the first text in Europe that reinforced the aspiration of the UDHR in this matter, but also because the cases of objection to teaching content or methods addressed by the Strasbourg Court all make reference to Article 2 of the PECHR. The single paragraph of Article 2 formulates the reference to education in these terms: No person shall be denied the right to education. In the exercise of any function which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

That is to say, the religious and philosophical convictions of parents will be decisive. It is interesting to note first that Protocol Number 1 creates a bridge between the right to education and freedom of thought, conscience, and religion freedoms interpreted in broad terms, set out in Article 18 of the UDHR and Article 9.1 of the ECHR.11 An additional approach is adopted by the two international covenants of 1966. The International Covenant on Economic, Social, and Cultural Rights formulates the issue, following the UDHR, from the standpoint of the right to education,12 while the International Covenant on Civil and Political

11 “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.” 12 Article 13.3. “The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.”

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Rights includes this when dealing with freedom of thought, conscience, and religion in Article 18.4: The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

It should be emphasised that both formulas restrict the right of parents to the specific sphere of ”religious and moral education” and open the door to rejecting the teaching of a particular religion. In this direction, the UN Human Rights Committee, in its General Comment No. 22, referred to the last article cited when stating that religious instruction in public schools is only compatible with the Covenant if exemptions or alternatives are granted that do not discriminate against pupils and that satisfy the wishes of parents.13 An identical position was expressed by the Committee itself years later in connection with Article 13.3 of the Covenant on Economic, Social, and Cultural Rights.14 Finally, in the European area, we should mention the alternative offered by the Charter of Fundamental Human Rights of the European Union, December 1, 2009, under the Treaty of Lisbon,15 Article 14, which uses a formula of greater scope that guarantees the right of parents to their children’s education, and teaching in general, conforming to their beliefs, not only religious and philosophical, but also educational: The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical

13 “The Committee notes that public education that includes instruction in a particular religion or belief is inconsistent with article 18.4 unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians.” Paragraph 6 General Comment Number 22: The right to freedom of thought, conscience and religion (Art. 18), 07/30/93; CCPR/C/21/Rev.1/Add.4. 14 See paragraph 28: General Comment, The right to education (Art.13), 12/08/99.E/C. 12/1999/10. 15 The Charter of Fundamental Rights of the European Union was drafted by the European Convention and solemnly proclaimed on 7 December 2000 by the European Parliament, the Council of Ministers and the European Commission. However its then legal status was uncertain and it did not have full legal effect until the entry into force of the Treaty of Lisbon on 1 December 2009. See European Union. Consolidated Treaties. Charter of Fundamental Rights. (March 2010),accessed 15/11/2011, available at http://europa.eu/pol/pdf/qc3209190enc_002.pdf.

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convictions shall be respected, in conformity with the national laws governing the exercise of such freedom and right.

From here comes the opening of new doors that must, moreover, bear in mind the educational aspirations of parents. In sum, with respect to denominational religious education, international law leaves no doubt that this can take place in public schools and can never be imposed mandatorily against the wishes of the pupils or their parents, nor lead to discrimination against those who refuse to receive it. However, it does open up numerous alternatives to possible conscientious objections in the educational sphere. The most common are those that involve the opposition of parents to their children being exposed to certain teaching content areas included in the curriculum, or aspects of teaching methodology in schools. It is these cases that call for a fair solution by the courts of the Council of Europe, and on which I will now dwell.

C O N S C I E N T I O U S O B J E C T I O N TO S E X UA L E D U C AT I O N IN PUBLIC SCHOOL The sentence of greatest importance that the Court has so far ruled on relating to compulsory education and concerning religious freedom is from the Kjeldsen v Denmark case in 1976. Its importance lies in the fact that its doctrine has left a lasting impact on the jurisprudence of the ECHR by establishing a restrictive interpretation of what state obligations are. The case, briefly stated, was pursued by three couples who were opposed to integrated, compulsory sexual education (taught within other school subjects), introduced by the Danish Act of 1970, claiming it was contrary to their Christian religious beliefs.16 This law, passed unanimously by the Danish Parliament, was intended to dispense knowledge accurately, objectively, and scientifically, as stated by the Court ruling: The instruction given on this subject by public schools is aimed less at instilling in pupils knowledge they do not have, or cannot obtain by other means, than providing them with this knowledge in a more accurate, precise, objective and

16

L. Martín Retortillo, Los padres tendrán derecho preferente a escoger el tipo de educación que habrá de darse a sus hijos, (Madrid: Universidad Complutense de Madrid, 2008), p. 90-101.

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scientific way. As envisaged and set forth by the legislation contested, it tends, first of all, to better inform pupils.17

Among the arguments backing the acquittal decision, which denied the right of parents to obtain the requested waiver, I would like to emphasise some ideas that have been repeated in subsequent case law and which derive from the interpretation the Court gave to Article 2 of the PCHR in this sentence. The right of parents must be set in the context of how public education functions across the board, and counting, above all, on the right to their children’s education. That is, the two sentences of Article 2 (“No person shall be denied the right to education. In the exercise of any function which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”) should be interpreted as one supporting the other and in the light, particularly, of Articles 8, 9, and 10, which declare the “right of everyone, both parents and children, to respect their private and family life,” to “freedom of thought, conscience and religion,” and to “freedom to receive and impart information and ideas.” The second sentence of the provision, which enshrines the right of parents, does not prevent States, through teaching or education, from disseminating information or knowledge which is, directly or indirectly, of a religious or philosophical nature. It does not allow parents to oppose the integration of certain teachings or methods in the curriculum, as any institutionalised teaching would run the risk of making itself impracticable. It only forbids the state from pursuing an aim of indoctrination in the organization of the educational system, i.e., the state, in carrying out its duties in education and teaching, must ensure that the information or knowledge contained in the programme is taught in an objective, critical, and pluralistic way. The boundary that cannot be crossed is drawn by the desire to indoctrinate, in opposition to the parents’ convictions. The Court interprets that this sentence is intended to protect the possibility of educational pluralism, “essential in the preservation of democratic society, as conceived by the Convention and it is the modern state that is in the best position to achieve this objective through public education.”18

17 18

Kjeldsen, Busk Madsen and Petersen v. Denmark, 7 December 1976, p. 54. Kjeldsen, Busk Madsen and Petersen v. Denmark, 7 December 1976, p. 50.

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From this interpretation, it follows that the right of parents, protected by 2PCEDH, is not an absolute option, nor is it automatic. If, given any teaching that affected the interpretation of the world in any of its various aspects, parents had a kind of ‘right to veto,’ it would be impossible to organise education for the majority. In the face of this decision, the dissenting opinion of Judge Verdross19 stresses that there is no evidence that Article 2 of the PCEDH exclusively prohibits the aim of indoctrination in state education; and therefore the Court should simply have verified whether or not the contested legislation went against the beliefs of the plaintiffs, as Danish law does not regulate the granting of exemptions. In short, the first sentence of interest for the subject recognises a broad margin of discretion for national authorities, since the regulation of teaching is one of their indisputable powers, at the expense of the aspirations of parents that their wishes should be respected.

T H E R I G H TS

OF

P A R E N TS

TO

HOME SCHOOL

THEIR

CHILDREN

More recently, in the Konrad v Germany case, September 11, 2006, the European Court passed a ruling on the dispute between the aspirations of a number of parents that, for religious reasons, their children should not attend school, and the refusal of the corresponding education authority in Germany. The rejection of compulsory schooling is a relatively new issue in Europe. In the countries of Eastern Europe —Poland, Romania, Ukraine, the Czech Republic, and Hungary— the home schooling system has recently been approved, making an alternative to institutionalised schooling possible, whether in a public or private school. However, in Western Europe the system faces greater difficulties:20 in the UK, Ireland, Austria, Hungary, Finland, France, Denmark, and Belgium, the possibility of home schooling is allowed, although the conditions under which one may do so are very different in each country. For example, in the UK, there are few rules regarding what parents have to teach their children: no mandatory inspections, testing, or other examinations. France, on the contrary, is very cautious about home schooling and monitors the teaching by both school inspectors and social workers, and the 19

R. Navarro-Valls, J. Martínez Torrón, Conflictos entre conciencia y ley …, cited in footnote 10, p. 254-255. 20 In countries such as Holland, Sweden, Italy, and Spain, the subject is under debate.

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teaching result may not be less than the national curriculum. We find a different situation in Austria, where there are no inspections, however home schooled children have to pass the same annual exam as children who have attended school. In a few countries, home schooling as such cannot satisfy the compulsory education law. Germany is particularly strict.21 In the Konrad v Germany case,22 the parents requested that the school authority excuse their two children from compulsory schooling to educate them themselves at home, as the teaching at the school, in their view, was too scientific and denied the divine influence over creation and world history. In short, it was contrary to the parents’ religious beliefs. After receiving dismissals in internal German jurisdictions,23 the parents turned to the European Court, whose stance is of great interest, since it includes not only the arguments of the German Federal Constitutional Court but also lays down doctrine on Article 2 of the European Convention Protocol. Basic German law guarantees freedom of religion and respects the right of parents to educate their children according to their religious or philosophical beliefs, however both freedoms must take into account the state’s commitments to education. The German courts held that the acquisition of knowledge, integration into society, and first experiences of it are important goals in primary school education. They underlined that those objectives could not be met to the same extent by home schooling, even if it allowed children to acquire the same standard of knowledge as provided by primary-school education. The Federal Constitutional Court stressed the general interest of a democratic society in avoiding the emergence of parallel societies based on separate philosophical convictions and the importance of integrating minorities into society: Society is also interested in integrating minorities. Such integration requires that minorities who profess different religious views or philosophical views not be excluded but also that they do not exclude themselves. From this it follows that the exercise and practice of tolerance in primary school constitutes a decisive aim.24

21

German constitutional jurisprudence does not admit that home schooling for reasons of conscience may exempt the parents from the duty to school their children. See the ruling of 31 May 2006, http://www.bverfg.de/entscheidungen/rk20060531_2bvr169304.html. 22 Konrad and others versus Germany, Dec. Adm. 35504/03, 11 September 2006. 23 Administrative Court of Freiburg, Administrative Court of Appeal of Baden-Württemberg, Federal Administrative Court, Federal Constitutional Court. 24 L. Martín Retortillo, Los padres tendrán derecho preferente…, cited in footnote 16, p. 151.

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For its part the European Court was to take this line of argument, claiming that the defence of pluralism in education was essential for the protection of democratic society, as provided for by the Convention. However, it also interpreted the text of Article 2 of the Protocol as follows: All things considered, respect for the convictions of parents only holds to the extent that it does not enter into conflict with the right of children to education, since in the whole precept what prevails is the first sentence. This means that parents cannot deny the right of children to education on the strength of their own beliefs.”25

In short, the right of parents to predetermine the education of their children for religious or philosophical reasons does not extend to rejecting compulsory schooling; it very much gives priority to children’s right to education. This does not preclude, as the Court pointed out, the states under the Convention from enjoying broad discretion when structuring teaching and education to suit their resources, aspirations, and needs; the reason why, within the European setting, different formulas coexist and compulsory education is as valid and legitimate as the other forms. The legal solution provided by the Konrad case has not satisfied some quarters that argue that complete prohibition of home schooling is not proportional to the state objective of social integration. The European court never examined whether the purpose of promoting social integration could have been achieved by less restrictive means. But it is obvious that less restrictive means are less available in the European framework. Moreover, the Court held that parents would still be able to teach their religious beliefs to their children outside school hours; such an argument violates the text of Protocol 1, Article 2. The Konrad decision could have a major impact on parents’ rights to home school their children all over Europe, even in countries where it is now legal. In recent years, proposals have been made to make it easier for parents to choose to educate their children at home, while creating a new regime to ensure that those who do not send their children to school do satisfy their parental obligation to provide their children with an education. Over time it

25

The European Court cites, in its support, a previous case of home schooling for reasons of conscience, Leuffen v. Germany, Adm. Dec. N. 19844/92, 9 July 1992, which was declared inadmissible by the European Court of Human Rights.

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is to be hoped that laws on home schooling will eventually reflect a sensible balance between parental rights and children’s right to education.

C O N S C I E N T I O U S O B J E C T I O N TO E D U C AT I O N A L M E T H O D S , P H Y S I C A L P U N I S H M E N T AT S C H O O L Another problem that the jurisprudence of the European Court has had to address is related to corporal punishment at school. The famous Campbell and Cosans v United Kingdom ruling of February 25, 1982, offers an interesting interpretation of the rights of the parents we are dealing with. The Court ruled out that the school sanctions envisaged constituted “inhuman or degrading treatment” within the interpretation of Article 3 ECHR26 but understood that Article 2 of the Protocol had been violated, in particular the phrase that enshrines the right of parents. The interest of the case lies in the precision of concepts held around the state’s duties, the interesting clarification of the term “philosophical convictions,” and how to interpret the state’s obligation to “respect” parents’ convictions. It is worth mentioning these as these new considerations have established a doctrine and have influenced more recent cases decided in Strasbourg. The British government argued that discipline was a function of the internal running of schools, independent of the powers of the state in education and teaching. The Court’s response was conclusive: the state’s duties extend to the entire educational process and not just the transmission of information or knowledge. The disciplinary system is thus part of its powers and cannot be separated “artificially” from them.27 This broad interpretation of duties taken on by the state in the field of structuring education systems, reaffirming the doctrine of the Kjeldsen case mentioned earlier, forced the UK to bring its domestic laws into line with the requirements and commitments made at European level, and therefore to comply with the fact that Article 2 PCEDH requires the state to respect parents’ convictions in this area. Another of the most important aspects of this decision was the interpretation of the expression “philosophical convictions.” Given that the allegations of 26

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 27 Campbell and Cosans, par. 33.

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the mothers in this case had no religious foundation, rather a philosophical one, the Court held that the term “convictions” was close to the term “beliefs” that appears in Article 9 of the Convention on freedom of thought, conscience, and religion, and indicates “the convictions that entail a certain degree of obligation, seriousness, cohesion and importance.” But it also stressed that the context to assess the expression refers to “those convictions that are worthy of respect in a ‘democratic society’ (...) and are not incompatible with human dignity.” 28 A final argument of interest to be incorporated into the doctrine on the precept that we are looking at affects how we understand the state’s obligation to ‘respect’ the convictions of parents. The British government argued that the issue of corporal punishment in schools was highly controversial and confronted the supporters of the traditional bias with those in favour of the trend towards changing it; the reason why, in finding the necessary balance between the many different approaches existing, a non-condemnatory pronouncement was sought. However, the Court considered that the proposal did not provide an effective guarantee of the term “shall respect” that guaranteed the precept. The duty to respect parents’ convictions in this matter does not only imply a primarily negative responsibility for the state, it also implies some positive obligation. 29 The aforementioned therefore led to the conclusion that the UK had violated the second phase of Article 2 of the Additional Protocol and the philosophical convictions of the plaintiffs were sufficiently consistent to provide content to the right of parents.

OBJECTION

TO

N E U T R A L R E L I G I O U S E D U C AT I O N

IN

SCHOOL

In the last ten years there has been an increased interest in the field of European institutions in the educational policies existing in Member States and, in particular, in the treatment given to knowledge and teaching of religions. Proof of this are the various recommendations of the Parliamentary Assembly of the Council of Europe, which insists that governments strive to cultivate education on different religious trends.30 This interest stems from the conviction that this kind of teaching can contribute to a climate of tolerance and re28

Ibid., par 36. Ibid., par. 37. 30 Ibid., par. 37. 29

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spect for religion or the beliefs of others, and takes on a new pedagogical meaning given the challenges that pluralism and social diversity present in our democratic societies. That is to say, Europe is struggling to rethink religious education, not as a mechanism that reinforces the traditional religious identities of national territories and regions, but as a vehicle that encourages —from public school— a broad knowledge of different religious beliefs; creates a sense of tolerance; and trains pupils in the values of democratic citizenship. In this regard, Recommendation 1720 on “Education and Religion”31 provides a set of criteria on which the pillars of impartial teaching of religions must rest, stressing the importance of not crossing the boundaries between religious culture and religious indoctrination, developing educational formulas that guard against religious fanaticism, and training teachers to teach comparative religions, while regulating the content of such education depending on the peculiarities of the country and the ages of the pupils. What’s more, the responsibility for this education lies with the state as the entity that must provide resources, develop curricula, and train teachers. The European Court of Strasbourg echoed this recommendation recently, as it did in the case of the previous case in 1999 on Religion and Democracy,32 in two major rulings on two cases of conscientious objection in different educational and social contexts: Norway and Turkey. Both sentences addressed a similar problem and used similar principles in justifying the decision. The recent demands of the Folguero family against Norway33 and Zenguin against Turkey34 pose a case of conscientious objection to compulsory instruction in religious education given to their children in public schools. The states in question argued strongly that this education, on the subject of religion, was neutral, objective, and pluralistic, however the parents rejected the neutrality of the system and argued that their children were subject to indoctrination —against their philosophical convictions in the Folguero case— and their religious convictions in the Zenguin case. It is worth mentioning that we are faced with two distinct models of state. Norway has state religion and an established church; the Evangelical-Luthera

31 Recommendation 1720 (2005), Education and Religion, see http://assembly.coe.int/ documents/adoptedtext/ta05/erec1720.htm. 32 See http://assembly.coe.int/ASP/Doc/Atlisting_E.asp. 33 Folguero et alia v. Norway, 29 June 2007. 34 Zenguin v. Turkey, 9 October 2007.

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n religion has constitutional prerogatives there.35 The teaching of the Christian religion has formed part of the curricula in Norway since 1739, however since 1889 members of religious communities other than the Church of Norway may be exempted entirely or in part from this teaching. This exemption was maintained when the law on compulsory education, a prevalent feature of which was the “clause on Christian vocation,”36 was sanctioned in 1969. In the nineties, a thorough reform was undertaken that was intended to be all-inclusive and seek to reconcile the neutrality of education with the recognition of the Christian tradition through a school subject on “Christianity, religion, and philosophy.” Following new educational criteria based on integration, a school was set up where all pupils were welcome, regardless of ethnicity, nationality, or religious faith.37 For this reason, the subject was introduced as mandatory and the formula of general exemption was abolished, leaving open the possibility of partial exemptions for manifestly religious activities of a ritual nature, and even for other content previously requested by the parents. The new education system of religious instruction encountered serious objections from the minority religions; however it was the Norwegian Humanist Association to which the plaintiff parents belonged and that launched the court proceedings. Its claims were that education, the way it was designed, did not ensure neutrality or objectivity, nor was religion taught in a pluralistic way. On the contrary, it tried to strengthen the Christian values of the pupils. This, together with the absence of the formula of full exemption, enabled the European Court to admit the Folguero suit with regard to the possible violation of Article 2 of Protocol 1 of the Convention. In the case of Turkey, on the other hand, we find a model of State in which secularism has a prominent place. Paradoxically, the constitutional reform of 1982, in Article 4, laid down compulsory religious instruction in the following terms: 35 The Constitution of the Kingdom of Norway, Art. 2: “(1) All inhabitants of the Realm shall have the right to free exercise of their religion. (2) The Evangelical-Lutheran religion shall remain the official religion of the State. The inhabitants professing it are bound to bring up their children in the same.” 36 To promote spiritual freedom and tolerance, both physical and spiritual abilities with the aim of giving the pupils a Christian and moral education in keeping with the EvangelicalLutheran faith. 37 Ingvill Thorson Plesner, ed., Religious Education in Pluralistic Societies. Aims and Challenges, www.oslocoalition.org/html/project_school_education/index.html.

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Education and instruction in religion and ethics shall be conducted under state supervision and control. Instruction in religious culture and moral education shall be compulsory in the curricula of primary and secondary schools. Other religious education and instruction shall be subject to the individual’s own desire, and in the case of minors, to the request of their legal representatives.38

Eight years later, in 1990, a decision by Turkey’s Education Council overruled the obligatory requirement for Turkish pupils belonging to the Christian or Jewish faiths who could provide proof of adherence to these religions, however the possibility of exemption was denied for other possible confessions.39 The government argued in its submissions to the Court that this was education organised by the secular state, and not by religious authorities, designed to be objective, pluralistic, and neutral, in order to provide reliable information on different religions; to avoid prejudices, and to create a climate of tolerance and respect for the beliefs of others. Although the Zenguin family did not see it that way, adherence to Alevism —a heterodox offshoot of Islam— did not allow it to benefit from the exemption provided for by law and the family had to accept religious instruction that involved strong indoctrination from the Sunni Islam’s point of view. In both the Folguero case and this last one, the European Court made a show of systematising their own prior jurisprudence and drafting a number of general principles to interpret Article 2 of Protocol 1, the potential impact of which should be considered in the case of further conflicts in the sphere of religious teaching. The primary interest of the court was to indicate the profound unity of the two phrases of the provision of Article 2 PCEDH —the right to education and the right of parents to the religious or ideological orientation of the education of their children— and of this with Articles 8, 9, and 10 of the Convention. Having contextualised the precept, there are important implications in generalising certain values and principles that are worth summarising. Regarding the predetermined right of parents, the Court stated that it is the parents who primarily have responsibility for the upbringing and education of their children, for which reason parents can request the state to respect their beliefs, however these beliefs must be interpreted restrictively, i.e.,

38 39

http://anayasa.gov.tr/images. Cited in Zenguin, par. 18 -19.

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limited to convictions with a certain degree of “obligation, seriousness, cohesiveness and importance.”40 Furthermore, the state must guarantee the rights of parents in the context of both public and private education, not only with regard to religious instruction but also all other school subjects, this therefore extending to the entire education system.41 In contrast, the state holds broad powers when structuring education, which vary by time and place, and it is not required to fit school curricula to the religious and philosophical convictions of parents. Nevertheless, it must grant the appropriate waivers, either total or partial, to pupils for certain courses or course content. The Court reminded the state that its education authorities are obligated to ensure that knowledge and information is imparted in an “objective, critical and pluralistic manner,” 42 a consequence of the necessary state neutrality and impartiality in the area of education. For the same reason it is prohibited from any claim to indoctrination, one of the key principles that inspired the drafting of the Protocol to the Convention in 1952. No doubt the practical application of these principles is highly complex for states in which a particular religion has played a crucial historical role in shaping the state and has defined many of its features, with its corresponding social projection. This is why the European Court understands that the waiver mechanisms for pupils is a factor to consider when evaluating neutrality in education, especially in subjects more conducive to situations of indoctrination, as is the case of those that provide information on religions. In sum, although the sentences were different in their rulings,43 in both cases they were convictions. Neither Norway nor Turkey could ensure that information and knowledge imparted in programmes were taught in an objective, critical, and pluralistic manner, so that the absence of appropriate waiver formulas amounted to a violation of the right that was guaranteed to parents in Article 2 of the ECHR Protocol.

40

Concepts previously defined in the sentence cited earlier, Campbell and Cosans v. United Kingdom, 25 February 1982. 41 Zenguin, par. 49. 42 Ibid., par. 52. 43 In the case of Folguero, the sentence of the Grand Chamber was nine votes against eight, while in the Zenguin case it was seven votes, unanimously.

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Notwithstanding, in the Norwegian case the Grand Chamber considered that recognition of the violation represented sufficient compensation for moral damages. However, in the case of Turkey, the seven judges reiterated that violation of plaintiffs’ rights had, indeed, occurred due to a structural deficiency in the education system and not due to incorrect application, and therefore claimed that fair compensation would consist of reforming domestic legislation and the education system, in order to be compatible with the requirements of the Convention.44 It is likely that the sentences mentioned are less than satisfactory and have certain grey areas,45 but around these an important doctrinal step has gradually been taken. As is common in the field of law, it was confirmed that in the theory of human rights there are usually no absolute values, and therefore it is usual for tensions to occur with other rights. In particular, parents’ right to predetermine the education given to their children due to their religious or philosophical beliefs cannot be regarded in absolute terms: this right may suffer at times from interference that is duly justified. Specifically, the Court reiterated here that the right of parents must be set within the context of the state’s responsibility to ensure education for all, as must be the right of children to education. Among the many different forms of instruction existing to ensure overall education, one is compulsory schooling, whether in public or private schools —without this taking away the legitimacy of states that also consider home schooling. However, in states where this latter formula is not provided, the rights of parents do not extend to exemption from schooling their children. Therefore, if there is tension between the views of parents and the child’s interests, the latter should prevail. Parents’ right to object does not just refer to the content of the materials, however, but also to methods of teaching. In this sense, punishments that are inconsistent with the precepts of the European Convention pave the way for parents to object. The jurisprudence studied recognises broad discretion for the state in setting the school curriculum, but is very forceful when it reiterates its ban on religious or moral indoctrination by the public school system, in opposition to parents’ convictions. In other words, in those cases where it is not clear

44

Zenguin, par. 84. J. Martínez Torrón, “La objeción de conciencia a la enseñanza religiosa y moral en la reciente jurisprudencia de Estrasburgo,” Revista General de Derecho Canónico y Derecho Eclesiástico del Estado, 15 (October 2007): www.isutel.com. 45

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that the teaching in question is completely neutral (at least in practice), or that there is an aim of indoctrination, the judiciary should attempt to resolve them, without forgetting that certain restrictions on freedom have to be duly justified as necessary in a democratic society.

AND

I N I T I AT I V E S TO I N T RO D U C E N E U T R A L O B J E C T I V E E D U C AT I O N O N R E L I G I O N I N P U B L I C S C H O O L S

Preventive actions to promote tolerance and mutual respect constitute one of the positive obligations of the state in this area. This line has been insisted on within the Organization for Security and Cooperation in Europe (OSCE), in particular by the Advisory Council on Freedom of Religion or Belief,46 in a document entitled “Toledo Guiding Principles on Teaching about Religions and Beliefs in Public schools,”47 which was released in November 2007. In fact, this is the only specific initiative promoting respect and understanding between religions through education. The main objective of the Principles of Toledo is to provide technical guidance to states who are members of the OSCE when they decide to introduce neutral and objective education on religion in public schools; an education that encompasses both religions as non-theistic systems of belief, focusing this issue from the viewpoint of human rights and, in particular, freedom of religion and beliefs. At the base of this proposal is the conviction that such education will encourage respect for the pluralism of our societies and seeks to reconcile the different legal interests involved in this matter. The document stresses the need to bring about inclusive policies in developing and implementing education programmes, ensuring the participation of key stakeholders involved (pupils’ parents, churches, and civil society in general), and training qualified teachers. Although this is an initiative that, in theory, ensures the neutrality and objectivity of such teachings, based on real examples of good practice, the Toledo Principles do not lose sight of a scenario of potential objectors, to which it devotes Chapter V. And for them, it recommends a dialogue between the school authorities and objector parents, always striving to avoid stigmatising objector pupils as a result of their beliefs. 46

See Consultative body of the ODIHR (Office for Democratic Institutions and Human Rights), at http://www.osce.org/odihr/20056.html. 47 See http://www.osce.org./odihr/item 11 28314.html.

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In sum, it appears that the Toledo Principles echo the doctrine of the European Court when it recommends to the states the need to provide a neutral and objective education on religion, opting for a new formula. The principle of democratic intervention authorises the state to seek an agreement in accordance with both the Constitution and International Law concerning the knowledge and skills to be taught to new generations. However, under no circumstances can it make education an instrument of religious or moral indoctrination of youth. If this were the case, the state would come into serious conflict with the religious or philosophical convictions of parents.

C O N C LU S I O N European law invites coexistence between the different constitutional models, respecting the principle of separation and non-identification with specific religious beliefs, however demanding of the member states observance of the principles that are considered basic for belonging to the Union. The scant constitutional attention paid to conscientious objection has been overwhelmed in the legal sphere, where judges from the different courts have had to clarify subjects of objections in the different subject areas. Conflicts of obligations stemming between secular law and moral or religious prescriptions take place at different levels and between different agents. The European Court of Human Rights can at best provide a general framework, and a method of last resort for adjudicating those conflicts. Specialists do not doubt the importance of the work of jurisprudence in shaping a doctrine on conscientious objection, since legal decisions serve as a guide for states when clearing up sporadic violations of fundamental rights and, at the same time, avoiding discriminatory situations or unjustified privileges. The unlimited growth of conscientious objection for ideological, ethical, and political reasons, not only religious ones, is creating a great deal of tension in both legislative and judicial circles due to the diversity of legislative handling. Some may be exempt from obeying the law for reasons of conscience, while others would be obligated to compliance with no dispensation or exemption. Conscientious objection does not challenge legal arrangements that claim to be neutral and generally applicable to everyone living in the national community. On the contrary, it forces secular legal systems to agree on commitments and concessions that put the integrity and consistency of secular laws at risk.

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PART II: TRENDS OF SECULARISM AND DIVERSITY

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SECULARISM TRENDS AND THE ARAB WORLD Jaime Contreras University of Alcala, Spain

For today’s Westerners, differing from other times, Islam has become a closer and closer neighbour. The space it occupies in today’s world is so wide that it represents a substantial part of our lives. Islamic cultural and sociological manifestations express and show daily life patterns with more than fourteen centuries of history. That history has produced a society intermingled with and influenced by many of the values of Western cultural systems. Today’s Islamic societies are influenced by both the values adopted from Western cultural models and by their own traditions. The first express active and dominant roles, while in many countries the Islamic tradition is having difficulties to reinforce its own identity within the scenario designed by the First World. It seems axiomatic and indisputable that, nowadays, there only exists one unique scenario: that of the so-called global modernity. Thus, all the cultural systems of the world are obliged to live in it in accordance with the capacity of adaptation that they are able to develop regarding the key elements of global modernity. There are few possibilities of living and growing outside this magnificent setting, where its main elements are clearly drawn. These elements are the following: 1. Legal, social, and cultural dominance of human rights in accordance with the Universal Declaration of 1948. 2. The sovereignty of the political communities should manifest under the citizens’ opinion, freely expressed and organized under the Rule of Law.

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3. Secularized culture whose values are mainly defined in the public space, leaving in the particular sphere doctrinal elements of religious nature, which could be professed by its citizens.

Modernity adds to these key features the dialectical effect of a strong scientific and technological acceleration and the new space created by a global market that distributes goods and services. To a larger or lesser extent, all the existing socio-cultural systems share the features of that market. Nobody is alien to that complex scenario. Nevertheless, it is true that the participation in the formulas defining the system is different and proportional to the adaptation process of each political community; thus they are variable and complex. This is the setting where the political space of Islam displays its main complex and unequal manifestations and, consequently, the role of its members and structures is also unequal, complex, and fragmentary. The dysfunctions that this situation provokes derive from the many tensions lived in the space known as Islam. In this complexity in which everybody participates, confrontations between the actors and the different system structures are inevitable, and because they follow a system they are not expressed in an explicit way, affecting the friction zones in the main geo-political areas. These confrontations, leaving aside their intensity, may be more or less marginal, and their effects are cushioned by intercultural forms determined by the global space. Nevertheless, it is true that this interculturality is usually asymmetrical and unbalanced, so the roles that the different particular systems play vary in intensity and extension. The conflict between Islam and the West obeys one of these system confrontations and has a historical continuity since each culture recognized the other; thus the diverse temporary situations print with different contents and expressions the nature of the conflict. Different versions of the conflict have been constructed with the images chosen by the propagandistic power of each side. Those images show, obviously, reductionist visions, as simplistic as persistent, that have great pedagogical effectiveness resulting from a high degree of manipulation. It is paradoxical that these persistent distortions have not been constructed from distant cultures, but from the nearest border, sometimes closed but at many other moments open and flexible. It cannot be said that there have been no agreements and mutual exchanges between Islam and the West because there have been, at least, as many as exclusions and extreme acts of violence.

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Since the Mediterranean Sea of the 8th and 9th century, dominated by an active and culturally brilliant Islam with desires of expansion that threatened to devour the Carolingian Christian world, fearful and dark, until the current time in which many Arab cities explode with shouts that demand reforms and political freedom, the vision that each culture has had of the other has been stereotypical and elementary. However, the technological revolution that places all of us in the same global setting multiplies contacts and encourages knowledge between systems, even though it often means that signs of conflict grow, too. Nevertheless, the main features of our time are that the border is thinner, the values of each person are recognized, and the media promotes a shared knowledge in real time. The immediate consequence is that, for the first time, the West and Islam have multiplied their relationship and everything that affects one affects the other. In consequence, it is not intelligent to doubt the possible modernization of the Islamic cultural space or to claim that such modernization is an adventure alien to the substantial features of its culture. Regarding this point, we, the Westerners, have inherited a rich but unilateral tradition, critical but intolerant, just as frequently arrogant as not sharp. We often confuse voices with echoes and consider as essential things that, for Islam, only had importance in the past. This is the reason behind the categorical judgements that distort our own conceptual categories and end up assigning behaviours to certain cultures that we would never assign to ours. Surprisingly, many of our intellectuals defend primary dichotomies that deny the early elements of every historical process, an intellectual attitude they would have never had in the study of their own. Indeed, it is not unusual to hear some of them say that Islamic culture cannot evolve because of the nature of its ethnic, racial or cultural heritage. Regarding this subject, it is impossible not to be surprised when hearing Jean Braudillard say that Islam “is the quarter of centered absolute, the ultimate face of antimodernism.” This categorical and unwarranted sentence does not prevent the French sociologist from claiming that the culture of human rights is ethnically and essentially opposed to the portrait constructed by Islam. In this sense he writes: “The portrayal of Islam as opposed to human rights depends on this type of essentialist, ethnocentric view of the Muslim world as alien to modernity.”1 1

J. Braudillard, quoted in A. Chase and Amr Hamzay, Human Rights in the Arab World (Philadelphia: University of Pennsylvania Press, 2008), p. 25

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Alien to modernity? An odd consideration, when even Braudillard knows that nobody can be alien to modernity nowadays, because modernity is like a wave that guides us, alien to our will. Of course, it is true that the Organization of the Islamic Conference (OIC) and many Arab states have issued statements that obviously differ from the Universal Declaration of Human Rights that the UN issued in 1948. But it is also undeniable that all the Arab countries have made reforms, some more accepted than others, showing a great concern and an intellectual interest in this subject. This openness is changing Islamic thinking and helping to make deep exegesis in its doctrinal texts, showing that it is possible to find a way to combine sharia and international comparative law. It is not a secret that, today, the big debate about Human Rights and Islam is not being properly discussed in Western society because the West is mainly sceptical about it. However, news on this issue is the key debate in most Arab universities, and it is a complex one given that it even questions basic principles of the Islamic cultural system. The few Western intellectuals that have seen the possibilities and meaning of that debate understand that it poses infinite possibilities of interaction between our world and the complex and unequal Islamic space. Thus it is a serious mistake to conceive Islam as an entity structurally opposed to Human Rights. This thought not only makes difficult the political criticism necessary to denounce the diverse violations of Human Rights, but it also favors what has been described by Amr Hamzay as a, “(...) distorted meta narrative.”2 “Metanarrative” is a word that, according to the author, expresses a metaphor capable of understanding the deep differences existing between the theoretical formulation and the object of analysis that normally characterizes the Western thought. The different reformist trends that we find inside the Islamic cultural system are closer to real problems and show more intellectual lucidity, because there are many of them and they are generating a deeply innovative movement that could be compared to the big adventure that Europe experienced throughout the Enlightenment. Indeed, the key debate is similar: the dominant space of the sacred versus the dominated space of secularity. It is a fact that the sharia is a legal and moral reference, although not the only one, for the institutional structure of most Arab countries. Its permanence is unquestionable and that provokes several dis2

Ibid., p. 22.

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tortions with modernity. Which distortions? The answer is in the words of Leila Babes, the well-known Algerian sociologist and professor at the University of Lille: “Pouvons-nous aujord’hui accepter la peine de mort reservé aux apostats, les mains coupeés, le statut discriminatoire de la femme et pretendre que nous respectons la liberté, le pluralisme et les droits de l’homme?”3 Babes’ indignation towards the ultra-conservative front is obvious. It is not possible, she says, with the budgets of a classic sharia, for Islamic cultural traditions that interpret the divine law in such a rigid way to coexist with the legal and moral principles of the West. These huge differences and contradictions between both sides are the reason for the real problems that distance them, often in a dramatic and violent way. Leila Babes goes on, saying that the problem of the sharia keeps being an obstacle and the culture that defends it —the Salafists, above all— is much extended. But now their domination is not total and there are many stances that try to find a way of understanding that falls between Salafism and modernity. That search and those fragmentations are breaking the cultural and religious views inside the Islamic world. Thus, any analysis from this side of the border needs to acknowledge those fragmentations. The ambiguous events of the Arab Spring in North Africa and the Middle East reflect this. The existence of quite different political and social groups is evident in the complexity of these movements. The different stances of those who pack city squares show a plural universe that should not surprise the curious West, even when it is possible to detect, within so many leading characters, a mutual process of acknowledgement and complementation that allows joint actions. “Each one defends what they own,” says Mona Mahmud, a nurse who assists people in the demonstrations at the Tahrir Square, in Cairo, and who also declares herself a devout Muslim, “the members of the April 6 Youth Movement and the liberals from El Baradei. The Salafists and the Muslim brothers defend an Islamic regime. This is real chaos.” All riots are chaotic, but in many participate Egyptians who consider themselves real patriots moved by love “(...) to the homeland and to fight for justice and freedom. Nobody should be a prophet in Tahrir,” says Jaled, a young trinket vendor in the middle of these heated revolts.4 Aside from the different positions that the immediate future may bring, it cannot be denied that a certain pragmatism, as political attitude, has imposed 3 4

L. Babés, Loy de’Allah, Lois des Hommes (Paris: Albert Michel, 1994). Newspaper El Mundo, November 25th, 2011.

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itself in the streets of this ‘Spring;’ this is a socio-cultural trend that seems to have installed itself in the political horizon of the Islamic population from Indonesia to Morocco. Within the wide geography of this space, political Islam presents multiple ‘faces’ and it is not possible to reduce it to the old clichés that are still present in the West. It is a mandatory task to revise and deny their explanation effectiveness in any kind of analysis. Such an attitude is essential and will suppose a change in the simplifications that the West has held towards its Islamic neighbors. Nevertheless, there are no simple answers to badly posed, reiterative questions: What is Islam? Why is it so reluctant to change? Can it change? Islam, an entity with more than fourteen centuries of history, cannot be explained in a simplistic way. Its own origins, in the crossroads between Judaism and Christianity, emerge from a vernacular religious primitivism and show a mystified doctrinal and anthropological structure that resists any reductionism. It may be easier to explain what Islam is not than to define it. Saint Thomas claimed: “What is Islam? If I am not asked, I know what it is, but if I am asked, I do not know.”5 It is then more practical to identify what it is not. Islam is plural, of course. It has its schools and cultural practices and, like the other monotheist religions, has suffered the hurricanes of history —its splits, closings, loans, and receptions— throughout its geographical diversity. Time and space have made it plural and multiform. It is true that, unlike the West, its historical trajectory has not been symmetrical, at least regarding some specific parameters. It is impossible not to remember the early emergence of a critical spirit, along with extreme internal violence, in the 2nd century of the Hegira. Then, a humanistic spirit emerged that crossed the barrier of year 1000 to end up beheaded at the end of 12th century, when its main intellectual, Averroes, was excluded from the original Islamic matrix. Paradoxically, this dissonant voice was used by the Philosophical Schools of the Christian West, which itself had begun to wake up to discover its own classical origins. Mourab Wahba, the well-known Egyptian philosopher, has written that the real heir of atheist Averroes was not the Arab space but the Christian Latin world, where the works of the great philosopher were read by subsequent generations. “If you read,” writes Mourab Wahba, “Luther and

5

Quoted in O. Auouad, Lahrech, “De un humanismo a otro: puentes y fronteras,” in Convegno Internazionale. Umanesimo Latino e Islam. (Alcala de Henares, Spain: University of Alcala and Fondazione Casamarca, 2002), p. 168.

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Galileo you will grasp Averroes’s spirit. Luther’s motto: sola scriptura and free inquiry of the Bible, this motto means that Luther like Averroes, refers only to the holy book with intention of using his reason to interpret the text without any other aid.”6 The reflection of Professor Moura Wahba is a good one, because today Averroes and other Arab thinkers may be used as a bridge to overcome the obstacles of the necessary dialogue. In any case, the historical trajectories of the East and the West have been divergent. The Islamic world, eastern border of the West, has been gradually relegated to peripheral spaces, political communities that did not become prominent in the cultural and technical changes. At the end of the 12th century, Islam suffered the so-called ‘cloture ideologique,’7 the terrible defeat of the yhtihad, the critical reflection quoted by Mohamed Arkoun. Consequently, the most revolutionary cultural impulses would always be born, from that moment on, in the West. Since then, reason stayed buried during many years in the dominant Islamic thought; thereafter, the ruling class could not recover its autonomy in front of the doctrinal and religious truth that was imposed by kings and sultans assisted by a cohort of alfaquis. It became marginal, the secular periphery of a sacred and totalitarian Islam, as fanatic as obscurantist, that forgot its memory and became fragmented in principalities, emirates, kingdoms, and sultanates; all of them dividing structures where every lord claimed legitimacy by way of supposed dynastic links with the Prophet himself, links that were made up by the imams that worked for him. For many centuries, Umma —as a community of believers— and Dar alIslam —as a geographical space— were only rhetorical and nostalgic concepts. Consequently, the historical pilgrimage of Islam has been full of different criteria and programs, a feature that it shares with other religions. Like many of them, Islam has suffered totalitarian regimes and developed a rigid religious bureaucracy that, for many generations, remained insensitive in front of all the social and political revolutions that took place in the West. And finally, it is now in present times when again from this same space there is a need for a technological and cultural revolution that does not admit existence in an empty space, when Islam, trapped in the same setting, demands being more than a silent presence. Thus, questions are arising, sleeping consciences are awakening, and Islamic intelligence is beginning to imagine the future. 6

M. Wahba, “Averroes as a bridge,” in Convegno Internazionale. Umanesimo Latino e Islam (Alcala de Henares, Spain: University of Alcala and Fondazione Casamarca, 2002), p. 135. 7 M. Arkoun, L’humanisme arabe au VIIe-Xe siècle (Paris: J. Vrin, 1982), p. 43.

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Of course, in this space there are intellectuals that understand this huge revolution (awlaama) as one of the many imperialist manifestations that the West has imposed (‘westernization’). Nevertheless, it is evident that there are many more voices that adopt open stances, some of great intellectual significance. For example, it is worth remembering Egyptian Professor Fouad Zakariya, considered to be the ‘father of Arab existentialism’ and well known for his passionate defense of the influence of Western technology in Islamic countries. For Zakariya, the cultural invasion coming from the West is only a myth that the Salafists exhibit, stating that it is an atheist invasion radically opposed to the Islamic tradition. Zakariya condemns this view, arguing that there is nothing in the doctrinal substance of Islam that supports those positions; on the contrary, every scientific discovery has always found a precise settlement in the history defined by Umma. Consequently, today’s Islamic culture can walk any path: reform, revolution, and, also, the feared involution. Once more, history is an instrument for social change; a history that today, in our global setting, cannot be closed but needs to be open and compared. This is why it should be understood as a singular phenomenon that nowadays, in Arab and Muslim universities, the history of Islam is analyzed by comparing it with the history of the West and many questions are asked: which was the inflection point between our differences? Why did it happen? And how? And when... (etc.)? The provocative sentence that the Egyptian writer Fahmi Huedi claimed, some years ago, in a meeting of Arab intellectual, is well known and polemic: “I wish that we Muslims had a Pope!” The sentence was daring and provocative, and posed an interesting question: what would have happened if the Muslims had had an institution with so much historical strength as the Pope in Rome? The question received multiple answers; half of them were so unfocused that they only reflected the need of each side to learn the history of the other one. But maybe, due to so many different answers, we should pay attention to the answer given by the Egyptian-Lebanese writer Amin Maalouf in diverse European and Oriental forums. Maalouf is one of the few intellectuals who are able to walk, with evident knowledge, the paths that cross the border between the East and the West.8 Maalouf acknowledges that Islam is not a Church, neither in its doctrinal principles nor in its internal organization. The community of believers, 8

p. 54.

A. Maalouf, “Si el Islam tuviese un Papa...,” in the newspaper El Mundo, June 10 th, 2010,

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Umma, is a sociological and cultural concept alien to the ecclesiastic conscience expressed in the theological notion of the mystic body of Christ, a notion shaped under a historical trajectory that found an adequate habitat in the European space. Also the idea of a maximum religious authority, considered Vicar of Christ and Supreme Minister, is not present in Islam, not even in the Shiite branch. Any Muslim would find the institutionalized existence of a formal ecclesiastic structure repulsive. There are no preeminent members and even the definitions of orthodoxy are less than precise, so it could be concluded that, as Fuad Zakariya says, “the Islam is what Muslims make of it,”9 a categorical sentence regarding the doctrinal flexibility of Islam. Amin Maalouf thinks the same, but immediately adds that such malleability has barely been used to prevent “the bad relations between money and religion,” a constant throughout the history of the papacy. However, Maalouf claims, unlike Islam, the papacy built its authority as a counterweight for the “omnipotence of kings and emperors” and the consequence of such fights between the throne and the altar was the emergence of civil society in Europe, the antecedent of what we now call ‘secularity.’ An expansive field of freedom grew in the space that this concept created, a good habitat for all the revolutions that followed. The Pope was as reticent to make changes as firm to maintain them once they were accepted by the Church, impelled by the revolutionary context. It is true that the Church of Rome is conservative and has slowed down the rhythm of change, but it has also preserved —according to Maalouf— the experience; and it demonstrates that from Rome, the Church never goes back to the past: neither to the Inquisition and the burning stakes, nor to the lists of forbidden books. It is also true that Islam, unlike the Church of Rome, never had a bureaucratic organization such as the Inquisition to suppress doctrinal mistakes or religious freedom, not even to adopt early tolerant stances; but in Mohammed’s religion there was never a clear distinction between the throne and the altar. That is how the relations between the secular and the religious power were initially presented. The absence of a unique religious authority, visualized and accepted by the Umma, always reduced the menace of supremacy from the ulemas, but it also made more difficult the functions of the secular power in the control of confessional versatility produced outside of its scope. 9

Fuad Zakariya, quoted in A. Chase and Amr Hamzay, Human Rights in the Arab World (Philadelphia: University of Pennsylvania Press, 2008), p. 27.

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In any case, the moral theology established by the most important thinkers of the classical period —Al Ghazali, Al Mawardi, or Ibn Taymyya— always understood that social peace, a responsibility of temporary power, was so good that ulemas could never question it. Consequently, from that moment on, Sunni thinkers converted the defense of temporary power into a basic principle of political doctrine. This should not suppose any detriment of the religious authorities. In regard to this, Al Ghazali made an effort to define the precise terms of a good work division. Since then, it has been a commonly understood rule that the Caliph symbolized the religious unity of the Umma, while the Sultan assumed those ‘sword’ attributes to guarantee that the principles of the Koranic law were followed. In this point Al Ghazali did not doubt in indicating that the sword’s capacity of coercion represented the first determination in any political community.10 Such relevance of the ‘secular’ power should not be understood as a principle of Islam, but the contrary, since the idea presented by Al Ghazali was that the Sultan’s sword defended the Prophet’s teachings and imposed them in order to dominate human passions and egoism. Ibn Taymyya inspired the Wahhabi thought. He saw human egoism as a dominant passion that was able to destruct any social agreement; thus the main function of the sovereign was to prevent that passion to bring security to the community. The principle of coercion represented the main responsibility of the ruler, and because of this, obedience was the first demand made of the subjects. With these statements, Ibn Taymyya was two centuries ahead of Macchiavelli’s stances, and some more to those of Hobbes. Albert Hourani, an eminent British-Lebanese historian, expressed the same in an explicit way. For Ibn Taymyya, says Hourani, (...) the essence of government... was the power of coercion, which was necessary if men were to live in society and their solidarity was not be destroyed by natural egoism. Since it was a natural necessity, it arose by natural process of seizure, legitimized by contract association. The ruler as such could demand obedience from his subjects, for even an unjust ruler was better than strife and the dissolution of society.11

10 Mohammed Ayoob, The many faces of political Islam: Religion and Politics in the Muslim World (Ann Arbor, MI: University of Michigan Press, 2008). 11 Albert Hourani, Arabic thought in the Liberal Age, 1798-1939 (Cambridge and New York: Cambridge University Press, 1983), p.19.

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Defending the temporal order was always dominant and it became institutionalized in the 16th century when the Ottoman Empire established itself in the main area of the Islamic space. This is how religious men became royal ministers and officials to the Sultan. Political space almost always dominated the religious space, and in consequence, sheiks and ulemas were always under the power of kings (with few exceptions, like the current Islamist Republic of Iran), so the arbitrariness of secular power could never be restrained. “Nothing durable can be built in the kingdom of arbitrariness,”12 says Maalouf, regretting that civil society did not succeed in Islam and that individual freedom was almost always absent. There were not many historical occasions for secularism in the political practice of Islamic regimes. But history is not decisive and, as Paul Valery said, “it is the science of things which are not repeated,” thus nothing that happened in the past is a duty for the present. The advice is simple: let’s understand the lesson of experience in a proper way. Although in Islam the temporal authority dominated over the religious ministers, it does not mean that struggles between one authority and the other did not exist, although they were not as violent as those of Europe. This statement should not condition any subsequent determination. Of course this does not explain the ‘confessional’ positions expressed nowadays. It is true that, after the ideological closing of the 12th century quoted by M. Arkoun, Islam was dominated by a traditional religious authoritarianism, based on temporal structures that occurred in a self-sufficient way, exhibiting itself, and because of this, it has poorly required from its subjects mechanical and non-critical obedience. There is no doubt that these stances in power have determined the victory of non-critical and lazy positions that, in traditional culture, are known by the Islamic term of taqlid (submission). However, all the power of these structures throughout time did not impede thinkers from adopting the opposite spirit: the iytihad (freedom of thought), and to demand politics of reform that would find a way to something similar to the secularization of the West. All in all, such claims never achieved their goals and successive failures fueled a collective feeling of pessimism and incapability that extended to the most lucid sectors of this culture. Maybe one of the most meaningful moments in this story of failures took place when Napoleon, at the end of the 18th century, went to Egypt. For the 12

Quoted in footnote 8.

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Europeans, for the defeated French Emperor, and for the triumphant Nelson, the encounter with Islam was disappointing. French and English understood that the modernity that they wished to represent was alien to Islamic culture, and besides, Islamic religion seemed to be simple and not original, barely a “mediocre synthesis of Judaism and Christianity.”13 Such a vision made a deep impact and remained unchanged for many generations in the West, and is still visible today. For all of the Islamic space, particularly for the Sultanate of the Ottoman Empire, the presence of the European army had transcendental consequences. In Turkey, times of crisis and decadence began, times of political dependence that expressed the permanent economical dominance, ‘colonial’ dominance. This is how critical attitudes and reflections awakened, not only in search of liberation from the yoke of European powers, but in making changes in the traditional Islamic being and feeling. In this way began the political need for starting a long path full of reforms (tazimat) that, after many action-reaction processes, ended one century later with a radical revolution in the Ottoman Empire, the real power of Islam. Turkey went through a profound change in the nature of its political regime: the fall of the Caliphate (1924) and the empowerment of the ‘Turkish youngsters’ —a group of young military men— concluded with the instauration of a secular regime that even denied the tradition of the sharia. But the traumatic effect promoted by that European presence extended to the whole Arab world, not fully represented by the Ottoman Empire. It was obvious that the technological and scientific advances of Europe contained a criticism towards the Islamic culture. As expected, many questions began to arise, and programs for renovation and change were created. It was necessary to discover the causes of the European development and also the pattern of its cultural elements. There were not many initiatives, but the ones that appeared were highly qualified. We only have to remember the movement known as nahda in Lebanon; the Studies Commission of Rifaat Tantawi in Egypt; the names of relevant people as important as the Iranian Al-Afgani or the Egyptian Muhammad Abduh, etc. These reformist initiatives of the 19th century wanted to awaken the critical spirit that they considered inherent to the Islamic culture.

13

F. López Barrios, La conspiración de los ulemas: ¿Es posible un Islam Occidental? (Madrid: Almuzara, 2008), p. 114.

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To sum up, these and some other initiatives were the only cultural phenomenon in the history of Islam that can bear some resemblance to the process known as the ‘Enlightenment’ in Western thought. The Islamic reformists of the 19th century said that there was nothing in their culture or their religion that was opposite to the development of science and technique unless the ethical and moral consequences of that development were against the old traditions. Islam, Muhammad Abduh wrote, implies beliefs and wisdom that give identity to the whole Islamic community and thus, these should be scrupulously respected, because “making things that way we will not need much time to take the Arab nation from its backward mentality and customs to a superior state of mind.”14 Like some of our European thinkers, Abduh understood that the technological and scientific changes that had originated in Europe could find a way into the religious and moral order of his religion. All in all, this was the stance of the reformists of the 19th century: technology yes, but without questioning the principles of the Koran. Could that be possible? Since then, this question has been repeatedly asked by all the thinkers of the Islamic tradition, and there have been many different answers. Some of them demanded a religious aggiornamento, while others denied that possibility; it is the case of Al-Afgani, for example, who defended a pan-Islamic religious movement that did not despise scientific and technological development. Al-Afgani is still today one of the basic thinkers for current fundamentalist thought. But, possibly, the most spectacular influence that the European culture had on the Arab reformism was the adoption of the political idea of ‘nation’ in the power patterns of the Islamic world. After the fall of the Ottoman Empire, the subsequent disappearance of the Caliphate of Istanbul in 1924, and the military presence in the zone of the victorious powers of World War I (1914-1918), many political Arab entities became political communities defined by criteria inspired by the European concept of the ‘nation-state;’ an inspiration that was quite superficial, since the political authorities that adopted this idea also adopted institutional formalities of European regimes without modifying the dependent relations that formed the structures of the societies they led. Since that moment, most of these Arab nations have tried to enter modernity through the formation of a strong state made of social entities, more

14

Ibid., p. 182.

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or less autonomous, that later became organized as political parties, a structure also imported from the West. These previous entities were organizations that did not respond to a plural idea of society but were stable structures typical in Islamic society: clans or tribes. The most representative may be the Baaz party (Al Ba’th, rebirth) whose trajectory continues to the present time, both in Syria and Iraq. Afterwards, in the context of the Cold War, these Arab nation-states adopted a modernizing political option that was ideologically closer to socialist trends dominant in the space of the old Soviet Union, than to Western political models. Those states governed with the support of a strong military force, while wide population masses were abandoned and left without any political representative. Regarding religion, these regimes understood that the social influence of ulemas and other religious authorities was pernicious for their modernizing projects, and thus chose to reduce religion’s public presence. As everybody knows, the creator of this model was Atartuk, who, among other innovations, rejected the sharia as the legal framework for Turkish society. Nevertheless, the best-known example of these models may be the one encouraged by Gamal Nasser in Egypt, which was immediately followed by Ben Bella in Algeria, El Assad in Syria, Burguia in Tunisia, and even Gadafi in Libya; all of them formed these regimes after their countries became independent, following the models of representative democracy from colonial dominance. They all have in common the replacement of the pan-Islamic ideal with a trend called Pan-Arabism, a political option that was much more secular and, above all, they said, more ‘modern.’ Certainly, the pan-Arabic option pretended the political unity of the Arab countries, a unity not based on confessional Islamic culture, but on a more secular and wider conception that recognized citizenship both to those devout to the Prophet and to those citizens of minor religious confessions, mainly Christians. In the new state, Christians were no longer considered as individuals under the protection of the Umma, like ahl-al-dhimma, but as Arab citizens. In effect, the social and political Christian elite became part of the pan-Arabic movements, where they led wide social areas. All of them proclaimed an Arab nationalism, secular and at the same time socializing.15 Nevertheless, the political unity of the Arab countries was a goal that could not be reached, due to the secular aspect of the Pan-Arabic movement, 15

Newspaper El País. October 10 th, 2011.

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its socializing aspect, and the nationalist perspective without real and pragmatic objectives, which did not receive enough social support. Pan-Arabism was a difficult and complex challenge that, nonetheless, found a shared goal: not accepting the presence of the state of Israel. It became the leitmotiv of all the geopolitical vicissitudes of the area. However, the secularizing Pan-Arabism did not solve the problem that Israel represented in its area of influence, and it could not really deal with the social problems of its populations. Even worse, it had little conscience that it left a major part of the Muslim clergy marginally aside, and that they received those dispossessed from secular regimes. Affected by a demographic revolution whose effects have not yet finished, the economic growing indexes have not improved the standards of living of the Arab people. Overwhelmed by almost hungry crowds, the secular Pan-Arabism has not been able to counteract the wave of pessimism and disenchantment that has invaded all its territories since the 1970s. At the same time the problem of Israel, a recurring form of propaganda, far from being solved as the leaders promised, seems to head towards a much more pragmatic reality: the recognition of a state whose reality is becoming undeniable. Since the 1980s, these harsh facts have been the reason for the failure of Pan-Arabism and have allowed the discourses of ulemas, of Iranian ayatollahs, of Wahhabism, and of the Muslim Brotherhood of Egypt to find the voice that they had lost, a renewed voice multiplied through the media, gaining a publicity that it had never had before. All these groups launched the same message at the same time to the Muslim masses: modernization, and its social and cultural manifestations, was an imposition of the predatatory, tyrannical, atheistic West. The solution for the continuous frustrations of the Islamic people cannot be found but in Islam itself. Consequently, the solutions for the problems, not only of the Islamic space, but of the whole world, have to be found in the Holy Book. The Koran and the doctrine of the Sunnah are then the guides for the resolution of international problems, so Islam can be seen as the more convenient religion and culture for the future of the whole of humankind. Thus, all the fundamental human rights —freedom, tolerance, equality, etc.— are Koranic rules wanted and dictated by God. They cannot be mistaken and, in consequence, they must be defended, especially from the ones who, like the sick Western society, despise them. Under this paradigm the yihad is then necessary because it is understood as a defensive weapon.

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Despite their obvious simplicity, the success of such slogans has been evident. Appealing to affective and emotional reins, many sectors of Muslim society have found in this discourse a redeeming hope. The success of these doctrines, defended by fundamentalist groups, is also due to the intersocial solidarity that these groups have spread among the population and that has helped to reconstruct the social texture, damaged by the successive crisis. Although it is weak, such socioeconomic reconstruction has made possible the recovery of political communities regulated by the Koranic rules and legally defined by the sharia. Under the power of religious authorities, the Muslim crowds receive utopian programs highly charged with messianic content that spread quickly throughout the global space thanks to communication technologies. Armed with such ideas and motivated by their saving faith in a future triumphant Islam, whole sectors of this society have turned their backs on secularized governments and have recovered pride in their own religious culture, offering an evident political entity. Consequently, the old critical spirit of the early times —the iytihad— shows clear signs of decline in diverse fields of the social and cultural life of Islamic countries, and the traditional debates, the confrontations of different opinions and ideas that were frequent in many sectors of intellectual life like universities or cultural centers, have given way to dogmatic situations. Let’s analyze an example that comes from Morocco, a country with a clear reformist tradition, and that allows us to weigh the intensity of this phenomenon. When in 1982 the Education Minister, Asedien al Araqui, decided to suppress the teaching of philosophy from all of the public universities of the country, the decision caused perplexity in the Moroccan intellectual sectors. In the Morocco of King Hassan, an Islamic country that was close to the European Union due to its multiple relations and that sympathized with Western geopolitics, the study of science and philosophy was replaced with the Department of Islamic Studies by a royal decree. Such departments were directed by experts that came from the best-known centers of study of Wahhabism of the Islamic world.16 This odd example is anecdotal, but it shows the intention, in the last decades, of giving intellectual support to religious movements by giving them institutional power in the education system. This is due to the fact that the role of an “intelligentsia with a mainly scientific training” has been very im16

F. López Barrios, quoted in footnote 13, p.190.

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portant in the fundamentalist revolution that has been widely spread thanks to the impulse of the revolution of the ayatollahs.17 Not only ulemas or imams, but also engineers, economists, doctors, etc., were the major figures of the Islamic rearmament of the 1980s. These groups assumed a leading role impelled by the efficient and agile use of technology that they had learned in Western universities. Such technologies and a dynamic use of communication techniques made it possible for these groups to spread a religious message suitable for the Muslim masses that were massively arriving to big cities from rural areas. Thousands of illiterate youngsters suffering from a strong social uprooting had been the victims of the economic and social changes or their own communities, more and more dependent on the demands of the global markets. Communication technologies, economic development, social neglect, and religious hope as a “principle of the subject” (in A. Touraine’s words) that provokes the inevitable protest of the individual against an unbearable social situation often personalized in the West, seen as the Great Satan, are the fundaments of all the radical programs. Anyway, Islamic fundamentalist trends are created in a world in constant change. For the Muslim youth, the changes that they are living are the so-called modernity, a modernity with obvious Western influences that makes them react in contradictory ways, sometimes accepting it and others rejecting it. The populations of these countries feel the need for changes that improve their life conditions and that make them reach the consumption levels of the West and of the high classes of their own societies. These sectors, lead by young and trained elites that know how to manage social networks, are asking for structural changes in their societies. Changes that are specific: democratic reforms, respect for human rights, political participation with public freedom, development of civil society, and resistance capacity against social and political corruption. These hopes, despite being divergent in their formulations and origins, may be jointly expressed, and not in an excluding way, and have undoubtedly improved the political conscience of many sectors that do not see religious faith as a fundamental element. These seem to be the principles of the conscience that promotes the revolts of the so-called ‘Arab Spring.’ They are principles that draw a perception of the future, and that in many ways are alien to Islamic tradition, responding to usual moral and political behaviors of the West, at least regarding political representation. Hala Mustafá, director of Democracy Review, a politi17

G. Kepel, Las políticas de Dios (Madrid: Anaya & Mario Muchnik, 1995), p. 18.

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cal magazine, has said in reflecting on the multiple causes of the Tahrir Square events that the frustrated expectations of a “(...) young generation exposed to the external influence and the development of technologies”18 underlay the nature of the movement. For these generations, the external influence represents the need of having, among other things, non-autocratic political regimes that are exempt from totalitarian ambiguities. They want elected regimes where the people’s will is freely exercised and where the power of families, clans, or tribes —encysted oligarchies in these countries— can be controlled. External influence also means the need for a social politics in which propaganda and governmental sufficiency do not justify its political legitimacy by demagogically claiming an economic growth, based in statistical figures, that forgets developing protectionist politics for large population sectors. This situation is shared by all the countries involved in the revolts. The professional and dynamic youth is then seized by disenchantment and social scepticism. Thus, the path towards a needed modernity is a difficult one, full of obstacles, and desperation dwells in the hearts of these societies. But is the weight of a rigid and bureaucratized cultural tradition what really makes change difficult? The goal of the reforms of the Arab Spring is the establishment of democratic regimes in which human rights and individual freedom are fully guaranteed, but sometimes this is incompatible with the legal and constitutional order imposed by the sharia. This is when doubts and reservations appear. Regarding this aspect in Egypt, Mohamed El Baradei, one of the leaders of the events of El Cairo, recently said that the goal of the political process that began in Tahrir Square was the establishment of a participatory democracy and a civil rule of law guaranteed by a civil constitution democratically approved. This rule of law would guarantee religious freedom, thus Salafist jihadism would be respected and the Muslim Brotherhood could fully exercise its religious beliefs and cultural programs. Nevertheless, El Baradei added with reservations that such guarantees would only be possible “(...) if they, the Muslim Brotherhood, were ready to work in the framework of a constitution that respects universal values.”19 Some doubts arise and it seems necessary to adopt certain precautions.

18

H. Mustafá, director of Democracy Review, Egypt, in the newspaper El Mundo, June 15 , 2011, p. 56. 19 M. El Baradei, in the newspaper El Mundo, June 18 th, 2011, p. 22.

th

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Many of the revolts’ leaders ask themselves: is Salafist jihadism prepared to ‘accept’ the civil constitution suggested by El Baradei? Besides, this is a question constantly asked from the West, which has reservations regarding the compatibility of the sharia —in the form it is usually regarded by most ulemas— and the Human Rights Declaration of 1948. Of course, history determines a major part of the perceptions that we have of the world, but those perceptions do not decide our actions or our future. Islam history has its determining features but they do not have to decide its future, although it is true that the Human Rights declarations that have taken place in the Islamic space have originated in religious means, and most of them find their justification in the Koran and the Sunnah. They are not rights inherent to the man as an individual subject to the natural law, law that does not deny but neither affirms any link with the law of God. No, in Islam “(...) there is not a single human right that is not protected by a Koranic verse or a saying of the Prophet.”20 They are, thus, laws of God dictated for the good government of human society. From the Western point of view, such fundaments are structurally religious and, of course, diametrically opposed to the secularization of the West. However, although the historical trajectory of Islam has repeatedly denied this fact, there are many people who claim, with solid arguments, that there are not structural incompatibilities between the sharia and human rights. This perception is being spread among many sectors of the Arab community. Indeed, in the cultural grounds of many of the democratic aspirations of the young people that headed the revolts in Egypt and Tunisia there were not insurmountable incompatibilities between the Islamic law and the universal notion of human rights. These young people do not doubt their Islamic identity because, for them, their culture and traditions are part of their identity, and being Muslim and defending human rights are perfectly compatible. But, regarding this aspect many think that it is necessary to make deep reforms. The dynamic of the events that are happening in the turbulent Islamic world shows that many Muslim spirits are experiencing a certain ‘aggiornamento,’ spirits that are very sincere with their faith and that reject the cultural positions of a ‘non-Islamic modernism’ defended by some intellectuals of Islamic origin that live in Western countries. For them —maybe the most representative name of this trend is Mohamed Arkoun—, the modernization of 20

R. Martínez de Codes, “La ley islámica y otros derechos,” in R. Loyola Díaz, T. Calvillo, and A. Chehbouni, eds., Diálogo entre civilizaciones (México: Porrúa, 2010), p. 118.

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the Muslim world, following the steps of the West, needs to reduce religious beliefs and doctrines to the space of the cultural traditions. Arkoun and his followers think that Islamic faith has to describe a trajectory that places it in the private life or in the internal space of the community, while its cultural aspects (holidays, fasting, etc.) would serve as a mechanism to maintain the identity cohesion of the community. This is a vision that, with more visibility in Europe, wants to make Islamic culture a part of the public space. Arkoun’s stance has been much debated and even supported by some sectors of the political and economic oligarchy of some Arab countries. Stances like this, accused of being servile to the world of modernity, spark off reticence among the professional and intellectual sectors of the Arab countries because they honestly think that it is possible to access modernity from the Islamic stances, without having to submit to Western patterns. Among them, it is worth highlighting Professor Mohamed Talbi because of his intellectual soundness and prestige in the whole Arab world. This admired Tunisian professor declares himself deeply Muslim in his faith, his convictions, and religious practices, and does not hesitate in criticizing the “non-Islamic modernism” and its followers, whom he accuses of extreme frivolousness: “ils pérorent,” he writes, “sur l’Islam une coupe de vin á la main et une saucisse de cochon dans l’assiette.”21 Expressing his contempt for these intellectuals, Talbi orders them to stop calling themselves Muslims because, he says, they actually practice a practical atheism or a justifying agnosticism. Nothing can be expected from these thinkers that makes possible a real modernization of Islam: this is Talbi’s opinion, categorically. To achieve such goal, a precise, complex, and difficult path has to be designed: a rigorous vectorial reading of the sharia must be made, given that the current manifestations of this law have no chance of being applied in all its particular wholeness in most Arab countries. Indeed, Talbi says, in the political and cultural realities of most Islamic countries, the sharia poisons the life of Muslim communities and paralyzes progress, because all of the possibilities offered by the law remain unexplored. Of course, ulemas and fakirs, settled into their privileges and accommodated in their alliances with political power, are the ones who have kidnapped all the possibilities of development of the sharia. Thus, it is urgent to rethink the Islamic law “dans le sens de son 21

M. Talbi, “Humanisme du Coran. Humaniser la charia. Lecture vectorielle du Coran et de la tradition,” in Umanesimo Latino e Islam, quoted on p. 107.

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humanisation et de sa modernisation et de la légitimité de sa reformulation qui, loin de s’éloigner de la volonté de Dieu ou de la trahir, permet de mieux la respecter en étroite accordance avec l’esprit du Coran et de sa guidance.”22 Professor Talbi shows an unlimited confidence in the possibilities of the Koranic Law to make its way into the world. What is more, without that openness the sharia does not deserve its name because the Koran, unlike the Bible, is an open book that pretends to be a guide. Talbi’s words regarding this aspect are clear: “n’est pas loi, mais voie;” and as such, the Holy Book cannot find any obstacle and its doctrine cannot be stopped. Such a vectorial reading of the Islamic law makes the whole assumption of its principles possible, in accordance with the Koran: “la Déclaration Universelle des droits de l’homme, particulièrement l’article 18 sur le droit a la liberté de conscience, y compris celui de changer de religion ou de ne pas en avoir.” Talbi expresses himself categorically, overcoming the reticence of jurists and even going beyond the most advanced ideas about human rights ever expressed in the Arab world. Talbi is not a jurist nor an ulama and has never had a political position, but his authorized voice is listened to with respect in many influential circles of the Arab world and, although his opinions may be peculiar, some of his disciples dare to adopt even more “modern” stances. Of course, Talbi and his school never use the terms ‘secularization’ or ‘laicization’ in their reflections. The modernization of the sharia can be completed with the postulates of the Universal Declaration, but neither secularization nor laicization are concepts that fit in Islam, at least in their Western conceptions. For intellectuals like Talbi, the notion of laicism as it is understood, for example, in France, cannot exist in the Islamic culture. Talbi, a Muslim that knows well the French culture, considers that in France the notion of laicism means absence of God, as Prevert (1900-1977) said: “Notre Pere qui étes aux cieux. Restez-y.”23 In the secular West, God inhabits such far-away spaces that he cannot be heard, or lives in such close and privates places that he cannot go out of so narrow borders. Such stances are the result of the particular Western history, of an almost permanent conflict between temporal power and the Church. As stated before, this historical process is alien to Islam, which, unlike Christianity, is obviously not a Church. When the Prophet died, he left no successor but the guide of the Holy Book and the tradition of the Sunnah: both are the fundamental grounds of the Umma, the community of believers. That is what Islam 22 23

Ibid., p. 117. Ibid., p. 114.

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is: a community of believers in the spiritual guide of the Koran, a guide, says Talbi, or path where Allah is always present and expressing his will. Consequently, the absence of God is unthinkable in this belief and, thus, secularization and laicism are also unthinkable. Keeping this in mind, Talbi’s School pursues a modernity that the Islamic law does not prohibit, but shows a path whose design does not have to be absolute or totalitarian. It has to be a path that reinforces mainly the autonomy of other social or political activities. It is very interesting to see how similar thoughts find social acceptance in wide sectors of Muslim population, sectors that want deep changes and reforms capable of finally modernizing their societies. These changes, of course, must not copy or depend on Western models. The West sparks off hostility in that world and it is understandable for many objective reasons. History, since the oldest to the most recent times, gives us hundreds of them. The most erudite sectors of the Arab world know them very well and thus keep on saying that the necessary reforms have to be autonomous and, of course, much different from what they call ‘The American Project for the Grand Middle East.’ Many think that the simple presence of such a project implies accepting the contents of an imposed ‘special democracy.’ Such a ‘special democracy,’ defined by the think tank so close to Washington, is highly harmful for their societies, and besides, it provokes multiple irregularities in its specific application. As Professor Noman Abdel Gany from the Enaba University of Algeria has pointed out, the notion of ‘special democracy’ has allowed “keep[ing] Arab people living under exceptional laws and in the emergency state, governed by the unconstitutional regimes and represented by the invalid parliaments.”24 In fact, the responsibility of the US or the European Union in giving economic, political, and military support to regimes characterized by totalitarianism is well known, a support that these countries consider justified by the need of avoiding the inevitable advance of Islamic fundamentalism. Those who, as Professor Abdel Gany, think that this is a wrong strategy, consider that the politics of reform have to be in accordance with the social realities of the countries involved. “The countries assert,” states Abdel Gany, “that they will make the reform that is needed by the people and in accordance with each nation’s interest, not in compliance with the American orders or the Fund’s conditions.”25 It is obvious that the West arouses suspicions

24

N. Abdel Gany, Human Rights in the Arab World (Cairo: Arabic Network for Human Rights Information, 2003-2004). 25 Ibid.

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among Islamic societies and there are many reasons for such lack of trust. We only have to remember the enduring problem of the Palestine occupation, a wound always open in the Arab memory, the problem of Iraq, the events that took place in Yemen, the frequent tensions in Lebanon, etc. These events cause perplexity and disenchantment everywhere and make Arabs ask themselves about the permanent hostility of the West. This situation gets more poisoned when, after any summit of the Arab League, Arab governments themselves justify the stance of the Western countries and adopt a sicklysweet discourse about the rights granted to their own populations. Many Arab intellectuals, even the ones that sympathize with the West, consider that pure political cynicism. It cannot be denied that President Obama’s speech in Cairo, on June 2009, provoked a wave of expectancy and hope in all of the Middle East.26 His bet for the defense of human rights as an essential part of the American national security strategy and his support of the changes demanded by civil society were soon questioned when it was clear that these objectives were hardly met. Bahey El Din Hassan, director of the Institute for Human Rights Studies of El Cairo, has pointed out that the famous speech was “(...) a message of engagement with the Arab Governments and the disengagement with the Arab people.”27 We should not question the political sincerity of Obama’s administration, which has been a real support for individuals and communities of civil society. It is also true that this support contrasts with the guidelines of official politics, but, in any case, the support to those civil entities that are trying to create cultural networks to defend human rights (especially those of minorities or women) must be acknowledged. And this is not about finding contradictions in the new strategic politics of the US and the European Union in the Islamic space, but about understanding that the construction of a new sovereignty should not imply any action that damages the original cultural structures. And this is what the communities that demanded changes in the Arab Spring are pursuing.

26

President Obama: “We see that countries that respect human rights and that are governed by the will of the people are more stable, more successful and more secure and that makes them better partners for us in our entire international endeavour,” quoted by T. C. Wittes in Human Rights in the Arab World (Washington, DC: Carnegie Endowment for International Peace, 2010), p. 6. 27 B. El Din Hassan, quoted by T. C. Wittes, Human Rights in the Arab World, p. 11.

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Thus, for example, many Egyptian leaders claim that, although there is only one human rights universal declaration, this should not discredit the other declarations that, regarding the same subject or asking for changes and reforms, have been made in the Arab world. It would be unacceptable from any point of view to support the old and worn-out stereotype that Islamic political forms are antidemocratic and that the concept of popular sovereignty is left out to the sovereignty of divine origin as stated in the sharia. Any minimum analysis of the events occurring within this wide space, from Indonesia to Morocco, shows, evidently, how hideous these arguments are.28 The same electoral competition, although expressed with many irregularities, has drawn over the political scenario the philosophy of commitment and transaction. Islamic political forms such as the Muslim Brothers in Egypt or the Party of Justice and Development (AKP) have cultivated political coexistence with government objectives. The strength of such objective realities is not blemished by the fact that such movements manifest ‘confessional’ manners of political behavior. Populations in the Islamic space have seen again how religious leaders are constantly present in the most important public spaces. This is something that for many, especially for the youth, does not suppose excessive contradiction, neither regarding their anxiety for freedom, nor with their desire to feel owners of their destiny, although it may respond to Western patterns. The Arab space as a whole is a truly young world, and nobody can doubt that one of the most powerful forces that forms today’s new society in this space is an unstoppable demographic revolution, which promotes leaders within the new generations, in all the processes of change. The major feeling of these generations seems to be living in a democratic society that is giving voice to those communities, a democracy that allows them to talk about God in their own terms.29

28 The most influential thinker of political Islam nowadays, Pakistani Abdul Allah Mawdudi, leader of the Samaat-i-islami party, has stated that “since man was the representative of God on the earth,” the political results based on popular will have to be understood as legitimate in Islamic terms and, consequently, do not violate the principles of the sharia. Quoted in M. Ayoob, op. cit. in footnote 10. 29 In the words of T. S. Shah, “La democracia está dando voz a todos los pueblos del mundo y estos quieren hablar de dios.” In “Por qué Dios está ganando,” Foreign Policy (August-September 2006): p. 19.

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SECULARISATION, HUMAN RIGHTS, AND WOMEN IN ISLAMIC SOCIETIES Zoila Combalía University of Zaragoza, Spain

1. K EY E L E M E N TS F O R A G R E E M E N T B E T W E E N I S L A M A N D W E S T OV E R H U M A N R I G H TS : T H E S E C U L A R I S AT I O N O R M O D E R N I S AT I O N O F T H E I S L A M I C T R A D I T I O N ?

THE

In the current social context, where globalisation and increased migration have led to different cultures coming into contact, it is essential to establish a basis that would make intercultural coexistence feasible. In my opinion, there are two pillars that would need to support this: along with respect for diversity, agreement over a common minimum, defined by respect for human dignity, as manifested in legal terms in the protection of fundamental rights. Both Western and Islamic societies regard human rights as an essential element of their own idiosyncrasies, and simultaneously from both sectors we hear voices of reproach of the other due to its inconsistency over respect for these rights. On the one hand, in the Western world there has been an increasing perception of a negative image of Islam as a reality that is incompatible with human rights. This is so mainly due to the increase in Islamic Jihad terrorism and abuses committed in a number of corrupt regimes in the Muslim world. The criticisms over human rights are not unidirectional; also from Islam we hear voices rising to denounce the West’s lack of consistency in the defence of human rights, particularly in foreign policy and international spheres. The Asian and Islamic countries, writes Huntington,

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do not hesitate to point out the lag between Western theory and practice. Hypocrisy, double standards and the ‘yes buts’ are the price of universalist pretensions. Democracy is promoted but not if it leads Islamic fundamentalists to power; nuclear non-proliferation is preached for Iran and Iraq but not for Israel; free trade is the elixir of economic growth but not for agriculture and livestock; human rights are an issue with China but not with Saudi Arabia; the assault on Kuwaiti oil is vigorously repudiated but not the aggression against the Bosnians, who have no oil.1

While the United Nations has emerged as a forum for international consensus over human rights, this has been questioned in recent decades. Thus, it is sometimes argued that United Nations documents are ‘westernized’2 and that contributions from other cultures have not been taken into account.3 In this context there is a movement determined to show the world that there is an Islamic identity of human rights, a way of conceiving them that is genuine, different, and, according to some, came before Western assertions.4 1 S. P. Huntington, El choque de civilizaciones y la reconfiguración del orden mundial (Buenos Aires: Editorial Paidós, 1997), p. 218. 2 Martin Muñoz considers that in some Islamic circles they believthat “la Declaración Universal de Derechos Humanos (...) fue un producto etnocéntrico, en el que participaron Estados europeos que mantenían a buena parte del mundo musulmán en situación colonial o semicolonial, y fruto de la cultura judeocristiana que voluntariamente ignoró la aportación humanística del Islam” (G. Martín Muñoz, “La igualdad entre los sexos y la cuestión de los derechos humanos y del ciudadano en el mundo árabe,” in “Mujeres, democracia y desarrollo en el Magreb” (Madrid: Editorial Fundación Pablo Iglesias, 1995), p. 15). 3 The UN has developed some initiatives to alleviate the idea that the Universal Declaration of Human Rights (UDHR) is a Western document, which does not take into account the contributions of other cultures. For instance, a seminar organized by the Office of the High Commissioner of United Nations for Human Rights in cooperation with the Organization of the Islamic Conference (OIC), entitled: “Enriching the universality of human rights. Islamic perspectives on the Universal Declaration of Human Rights.” Seminar participants stressed that the Islamic world sees the UDHR as a major mankind achievement, but also as a living document that needs to respect cultural diversity (especially when most of humanity was not represented among the drafters). It was also argued that Muslim communities will cooperate with any international effort and initiative, provided they are invited to do so on equal terms. They will reject any project that requires them to renounce their identity, which would be in contradiction with the globalisation of human rights. See also the OCI’s Resolution n. 56/8 on the contribution of this Organization, 50th anniversary of the UDHR (Teheran, December 1997). 4 “Ces déclarations visaient en premier lieu à réaffirmer une identité islamique qui en fut pas prise en considération dans les débats de l’ONU depuis 1948. Ainsi, elles rappellent que toute législation vient de Dieu, seul détenteur de la souveraineté et que, par conséquent tout

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It is alleged that the propaganda directed at reproaching the Islamic states for its violations of human rights does not always take into account that such violations, when they coincide, are the responsibility of certain political regimes, but not of Islamic law, which should not be judged by those regimes but rather by their original sources: the Qur’an and the Sunna.5 To highlight this finding, some Islamic organisations issued a series of documents defending the paternity and Islamic identity of human rights,6 the most emblematic of these being the Cairo Declaration on Human Rights in Islam by the Organisation of Islamic Cooperation (OIC) in 1990.7 Thus, although the solution to conflicts over human rights in Islamic societies is usually defended by the West as an imitation of democratic regimes based upon the separation of state and religion, this secularisation is, however, rejected as strange by much of Islamic society. To illustrate this point there is an interesting reference to recent reforms in the Moroccan Family Code (Mudawana) aimed at modernising and improving the legal position of women.8

droit humain ne peut être évalué qu’au regard de la Loi (i.e. la Sharia). Cependant, elles tentent de ne pas rompre totalement avec les déclarations ‘universelles’. Rappelant que l’islam a assuré, bien avant les philosophes des Lumières, les garanties individuelles affirmées par la Révolution française...” (B. Botiveau, “Democratie et droits de l’homme: mises en perspective islamistes,” in G. Martín Muñoz, ed., Democracia y Derechos Humanos en el Mundo Arabe (Madrid: Editorial Cultura Hispánica, 1993), p. 78). 5 Cf. M. Arkoun, “Les droits de l’homme en Islam,” in G. Martín Muñoz, ed., Democracia y Derechos Humanos en el Mundo Arabe, cited in footnote 4, pp. 33 and 34. 6 Cf. some of these documents in the appendix of Z. Combalía, El derecho de libertad religiosa en el mundo islámico (Pamplona: Navarra Gráfica Ediciones, 2001). On Islamic Declarations —specifically with regard to the Universal Islamic Declaration of Human Rights— Arkoun says that it is not only a Declaration of a Muslim state, but an apologetic defense before the Western opinion that accuses current Islam of totalitarianism, tyranny, and of ignoring human rights (M. Arloun, Les droits de l’homme en Islam, cited in footnote 5, pp. 44 and 45). The idea that the Islamic identity has not been taken into account in the UN human rights forums, and how, despite this, the Islamic Declarations try not to break entirely with the “universal” Declarations while stating that Islam has ensured before the philosophers of the Enlightenment individual rights affirmed by the French Revolution (i.e. equality before the Law, protection against political discretion, etc.) could also be seen in B. Botiveau, Democratie et droits de l’homme: mises en perspective islamiste, cited in footnote 4, pp. 78-80; D. Arzt, I diritti religiosi dell’uomo negli Stati musulmani..., pp. 138-140. 7 Adopted by the XIX Islamic Conference of Foreign Affairs Ministers. El Cairo July-August 1990. 8 On these reforms, vid infra sections 6, c) and d).

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The first Mudawana, inspired by traditional Maliki Islamic patriarchal law, was enacted in 1957 and revised in 19939 to introduce some changes to better protect women’s rights. Despite progress, the Code maintained significant discrimination that it attempted to mitigate through a new reform in March 2000 that led to sharp clashes between Islamists and progressive movements, culminating in a series of mass demonstrations in Casablanca. The watchword of those opposing the reforms was “yes to the promotion of women but founded on our own culture.” That is, the reform was perceived as an act of Western colonialism, was therefore opposed by a large proportion of Moroccan society, and could not go ahead. The failure of this attempt at reform is indicative of how the promotion of human rights in Islamic societies —more than as the imposition of the Western secular model— should be encouraged to promote modernisation based on Islamic tradition. Accordingly, a few years later Mohammed VI did so when he launched a new attempt to reform the Mudawana that, this time, was successfully completed. The success was due to the efforts of the monarch to defend these changes in line with Islamic culture and tradition, i.e., he presented them as an example of promoting human rights, especially women’s rights, rooted in the tradition and spirit of Islam. In fact, Mohammed VI supported every reform introduced into the text of the Qur’an or the Sunna and enacted the Family Code in his capacity as Emir of Moroccan believers. A major proportion of the recent riots in the Arab world are also illustrative of the search for modernisation based on Islamic tradition and not as an imitation of the Western model. Underlying these revolts we find the concurrence of very diverse political and legal positions, linked only by the demand for a system of freedom and democracy. Among these positions, and due to the elections held so far, it seems that political Islam is to play an important role in the future.10 Many countries, where there is latent fear and rejection of 9 Before the announcement of legislative elections in 1993, women’s movements were grouped in the Union of Feminine Action. They launched a campaign to reform the Mudawana to improve women’s position in respect to men’s. The Islamists radicalized their protests against the reform. When the controversy peaked, Hassan II argued that these reforms were not a political but a religious matter, so they were under the scope of the powers of the king, as the Commander of the Faithful. The reforms do not meet feminist demands, but they have the merit to demystify the Mudawana, before considered immovable. See: M. D. López Enamorado, “Mujeres marroquíes en transición.” In A. Torres and R. Velasco, eds., El Magreb hoy: estudios sobre historia, sociedad y cultura (Sevilla: Editorial Alfar-Ixbilia, 2004), pp. 59-85.

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the imposition of a Western-style secularism,11 seek their legitimacy in their adherence to Islamic law and tradition. However, in the West this ‘fitting in’ with Islamic tradition is perceived as a threat to the guarantee of human rights; because some of the regimes that have committed gross violations of human rights have used Islam to defend these. It seems, therefore, a pressing task to provide strong incentive for doctrines of human rights that share common roots with Islamic tradition. In this paper we aim to provide an approach to the Islamic concept of human rights. Before going into the matter, we should state that there is no one single Islamic conception. Islamic law is not monolithic nor is it uniform. Moreover, diversity is a characteristic inherent in the Muslim tradition. So states an Islamic legal maxim: “the beauty of the Muslim community rests upon the differences of opinion between jurists” (Rahmah al-Ummah alA’ummah Ikhtilaf fi12). However, there are, indeed, a number of approaches, some characteristic general principles of Islamic law that we shall now strive to present. 2. T H E A F F I R M AT I O N

OF THE

ISLAMIC IDENTITY

OF

H U M A N R I G H TS

The most authoritative doctrine holds that respect for justice and protection of life and human dignity are basic principles inherent in Sharia that no consistent interpretation of Islamic law can exclude. Moreover, such principles are the general aim of Sharia, referred to in the Qur’an: “Allah prescribes justice, beneficence and liberality with one’s relatives. It prohibits dishonesty, dishonour and oppression. It exhorts you. Perhaps this way you shall allow yourselves to be admonished”(16, 90).13 On this basis lies the Islamic identity of human rights that is not a reinterpretation of Western rights, but that rather has its own roots.14

10

In most Arab countries there is a wide popular support for conservative religious parties inspired by the Turkish AKP. On the AKP see: T. Zarcone, El Islam en la Turquía actual (Barcelona: Editorial Bellaterra, 2005). 11 Vid infra section 3 of the chapter. 12 In M. A. Baderin, International Human Rights and Islamic Law (New York, Oxford: Oxford University Press, 2003), p. 33. 13 M. A. Baderin, International Human Rights and Islamic Law, cited in footnote 12, pp. 13 and ss. 14 On the compatibility between Islamic Law and the international protection of human rights see: M. Baderin, “Establishing Areas of Common Ground between Islamic Law and In-

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The affirmation of an Islamic identity —even before the West’s— is reflected for example in the document on human rights adopted by the Colloquium of Kuwait in 1980,15 which states in its conclusions that Islam has taken the lead in the task of honouring the wise; praising the advances of science and enhancing its value; prompting research and making it a duty for every Muslim; and affirming the mission of the State to provide the necessary resources to fulfil this task. It has been a pioneer in recognising freedom of opinion and expression: the verses of the Qur’an, it states, have flung open the doors of intellectual freedom. Sharia involves a complete economic system, built upon the principles of equality; the prohibition of exploitation and monopoly; and recognises the social function of property. Islam has given women a dignified and honourable status and has the merit of being the first faith to recognise their independent estate, although there is a wide gap between principles and their enforcement in most Islamic states where the real situation of women does not fairly reflect the true position of Islam. Islam has taken the lead in establishing a high level of protection of the rights and freedoms of religious minorities, as well as protecting the rights of man to an extent only recently seen in Western laws and declarations. Since its beginnings it has guaranteed a number of principles not embraced in the West until the late eighteenth century, including: the principle of personality in criminal responsibility —no-one is responsible for a crime he never committed—; the principle of legality in crime and punishment; and the principle of non-retroactivity for unfavourable sentences in criminal law. It has the merit of having taken the lead in creating the necessary balance between security and society’s right to pursue crime on the one hand, and, on the other, providing guarantees for the accused; the consecration of the presumption of innocence; the prohibition of torture; the right to a fair trial; etc. The pioneering role of Islam in the establishment of the rule of law is also undeniable, that is, the requirement that a government submit to the law: the Islamic state thus taking upon itself the role of precursor of contemporary political regimes.16

ternational Human Rights,” in The International Journal of Human Rights, 5,2 (2001): pp. 72113. 15 Held in December 1980, and organized by the International Commission of Jurists, the University of Kuwait, and the Union of Arab Lawyers. 16 Together with this defense of the Islamic identity of human rights in order to curb the Western campaign, the Symposium recommends that Muslim states provide equal protection at a con-

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3. B A S I S

AND

RELIGIOUS CONCEPTION

OF

H U M A N R I G H TS

231 IN

ISLAM.

While it is a common claim among Muslim scholars that compatibility is maintained between Islam and human rights, it is also commonly maintained that these rights have a different basis in the Islamic world and the West. As noted above, the fear that international protection of rights could become an imposition of Western approaches raises suspicions in certain Islamic sectors. Such fears arise from the Muslim mistrust of the Western idea of separation between state and religion that, it has been argued by some, seeks to transfer over to Islam, through the crusade for human rights, a humanist ideology that seeks to remove religiosity from the world.17 In this sense, the main difference between Islamic and Western documents is that, as opposed to the secular nature of Western and UN documents, Islamic declarations have a markedly religious base. As I wrote at the time,18 this is not merely a formal religiousness —these documents begin and end by invoking God and the Prophet— but rather a substantially religious one, i.e., they state that ‘rights and freedoms in the Islamic system are not natural rights but rather divine gifts based upon the provisions of Sharia and Islamic faith.’19 This is made explicit in certain statements where each of the rights and freedoms recognised are backed by a direct quote from the Qur’an or a hadith.20

The idea in the West that led to the development of human rights, based upon the liberal individualism of the Enlightenment —as areas of freedom, a

stitutional level for rights and freedoms of both Muslims and non-Muslims. It also recommends following international declarations of rights, provided they are not contrary to the Sharia. For the full text, see: Z. Combalía, El derecho de libertad religiosa en el mundo islámico (Pamplona: Navarra Gráfica Ediciones, 2001), appendix 3. 17 M. A. Baderin, International Human Rights and Islamic Law, cited in footnote 12, p. 16. He argues that the principle of human dignity, which is rooted in many cultures, is the foundation of human rights. Therefore, human rights should not be presented as a civil religion but as tools shedding new light on the perception of cultural and religious communities. 18 Z. Combalía, “Los ordenamientos europeos ante las minorías musulmanas: aproximación al estudio de los derechos humanos en las declaraciones islámicas,” in Anuario de Derecho Eclesiástico del Estado, 12 (1998): pp. 484 and ss. In the following pages I develop some ideas already presented in the paper. 19 Kuwait Symposium, section 1, nº 10. 20 Cf. ICE’s Declaration.

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guarantee against an external threat of oppression—, is alien to Islamic culture. In Islam, rights arise from the conception of man as a religious being, accountable for his deeds before God.21 In order to fulfil his obligations, he receives from the Creator the rights and freedoms that enable him to do God’s will. In this sense, referring to the peculiarities of Islam, it has been argued that “there is no single law that is not backed by a Qur’an verse or a saying of the Prophet.” The reason for this is that Islam has made human rights a form of worshipping God, which means that human rights cannot be considered as a gift or as something optional: God punishes those who violate these rights and rewards those who observe them. Moreover, human rights in Islam are closely linked with the rights of God. Man has not been allowed to go free to act unjustly. Disobedience and human vanity: man’s illusion that he is the owner of the universe has produced what in modern life is known as ‘humanism,’ a term that has no equivalent in Arabic and means that man is the centre of the universe, substituting God.”22 This fundamentally religious conception has its origin in Sharia: i.e., the divine will colours the entire regulation of rights. The Islamic declarations explicitly state the belief that rights and freedoms are part of the Muslim religion, contained in the Revealed Book and in the teachings of the Prophet, so their protection is an act of worship and their transgression an attack upon the religion.23 The religious foundation, in the words of the Colloquium of

21 The Islamic view of rights —says Ramadan— unlike the West’s, is not based on liberation but on a requirement of equilibrium. T. Ramadan, Islam, le face à face des civilisations (Lyon: Tawid, 1996), pp. 153 and ss. On the Islamic view on dignity of person and human rights, see Abdulaziz Othman Altwaijri, Human Dignity in the Light of Islamic Principles (Al-Rabat: Publications of the Islamic Educational, Scientific and Cultural Organization, 1999); A. R. I. Doi, Shari’ah. The Islamic Law (London: Ta Ha Publishers, 1984), pp. 422-425. 22 Intervention of Al-Shareef (General Secretary of the Council of the Islamic World) at the foresaid seminar: “Enriching the universality of human rights. Islamic perspectives on the Universal Declaration of Human Rights,” contained in its published summary (HR/IP/SEM/1999, part. I, 15 March 1999, p. 20). That is, Islamic human rights do not derive from liberal individualism; they are not a guarantee against the omnipotence of society. As already noted, the uniqueness of the Islamic conception is that it is based on a religious and transcendent view of the human person. In that context, it attributes to human beings some rights and obligations that allow them to go to their transcendent end (J. Maina, “¿Son los derechos humanos impensables en el mundo árabe?” in El Islam jurídico y Europa: derecho, religion y política. Alegria Borras and Salima Mernissi, eds. (Barcelona: Icaria Editorial, 1998) p. 144 and ff.). 23 In the introduction of the OCI’s Declaration, last paragraph.

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Kuwait - lends these rights “an aura of majesty, respect and holiness. They are an essential safeguard against the aggression of the authorities, and are given the characteristics of generality and universality, recognising their full extent, as inalienable and which cannot be rescinded.”24 Thus, it is stated that “human rights in Islam are not granted by the monarch or the ruler, nor are they a decision by the local authority or an international organisation. Rather they have a divine origin so are not subject to suppression, repeal, invalidation, violation, or denial.”25 Does the fact that Sharia is the foundation of human rights surely mean that their recognition is limited only to Muslims or, conversely, that the rights are recognised universally? The ICN Declaration refers expressly to specific rights and obligations of Muslims.26 However, along with the reference to Muslims’ own rights arising from their status as such, the rights that stem directly from the dignity of the individual are attributed to all individuals, irrespective of their belonging or not to the Umma.27 However, the reason for this universality is of a religious nature; it is the Qur’an that determines equality and brotherhood among all

24

Kuwait’s Symposium, section 1, n. 10. Declaration of the CIE, introduction. Thus, one of the consequences of the denominational nature of these declarations is the sacred character given to the protection of the rights and obligations therein provided. A concrete manifestation of the importance that these rights have in Islam is the recommendation of the Colloquium of Kuwait (addressed to Muslim States) to include in their educational programs the subject of human rights in Islam (see recommendation n. 15). Some scholars have argued that the sanctity and responsibility before God, who punishes those who violate human rights, provides a mechanism for reinforcing international guarantees. See in the summary of the seminar “Enriching the universality of human rights. Islamic perspectives on the Universal Declaration of Human Rights” (HR/IP/SEM/1999, part. I, 15 march 1999), pp. 47 y 48. 26 Among the rights and duties of Muslims, there are: the right and duty to refuse to obey any command contrary to Islamic law (section 4,5: “nobody has the right to coerce a Muslim to obey an order contrary to Islamic law. A Muslim should refuse...”); the duty to know the Islamic religious law (section 5.2: “it is not allowed to establish a charge of crime unless the Islamic law so provides: (...). You cannot excuse a Muslim to ignore everything that he necessarily should know about his religion”). Also the right to zakat is recognized among the specific rights and duties for members of the Umma: “The poor members of the Islamic community have a particular right to the assets of the richer members, a right that organizes the institution of legal alms —zakat—” (section 15,4). This specific right and duty of Muslims is also reflected as such in the Colloquium of Kuwait. 27 A different matter is that some documents and statements of Arabist inspiration, alongside human rights attributed to any person, also refer to the rights of Arab people. Thus, the 25

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men by virtue of their descent from a common father, Adam.28 The reason why such rights are recognised for all is clearly expressed in Article 1 of the OIC Declaration: All human beings form one family whose members are united by their submission to God, and the fact that they are descended from Adam. All men are equal in dignity and with respect to their basic obligations and responsibilities, without discrimination of race, colour, language, gender, religion, political affiliation, social status or any other kind. True faith ensures the ennoblement of this dignity on the road to human perfection.29

Charter of Human Rights and People in the Arab World —cf. in Z. Combalía, El derecho de libertad religiosa en el mundo islámico, cited in footnote 6, documentary appendix 9— has two distinct parts. The first part concerns human rights in the strict sense and does not include distinctions or references under the religious status or membership to the Islamic community, nor by virtue of race; rights recognized therein are attributed to every human being. It includes, however, a second part that lists the collective rights of the Arab people, among which it mainly refers to a series of rights in relation to self-determination and the struggle against colonialism and political or economic foreign domination, and also the unity and solidarity among all the Arab peoples. The reason for these collective rights is set forth in the preamble as follows: “Whereas the omission of the collective rights of the Arab Nation and contempt for human rights in these lands has led to countless disasters: from the occupation of Palestine establishing a foreign and racist entity and displacing its people, to the violation of territorial integrity of all Arab countries and the erosion of their resources, both human and material, which has leaded these countries to foreign interference preventing their development and independence. Given that this tragedy can only be overcome through common understanding of these rights and creating the means for their protection by the law. And if not, the Arab nation will be forced ultimately to resort to rebellion against tyranny and oppression.” Also, the Kuwait Symposium refers to very specific political conflicts of the time when it was signed. It mentions the right to self determination of the Palestinian people, the solidarity with Western Somalia and Eritrea in the struggle against colonialism, the withdrawal of foreign troops from Afghanistan, supporting the struggle of Muslims in the southern Philippines for their legitimate rights, and, finally, calls on two Muslim states, Iran and Iraq, to end the strife between them (n. 49, chap. II). 28 See, for example, the ICE Declaration. The preamble refers to the close ties of kinship between all the children of Adam: the basis of equality and unity among all humanity. 29 In the same line, Arkoun says that non-discrimination in the enjoyment of human rights is based on the Sharia, as the Qur’an proclaims that “we have been given the dignity of the children of Adam.” The following sayings of the Prophet are also especially significant: “the Arab has no merit on the non-Arab nor white on black, except by piety,” and, “women are the sisters of men” (M. Arkoun, Les droits de l’homme en Islam, cited in footnote 5, p. 33).

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Thus, the rights derived from human dignity are recognised for all, but on the grounds and with the scope and limitations laid down by Islamic religious law. In this respect the statement of the ICN Declaration, the universal Islamic Declaration of Human Rights, is illustrative.

4. T H E S PE C I A L R E L EVA N C E O F T H E R E S P O N S I B L E E X E RC I S E O F R I G H TS I N I S L A M The first consequence of the above is that rights and freedoms are not understood without a reference to the obligations and duties of the individual: it is their responsibility to God that results in the granting of such rights.30 Their observance, states Al-Ansari, is itself an obligation under the mandate to do good and avoid evil that, according to Islam, is based on the following precepts of Sharia: “Let there be a community that calls upon good, enjoining what is right and forbidding what is wrong! Those who so do shall be those who prosper.”31 The inseparability of rights and obligations is reflected in the text of the Islamic declarations. At times, before stating the list of rights, it is clarified that although there is no reference to duties, each right is at the same time a duty for others, that is, the rights of subjects are duties for their leader; the rights of the father are obligations for the child; the rights of the wife the duty of the husband and vice versa, and so on. In addition to this general warning, the explicit reference to duties is frequent in the text. For example, 30

Seyyed Hossein Nasr writes: “We have certain obligations to God, to nature and to human persons... As a result of compliance with these obligations, we obtain certain rights and freedoms that are defined by the Divine law.” Quote contained in R. Traer, “Le soutien des musulmans aux droits de l’homme,” in Conscience et Liberté, 49 (1995): p. 19. 31 Qur’an 3, 104. The Prophet also said: “The best act of yihad (fighting for the cause of God) is a word of truth spoken to the unfair governor.” And the Holy Book declares: “If two factions among the believers should fight, then make settlement between the two. But if one of them oppresses the other, then fight against the one that oppresses until it returns to the ordinance of Allah. And if it returns, then make settlement between them in justice and act justly. Indeed, Allah loves those who act justly” (49, 9). Sharia scholars agree that the observance of the good and evil prohibition —and therefore respect for human rights—, is not a recommendation but an obligation and an imposition that individuals cannot give up (Statement by AlAnsari contained in the summary of the seminar “Enriching the universality of human rights. Islamic Perspectives on the Universal Declaration of Human Rights.” HR/IP/SEM/1999, part. I, 15 March 1999, p 17).

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Article 12 b of the CIE Declaration states that thought exercised freely and the pursuit of truth are not only a right but a duty.32 It may be appropriate to illustrate this concept of protection of rights indivisible from responsibilities with reference to one of today’s conflicts in which the Islamic and Western perspectives have collided. I refer to the one that has arisen when freedom of expression has been used to defame religion or hurt religious feelings.33 Since the fatwa34 launched by the Ayatollah Khomeini against Salman Rushdie on February 14, 1989, for the publication of his book The Satanic Verses,35 names such as Theo Van Gogh, Hirsch Ali, Abu Zeid, and the Danish newspaper Jyllands-Posten that published cartoons of Mohammed, have become sadly notorious. Both freedom of expression and religious feelings are legally protected in both cultures and legal systems. However, when they collide with each other, the West is especially hurt by a restriction of freedoms it considers almost sacred, and that have cost so much effort to achieve, so any restriction or censorship produces fear and rejection.36 Islam, in contrast, is pained most by the

32 The Qur’an, 34:46. “Say: ‘I exhort you only to one thing: to put yourself before God, in pairs or alone, and meditate.’” It also defends life, not only as a right but also as a duty. Section 1 of the Declaration of the ICE, quoting the Qur’an (5.32), says that life is sacred, so it is a right that individuals, the State, and society shall ensure, but at the same time, states that “the continuity of human existence is a legal duty until God decides otherwise” (section 2, c of the Declaration of the OIC). The configuration of life as both a right and a duty arises from the fact that “life is a gift from God” (section 2 of the Declaration of the OIC). 33 I wrote about this conflict in Z. Combalía. “El derecho de libertad de expresión en el Islam: perspectiva comparada,” in Derecho islámico e interculturalidad. Z. Combalía, P. Diago, and A. González-Varas, eds. (Madrid: Editorial Iustel, 2011), pp. 217-261; Z. Combalía, “Libertad de expresión y difamación de las religiones: el debate en Naciones Unidas a propósito del conflicto de las caricaturas de Mahoma,” in Iustel. Revista General de Derecho Canónico y de Derecho Eclesiástico del Estado, 16 (January 2009). 34 A fatwa is defined as “a case-law opinion, an answer to a legal issue given by an expert in fiqh, an explanation a mufti gives of the application of the law in a particular case.” It should be noted that in Shi’ism, fatwas have special authority. See in F. Maíllo Salgado, Diccionario de derecho islámico (Gijón: Editorial Trea, 2005), pp. 79 and 80. 35 The text of the fatwa is as follows: “The author of The Satanic Verses, a text written, edited and published against Islam, against the Prophet of Islam and against the Koran, along with all publishers aware of its contents, are condemned to death. I invite all brave Muslims anywhere in the world to execute this sentence without delay, so that from now no one dares to insult the sacred beliefs of Muslims.” 36 Martín-Retortillo analyzes the conflicts between freedom of expression and respect for religious feelings. He writes that “poco será todo lo que se diga acerca del significado de la liber-

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West’s contempt of beliefs that are the essence of its identity, a contempt on the grounds of what it considers as a ‘frivolous’ exercise of freedom. It could be argued that, just as in the West, the emphasis is placed on freedom (maximum freedom possible, minimum necessary restriction); Islam stresses responsibility. Thus, Islamic statements or constitutions protect freedom of expression but do so in terms that are not common in the West. For example, Article 12.1 of the ICD Declaration states that “everyone has the right to think and believe and, therefore, to express what he/she thinks and believes without anyone interfering with or prohibiting this, always provided that he/she remains within the limits stipulated by Islamic law. Nobody has the right to disseminate or propagate error which could injure or debase the morality of the Islamic community.” In support of this last point, the Qur’anic verse states: “If the hypocrites whose hearts are sick, those who cause the disturbances in Medina, do not remain quiet, we shall put you against them and they shall remain no longer close to you: the damned, wherever they go will be captured and killed” (33, 60-61). Furthermore, Article 12.5 adds that “respecting the feelings of those who have different religious opinions is one of the virtues of Islam. Nobody is allowed to ridicule the beliefs of another or to arouse the enmity of society against him.” In support of this precept we quote the following Qur’anic verse: “Do not revile those whom they invoke instead of calling upon God, lest they out of spite revile God without knowledge...” (6, 108).37 The Islamic concept shows how in the tension between freedom of expression and religious feelings, the balance tips towards respect for beliefs, i.e., questioning the legitimacy of a freedom of expression used to offend betad de expresión en nuestras sociedades y, por ende, en nuestros sistemas constitucionales. No es el caso de recordar lo que ha costado alcanzarla. Tampoco de recalcar su destacado papel para el dinamismo y la vitalidad de nuestras sociedades” (L. Martín-Retortillo, “Respeto a los sentimientos religiosos y libertad de expresión,” in Anales de la Real Academia de Jurisprudencia y Legislación, 36 (2006): p. 593. 37 In very similar terms, section 22 of the OIC Declaration states that “1. Everyone has the right to freely express their opinion not so contrary to the principles of Islamic law (Sharia). 2. Everyone has the right to address the good, convenient ordering and forbidding the reprehensible, according to the rules of Islamic law (Sharia). 3. Information is a vital necessity to society. It is forbidden to exploit, abuse or attack the sacred or dignity of the prophets. It is also prohibited to act so as to violate the ethical values, promoting disintegration or corruption of society or undermine its beliefs. 4. You are not allowed stirring up hatred on grounds of nationality or religion, or encourage any form of racial discrimination.”

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liefs, considering this a freedom of a society with no values and the exercise of which cannot be defended, if not from frivolity. In the same vein, it should be noted that Islamic statements of rights, since they stem from a religious conception of man, “vicar of God on Earth,”38 are imbued with religious moral overtones. Thus, it is stated in the Declaration of the OIC that what makes people better is “godliness and good works,” (Article 1, b-), and it is also noted that true faith ensures the development of dignity along the path of human perfection, (Article 1, a-). The belief in the afterlife is alleged to discourage abusive or harmful behaviour of certain rights, e.g., regarding the prohibition of torture. Article 7 of the Declaration of the ICN notes, citing a hadith, that “God will torture in the afterlife those who have tortured down here.” In the same vein, Islamic declarations usually avail themselves of the right to live in an environment free of vice that favours the moral development of the individual.39 The ICE Declaration states that “everyone has the right and duty to ‘order what is advisable and forbid what is reprehensible,’ and also to demand from society company the creation of institutions that enable the individual to take on this responsibility to promote solidarity, good and devotion, as laid down by the Koran —3, 10440 and 5, 241— (Article 14 b).”

5. S H A R I A A S A G U I D E L I N E F O R , A N D L I M I TAT I O N O F, T H E R E C O G N I T I O N O F H U M A N R I G H TS I N I S L A M A logical consequence of considering that the origin of rights is in divine will, expressed in Sharia, is that the precepts of Islamic law operate as a limit to the recognition and scope of the rights it grants. This does not mean, contrary to what some argue, that the only human right in Islam is that of submitting oneself to the divine commandments. While it is true that such submission is the condition of the human being, states Baderin, the principle of legality is a fundamental principle of Islamic law in which all actions are

38

That is how the preamble of the Declaration of the OIC begins. Section 17,a of the Declaration of the OCI. 40 “And let there be [arising] from you a nation inviting to [all that is] good, enjoining what is right and forbidding what is wrong, and those will be the successful.” 41 “... And cooperate in righteousness and piety, but do not cooperate in sin and aggression. And fear Allah; indeed, Allah is severe in penalty.” 39

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legally permitted, except those clearly prohibited by Sharia, which means that the scope of these rights extends to everything not expressly prohibited.42 Thus, according to Islamic conception, human rights are recognised, provided that they do not violate Islamic religious law. The compatibility of human rights with Sharia is not only a limit but also a benchmark for the interpretation or clarification of rights. Thus, the OIC Declaration concludes affirming that “all the rights and freedoms set forth in this document are subordinate to the provisions of Sharia” (Article 24), and that “Sharia is the only source of reference to explain or clarify any article of this statement” (Article 25). In addition to establishing this principle across the board, it is recalled in each of the articles regulating specific rights.43 For example, in relation to freedom of opinion, it provides that “everyone has the right to freely express their opinion in a way not contrary to the principles of Islamic law.”44 It states that information is a vital necessity to society but in the exercise of this right one may not exploit, abuse, or attack what is sacred, or the dignity of Prophets, or violate ethical values, provoke disintegration or corruption of society, or damage or undermine beliefs. Regarding the protection of interests resulting from any scientific, literary, or artistic works,45 the author’s rights are subordinated to the condition that the production is not contrary to the provisions of Sharia. The declarations affirm that the limit to the right of asylum is constituted by the committing of an offence under Islamic law, and that there is no crime or punishment against the rules of such a law.46 Also, access to employment in public service refers to observance of the mandates

42 M. A. Baderin, International Human Rights and Islamic Law, cited in footnote 12, pp. 14 and 15. The Islamic law of human behavior leads back to five categories: ordered (wajib), recommended (mandub), allowed (mubah), disapproved (makruh), and prohibited (haram). Authorities cannot order what is prohibited by the Sharia, or prohibit what is ordered by it. However, they are entitled to order something that according to Islamic law is recommended or allowed, and to prohibit what is disapproved or prohibited. This is the framework that was traditionally given to the ruling norm. See for all A.R. Hammerton, “An Introduction to Islamic Law,” in Kenneth Robert Redden, ed., Modern Legal Systems Cyclopedia (Buffalo, New York: W. Hein, 1984), 6.A.240, p. 49. 43 This was highlighted in my previous study on the subject: Z. Combalía, Los ordenamientos europeos ante las minorías musulmanas, cited in footnote 18, pp. 486 and 487. 44 Section 22,a of the OCI’s Declaration. In the same sense, the ICE Declaration recognizes freedom of thought, opinion, and speech, within the limits established by the Islamic law in this area (section 12). 45 Section 16 of the OIC Declaration. 46 Cf. section 19,d of the OIC Declaration.

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of Sharia.47 Regarding the sources of wealth and means of production, it prohibits their use when this violates Islamic law, which condemns all forms of fraud, exploitation, or deception in the exchange of products,48 as well as monopoly, unfair competition, usury,49 and deceptive or fraudulent advertising.50 Fidelity to the values of Islam and respect for the interests of the Islamic community, it notes, are the only possible restriction to economic activity in Muslim society. This role of Sharia, as a guideline and limiter of human rights, is particularly relevant in areas such as personal status, closely linked to Islamic law. In a particular way, the rights that affect these issues are conditioned by the rules of Sharia.

6. S H A R I A

AS A

B O U N D A RY

AND

W O M E N ’ S R I G H TS

One of the main points of contention in regard to consensus over human rights is the one that affects the rights of women in Islam. It is not for us to go into this question in depth here, however, as this is an issue beyond the scope of this paper. We shall simply refer here to the position of women in Sharia, in order to determine to what extent it is responsible for the violations of rights that women suffer in some current regimes, and if possible, a development in this field. a) Women in Sharia The revelations that, in the opinion of Muslims, are covered by the Qur’an and Sunnah date back to 610-632. This is a time when not only the Arab communities where Islam emerged but also society at large were organised around the patriarchal patterns of male primacy that were also to inspire Islamic law enacted in the 7th century. The Qur’an, affirming the equal dig-

47

Cf. section 23,b of the OIC Declaration. The Qur’an 83:1-3. “Woe to those who give less [than due], Who, when they take a measure from people, take in full. But if they give by measure or by weight to them, they cause loss.” 49 The Qur’an 2:275. “Those who consume interest cannot stand [on the Day of Resurrection] except as one stands who is being beaten by Satan into insanity. That is because they say, ‘Trade is [just] like interest.’ But Allah has permitted trade and has forbidden interest...” 50 Section 15,f of the ICE Declaration. 48

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nity of men and women as human beings, maintains male primacy, however, in the family and society. The Qur’anic basis for defending equality in terms of human dignity is based on the following verses or aleyas that refer to the origin and common nature of man and woman. Thus, we read in the Qur’an: “Never shall I let any of your works be lost, whether of a man or a woman, for you have come from each other...” (3, 195), or “Men! Fear your Lord, Who has created you from one single person, from whom he created his mate, and from whom have spread a large numbers of men and women! ...” (4, 1). This equal dignity does not translate, however, into the same legal position.51 Men and women play different roles in the family and society and primacy belongs to men, as noted in the following verses: “...They (women) have rights equivalent to their obligations, according to the use (of those rights), but men are a degree above them...” (2, 228), “Men have authority over women by virtue of the fact that Allah has given preference to some more than to others and the wealth that they spend. Righteous women are devoutly obedient and, in the absence of their husbands, care for what Allah has cared for. Reprimand those from whom you fear disobedience, leave them alone in bed, beat them! If they obey you, do not interfere more with them. Allah is sublime, he is great” (4, 34). Since the roles of men and women are not the same, their rights and obligations are not the same either. The main duties of each of the parties, as emerges in Sharia, are as follows:52 Men hold the obligation to pay the dowry (mahr) to women entering marriage53 and to support them (nafaqa),54 even if they have more resources than the husband. Women are not obliged to spend 51

“This equality in dignity but differentiation in terms of legal position is reflected in the Declaration of Human Rights in Islam promulgated by the Organization of Islamic Conference (OIC) in 1990 which states that “women are equal to men in human dignity ; their rights are equivalent to their duties... “ (section 6). 52 For a more detailed explanation on these issues see: Z. Combalía, “Mujer y matrimonio en el derecho islámico,” in Conciencia y Libertad, 13 (2001); Z. Combalía, “¿Igualdad o equidad?: el reconocimiento en occidente de instituciones islámicas de inspiración patriarcal,” in Políticas de igualdad y derechos fundamentales, B. González Moreno, ed. (Valencia: Editorial Tirant lo Blanch, 2009), pp. 253-298. 53 On Islamic mahr see: O. Spies, The Encyclopedia of Islam, vol. VI (Leiden: Brill,1986), p. 79 and ff.; M.A. Wani, The Islamic Institution of Mahr: A Study of its Philosophy, Workings and Related Legislations in the Contemporary World (Noonamy: Upright Study Home,1996); Y. Lienant de Bellefonds, Traité de Droit musulman comparé, vol. 2, (Paris and La Haya: Mouton, 1965), pp. 199 and ff.; L. Milliot y F.P. Blanc, Introduction à l’étude du droit musulman (Paris:

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anything to support themselves. In return for their dowry and right to a livelihood, women must obey their husbands and ensure the smooth running of the house. Sharia does not expressly prohibit women working outside the home. Furthermore, it expressly lays down that if a woman works, she has the right to a fair salary, just as men do. Thus, the Qur’an states: “men have a portion of what they have acquired. Women have a portion of what they have acquired” (4.32), and a number of women contemporary with the Prophet —among others, Aisa, his wife— took an active part in politics.55 However, while for the male work is a legal and religious duty, for women this is optional. If they work, this is through their own personal desire and decision, provided that this desire does not affect their role in the family and is compatible with the first duty of women, which is to look after the home and children and obey their husbands. As regards access to education, Islam prescribes this as a right and duty on equal terms for both men and women,56 lending support to the finding that the differences between the rights of the two genders are not so much because women are considered inferior to men, but more due to the different roles assigned to each and the primacy of the male. In short, Islamic law, by virtue of its patriarchal inspiration, does not accept equality between men and women, rather fairness due to the fact that each is ascribed different rights and obligations corresponding to him or her by virtue of the different roles they play in society. Thus, while non-discrimination in the West results in recognition of equal rights and obligations without discrimination based on gender, Islam believes that there is no disDalloz, 2001), pp. 292 and ff.; J. J. Nasir, The Islamic Law of Personal Status, (La Haya-London-New York: Kluwer Law International, 2002), pp. 83 and ff. 54 On nafaqa see: Y. Lienant de Bellefonds, Traité de Droit musulman comparé, cited in footnote 53, pp. 259 and ff.; J. J. Nasir, The Islamic Law of Personal Status, cited in footnote 53, pp. 97 and ff. There are strong foundations for these duties of the husband in the Qur’an. Therefore, with respect to the duty of support, it is claimed, for example: “...Upon the father is the mothers’ provision and their clothing according to what is acceptable” (2: 233). 55 About the role that Aisa played see: H. Afshar, “Islam and Feminism: An Analysis of Political Strategies,” in Feminism and Islam. Legal and Literary Perspectives, M. Yamani, ed. (Reading, UK: Ithaca Press, 1997), p. 199. 56 For example, section 21 of the Universal Islamic Declaration of Human Rights promulgated by the Islamic Council of Europe in 1981 states that “education is a right for all. The pursuit of science is also an obligation of all men and women.” This statement is rooted on the following hadith or saying of the Prophet: “The pursuit of science is a divine precept imposed on every Muslim man and every Muslim woman.”

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crimination as a result of giving each gender the rights that correspond to it, which are not the same but are consistent with the different roles that men and women play. Therefore, there is no question of equal rights and obligations but complementary ones and, from this Islamic approach, it is this complementarity that ensures balance and social harmony.57 b) Islamic Feminism Rooted in Sharia In the Islamic world there are key feminist movements fighting for the rights of women from different approaches. Islamic feminism as such is not an imitation of the West’s, but rather turns to the origins of Islam and divine revelation.58

57 This view is reflected in international forums on non-discrimination of women. Islamic States tend to subscribe to UN treaties on human rights but sometimes introduce reservations, such as: “to the extent they are compatible with Islamic law,” so that it is unclear the extent of commitment that the State contracts. For this reason, reservations raise objections in other States. Particularly significant is the statement of the Egyptian government in one of his reservations to the Convention on the Elimination of all Forms of Discrimination against Women, affirming that equality in these terms is inconsistent with Sharia law and the protection of the sacred bond of marriage. What preserves the marriage, said the Egyptian representative to justify the reservation, is the balance that is established by recognizing women’s rights and responsibilities as equivalent to those of her husband in a framework of complementarity rather than identity. Thus, as regards section 16 of the Convention (“States Parties... shall ensure, on a basis of equality between men and women... the same rights and responsibilities during marriage and at its dissolution”), the Egyptian representative claimed that the precepts of the Sharia dictate that the husband pays the dowry to the woman and supports her completely, and also pays an amount in case of divorce, while the wife retains full rights to their property and is not obliged to spend anything on maintenance. Therefore, he concluded, the Sharia restricts women’s rights to divorce linking it on a judgment, while for the husband there is no such restriction set. On Muslim States and the Convention against Discrimination of Women, see also: J. Connors, “The Women’s Convention in the Muslim World,” in M. Yamani, ed. Feminism and Islam. Legal and Literary Perspectives, cited in footnote 55, pp. 351-366; B.A. Venkatraman, “Islamic States and the United Nations Convention on the Elimination of All Forms of Discrimination Against Women: Are the Shari’a and the Convention Compatible?” in The American University Law Review, (Summer 1995): p. 44. 58 Some of them have been developed in relation to the Islamist political movements. H. Afshar notes that it is the case of a major segment of the female population of Iran who supported the Khomeini revolution, hoping that the revolution, by returning to the origins of Islam, would improve the situation of women. The feminism featured by these movements differs from Western feminism, which has been criticized not only for being a past tool for

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The trends that claim that full equality between men and women is compatible with Islam are based on the fact that Sharia, at the time of its enactment, was a breakthrough in the situation of women, and this is the Islamic spirit that should be brought to the fore, contextualising it within a new society that has abandoned its patriarchal schemes.59 As regards the improved status of women, it is often emphasised that Islam forbade infanticide of baby girls, which was widely practiced at that time. Regarding polygamy, a practice common in pre-Islamic societies, Sharia regulates this, setting limits —up to four wives— and requirements that aim to protect women by requiring a commitment from men to treat the different wives fairly. Repudiation, also a practice before Islam, though not forbidden is considered morally reprehensible behaviour. Thus, according to a saying attributed to the Prophet, “among things lawful, none is more hateful to Allah than that of repudiation.” Finally, it emphasises the Islamic provisions on property: marriage does not affect the assets and earnings of the parties, and women can freely avail themselves of and manage their own assets without the intervention or consent of their husbands, a provision that was certainly advanced in the time it was enacted. colonialism, but also for focusing on women’s access to the labour market. Accordingly, Western feminism would only be valid for a minority wealthy class, which is very unrealistic for most women worldwide. They point out that this type of feminism leaves little room for marriage and motherhood. This would lead women to loose the respect and recognition they deserve. It encourages a model of woman as both a sexual object and second-class citizen, because in her efforts to resemble the man she can never equal him. On the contrary, Islamic feminism advocates complementarity and opportunities for women to be educated and trained, and at the same time that leaves space for motherhood, marriage, and home. Unlike wild capitalism, Islam pays attention to the different life cycles of women. This different view of Western and Islamic feminism is manifested, for example, in the issue of the veil. While in the West it is seen as a sign of oppression, Islamic feminism sees it as a sign of liberation, as it allows women to see unobserved, free them from the tyranny of fashion and beauty stereotypes and sexual harassment, and allow them to earn respect. However, Islamist feminists criticize their use that is, as in Iran, mandatory, because they understand that it is something that should be left to the discretion of women. The important part of the implementation of the Islamic revolution in Iran was not to introduce this new and genuine feminism, but to make laws injurious to women’s equality and without any Quaranic justification. Relying on the Islamic character of the Republic of Iran, some women have challenged these measures, which limit their rights, for example in the field of education. They have made some progress but very little and very slowly (H. Afshar, “Islam and Feminism: An Analysis of Political Strategies,” in Feminism and Islam. Legal and Literary Perspectives, cited in footnote 55, especially pp. 199-202). 59 See, for example, J. Connors, “The Women’s Convention in the Muslim World,” in Feminism and Islam. Legal and Literary Perspectives, cited in footnote 55, p. 364.

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Thus, if at the time Islam was not a setback but rather an improvement in the position of women, the problem is not the provisions of Sharia in their historical context, but rather the application of those provisions in today’s society. Should these provisions be applied literally or, conversely, should the spirit or principles that inspired them be taken, adapting these to new contexts? The answer to this question, i.e., the ability to adapt and update Islamic law, is a highly complex issue that far exceeds the aim of this work. However, the reform of the Moroccan family law of 2004, which we will analyse below, illustrates the evolution taking place in the Islamic world towards greater protection of women’s rights, coupled with the difficulties in achieving full equality. c) The Moroccan Mudawana as an Example of Islamic Reform toward Greater Equality for Women The new Moroccan family code, Mudawana, came into force on February 3, 2004,60 appearing as an example of the modernisation effort (ijtihad) and promotion of human rights, especially women’s, in line with the Islamic tradition and its spirit; in fact, it was enacted by Mohammed VI in his capacity as prince of believers.61 These two principles that have guided the reform (the desire for modernisation and a respect for Islamic tradition), figure explicitly in the preamble of the law as guiding principles, by stating that the Sovereign has insisted on this in the need to adhere strictly to the spirit of the true purposes and intentions of Islam, generous and tolerant. Likewise, his Majesty has urged members of the Commission to take advantage of the ju-

60 Act n. 70.03 (Official Gazette n. 5358 of October 6, 2005, p. 667). As noted at the beginning of this work, the success of the new code is due to the efforts of the monarch to rally support from all sectors of society and present it in line with Islamic culture and tradition. This is expressly stated in the preamble of the law that reflects the monarch’s speech saying that the reforms “must not be seen as a victory of one sector over another, but as taken for the benefit of all Moroccans.” On the new Mudawana see: A. Chakkor, “La Mudawana. El Código de Familia en Marruecos,” in http://www.wmaker.net/profesislam/docs/genero/mudawana.pdf; M.P. Diago, “La Nueva Mudawana Marroquí y el Derecho Internacional Privado.” in Revista Española de Derecho Internacional, LVI.2 (2004): pp. 1078-1083. 61 Section 19 of the Constitution states that the King is “the prince of believers and defender (...) of religion.” On the meaning and scope of this provision see: R. Fakhri, “Derecho y religión en el Reino de Marruecos,” in Revista General de Derecho Canónico y Derecho Eclesiástico del Estado, 28 (2012).

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risprudential effort of the Ijtihad, taking into account the spirit of the time, the imperatives of development, and the commitments made by the kingdom to human rights as they are universally recognised.62

From this spirit of modernisation that is respectful to Islam, significant strides have been made towards equality for women. In the speech delivered by the King on the opening of the seventh parliamentary term —a speech that has been set within the preamble of the law— Mohammed VI stresses that the new law intended “to adopt a modern formulation in place of those concepts that could undermine the dignity of women and humanism, and to place the family under the joint responsibility of both spouses.” The king supported this aim upon the Prophet’s sayings that state that women are equal to men, and he who honours women is noble and ignoble he who humiliates them. As for the main reforms undertaken for this purpose, the following, among others, may be highlighted: a) The family comes, in Article 4, under the joint responsibility of both spouses, not just the husband’s as in earlier legislation, establishing a relationship of male authority and female submission.63 Consistent with this joint responsibility, this former distinction between the rights and obligations of the husband,64 those of the wife,65 and those of both66 has been removed from the Mudawana. The current code regulates them jointly in Article 51 as follows: 62

With regard to the effect that the enactment of the new Mudawana may have in the Islamic world, the Advisory Council on Human Rights of the Kingdom of Morocco says in the Annual Report on Human Rights Situation in 2004, mentioned above, that “the family Code with its innovative spirit and language, and with the measures stipulated in favor of the family, has sent an important message to a political and intellectual level. This message was captured directly or indirectly by various countries and various parts, what gives to this ‘Moroccan’ event a nuance that goes beyond our national borders” (n. 26). 63 Thus, the previous article 1 defined marriage by referring to the “creation of a stable family under the husband’s responsibility,” while the current article 4 refers to “the creation of a stable family under the leadership of spouses.” 64 The previous article 36 stated that “the husband’s rights over his wife are: a) the fidelity and honesty of his wife, b) to the obedience of his wife, according to custom; c) to breastfeed their children if she can, d) the supervision of the house and the organization of its affairs; e) respect for parents and relatives of the husband, according to custom.” 65 Article 35 of the previous Mudawana stated that “the rights of the wife on her husband are: a) the legal support such as food, clothing, medicine and housing; b) a fairness and equal treatment, if man is married to more than one wife; c) to receive visits from her family and visit them, according to custom; d) the complete freedom to manage her property without her husband’s control, the latter has no power over the property of his wife.”

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The reciprocal rights and obligations between spouses are: 1) Legal cohabitation involving marital intimacy; justice, and equality in the case of polygamy; the honesty of both and their loyalty to one another with the obligation of virtue, honour and protection of procreation. 2) Good coexistence, mutual respect, affection and understanding, as well as the safeguarding of the family’s interests. 3) The assumption by the wife, along with the husband, of the responsibility of organisation and care of household chores and children. 4) Mutual consultation regarding the adoption of decisions concerning the organisation of the affairs of the family, children and birth control. 5) Proper treatment by both spouses of their parents and relatives, within the degree prohibited for marriage, respecting them, visiting them and likewise in the correct manner. 6) The right of succession between the two.

b) The protection of adult women in the celebration of marriage is laid down as a right that the woman may exercise or not, according to her will.67 Thus, Article 25 states that “women of age may marry on their own initiative or entrust this to their father or one of their relatives.” The new wording is based on the Qur’anic text that provides for freedom of women in marriage as follows: “Do not forbid them (women) to marry their husbands if they are both agreed” (2: 232). c) The new Mudawana prescribes equality between men and women over the age for marriage, fixing this at eighteen for both, although if there is a reasoned court decision, after hearing the representative of the child, when there is a well-justified cause marriage of a minor may be authorised.68 The child’s age is also matched, fixing this at fifteen years for both men and women with regard to the choice of parent or guardian to take custody in the case of the dissolution of the marriage. d) The new code restricts the right of the husband to repudiation, linking this to rules and conditions that seek to prevent abuse of his powers and sub-

66 The previous Mudawana held that “the reciprocal rights and duties between spouses are: a) legal cohabitation, b) social interaction, mutual respect and affection, as well as safeguarding the assets of the family, c) the right of succession between spouses; d) the rights of the family, such as the parentage of the children and the sanctity of kinship by marriage “(Article 34). 67 On the role of tutor in the provision of consent see Z. Combalía, “Mujer y matrimonio en el derecho islámico,” in Conciencia y Libertad, 13 (2001). 68 The previous Mudawana stated that “the ability to marriage is acquired by the young man at eighteen years old and, if he is in risk of committing fornication, you can submit the case to the judge. The girl at fifteen years” (article 8).

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mitting this to judicial control. To justify these restrictions we should mention the saying of the Prophet, quoted in the preceding chapter, that qualifies repudiation as lawful but reprehensible. After the reform, marriage can now be dissolved under judicial control, at the request of either the husband or wife, and divorce by mutual consent is also introduced.69 Despite major advances that point to the feasibility of improving the status of Islamic women, the new Moroccan Mudawana also reflects how the road to full legal equality between men and women is difficult to cover within respect for the sacred texts of Islam. Thus, the reform has encountered some obstacles, as Mohamed VI said himself in that speech included in the preamble of the law, “I cannot, in my capacity as Emir of believers, authorise what God has forbidden, or prohibit what has been authorised.”70 d) The New Mudawana and the Difficulties of Full Equality for Women that Are Compatible with Islam The result of the difficulties pointed out is the maintenance of the following institutions contrary to the equality of women in the new Mudawana. i) Polygamy As is well known, Islam allows polygamy for men, who can have up to four wives if they are capable of giving all of them fair treatment, while this is forbidden for women.71 Regarding polygamy the Qur’an states: “Then, 69

In the previous regulation, while the husband could dissolve the marriage unilaterally without cause or legal proceedings, the wife could only go to divorce court for some of the causes of failure by the husband of his obligations provided for by law, or for repudiation by the husband for compensation, waiving her rights. 70 Vid supra footnote 42. 71 On Islamic polygamy see: Ibn Rushd (Averroes), The Distinguished Jurist’s Primer. A Translation of Bidayat Al-Mujtahid, vol II. Imran Nyazee, trans., M. Abdul Rauf ed. (Reading, UK: Garnet Publishing, 1996), pp. 47 and ff.; Y. Linant de Bellefonds, Traité de Droit musulman comparé, vol. 2, cited in footnote 53, pp. 134 and ff.; J.J. Nasir, The Islamic Law of Personal Status, cited in footnote 53; D. Pearl, A Textbook in Muslim Personal Law (London; , 1987), pp. 78 and ff.; D.S. El Alami and D. Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab World (London-Boston: Kluwer, 1996), pp. 17 and ff. Among the contemporary legal doctrine, cf., for example, in defense of polygamy: W. Khan, Woman in Islamic Shari’ah (New Delhi: Islamic Centre, 1995), pp. 115-124.

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marry the women of your choice, two, three or four. But if you fear you are acting without justice, then marry only one or marry your slaves. Thus, this will better prevent you from doing injustice” (4, 3). Based on this verse, the traditional acceptance of polygamy has been supported in part —“Marry the women of your choice, two, three or four”— while the second part —“but if you fear to act unjustly, then only one”— some authors have claimed to defend an implicit Islamic requirement of monogamy, saying it is impossible for a man to attempt to be fair and impartial towards several wives. Thus, by linking the acceptance of polygamy to an impossible condition, implicitly monogamy is being established, except perhaps in one or two rare cases. This interpretation is also backed by the verse of the Qur’an that states: “You cannot be fair to your wives, even if you wish to be” (4, 129). On the basis of this regulation, could polygamy be banned without contradicting Sharia? Although there are different answers to this question from Muslim scholars, the truth is that the Tunisian Code of Personal Status has done so.72 The argument over the compatibility of this prohibition is based on the fact that polygamy is not orderly conduct for Islam, and only allowed under certain conditions, so it would be within the margin of discretion of a ruler to forbid it without violating Islamic law. In the case of the new Mudawana, polygamy has not been abolished completely, although it remains in a highly limited form.73 Although the ban on 72

Cf. section 18 stating that “polygamy is forbidden. Anyone who gets married, being married and before the dissolution of the previous marriage shall be punished with imprisonment for a period of one year and a fine of two hundred forty thousand francs or one of the two penalties, even if the new marriage is not contracted under the provisions of this Code.” 73 The preamble assumes the Islamic restrictive interpretation that we have set out, describing polygamy as “almost impossible” in Islam, because of the requirement of equal treatment. Nevertheless —as added in the preamble to justify its maintenance—, “we kept the spirit of remarkable wisdom of Islam which allows men to legally take a second wife on grounds of force majeure, according to strict and draconian criteria and, moreover, with judicial authorization. In contrast, in the event of a formal prohibition of polygamy, man would be tempted to resort to an illegal, de facto polygamy. Thus, polygamy is permitted only according to the following legal conditions: a) The judge shall authorize polygamy only after ensuring the ability of the husband to treat his wives and their children fairly and equally, and to guarantee them the same conditions of life, and if an objective and exceptional argument concurs to justify recourse to polygamy; b) women can subordinate their marriage to the condition included in the contract, that her husband agrees to refrain from taking more wives. (...) In the absence of such a condition, the husband should ask the first wife for her consent, inform the second wife that he is already married and also obtain her assent. It is also allowed the woman whose husband takes a second wife file for divorce because of damage suffered. “

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polygamy in Mudawana could stand in accordance with the rules of Islam, it was felt, however, that it better fitted the Islamic spirit to keep it only in highly exceptional cases in order to better protect women who otherwise would, due to divorce, be left in a worse condition. This has been argued as evidence of ‘equity’ in law, in a society where at least in certain environments, even in the absence of full social equality, full legal equality could work against the weaker party, in this case, women. ii) The Prohibition of Intermarriage for Women While Muslim men can marry a Muslim woman or one belonging to any religion in the Book, Muslim women can only marry a Muslim male.74 In contrast to our conclusion that, under certain interpretations of Islam, among others the Tunisian Code, it is possible to prohibit polygamy without infringing on the Sharia, this is more doubtful in the prohibition of mixed marriages of Muslim women. Polygamy, as this is behaviour merely tolerated by the Qur’an with certain requirements, may be restricted or even prohibited without violating the divine law. This is not so in the case of mixed marriages of Muslim women, which are banned, so there is no authorisation that doesn’t directly violate Sharia. Although within the plurality and diversity of interpretations that converge in Islam there are some that defend the Islamic viability of women’s intermarriage, these are interpretations that, at least today, are still minor and it is unlikely that they be considered orthodox.75 In 74 It should be noted that the reasons for this difference are partly based on the fact that under Islamic law it is the father who is considered to pass religion to the children. That is, the son of a Muslim father is Muslim. There are also references to a patriarchal context, where it is easier for women to be influenced by the faith of their husbands than vice versa. 75 See, for example, Abu Zeid’s interpretation in: “Rethinking the Quran: Towards a Humanistic Hermeneutics,” text of the lecture pronounced in the Symposium organized by the Cairo Institute for Human Rights Studies titled “Human Rights and Renewing of Religious Discourse: How Can the Arab World Benefit from Experiences of the Non-Arab Islamic World?”, Alexandria, Egypt (18-20 April 2006), in http://www.cihrs.org/Act_file/PDF/47_ 2552006425.pdf, pp. 9 y 10. He argues that while in 5:5 the Qur’an allows Muslims to marry non-Muslim women, this permission seems revoked in 2:221. On the apparent contradiction, the first question to be asked is which of the two provisions prevails. Averroes refers to two positions among lawyers regarding the first question. A (majority) position would be those who allow intermarriage for men considering that the verse 2:221 is the general rule (it is generally preferable to marry a Muslim woman), while considering that the verse 5:5 particularizes the general case allowing intermarriage. The second position (held by the minority) would be that

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fact, none of the personal statute codes in the Islamic world allow intermarriage by Muslim women.76 This is one of the constraints Mohamed VI was under when approving the new Mudawana in his capacity as Emir of the believers, and hence, Article 39 points out that “the marriage of a Muslim woman to a non-Muslim man and the marriage of a Muslim male to a non-Muslim female, unless she belongs to the people of the Book, is prohibited as temporary disabilities: (...).” iii) Provisions on Succession As regards the issue of inheritance, the Qur’an includes an extensive and detailed regulation of the inheritance law that, consistent with other provisions on the family, is of patriarchal inspiration77 in that the portion of inof those who believe that intermarriage is forbidden because the verse 2:221 repeals 5:5. Abu Zeid goes beyond these interpretations. Considering the Qur’an not as text but as a discourse (on this issue vid infra footnote 78) and therefore without the need of being fixed, it raises a second question, namely, whether permission granted for intermarriage in the Qur’an, referring only to Muslim men, should be extended to women today. To this question Abu Zeid replies by stressing that the recipients of the Qur’anic discourse on marriage and divorce were male, because it was a speech pronounced in a patriarchal context. In the new contexts where equality is an essential component, equity in a mixed marriage is possible. According to Abu Zeid, when the ulemas advocate a ban for women to participate in a mixed marriage, they do so because they are anchored in a patriarchal vision and understand that a Muslim husband will not respect the faith of Muslim women. They also think that while the faith of non-Muslim women can be protected by a male Muslim faith because Islam respects Christianity and Judaism, this does not apply the other way round: Christianity recognizes only Judaism, and Judaism recognizes neither Christianity nor Islam. The ulema, according to Abu Zeid, denying intermarriage for Muslim women are influenced by a patriarchal vision and a religious worldview: the decision of marriage is or should be at the author’s opinion, a decision of the individual; the matter under discussion is not intermarriage but individual freedom that includes freedom of religion and belief. 76 In the case of Tunisia, section 5 of the current Personal Status Code states that “the future spouses shall not be in any of the cases of disability provided by law.” A circular from the Ministry of Justice of 5 November 1973 stated that “section 5 of the Code states, since its enactment, the nullity of the marriage of a Muslim woman to a non-Muslim man, since it provides that spouses should not be none [sic] of the cases of legal impediment to marriage. The most important impediment is the marriage of the Tunisian Muslim to a non-Muslim.” A presidential decree of 1992 repealed the previous circular. Therefore, nowadays intermarriage between Muslim women is not prohibited in Tunisia, but it is not expressly permitted. 77 In this respect, the main verses are set out in the fourth sura as follows: “11) Allah instructs you concerning your children: for the male, what is equal to the share of two females.

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heritance corresponding to the woman is, where the relationship is the same, half of what corresponds to the male. These provisions are clearly considered unequal but fair, to the extent that they are in harmony with the other provisions of the Qur’an, specifically with the mahr or dowry that the husband should pay for marriage and, especially, with the nafaqa or duty to support women and minor children that always falls upon the nearest male relative, without the woman being required to contribute anything to support the family. Substituting fairness for equality between men and women in matters of inheritance is a task that can hardly be undertaken without violating the precepts of the Qur’an, as the tone of the verses is clear: i.e., given their numerical nature, they are ‘closed verses’ that leave very little margin for interpretation. This explanation shows that the new Mudawana, in its eagerness to move towards greater equality for women, could not consecrate this on questions of inheritance as doing so would have meant a violation of divine law. In fact, as was the case with the prohibition of intermarriage, the provisions on unequal succession with the wife have been maintained in all family codes in the Islamic world, even in the most advanced and in the Tunisian case. There are some Muslims who have held different interpretations, but they are generally considered heterodox. A case in point is Abu Zeid, a professor at But if there are [only] daughters, two or more, for them is two thirds of one’s estate. And if there is only one, for her is half. And for one’s parents, to each one of them is a sixth of his estate if he left children. But if he had no children and the parents [alone] inherit from him, then for his mother is one third. And if he had brothers [or sisters], for his mother is a sixth, after any bequest he [may have] made or debt. Your parents or your children —you know not which of them are nearest to you in benefit. [These shares are] an obligation [imposed] by Allah. Indeed, Allah is ever Knowing and Wise. 12) And for you is half of what your wives leave if they have no child. But if they have a child, for you is one fourth of what they leave, after any bequest they [may have] made or debt. And for the wives is one fourth if you leave no child. But if you leave a child, then for them is an eighth of what you leave, after any bequest you [may have] made or debt. And if a man or woman leaves neither ascendants nor descendants but has a brother or a sister, then for each one of them is a sixth. But if they are more than two, they share a third, after any bequest which was made or debt, as long as there is no detriment [caused]. [This is] an ordinance from Allah, and Allah is Knowing and Forbearing (...) 176) They request from you a [legal] ruling. Say, ‘Allah gives you a ruling concerning one having neither descendants nor ascendants [as heirs].’ If a man dies, leaving no child but [only] a sister, she will have half of what he left. And he inherits from her if she [dies and] has no child. But if there are two sisters [or more], they will have two-thirds of what he left. If there are both brothers and sisters, the male will have the share of two females. Allah makes clear to you [His law], lest you go astray. And Allah is Knowing of all things.”

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Cairo University, who for defending these theses in the interpretation of the sacred texts was considered by Cairo court proceedings to be apostate, and his marriage was dissolved against the will of both parties. The Egyptian court ruling stated: The court wishes to share some quotes from the writings of the defendant. The defendant concludes in his book that the Qur’anic text represents a period in the understanding of the Prophet and his people, and that there has been progress in understanding and history, and that the psychological images have changed and today must be understood according to the current culture of society. Therefore, the defendant denies the divine claim that the Qur’an is the Truth and that what it contains is the truth.

The court then cited examples in the book of the defendant: On page 105 the defendant states, ‘with respect to inheritance and all aspects relating to women, we understand that Islam stipulated that to women will correspond half of the portion of the inheritance to the male, in a time when women were not allowed to inherit anything, in a social and economic culture in which women were mere property of men. The Qur’an is clear and it is not acceptable to understand that Ijtihad should stop at the point where the divine revelation left off since, otherwise, the idea of its applicability at all times and places would be destroyed.’ These passages show that the defendant rejects the stagnation of Ijtihad in the divine revelation and understands that it must be developed further in the aspects mentioned in line with the historical context... The court found no opinion asserting that the person committing the above crimes was not apostate. Agreement that anyone who trivialises the Qur’an or modifies it is an apostate is unanimous, and that anyone who says something that is contained in the Qur’an is a lie, or knowingly tests out something that contradicts what the Qur’an states, is an apostate according to the unanimous opinion of all scholars...78

78 Court of Appeal of Cairo in the case n. 287 of June 14, 1995, against: 1. Nasr Hamid Abu Zeid, 2. Ibtihal Ahmed Kamal Yunis. Subsequently, the author has advanced in his reinterpretation of the Qur’an, considering it not as text but as a discourse, a consideration that derives from the internal structure of the Qur’an. From this perspective we would not pretend to ‘recontextualize’ a passage, but to consider that the passages are dynamic. In his view, if we face the Qur’an as a text, the result will always be a totalitarian interpretation, claiming to be true, whereas if we invoke its living condition, as ‘speech,’ we achieve democratic, open interpretations. An approach to the Qur’an as a text, even when it serves the broader and more flexible techniques of literary interpretation, will always be reductive and not be exempt from the risk

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e) Women, Islam and Human Rights: Concluding Summary Sharia, considered by Muslims as divine law revealed, offers a family model clearly inspired in the patriarchal, corresponding to the time of its enactment in the seventh century. Based on this model in which primacy is attributed to the male —he is the head of the family—, the Qur’an provisions seek to protect women and prevent the abuse of male supremacy. In fact, at the time in history when it arose, Islam marked a degree of progress in the position of women, introducing significant improvements such as those that relate to their ability to possess assets. Thus, the underlying problem is not so much the position of women, but the broader adaptability of Sharia, its suitability to be interpreted in line with developments in society,79 in the case of women, in line with the evolution from a patriarchal model to one of equality and responsibility. As we have seen, the new Moroccan family code is a paradigm of the ability of Islamic

of ideological and political manipulation that has been happening throughout history. For Abu Zeid, the Qur’an is a living phenomenon, just as is the music played by an orchestra, while the Mushaf (written text) is silence. A more detailed explanation of this understanding of the Qur’an can be found at: Nasr Abu Zeid, Rethinking the Quran: Towards a Humanistic Hermeneutics, cited in footnote 75. 79 Many Islamic law scholars consider that this is not an immutable divine body. Such consideration would be a confusion between the Sharia and Fiqh. Although both refer to Islamic law, the first refers primarily to the sources, the second to method. Islamic law original sources are divine and immutable. The methods of law, that is, the understanding and application of Sharia, are human and can change over time due to different circumstances. Moreover, while the Sharia covers various aspects of human life (legal, moral, social, spiritual...) Fiqh refers only to the legal aspects (other than moral) of the Sharia. Islamic law covers both the Sharia and Fiqh. Proof of the lack of immutability of Fiqh is the existence, from the earliest centuries, of different schools of jurisprudence, both in Sunni and Shiite tradition. Nowadays there are two positions on the interpretation of the Sharia in the Muslim world: the traditionalists and the evolutionists. The first adhere to the classical interpretation of the Sharia as shaped in the classic legal treaties of the 10th century (in the various classical schools). Although the latter are identified with the doctrine and methods of classical Islamic law, they seek to make them valid for contemporary times. They believe in the continuing evolution of Islamic law while held in the Sharia: it must be applied to different circumstances. The harmonization between Islamic law and human rights, of course, depends also on the moderate or hard approach in the interpretation of Sharia and Islamic law that is adopted. In this genuinely Islamic interpretation and evolution in favour of human rights, it is important to consider the object and purpose of the Sharia, identified as the promotion of human welfare and the prevention of damage (maslahah). This theory of the object and purpose of the Sharia in the interpretation and application of Is-

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law to adapt to modernity (equality for women) in some aspects, and of the difficulties of doing so in others, specifically those in the sacred text that leave little room for interpretation. The debate over the interpretation of Islamic law is not new. By the end of the eighth century a major debate had arisen between the rationalist Mu’tazili school and the traditionalists,80 and throughout history there have been —as indeed there are now— other interpretations, along with the literal interpretations of the Qur’an, sticking word-for-word to the text. These other interpretations have sought a contextualisation that enables the Qur’an to be adapted to the evolution of society, but within the range authorised by the spirit of the Book, making it very difficult to provide full equality between the legal position of men and women, since certain institutions and regulations are clearly patriarchal and hardly ‘interpretable,’ such as those relating to inheritance. There are other scholars whose positions go further, even moving away from the actual text. One of them that we have referred to is Abu Zeid, who considers the Qur’an not as a text but as a discourse. The problem posed by these latest views is that they are far from being recognised as ‘Islamic’ by much of the Muslim world. In addition, the current contexts of confrontation and the ‘clash of civilisations’ are ideal breeding grounds —and lead to political support— for radical Islamic trends to take root. Despite major challenges, the trend towards greater protection of women’s equality and other human rights will ensure further progress in the modernisation of Islam, a task that cannot be imposed from the West but that has to be undertaken by Islam itself.

lamic law guarantees the total equity of Islamic law and is fundamental to international protection of human rights and Islamic law. This was stated by M. A. Baderin in International Human Rights and Islamic Law, cited in footnote 12, pp. 40 and ss. 80 The Mu’tazilites sought to reconcile Islam with rational thought, leaving ample room for interpretation of Qur’anic verses, as they believed that God had placed mankind under the obligation to use its intellectual faculties to grow in the knowledge of the truth. About this school see D. Gimaret, “Mu’tazila,” in The Encyclopedia of Islam, cited in footnote 53, vol. VII, pp. 783-793.

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CIVIL RELIGION IN FRANCE: RETURNING TO A METAMORPHOSIS Philippe Portier Ecole Pratique des Hautes Etudes (Paris-Sorbonne), France

Civil religion —a concept emerging from the ideas of Rousseau, whose The Social Contract, book 4, made it a necessary condition for the survival of the political community— has generated in the last few decades, particularly following Robert Bellah’s reflection1 on the situation in America, a renewed interest in the field of political sociology on religions. Authors referring to it within a Durkheimian perspective have developed a two-step analysis of modern societies, stressing their relative weakness. According to these authors, during the first period of traditional society, uncertainty did not exist. Everything was guided from above due to the transcendence of a community of faith, identified with the social community. There was no guarantee that time, in this type of society, would necessarily remain immobile. With its randomness, history was always framed by a non-negotiable rule limiting its entropic consequences. In such a ‘mechanical’ society, “it was inevitable that all of society’s mental life should take on a religious aspect, because all masses in society were made from the same homogeneous elements, i.e. because their collective type had expanded greatly, while individual types remained rudimentary.”2 During the second period of organic

1 R. N. Bellah, “Civil Religion in America,” in Daedalus, Journal of American Academy of Arts and Science, 96.1 (1967): pp.1-21. 2 E. Durkheim, De la division du travail social (Paris: Presses universitaires de France, 1973), p. 154.

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society, on the contrary, nothing has remained of this existential encompassment under a higher principle of collective coherency: “Political, scientific and economic functions emancipated themselves from the religious one, stood apart and took on a more and more marked temporal character.”3 The danger comes precisely from this point: missing their gathering under the sacred canopy of ecclesial order as before, social ensembles in modern societies, undermined by the centripetal logic of social differentiation, can very easily be swept up inside an explosive spiral. Is that what happened? Hardly. In pursuing Durkheim’s demonstration, the authors noted that modern societies did not remain immobile when confronting the potential test of a vacuum. While their collective existence was losing its mythology, they were able to recreate a deep understanding of the world, made up of judgements and intentions, whose material institutions, comprising rituals and norms, soon took on a specific, visible modus vivendi. Civil religion thus replaced historical religion, exercising by the way the same function enabling society to become a single body, fleshed out by a common representation of its specific historical essence, by giving its Dasein a sacred value, because “society is the soul of any religion.” Jean-Paul Willaime, who helped introduce the paradigm of civil religion into French sociology, defines this amalgam of the imaginary and the symbolic as follows:4 “Since societies are historical constructs, inevitably revisable and precarious, they need to refer their existence to a fantasy that allows them to lay a foundation and remember their history by various symbols and rituals. Through these symbols and rituals, they magnify their unity and enhance their existence as a distinct sociopolitical unit.”5 This work of self-reconstruction6 that tends towards a kind of secular transcendence has two characteristics. First, civil religion can be analysed as a 3

Ibid., p.143. We pick up this distinction between the imaginary (as mental institutions) and the symbolic (as material institutions) from Maurice Godelier, Au fondement des sociétés humaine (Paris: Champs, 2007), p. 42 s. 5 J.-P. Willaime, “Pour une sociologie transnationale de la laïcité dans l’ultramodernité contemporaine,” in Archives de sciences sociales de religions, 146 (April-June 2009): p. 208. 6 This perspective joins Philippe Braud’s analysis, which developed a general theory on the “process of sense-making ” in political societies — without using the concept of civil religion — particularly in his book L’émotion en politique. Braud demonstrated how the symbolic activity, produced by authorities — called by him the “sense-rulers ” — can contribute to create an order, “by reinforcing the social link and by legitimating the into-group exercised power,” thanks to a work on “lingual facts,” “material symbols,” and “ritual practices.” Ph. Braud, L’émotion en politique (Paris: Presses de Sciences-Po, 1996), pp. 88-138. 4

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voluntary phenomenon, as distinct from the ‘common religion.’7 The latter comes from below, from the depths of society, and expresses a certain state of opinion, gathered around shared values, often religious in any case.8 These values are born from historical concretions and become lifelong habits. Civil religion, on the other hand, comes from above, from the will of the political authorities to strengthen the moral coherence of the Nation as well as their own legitimacy, by any kind of discursive, ritual, and legal acts.9 The two religions do not necessarily join, as we have seen in Turkey, during the Revolution of Kemal Atatürk, when mores were voluntarily secularized although society was, and still remains, deeply religious. Or here too in France, during the Revolutionary era, when the political powers, rethinking time and space, wanted, in the words of the idea’s past master, Charles-Gilbert Romme, “to take a new burin and engrave the annals of a regenerated France.” Secondly, civil religion asserts itself as an evolutionary phenomenon. Depending on the current needs or on its own political project, the political authority can modify its contents. Thus, Emile Durkheim noted that the table of values, on which the legitimate patterns of social ties will lean in the organic world, would probably not be exactly the same in history: “Yesterday’s religion,” he wrote, “will not be tomorrow’s.”10 The path followed by the United States gave credit to this theory of civil religion’s plasticity: for a long time centered on a ‘prophetic’ vision of being together, itself founded on the sacralization of human rights, it had, over recent decades, opened itself up to a more ‘sacerdotal’ conception of collective life, more in tune with capitalismoriented values and, as a compensatory effect, to the substantive enunciations of Christianity.11

7 C. Liebman, E. Don-Yehiya, “The Dilemma of Reconciling Traditional Culture and Political Needs. Civil Religion in Israel,” in E. Krausz, Studies of Israel Society, III, (New Brunswick: Transaction Books, 1985), pp.196-209. 8 J.-P. Willaime, “La religion civile à la française et ses métamorphoses,” in Social Compass, 40.4 (1993): pp. 571-580. 9 M. Thomas, C. Flipper, “American Civil Religion: An Empirical Study,” in Social Forces, 51.2 (1972): pp. 218-225. 10 Id., “L’individualisme et les intellectuels,” in R. N. Bellah, Emile Durkheim. On Morality and Society (Chicago: Chicago University Press, 1973), p. 53. 11 J. D. Hunter, Culture Wars: The Struggle to Define America (New York: Basic Books, 1991); D. H. Davis, “Civil Religion as a Judicial Doctrine,” in Journal of Church and State, 40,1 (1998): pp. 7-23. See also S. Fath, Dieu bénisse l’Amérique, La religion de la Maison-Blanche (Paris: Autrement, 2004).

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The present contribution attempts to apply this theoretical model to the situation in France.12 If the chronological focus covers the last century, the history of French civil religion ultimately follows a pattern similar to that of the United States. Two moments followed each other, corresponding to different times in modernity. First, the Third Republic built its model by dissociating the official representation of the social world from any reference to the historical religion: its goal was to assemble existences under a common rule of life founded on “ideas, feelings and practices, subject only to the rule of reason”13 and freed from ecclesiastic decrees. This does not, of course, mean that the new regime, at least in its principal voices, wanted to exclude spiritual adherence from the life experience of its citizens. However, the regime wanted to maintain, between the state and society, a kind of space in which all religious organizations could express themselves, on the condition that they abandon their totalizing pretensions and agree to remain in the private sphere, away from the State, which would strengthen its supervision. Second, the Fifth Republic handled things differently. Already under De Gaulle, in the context of the ‘Two Frances War,’ as well as Mitterrand, and, of course, more explicitly under Sarkozy, the leaders of the Fifth Republic began to re-articulate civil religion with its historical counterpart. Despite the invention of a hitherto unheard-of ‘co-operative laicity,’ the issue was not to return to Maurice Barrès’s vision of the State and the Church, in which both would be linked as ‘perfect societies’ in the harmony of ancient times. The current time remains firmly in the terrain of political artificiality. Facing the current depletion of reason, it simply maintains the necessity to stabilize existences nowadays by joining them with a legacy of understanding inherited from religious worlds, especially and particularly by Christianity. In this succession of times, France’s Fourth Republic is unclassified. No doubt it should

12

Some authors think that the syntagm ‘civil religion’ is problematic in the French context, because political actors themselves, concerned with a return to Jacobinism, took care to avoid it, as did Jules Ferry or Aristide Briand. From their point of view, as noticed Jean Baubérot, “The concept of Laïcité, contained into 1905 Law, was an inclusive secularism, a secular Pact, which broke with the Republican civil religion and its excommunicative aspects.” Jean Baubérot, Laïcité 1905-2005, entre passion et raison (Paris: Seuil, 2004), p. 170. In the same sense, O. Ihl, “Religion civile. La carrière comparée d’un concept,” in Revue internationale de politique comparée 7.3 (2000): pp. 595-627. One will understand that we here use the concept of civil religion in a very different acceptation: that of sociological nature. 13 E. Durkheim, L’éducation morale (Paris: Presses universitaires de France, 1903), p. 3.

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be approached as a transitional period, a stepping-stone, in which the ancient was already disappearing but the new had still not found its final form.14 A U TO N O M I Z AT I O N

OF

POLITICAL REFERENTIAL

The Western political arena displays two great narratives for its entry into the modern age. Some states (Scandinavia, as well as Britain or the United States) have built their discourse on a “continuity from religion to modernity,”15 and, in consequence, have created a partnership between the Churches and the State, except for the United States, where a ‘dividing wall’ was devised to preserve religious freedom. Other nations, like Italy, Spain, and Portugal, “having failed to experience the Reformation” as Hegel put it, began to build a period founded on the principle of secession, at the turn of the 19th and 20th centuries. They took history as a zero-sum-game. For the sake of modernity, it was necessary for religion to be erased from public life. It is to this second group that France’s Third Republic belongs. Its attempt to reconstruct the national social imaginary even stands as a model: it managed to root the thought of a rational, even ‘utopian’ state, more deeply and more sustainably than anywhere else.16

T H E C O N D E M N AT I O N

OF

C AT H O L I C I N T R A N S I G E N C E

After the failure of the Civil Constitution of the Clergy, the French Revolution had tried to build a purely secular form of religiosity: sometimes formed by the cult of Reason, as during the Girondin period, and sometimes formed by the cult of the Supreme Being, as during the Jacobin period. Nothing remained of the country’s ‘common religion,’ destined to be eradicated, far beyond what Rousseau foresaw in his Social Contract. Pierre Nora summarizes the situation as follows: “The enterprise [was] entirely of sacred

14

On an identifiable evolution during The Fourth Republic, see R. Lecourt, Entre l’Eglise et l’Etat. Concorde sans concordat (1952-1957) (Paris: Hachette, 1977). 15 M. Koenig, “Politique et religion dans les Etats-nations européens. Variétés institutionnelles et transformations européennes,” in J. Lagrée, Ph Portier, La religion contre la modernité? Pour une nouvelle approche de la laïcité (Rennes: Presses universitaires de France, 2010), p. 241. 16 P. Birnbaum, “Défense de l’Etat fort: réflexion sur la place du religieux en France et aux Etats-Unis,” in Revue française de sociologie, 52 (2011): p. 3.

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inspiration, but as foolish in what it wanted to sacralize, as it was in what it wanted to root out.”17 The concordatory formula highlights another public philosophy. Of course, its task was not to restore the ancient heteronomous order. The regime headed by Napoleon Bonaparte in 1801-1802 loudly proclaimed the theory of sovereignty: the State has no need to find its own institutional location through any divine transcendence. Silent on the matter of religion, the Civil Code recalls in its Preamble that, from now on, positive law was to seek its source not in the laws of God and His Church, but in natural law: “There is a universal and immutable Law, the source of all positive rules; it is the Natural Reason that governs all men.” Never again, even during the Restoration period that managed to restore Catholicism to its ‘state religion’ status, was anyone to change this principle, nor the recognition of pluralism in worship, despite Rome’s disapproval. However, the historical religion was no longer excluded from civil religion. It even received an official welcome. Firstly, in the making of the social link, revolutionary thought, reasoning from a Catholic starting point, considered religion as a Gothic remnant, able to strengthen every tyranny. Concordatory theory, on the contrary, defines religion as a requirement of the modern civility. In accordance with Napoleon, who saw great Faith Institutions as the “granite masses” that “weld societies,” the great French legal theorist Portalis submitted his proposal to the Corps Legislatif on 15 Germinal year X (April 5th, 1802): “Laws command only certain actions. Religion embraces them all. Laws stop only fists. Religion regulates hearts (...) by combining morals with rites, ceremonies and practices which become its basis.” Secondly, in the construction of the national memory, the Revolution decreed to forget the past. Since “History could not be the law”18 for the New France, every basic element of society had to be changed in a perpetual move towards the future. The ex nihilo invention of the religion of the Supreme Being as well as the new revolutionary calendar, beginning on the day of the Republic’s proclamation, illustrate the potency of this Orpheus complex. The Concordatory period is, on the other hand, a time of anamnesis. It restores the social link with the legacy of centuries by organizing extraordinary ceremonies, like Napoleon’s enthronement in Notre-Dame-de Paris in 1804, before Pope Pius VII, or the coronation of King Charles X in Rheims in 1825. 17 18

P. Nora, Présent, Nation, Mémoire (Paris: Gallimard, 2011), p. 250. According to Rabaut Saint Etienne’s expression before the Constituent Assembly.

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It also used the narrative efforts of great writers like Chateaubriand, with his romantic explanation of France’s feat through the “Genius of Christianity,” or later Guizot, with his demonstration of the historical debt to the past still owed by the revolutionized society. Depending on political opportunity, the memory of Christian civilization was pushed up, for example during the Restoration period, under Bonald’s influence, during the first decade of the Second Empire, or during the Ordre moral regime at the beginning of the 1870s. Those periods certainly constitute moments of consolidation for the Catholic reference into French sense making. Logically, the laws follow this imaginary, giving it a practical form. With the Concordatory order, denominational institutions, both Catholic and Protestant (Calvinist and Lutheran), soon Judaism too, came back into the public sphere: they benefit again from official recognition and financing. By their inscription into the State protocol and their involvement in the educational system, they gain a central place in the ethical layout of French society. The new generation governing at the end of the 1870s changes the habits of the previous regimes for several reasons, from the looseness of communitarian leanings or the liberalization of universal suffrage, to the spread of urbanization.19 This generation believes that political order, by breaking the associative regime born out of Bonaparte’s will, must assert its self-sufficiency. Thus, Marcel Mauss describes the organizational formula of the new Republican regime, to which he adheres, in this way: “the State is the sole jurisdictional mechanism for social coherence; it is the only organ embodying the general will, at the same time as it summarizes the public sphere in itself.”20 Two arguments are specified to nurture this renewed theory of the separation of orders. The first emphasizes the uselessness of religion. The Concordatory philosophy posits that politics needs the support of the Churches to guarantee civil order, while defending the principle of autonomy. This thesis was not only based on the rudimentary character of the administrative machine, but it was also joined with a Voltairian conception of moral genesis: if the priests are to be at the core of the State, as Portalis’s disciples declare, it is because there is no social discipline —for the people at least— without a belief in the Supernatural. Let us recall here Voltaire’s words to Condorcet: “How to prevent my servant robbing or killing me, if he doesn’t believe in hell?” The Republican

19

N. Rousselier, “Les caractères de la vie politique dans la France républicaine,” in S. Berstein, M. Winock, L’invention de la démocratie 1789-1914 (Paris: Seuil, 2002), p. 380 s. 20 M. Mauss, Œuvres (Paris: Minuit, 1969), t. 3, pp. 12-13.

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philosophy asserts, on the contrary, that morals can be ‘independent.’ There is no necessity to be incorporated into a Church in order to find the path to a good life. The exercise of reason is sufficient. Men have to retire into themselves, they have to abandon their inner and inferior requests, so that they will access the world of the universal rules. Of course, nothing shall forbid them to seek, in a particular faith, their personal answers to the great enigmas of life. But such membership is purely optional and only complementary. In the spirit of the Third Republic’s Founding Fathers, faith has no foundational vocation. We can note, at this stage, the circularity of rationalist reasoning. The State is built on the reason of its citizens, and the citizens rely on the reason of the State. In 1873, Léon Gambetta noted that this demopedic ambition of the new regime was already conspicuous: “When the meeting of free wills fails, there remains a great and high social personality, the State, which has the self duty to intervene, not to oppress, but to imprint movement (...), to lead each citizen towards the complete achievement of his intelligence and his reason.”21 But a second argument is used to denounce the confusion of powers: an argument underlining the dangerousness of any religion. Against the Ideologues, Napoleon had defended the Concordat by pleading France’s affranchisement from Catholic roots as well as its conversion to the Enlightenment’s philosophical axioms. According to him, Catholicism would very soon forget its attachment to the mental forms of the old regime, thanks to the legal effects of the 1802 Organic Articles, and, like Protestantism, it would sincerely defend post-revolutionary society. But Napoleon was wrong, according to these Republicans, who noted that the opposite happened. By the encyclical Mirari vos in 1832 and also by the Syllabus errorum of 1864, all revolutionary achievements had been anathematized, especially the freedoms of conscience and expression. The Roman world had turned its back on history, supported by bishops who “have the devil inside, as soon as they have received the Holy Spirit.”22 Rome folded into an intransigence that carried Her wanting to encompass the political order inside the body itself of the Church, as She was returned to the gone times of sacred Christianities. Was it possible, with such a partner, to remain in the same association as promoted by First Consul Bonaparte? No. Rome was decidedly too far from “freedom, progress,

21

Quoted by C. Nicolet, L’idée républicaine en France (1789-1924) (Paris: Tel, 1994), pp. 454-455. 22 According to Charles Dumay, Directeur des Cultes, at the turning of the century.

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new civilisation.” A break was unavoidable, according to Gambetta himself: “We need to choose between the France of the rights of man and the France of the Syllabus.”23

THE DISTINCTIVENESS

OF THE

S TAT E I N S T I T U T I O N

On the criticism of the Concordatory system was built the politics of Laicity. There is a movement among Republicans calling for the eradication of religious institutions. For its disciples, who will enjoy the anti-congregationalist politics of Combes, there is no possible freedom for the enemies of freedom. Georges Béret, the editor of the Annales de la jeunesse laïque, who was later to assert he “hated religion because religion is the codification of the absolute,” well represents this sensitivity. “Freedom? There is no freedom,” he wrote in his review in 1902, “when one meets a rabid dog, one kills it. That’s all!”24 But this sensitivity was not the majority view. From Ferry to Briand, the Third Republic clearly refused the idea of a ‘political religion’ whose task would be to transform the country into a huge ‘congregation,’ while fighting against all congregations.25 Following its defense of individual rights, as testified to by the 1881 law on the freedom of the press, as well as the 1901 law on the freedom of association (despite its chapter IV excluding religious congregations from this freedom), or that of 1905 on the separation of the Churches and the State, the Republic did not exclude the plan for a new mythologization of collective life, based on the principle of universal reason, from which society can project “its elevation above itself, so as to retrieve more energy.”26 The new civil religion lies on a program of institutional dissociation.27 Already proclaimed since the 1830s,28 and solemnly introduced into the Re-

23

Ibid., p. 198. Quoted by Louis Capéran, L’invasion laïque de l’avènement de Combes au vote de la séparation (Paris: Desclée de Brouwer, 1935), p. 153. 25 According to Clémenceau before the Senate on November 1903. 26 E. Durkheim, L’éducation morale, op. cit., p. 7. 27 On the importance of jurisdictional institutions within the frame of civil religion, see R. N. Bellah, Ph. E. Hammond, Varieties of Civil Religion (San Francisco: Harper and Row, 1980), especially Ph. Hammond’s chapter “The Conditions for Civil Religion. A Comparison of the United States and Mexico.” 28 J. Lalouette, La séparation des Eglises et de l’Etat. Genèse et développement d’une idée (Paris: Seuil, 2005). 24

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publican corpus by the 1869 Congress of Belleville, the model chosen was that of separation. By containing the Church within the private sphere from whence it should never have emerged, the Republicans sought to achieve the promise of emancipation brought by the Enlightenment. The first separation focuses on the school. No surprise there: in a world meant to be built on People’s sovereignty, we cannot allow future citizens to be educated and remain under the thumb of retrograde authorities. Jacques Helbronner summarizes the Republican doctrine of the regenerative state as follows, in his conclusions submitted to the State Council on the Abbé Bouteyre case in 1912:29 “Youth Education is so important. The first imprint left in the mind remains with such force for the rest of one’s life that when the State decides to take charge of public education, such education cannot be given but impartially and free from any religious doctrine.” With the space progressively cleared of religious emblems, the active secularization of public education turned to the programs: at primary school, previously centered on “moral and religious education,” they are now centred on “moral and civic education,” as specified in the ‘Ferry Law’ dated March 28th, 1882. This secularization also concerns the teachers. The Republican government excluded those clerics who were still teaching in public education. By the same law, which ended the provisions of the 1850 ‘Falloux Law,’ the government deprived priests of their right to supervise communal schools and bishops of their right to speak before Academic Councils. Later, by the 1886 ‘Goblet Law,’ regular clerics were banned from teaching in public primary schools, according to a logic that the Bouteyre precedent will extend, thirty years later, to secondary education.30 The second separation touches the State. Long prepared by several legislative proposals between 1880 and 1900,31 the law enacted on December 9th,

29

Conseil d’Etat, 10 May 1912, Abbé Bouteyre, Rec. CE, p. 553. Despite several propositions in this sense, coming in particular from the Radical- Socialist Party, The Republic will never suppress confessional education. It will try nevertheless to constantly impede its developments, as show it the Jesuit order ‘s dissolution, ordered by Jules Ferry and the forbiding of its financing (1886 ‘Goblet’ law). On these points see B. ChéliniPont, “Is the Laïcité The Civil Religion of France?” in George Washington International Law Review, 41.4 (2010): pp. 765-815. 31 The 1880-1900 proposals never achieved because many Republicans thought that the French society wasn’t ready to accept the separation. Some others, like Emile Combes, added that finally the concordatory system, thanks to its police Articles, was useful by permitting an administrative control on the clerical ‘hydraic’ activities. 30

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1905, was adopted because of conjunctural causes (like the rupture of relations with the Holy See that rendered episcopal nominations impossible) and because of ideological reasons (like the will to end the remnants of Christianity and to establish “the most secular regime in the world,” in accordance with Republican doctrine). It would be mistaken to read this text as an immediate extension of Combes’s radical philosophy, whose 1904 draft had strongly jurisdictionalist provisions, as a prolongation of past anti-congregational laws: by proclaiming the freedom of conscience and worship, this 1905 law gives religious institutions the capability to organize themselves at will, ad intra and ad extra, as a freedom they had not had even under the Concordatory system. Nevertheless and symbolically, this law marks for the Churches, primarily for the Catholic Church, a loss of influence that pope Pius X refers to as early as February, 1906, in his encyclical Vehementer nos. By depriving the religious dimension of any recognition and financing, the Separation Act introduces a gap in the acceptance of the national Being: in the order issued by Napoleon, there was still something of the Gesta Dei per Francos; henceforth all that remains is a politics of immanence, where religion, reduced to the statute of private ‘worship,’32 is now submitted to a state rationality that religion no longer controls.33 This is the second aspect of the Republican strategy: to institutional dissociation, it adds an axiological one. This new dissociation rethinks the legitimate forms of social ties, by asserting more than ever the superiority of citizens over believers, that of the city over the parish, that of the terrestrial fatherland over the celestial one. Everything possible is done to cut France’s Dasein off from its Christian basis, rooted in past centuries and past regimes. First, the government rebuilt the national memory. Nothing to be surprised at there: “the Nation-State always founds its sovereignty on birth, on ‘nativity.’”34 To counter Catholic discourse on French history, beginning with King Clovis’s baptism, the Republican one, from 1880 on, posits another nativity moment: the 1789 Revolution. And ceremonies recall it: the Tricouleur is hoisted, the Marseillaise becomes the national anthem, July 14th is declared

32

According to the very significant vocable, which defines the religions in the law of 9 December 1905. 33 On this opposition between universals, see Y. Deloye, O. Ihl, “Deux figures singulières de l’universel: la République et le sacré,” in M. Sadoun, ed., La démocratie en France, vol.1: Idéologies (Paris: Gallimard, 2000). 34 G. Agamben, Moyens sans fins (Paris: Payot, 1995), pp. 31-32.

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a National holiday. The urban nomenclature recalls revolutionary events: street-names are given to yesterday’s heroes, from Voltaire to Diderot, from Mirabeau to Condorcet.35 Narrative is taken into account, but it is a voluntarily amnesiac narrative: the authorities deliberately overlook the long-term civilizational work of Christianity. This is evident, for example, in the very famous reading guide given to all pupils, Le Tour de la France par deux enfants: its author, a woman, Madame Fouillée, whose pen name was the symbolic alias G. Bruno,36 relates France’s most significant places without ever evoking ‘kings or conquerors,’ ‘nor saints or churches,’ the ghosts haunting the nation’s history.37 Sometimes, of course, the amnesia is not complete. In another famous educational guide, this time historical, Le Petit Lavisse, the old regime is given its place. Yet it is a teleological place, already announcing the coming of French modernity: “Kings are admitted provided they were the artisans of the Fatherland’s unity: territorial unity with the First Capetians, moral unity with King Saint Louis, administrative unity with the Valois and Bourbons. Thus, the Kings are linked to the most profound themes of the Republican sensitivity.”38 But at the same time, the State began to reconstruct social morality.39 As Jules Ferry said to the Senate in 1879: “The state engages in education in order to instil into it a certain state moral, a certain state doctrine, essential to its preservation.” It is often heard, because Ferry referred to “our fathers’ morals,” that Republican morals were satisfied with reproducing Christian morals. Nothing could be less true. Pope Leo XIII was not duped at all and placed the first schoolbooks on moral instruction on the Index of Forbidden Books as early as 1882. According to the Pope, Republican morals were quite distinct in their foundations. Republican education could only be ‘rationalist’:40 it took natural reason, and not divine law as revealed through the 35 On this question, see M. Agulhon, Marianne au pouvoir. L’imagerie et la symbolique républicaine de 1880 à 1914 (Paris: Flammarion, 1989). 36 In reference to Giordano Bruno. 37 Jacques et Mona Ozouf, “Le tour de la France par deux enfants,” in P. Nora, ed., Les lieux de mémoire (Paris; Gallimard, 1984), t.1, pp.283-284. 38 Pierre Nora, “Lavisse, instituteur national,” in Les lieux de mémoire, t.1, op. cit., p.261. 39 Pierre Nora says things that way: “What a work did the Republican state do, to civilise the society, not only by the school, but also by the military service, the voting discipline, the regular formation of political parties. This work made the Republic to be more than a political regime. It was a true moral civilisation, (…) where the rights of Man and the Citizen become the new Ten Commandements.” P. Nora, Présent, nation, mémoire, op. cit., p. 255. 40 E. Durkheim, L’éducation morale, op. cit., p.3.

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Church’s mediation, as the normative pedestal for social conduct. Its defenders maintained that human dignity is renounced “at that precise instant when conscience is placed under an external authority claiming an inherent divine nature.”41 Republican morals were also dissociated by their content. A comparative study of school handbooks points out two immeasurably different meanings: while the Catholic guides present a hierarchical and heteronomous conception of life, the Republican manuals go on a Kantian path, in favour of the values of autonomy and equality. From this perspective, the survival, as late as 1923, of a Chapter entitled “The Duties to God” in school programs should not be overvalued: it points out a deist survival that has little in common with historical religious canons. Did this Republican civil religion exclude all references to Christianity? Certainly not! The temptation of the tabula rasa haunted the 1789 Revolutionaries. But this temptation did not affect the 1880-1905 Republicans so much, except marginally. Unlike the former, the latter knew that it is necessary to manage what we have referred to above as ‘the common religion’ alongside the existing culture: the maintenance of the Christian calendar, the respect for Sundays, the legality of free worship, the use of Catholic rituals for public ceremonies, like Te Deum for military victories in 1918 or 1944, the placement of crucifixes on memorials erected at the beginning of the 1920s, are all elements identifying something close to a ‘Catho-laicity.’ As Jean-Paul Willaime points out, “the Republic had to take into account and to deal with the fact that [the] Catholic imaginary remained an important and properly religious dimension of the collective imaginary. Hence the resurgence of a properly religious dimension in the French civil religion is understandable, because the state imaginary had to incorporate, to embody national unity, the social imaginary as it really is.”42 Nevertheless, we must not overestimate the importance of this encounter: the joining with the Christianitude is operating in a mind-set that resolutely strives to keep religion far away from the political decision-making sphere. Apart from the Vichy Regime, based on a kind of National-Catholicism inspired by the Maurrasian wing, this public philosophy subsisted, in general, until the end of the Fourth Republic.

41

F. Buisson, Libre pensée et protestantisme libéral (Paris: Alcan, 1903), pp. 43-44. J.-P. Willaime, “De la sacralisation de la France. Lieux de mémoire et imaginaire national,” in Archives des sciences sociales des religions, 66.1 (1988): p. 125 s. 42

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T H E R E - P U B L I C I Z AT I O N

OF THE

RELIGIOUS REFERENTIAL

Robert Bellah willingly explains that the presidential speeches constitute an essential means to observe how the civil religion of a nation works. Following his demonstration, let us examine two examples of French presidential speeches. Let us reread the Speech General that de Gaulle pronounced during his official trip to Rome in June, 1959: “The role of France is merged with its Christian role. Our country would not be what it is, if it were not primarily a Catholic country (...) I think that, if God had wanted France to die, it would have happened. He did not want it, France lives, the future is hers.”43 Let us look again at François Mitterrand’s message addressed to the French people on his 1981 election poster: he was pictured before a rural landscape with a church steeple emerging. Mitterrand also said in Lourdes before John Paul II in April, 1983: “I want to salute, in your person, the institution which has placed so deep, so intimate an imprint on the history of my country and which remains a living spring from which so many of us continue to draw their reasons for hope.”44 Both declarations, fleshed with the very Catholic funerals of their now deceased authors, leave nothing to chance. They point out together the conversion of the Fifth Republic to another imaginary: yesterday it was trapped in what we called ‘the ethos of separation,’ now it has reinstalled the old religious ethos, especially Christian, in the heart of its own representation, indeed with some effects on the practical conformation of laws. A new line has been sketched out, one that President Sarkozy has profusely emphasized in his speeches.45 But let us be aware that this new approach has not followed a linear development and still encounters the resistance of old habits: this was seen, for example, in 2000, when the French government, in accordance with

43

In s.n., La France. Textes fondateurs (Paris: François-Xavier de Guibert, 1996). It was as an echo to the letter addressed in the summer to the cardinal Grente, in which he assured the bishops that nothing will be undertaken in the constitutional field without “receiving the baptism of the Church of France.” 44 We remember also this sentence in La paille et le grain: “Vézelay, Vézelay, Vézelay, Vézelay. Do you know a more beautiful alexandrine verse in the French language!” 45 We don’t leave in silence Jacques Chirac’s participation in this elite conversion: his famous rejection of the “European religious legacies” in the Preamble of the European Charter of Human Rights shall not obscure his action in favor of the commemoration of King Clovis’s baptism, nor his support of the introduction of religious knowledge in public schools. See Ph. Gaudin, L’enseignement du fait religieux en France, Doctoral Thesis for l’EPHE, 2011.

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the Pro-Laicity movement, decidedly refused the proposition made by German Christian Democrat MEPs to refer to the European continent’s “religious legacies”46 in the Preamble to the European Charter of Human Rights. The Obsolescence of the Separatist Ethos How can we explain this rejection of what we have called the ‘separatist ethos’? It is not enough to signal the return of Catholics to power. The previous Republic already lived such a return to its governmental combinations, with numerous ministers affiliated to the Christian Democratic MRP party or the National Center of Independents party. Moreover, excepting General de Gaulle, ‘a statesman and a Christian,’47 the other Presidents, like François Mitterrand or Nicolas Sarkozy, even though both went to non-State schools, are not particularly close to the body of the Catholic Church. It is perhaps necessary to look elsewhere for the origin of this shift. Among other reasons,48 the new re-arrangement of the national imaginary, accompanied by a consequential transformation in the liturgical and juridical symbolism of the Republic, can be explained by a dual process of social ‘pollination,’ one concerning the new vision of history and the second concerning a change in the Catholic modus vivendi itself. Let us begin with the re-shaping of our understanding of history writing. The preceding era was characterized by a ‘futurist’ conception of time: behaving as if “human experience narrowed,” it viewed history as a linear plan of development, where men, finally freed by a combination of technical, political, and moral progress, would have at least been able, after many centuries of slavery, to put into effect their potential for emancipation. This vision was reluctant to mention any kind of legacy. Far from the prejudices of the past, the future, supported by reason alone and by a messianic State in the service of social regeneration, was an obligatory door to open. As Jean-Paul Willaime wrote, “modernity was, at first, both movement and certitude, change accomplished in the missionary-like belief in progress (...). European moder46 Nevertheless, the French government conceded a reference to “the spiritual and moral legacy of Europe.” The mention of “religious heritages” will be reintegrated with French consent in the project of the European Constitution in 2005 (under Jacques Chirac’s presidency), then in Lisbon’s Treaty, without a reaction from the Socialist Party. 47 Institut Charles de Gaulle, De Gaulle, Chrétien homme d’Etat (Paris: Cerf, 2011). 48 Let’s recall here the transformation of the state’s layout and the growing role of international institutions, and that of the coherency of the subjective rights that these institutions are supporting. On these points, see, besides S. S. Sassen’s research, M. Koenig, ibid.

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nity was supported by the strong belief, on both the political left and right, in the capacity of politics to ensure human happiness, transforming heavenly salvation into an earthly salvation.”49 But this perspective of time is now dissolved, a triumphant modernity having been replaced by a more reluctant one. The reason for this diluted sense of time lies in the very dynamics of the Enlightenment’s critical spirit. Since the 1970s, its power of denunciation had clearly swung back to the centuries old ‘sacred totems,’ like Reason or Progress, even though that same Enlightened spirit had contributed in the past to giving them legitimacy.50 The other identifiable reason for that dilution under examination has a more opportunistic cause: the State is no longer able to answer, materially and symbolically, to the current economic, ethical, and environmental challenges. Marcel Gauchet describes the situation like this: “Political belief stopped being religious. It was freed from the constraint imposed by the sacrality model, secretly continuing to affect any possible representation of society. This emancipation from the first modern framework by which we understood the world led us to a new era of politics and more broadly to a new era of historical action,”51 The return to a religious image of the world is partly the fact of this movement in modernity. Religion yesteryear appeared as an obsolete strength, in the rationalist context of historicism. It was “a hangover from the good old days” (Hegel), which it was necessary to exclude in order to enjoy the benefits of progress. Now, the depletion of political rationality produces a paradoxical disenchantment with the instruments of disenchantment! It gives religion another chance, a chance to become (for States as well as for individuals, and in a time of uncertain expectations) a source for rituals, a compass for benchmarks, a conservatory for values. Let there be no mistake about the nature of this new entreaty: it does not represent nostalgia for heteronomy, but rather the simple concern for stability in individual and collective lives, no longer fixed by any certainty, by a fluid re-use of tradition.52 49 J.-P. Willaime, Le retour du religieux dans la sphère publique (Lyon: Olivétan, 2008), p. 21. In this diachrony, General de Gaulle’s role is different from that of his followers. The religious comeback during his Presidency is not analyzable from the reading of ‘ultramodernity,’ but more probably from a continuation of the ‘Two France’s War.’ 50 A. Giddens, Les conséquences de la modernité (Paris: L’Harmattan, 1994). 51 M. Gauchet, La démocratie contre elle-même (Paris: Gallimard, 2002), p. 108. 52 This analysis largely joins that of J. Habermas on post-secularity. On this point, see Ph. Portier, “Religion and Democracy in the Thought of Jürgen Habermas,” in Society 48.5 (2011): pp. 426-432.

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Let us move on to the second ‘pollination’ mentioned above: the change in France’s civil religion also has a lot to do with the re-alignment of the current presence of churches. In a word, if traditional secularism is unleashed in this country, it is because traditional religion53 was unleashed as well. What happened? Over the last decades, we have witnessed the decay of the system of Christianity that had prolonged, in several French regions, what historian Jacques Le Goff called “the long period of the Middle Ages” until the middle of the twentieth century. This system at first decayed from the bottom up, in the realm of practice. During the Third Republic, even though the Catholic institutions were no longer dominant, they were still able to mobilize a large part of the French population in favor of its intransigent project of reconquest, despite the existence within it of Catholics “in favor of universal suffrage.” The electoral mobilizations illustrated this will, as did social mobilizations, starting with the Catholic Action Movement, by which the Catholic Church strove to penetrate civil society “once an access was open” (Leo XIII). Nothing remains today of this great effort, in France at least: even if Catholicism retained a strong rooting in memory, recent history has confronted us with a squandering of Catholic capital assets that previously meant the Church coincided with French society. On the contrary, the people remaining in the institution, whether practitioners or militants, credentes or perfecti, no longer recognize themselves in a hierarchical model of faith. More often, they assert that faith “has no location, nor seat, nor magisterium of its own.”54 They willingly accept the indetermination of a plural society that their predecessors had tried to subjugate. But the regime of Christianity has also been deconstructed from the top down, on a doctrinal level. Until the 1940s, Catholic France was still in a time of ‘normative religion.’55 Attached to the neo-Bellarminian theology of the Catholic State, the hierarchy had no intention to reconcile itself with the invention of democracy. At this time, it was just tolerant of ‘false’ political thought. Its design was clearly to place the whole of the social world under the tutelage of the Christian body. The Catholic Church was to accept the

53 This mainly refers to Catholicism because, in view of its strong roots in French history, it is the primary one to be connected with the question of French civil religion. 54 M. de Certeau, L’invention du quotidien (Paris: Union générale d’éditions, 1980), p. 312. 55 On this évolution, see Ph Portier, “Les évêques et le pouvoir politique en France,” in F. Lemoigne and C. Sorrel, eds. Les évêques en France au XXe siècle (Paris: Cerf, 2012).

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principle of ‘laicity’ in 1945, but in its own way, treating it as a mere ‘hypothesis’ pending the return of “the harmonious alliance” between Church and State. Carl Schmitt was right when he noted that “Catholic philosophy defends [back then] the idea of an ineluctable alternative, without any possible intermediary.”56 Yet, since the 1960s and under the influence of the Second Vatican Council, a new means of intervention has won over, that of ‘reflexive religion.’ The Church certainly does not renounce the idea that it could be “a sacrament for healing the world;” but now it considers that this will be achieved through dialogue and unrestricted adherence to secular democracy. Examples of this conversion would be legion. Let us just recall here this formula, taken from the French Episcopate’s Social Commission’s declaration Réhabiliter la politique in 1999: “Western democracy, founded on a balance of powers and the sovereignty of the People exercised by citizens, equal in law, must be considered as the most humanizing model.” This circumvolution brings one back to the essentials. In the name of modernity, it was yesterday unthinkable for political leaders to deal with a power focusing completely on the restoration of the old world. The allegiance of the Church, at its base and at its summit, to the requirements of the liberal spirit has rendered co-existence definitively easier: because the Church accepts rational law, it has become possible to offer, when the secular pillar hesitates, new spaces for its recognition, with effects logically extending to other denominations. The Consolidation of the New Cooperative Ethos How to deal with the return of historical religion? Nicolas Sarkozy’s presidency provided the crux of our answer. Two questions are asked at this stage: Did Sarkozy, as the author of the book La République, les religions, l’espérance (2004), inaugurate a new politics, or did he consolidate a doctrine built prior to him? The answer to the second question is undoubtedly yes. The desire to reinfuse tradition into our ‘imagined community’ was already present with Presidents de Gaulle, Mitterrand, or Chirac.57 These men largely began to restore the Nation’s Republican narrative and legal system, in a context of disbelief for 56

C. Schmitt, Sur la visibilité de l’Eglise, (Paris: Cerf, 2011), p.196. Valéry Giscard d’Estaing is less concerned by this diachrony. Although he was interested by the monument’s patrimony (see P. Nora, op. cit.), this President was still in an imaginary of ascendant modernity, not yet affected by the first manifestations of the ‘crisis.’ 57

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rationalist symbolisms, with a re-evaluation of the religious elements. But the Sarkozian era has not continued in the same vein. Although he did not create it, he placed his own brand on a powerful trend in the French as well as Western societies.58 The ex-President distanced himself from his predecessors in his speeches on the religious factor, because of their quantitative importance, their systematic exposition of the topic, and their more conservative approach, especially when they touched on Islam (for which Jacques Chirac had already established well-laid foundations).59 Once again, nothing had been left to chance: this trend is the result of causal complexity, combining perhaps the ex-President’s memories of his Catholic childhood, the deepening crisis of the futuristic regime of history-writing, and the increasing dullness of the mind caused by the participation of populist movements. Nicolas Sarkozy first reconnected culture and religion. Often pronounced inside high places of the Christian imaginary, like Mont Saint Michael or the Basilica of Le Puy, where the ex-President stood alongside clerics, the Presidential speeches were a constant remembrance of the links between the Church and the Nation: France would not be France without Christian principles. This reasoning is, on the one hand, founded on historical grounds.60 The ex-President interposed a discourse of continuity instead of the rupture associated with the 1789 Revolution as the terminus a quo in the history of freedom. The most significant text of this sort is certainly his Lateran Address on December 20th, 2007, pronounced by Nicolas Sarkozy on the occasion of his acceptance of the insignia as Canon of the Basilica.61 From the opening of the text, he asserts the sacramental origin of the foundation of France, also recalled by two other previous Presidents when they jointly organized, at the junction of their respective seven-year mandates, the commemoration of King Clovis’s baptism: “It is by Clovis’s baptism that France became the ‘oldest daughter’ of the Church. It is a fact!” As a result, there is a certain way of living in the world, a ‘national identity’ that the new incomers, primarily Muslims, are called on ‘to respect.’ From Catholicism, the French have re58 About this return, see J. Casanova, Public Religions in the Modern World (Chicago: Chicago University Press, 1994). 59 See his speech on 17th December 2003, at the time of Stasi’s report rendering. 60 On the manner of how Sarkozy deals with the history, see L. de Cock’s Comment Nicolas Sarkozy écrit l’histoire de France? (Marseille: Agone, 2008). 61 Contrary to what was often believed, his predecessors had received these insignia, except Georges Pompidou and François Mitterrand, who otherwise did not refuse this honor. Guy Mollet was the first President to receive the Canonicat of the Lateran Basilica, in 1957.

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ceived a cultural legacy, “this mixture of history, heritage, arts and popular traditions that so deeply infuses our way of living and thinking,” plus “this white mantel of churches and cathedrals;” plus, a moral legacy, to which the Jewish religion participated with its defense of the law and the Protestant denominations with their love of conscience: “Despite all the prevarication perpetrated in its name, religion has taught us the principle of universal morals, the universal idea of human dignity, the universal value of freedom and responsibility.” Where does the Enlightenment fit into this scheme, in which, according to Meinecke’s typology, two concepts of the Nation are intertwined: the Staatsnation and the Kulturnation? The President considers it a defining element of the French conscience. Yet he simply refuses to consider it in the light in which it is traditionally represented: it is never presented in his texts as endowed with inherent legitimacy: 62 despite its own claims, the Enlightenment’s entry into history is now presented as the fruit of the womb of Christianity. The second argument in the former President’s reasoning is deployed on the basis of norms. There is a temptation to reduce the legacy of religion to folklore, without significance or performativity, in a strictly artificialist logic. But this is not Nicolas Sarkozy’s wish: he maintains that existence needs to be linked to the habitus he summarizes. It is particularly obvious with the subject of morals. The Third Republic talked about ‘independent morals.’ One hundred years later, we do not hesitate to restore religion to its constituent function: without the promise of religion, Man would soon sink into the relativism of values, from whence only inequity and violence can come, especially in a time of world market domination. This utilitarianism of faith, already noticeable in François Mitterrand’s decision to organize the National Committee on Ethics, is patent in the Lateran speech, in a formula that would be repeated some weeks later in a speech in Riyadh: “The Republic is interested in the existence of a moral reflection grounded in religious beliefs.” So it is no surprise that the former President was able to affirm once again in his speech in Rome the superiority of believers over reasoning men: “Teachers will never be able to replace priests or ministers in the transmission of values and in learning to distinguish good from evil.” Nor is it surprising that Sarkozy was able to wish, in his Letter to Teachers, for pupils to encounter, in the course of their schooling, great spiritual exemplars. 62

According to Hans Blumenberg’s formula, in La légitimité des temps modernes (Paris: Gallimard, 1999).

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However, the classical model of civil religion has also become weaker at another level, namely the relation between politics and religion. Until recently, says Sarkozy, “the Republic was more suspicious than benevolent towards the different denominations.” This trend is intolerable, he argues, because it constrains a fundamental freedom by marginalizing religious life and deprives itself of the resources of sense and attachment that Churches naturally provide.63 Quite a response: this negative laicity from yesteryear must now be replaced by a ‘positive laicity.’ This formula, used until June, 2008, and echoing ‘open laicity’ or ‘plural laicity,’64 demands a change of politics: instead of imposing limitations, the State must “facilitate the life of religious groups.” We already mentioned that the Fifth Republic, under its previous Presidencies, had introduced some novelties into the legal system, even though these were not always followed by a “systematic communicative discourse” (Vivian Schmidt). Some of these affected individuals and their beliefs. For example, with regard to religious education, new decisions were adopted during the 1960s, such as the possibility of students receiving, through chaplaincies, religious teaching inside day-school colleges and publicly funded secondary schools. It was also the time when civil servants gained the right to ask for a day off to observe a religious holiday, despite the duty of neutrality so important to the French civil service. This movement towards the expansion of religious rights was to extend further as indicated, among many possible examples, by the new rules on denominational locations in public cemeteries (the first administrative act on that point dates from 1975) or the 2002 ‘Kouchner Law’ on the freedom of patients in hospitals. Other measures implied denominational pomp. In the sixties, the possibility to finance the Churches with public funds expanded with the establishment of direct state-funded employees in confessional schools (per the 1959 Debré Law), or indirectly, as with the 1961 Public Finance Act, which opened up to religious denominations the guarantee for loans to build places of worship. Since the era of Valéry Giscard d’Estaing, these provisions for public grants took into account the enhancement of religious heritage and new measures have continued to be taken, even under left-wing governments. In 1983, the creation of the National Committee on Ethics, with rep-

63 One here retrieves two essential motives of the public religious comeback in political speeches since the eighties: the respect for the principle of individualization, and the concern for the principle of governmentality. 64 A large part of the left-wing was defending these formulas during the 1980s and 1990s.

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resentatives of religious groups, indicates another step in the process of recognition. This process gains still more visibility with the institutionalization by Lionel Jospin’s government in 2002 of an annual meeting between government representatives and the authorities of the Catholic Church, and in 2003, the official launch of the French Council of the Muslim Faith. It can be imagined that the former President was willing to endorse all these changes, which have contributed to breaking down the frontiers established between the public and private arenas in the 1905 law to seal them off from each other. Sarkozy strove to go further, as we can see on such issues as the direct financing of places of worship,65 the public recognition of diplomas delivered by Catholic Universities, or the teaching of ‘religious knowledge’ at public schools (first introduced under Jacques Chirac). But the most significant point is certainly this new habit of consulting with religious authorities. Nicolas Sarkozy constantly referred to the urgency to create partnerships for collective management. Before Pope Benedict XVI in 2008, he declared: “In a world where major, speedy scientific advances in the fields of genetics and procreation are bringing our societies face to face with sensitive issues of bioethics (...), it is necessary for democracy to enter into dialogue with religions. These, and especially the Christian one, are vivid legacies of reflections and thoughts, not only on God, but also on Man, Society and Nature.” Two years later, in an address to religious representatives, he added: “It is desirable for the secular Republic to nurture a permanent dialogue with the religions practiced in its territory so that they are listened to and, why not, even heard sometimes...”66 Are we in a new confusion between historical religion and civil religion? Not at all. Former President Sarkozy, like his predecessors, subsumed the first religion into the second. The opening up of religious horizons and the consequent ending of State separation occur within the supervisory framework of constitutional democracy, with two outcomes. The first consequence concerns politics. Under a regime of political subjectivity, the government makes no attempt to abdicate its autonomy. Its very substance, in fact, includes welcoming the interventions of civil society, while

65 As was obvious with the report (2005) rendered by the Machelon Commission, which Nicolas Sarkozy had instituted when he still was Minister of Interior. 66 This hearing is patent for bioethics debates since the eighties. See B. Feuillet, Ph. Portier, “Bio-droit et religion en France. Vers une post-sécularité juridique?” in B. Feuillet, Ph Portier, eds. Droit, éthique et religion. De l’âge théologique à l’âge bioéthique (Bruxelles: Bruylant, 2011).

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always maintaining its own power to decide in the final instance. Sarkozy says: “In a lay Republic, the political man I am must not decide according to any religious consideration.” The second consequence concerns religions. There is no question that they will develop in the future in contradiction with the requirements of liberal civility, which is the heart of French national civility. We have so far spoken little of Islam. The French way for this religion has followed two ambivalent paths for twenty years. On the one hand and in accordance with the logic of the extension of religious rights, the State grants Islam a recognition similar to that given to the other denominations, even admitting certain legal adaptations for some of its specific features. On the other hand and in accordance with the civil logic shared by the political Left, albeit adopting a less exclusive discourse than the Right,67 as seen during the examination of the laws prohibiting Islamic veils in public schools in 2004 and burkas in publicly-controlled areas in 2011, the State prohibits Islam from slipping into a ‘communitarianism’ that would push it away from the ordinary rules, already accepted by the other religions, of a shared culture made up of subjectivity and patrimoniality.68

C O N C LU S I O N Our initial hypothesis resurfaces at the end of this analysis. As nations can ‘paraphrase’ themselves from time to time, as Clifford Geertz wrote,69 they never remain in an eternal self representation. They reconstruct themselves, they ‘imagine’ what they look like, depending on the requirements of the history they are living. The last century confronted us with a decisive mutation: ‘autonomous’ civil religion, premised on the dogma of sovereign Reason, vanished to yield its place to a ‘syncretic’ civil religion, open to the presence of religious tradition. This reconstitution is not unique to France: elsewhere, in-

67

See V. Martigny, “Le débat autour de l’identité nationale dans la campagne présidentielle de 2007: quelle rupture?” in French Politics, Culture and Society, 27.1 (Spring 2009): pp. 23-42. 68 On the origin of this double-standard politics (Islam vs other religions), see C. de Galembert, “Une action publique en quête de normes. La gestion publique de l’islam,” in L. Arnaud, C. Le Bart, and R. Pasquier, eds. Idéologies et action publique territoriale (Rennes: Presses universitaires de France, 2006), p.229 s. 69 C. Geertz, Bali. Interprétation d’une culture (Paris: Gallimard, 1983), p. 9.

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deed, God’s part in the constitution of collective life can be perceived, as if it were necessary to reinject community substance in an ever more differentiated universe. This policy is subject to criticism. An entire trend of the sociology of religions considers it lacking in efficiency and morality: our societies would be culturally too divided, and religiously too secularized, to admit the use of any religious symbolism, which truly has sense for only a small part of the population.70 The normative argument is indeed strong: the new self narrative, pushed in part by populist forces, tends to leave out a significant portion of the population, the ‘incomers,’ as the former President put it. The sociological argument is perhaps more friable. By mixing in this way the two concepts of nationhood, the elective nation and the cultural nation, it is not excluded that the current civil religion may possibly respond to the hardest goals of contemporary opinions: the aim of moral autonomy coupled with the need for mental security. Despite society’s departure from a strong religious atmosphere, the Judaeo-Christian legacy, to which it primarily refers, is still “sufficiently well identified as to provide a language for the representation of a shared identity.”71

70 B. Mac Graw, Rediscovering America’s Sacred Ground: Religion and the Pursuit of the Good in a Pluralistic America (Albany: State University of New York Press, 2003). 71 D. Hervieu-Léger, “L’héritage chrétien de la France,” in Cahiers Français, 340 (Sept.-Oct. 2007): p. 15.

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LEGAL SECULARISM IN FRANCE TODAY: BETWEEN TWO PATHS Blandine Chelini-Pont Aix-Marseille University, France

French legal secularism, a large part of the so-called ‘laïcité,’ gives the impression of being a sturdy, time-honoured tradition, very stable in its practice and well rooted in its ideological foundations. This is the ‘official’ framework laid down by the French constitution, which goes beyond prohibiting relations between state and religions. It is, in fact, supposed to protect and promote the philosophical background of human rights and the philosophy of the Enlightenment within the Law. Furthermore, French legal secularism has evolved in parallel with social change, and hand-in-hand with the emergence of new common values such as pluralism and tolerance. In this advance, it is far from monolithic, subject to contradictions and driving in new directions. Consequently, French secularism is now facing two different paths: either it accepts religious pluralism with new social patterns that create and share, or it defends its secular specificity, mixed with a kind of public Catholicism, as a reaction against visible religious diversity and Muslim affirmation.

CONSTITUTIONAL CONTEXT What defines French legal secularism? It is based on four well-founded legacies handed down gradually from the past: no confessional state, freedom of thought, religion-free state laws, and freedom of worship. Since the French Revolution, the state has grown no more confessional, with the exception of

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during the time of the Restoration (1815-1830). And even during this period of monarchical power, freedom of thought and opinion, including religion, incorporated within Article 10 of the 1789 French Declaration, was never contested. Public worship could have been limited between 1801 and 1905 to four religions in the concordat-based system: worship was no longer obligatory, and there were no restrictions on any type of worship for other denominations in the private sphere. Since the Revolution, and especially since the establishment of the Civil Code at the beginning of the 19th century, the only laws recognised by the State have been the ones it has passed itself. The only legal relationships between people are governed within this legal framework. The State doesn’t a priori restrict its laws for religious reasons that its citizens oppose. No religious framework, no religious law is now legally binding, exerting its heavy social and moral weight upon population and thought; until the late sixties, however, family and marital relations in the legal sense remained closely linked to Catholic tradition. In addition, the State has organised a state-run, nondenominational education system, and even if it had felt the strong temptation, depending on the political majority in the Parliament, to confuse the legal obligation to provide minimum education for any child through a unique public education system, this temptation was always moderated by respect for fundamental liberties. This system of recognising religions was brought to a close by the 1905 Law of the 9th of December. After 1905, freedom of public worship for all denominations was virtually ensured by two other laws, in 1906 and 1907. Henceforth, religious denominations have organised their life into simple private associations (1901 Law on Associations) or into specific associations of worship (1905 Law). The current French Constitution sums up this legacy at a glance in its first article: “La France est une République indivisible, laïque, démocratique et sociale. Elle assure l’égalité devant la loi de tous les citoyens sans distinction d’origine, de race ou de religion. Elle respecte toutes les croyances.” The indivisible, secular, democratic, and social French Republic ensures equality before the law for all citizens, regardless of origin, race, or religion. It respects all beliefs. This literal recognition of secularism, backed up by equality and the prohibition of discrimination, has no more precise definition of the impact on and content of the secular principle within the text of the Constitution. However, the 1905 Law, concerning the separation of state and church, is considered (but not entirely, as some decisions of the State Council reveal) to be a subsidiary source of constitutional framework, since it included several

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fundamental principles, ranked by the State Council or Constitutional Council at the level of constitutional value. This is the case of the principle of ‘separation’ (no establishment, no direct financing), and the principles of freedom of conscience and worship.1 The 1905 Law is the appropriate complement to understand legal secularity or laïcité. The Constitutional Council took a new step in its interpretation when it declared, in a decision on the 19th of November, 2004, that “Article 1 of the French Constitution forbids anyone to take advantage of their religious beliefs to overcome the common rules between groups of members of the public and individuals.”2 More recently, in a decision of the 22nd of October, 2009, the Constitutional Council reaffirmed the value of the constitutional ranking of the principle of laïcité.3 In this whole framework, religious freedom is presented as a very first principle, through the consecration given it by Article 10 of the French Declaration, itself included within what is called by French jurists the “constitutional block” accompanying the Constitution. Religious freedom, as freedom of opinions and beliefs, is completed by legal respect for all beliefs, as quoted in Article 1 of the Constitution, and by freedom of conscience, —as we saw it— a principle of constitutional value since 1977.4 Therefore, even if very subtle distinctions could be made between freedom of opinion, conscience, worship, and religion, the last of these could not be exerted without the others. Other freedoms, constitutionally recognised, also give religious freedom its effectiveness. There is the freedom of expres-

1 Decision 23 November 1977, no. 77-87 DC, Sénat, Yvelines (Journal officiel, (25 November 1977): p. 5531, Recueil, p. 87, http://www.conseil-constitutionnel.fr.; Gaz. Pal, 9-10 and 11-13 (June 1978): pp. 293-300, note Flauss). In a ministerial reply of 13th November, 1995, no. 20155, the Foreign Minister stipulated: “Les principes posés par la loi du 9 Décembre 1905 doivent être considérés comme ‘principes fondamentaux reconnus par les lois de la République’ en ce qu’ils précisent le principe constitutionnel de la laïcité de la République française rappelé par l’article 1 de la Constitution du 04 Octobre 1958. Tel est le cas des principes de liberté de conscience, de libre exercice des cultes et d’interdiction de subventionnement des cultes par l’Etat, le département et les communes, énoncés par les articles 1er et 2 de la loi du 9 Décembre 1905” www.questions.assemblee-nationale.fr. 2 Decision of 19 November 2004, n° 2004-505 DC, TECE, (considérant 18), Journal officiel (24 November 2004): p. 19885, Recueil, p. 173, http://www.conseil-constitutionnel.fr. 3 Decision of 22 October 2009, no. 2009-591 DC, Loi tendant à garantir la parité de financement entre les écoles élémentaires publiques et privées sous contrat d’association lorsqu’elles accueillent des élèves scolarisés hors de leur commune de résidence, (considerations 4, 5, and 6), Journal officiel, (29 October 2009): p. 18307, http://www.conseil-constitutionnel.fr. 4 Decision of 23 November 1977, no. 77-87 DC, Sénat, Yvelines, (consideration 5 alluding explicitly to Article 10 of the French Declaration).

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sion,5 without which it would be impossible to express religious beliefs; freedom of assembly,6 which permits meeting together, privately or publicly; and freedom of union and association7 —very necessary when founding religious associations. These fundamental and associated freedoms allow everyone to express their beliefs. Consequently, we can conclude that religious freedom is a large part of the French secular regime, constitutionally guaranteed.8

S T RO N G C O N S E N S U S

OV E R T H E

FRENCH SECULAR MODEL

Beyond this constitutional framework, what does French acceptance of the Republican secular model really mean? There is an unquestioned consensus among the population and the political universe regarding the legitimacy and efficiency of the secular model in defining and representing French citizenship, and furthermore in representing French ‘political’ exceptionalism. There is no debate in France over the secular model being a bad one or unadapted to current times. Secularism is seen by no one in the political spectrum as illfounded, as if this would wrongfully separate the political from the religious; it would oppress civil society with its own ideology; or discriminate excessively against the religious newcomers. Rather, there is no contesting the qualification of the entire French legal, civic, and political system as ‘secular.’ No contesting ‘laïcité’ Within the debate in the United States, since the 1990s, on the sense of the American Constitution and the spirit that inspired the Founding Fathers, we are indeed aware that the expression of a secular state or estimation of the fitness of any legal secularism could have a negative connotation today in the West, and could lead to wild criticism against its supposed ideological radicalism, its ethical weakness, or its spreading atheism. The attacks against the

5

Article 11 of the French Declaration. State Council, 19 May 1933, Benjamin. Freedom guaranteed by the laws of 30 June 1881 and 28 March 1907. 7 Constitutionalised, through the Law of 1 July 1901 on free associations, in the State Council decision of 1971 quoted below. 8 See Messner (F.), Prelot (P.-H.), Woehrling (J.-M.), Traité de droit français des religions (Paris: LITEC, 2003): p. 43. 6

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American separation for example, that emerged in the States from the 60s, are now a current part of the American political debate,9 introduced by Christian conservative slogans and even by some neo-conservative thinkers. According to those groups, the thinking of the Founding Fathers was misinterpreted and Americans must return to a healthy understanding of their Constitution: the state has no official church, of course, but separation does not mean religion-free neutrality, which is, in fact, a betrayal of the best Western tradition. The American political base is rooted in a Christian political tradition and led by respect for Christian values and the Christian ethos of its civil society. Here, modern liberalism is considered responsible for the ‘disgraceful’ deviations of our contemporary societies; their blinded immorality, and also the ‘atheism’ of the state, under the guise of ‘neutrality.’10 A renewed version of relations between state and law on the one hand, and the Christian religion on the other, has been established among conservatives; this version greatly undermines the separatist tradition for the benefit of a renewed regime of Christianity.11 The Catholic version of conservative criticism of American secularism is particularly well developed, a version founded on re-honouring the ‘divinely ordained natural law’ in the Constitution, derived from the ‘classic’ Thomist tradition of the Catholic Church. This divine natural law is ultimately, according to its proponents, the true basis of the Constitution, and some leaders, such as Mgr Chaput, Archbishop of Denver, are beginning to speak out in no uncertain terms. According to this version, permeating a portion of Catholic doctrine today, secularism is defined as “an aggressively secular political vision and a consumerist economic model that results —in practice, if not with a stated intention— in a new form of atheism encouraged by the State.” According to Mgr Chaput, “the deliberate intention of the State is to destroy the Christian values of society and to replace them with individualism and hedonism by scorning the beliefs of its citizens.”12 This debate is coming 9 Charles Rice, The Supreme Court and Public Prayer (New York: Fordham University Press,1964). Brent Bozell, The Warren Revolution (New Rochelle, NY: Arlington House, 1966). 10 Daniel J. Mahoney, “The Conservative Foundations of the Liberal Order, Defending Democracy against its Modern Enemies and its Immoderate Friends.” Society, 48.6 (2011): pp 539-540. 11 The Naked Public Square Reconsidered: Religion and Politics in the Twenty First Century, Christopher Wolfe, ed. (Wilmington, DE: ISI Books, 2009). 12 Speech to the Baptist University of Houston, 1st March 2010 on http://chiesa.espresso.repubblica.it/articolo/1342344. See also Charles J. Chaput, Render Unto Ceasar, Serving The Nation By Living Our Catholic Beliefs in Political Life (New York: Doubleday, 2008).

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to Europe and it could soon be combined —thanks to active networks from the United States— with the internal debate on Europe’s Christian roots and the imagined Islamisation of the Old Continent. As such, Europeans may again be divided over the notion of secularism and a fringe may challenge this system, traditionally designed to protect the freedom of the people with regard to religious and democratic pluralism. The Lautsi case before the European Court of Human Rights could be seen as emblematic over the definition-based debate on secularism in Europe. Although the judges have found a very smart interpretation on the State’s neutrality that could reconcile everyone regarding the definition of legal secularism, the crucifix battle was often understood as a battle against an antiChristian ideology in favour of cultural relativism and the State’s hostility to the religious culture of the majority population, more than as a process of thorough questioning on secularism as a practical and fair system for organising individual and public freedoms, thanks to the distance of the State and the law from any ‘public’ religion. France, especially in its conservative circles, is not yet affected by the phenomenon of Christian criticism towards legal secularism. France seems to be immune to any religious Christian claim in its politico-legal order. Why? Beyond the joke that it would be difficult for France to encounter this type of criticism because it stopped being a Christian country a long time ago, the French understanding of secular State and legal secularism is not at all pejorative. It represents for the jurists of this country the exact definition of their state and the exact place allowed by law for religion in their society. A secular state is a nondenominational state, without a fundamental or concordatbased link with one or several religions, whose philosophical ideal is democratic and republican, and whose values are liberal. These ideas are uncontested. Since the synthesis made by the 5th Republic in 1958, a consensus was born, never rejected. It can be said that the traditional churches in France, Catholic and Protestant, are deeply integrated within the organisation of French secularism. Protestants, as a persecuted minority under the old regime, have always had the desire at heart to develop a fully civil politico-legal order in France. Catholics arrived later in the Republican system. They became Republican in stages, after having been in a quasi civil war against the legacy of the French Revolution. After the condemnation of the ‘Action française,’ a national royalist anti-republican party that dominated the French Catholic world for a long time, French Catholics in politics were influenced by renewed Catholic

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thought on democratic humanism13 and also by the historical movement of social Catholicism (deeply rooted in France), whose founders were the pioneers of secularism in the 19th century, calling for the separation of Church and State as early as 1830.14 Once the issue of academic freedom was resolved —a central issue for the loyalty of Catholics to the Republic— French Catholics easily became secular with regard to the legal-political system. At the same time, France is a less ‘liberal’ country than the United States, for example, in the sense that the debate over the legality of certain modern forms of liberalism concerning morals is less fierce in France than elsewhere. Maybe that goes against some ideas, but France’s legislation is more marked by ‘Christian’ values than other European countries or the United States, though this is not openly admitted. French law is one of the most restrictive in bioethics, for example, in surrogacy (forbidden), assisted human reproduction, or embryo manipulation, etc. In some ways, the State and politics in France have naturally conservative attitudes in terms of public morality, and maintain strong restrictions on individual liberties concerning biotechnology and family laws. Same sex marriage does not exist in France; everything possible has been done by the authorities to avoid it, in the same way that it has avoided admitting the right of homosexual couples to adopt children, even within the legal framework of the Civil Solidarity Pact, a name given to the contract legalising domestic partnership in 1998 as a watered-down substitute for homosexual marriage. The majority of people in France consider the legalisation of abortion as a public health necessity, and a matter of prevention, not an ‘absolute’ right symbolising the freedom of women and the triumph of feminism. French feminists are mostly focused on obtaining more legal equality and protection for women in the workplace, and more public support for juggling motherhood and work. In fact, reconciling work and the expense of motherhood is a high priority in France: in addition to the family wage supplement, depending on the number of dependent children, working timetables in France

13

Bruno Dumons, Les catholiques en politique, un siècle de ralliement (Paris: Desclée de Brouwer, 1993). Denis Pelletier, Etienne Fouilloux, Nathalie Viet, Les Catholiques dans la République (Paris: Editions de l’Atelier, 2005). 14 Philippe Portier, Eglise et Politique en France au XXème siècle (Paris: Montchrestien, 1993). Denis Pelletier, Les catholiques en France depuis 1815 (Paris: La Découverte, 1997). Alec R. Vidler, A Variety of Catholic Modernists (Cambridge: Cambridge University Press, 2009).

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are modelled around school holidays and school days are modelled around parents’ working hours. As a result, many ethical/family-related debates that could become heated elsewhere, and lead, in turn, to challenging the secular model as a source of these problems, have been resolved from a French point of view. These debates still exist in France, of course, but are much less fierce than elsewhere because this country, without really admitting it, lives with a rather striking conservative consensus, while claiming to be the exact opposite, that is, a country with total freedom of morals and thought... Theoretical and Academic Context The only ‘intellectual’ protest comes from the academic circles on the question of the ‘depth’ of constitutional secularism. Quarrels concern the exact scale of the general principle that defines the nature of the French republican regime, and, more precisely, the nature of its Constitution. This principle is that of so-called laïcité. How far is or should laïcité be the civil religion used as a narrative for the French population? Does laïcité constitute the core of French identity, or is it only the expression of the French rule of law and nothing more?15 Depending on the answer given by analysts, the organisation of religious pluralism in French society will be considered as dangerous, possible, or, on the contrary, welcome. For the left-wing part of French intellectuals, religion is dangerous in its taste for power and its impact on personal consciences, and the secular state does completely separate itself from religion. In this vision, religion is above all seen as the canon of binding beliefs and behaviours that encroach upon people’s freedom of thought and action. The secular state is finally the concrete manifestation of a meta-legal ideal, a secular ideology, which is that of an emancipated, progressive —and also humanist and compassionate— society. To paraphrase the expression of the philosopher Eric Voegelin, the supporters of the Laïcité-Identity are convinced Gnostics.16 But these orthodox

15

On this question, see Professor Portier’s chapter. See also, Blandine Chelini-Pont, “Is Laïcité the French Civil Religion?” in The George Washington International Law Review, 41.4 (2010): pp. 765-815. 16 “The Republic is a philosophy before being a regime: it is a Church, a secular Church whose dogma is free thought and whose priest is the teacher.” Emile-Auguste Chartier, called Alain’s quotation. The current intellectual, the most representative of this tendency, is Henry Pena-Ruiz: La Laïcité (Paris: Flammarion, 2003), p. 254. Histoire de la Laïcité, Genèse d’un idéal

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supporters of secularity have never been in a majority in French academic and political circles, which are characterised by strong critical diversity. The majority of French intellectuals, historians, jurists, and philosophers admit that the Republican state has been tempted to transform the regime into a new faith but was slowed down, however, by its submission to human rights. They recognise that conflicts wane over time and that a synthesis took place in the 1960s. The system led to a situation of appeasement and the French state did not switch to compulsory civil faith.17 It remained at the service of democracy and freedom, and guarantees the neutrality of and equal access to public services; the prohibition of discrimination on sexual, racial, ethnical, physical, or religious grounds; and the equality of citizens before the law. It protects freedom of belief and conscience for all citizens as well as those who settle in France. The responsibility of this state in the secularisation of French society, i.e., its detachment from religion in daily life, is still debated. Are the French becoming less Catholic because of the strong anti-clericalism of the Third Republic and its state school philosophy? Are they becoming less Catholic because this religion is no longer obligatory, or since population renewal is by those without a particularly religious culture or even a non-Catholic culture? Have they become ‘secular’ because of some sort of mechanical logic in modern society? On these questions, opinions are extremely divided.18 Finally, we are left with a strong proportion of academic researchers who attempt to extricate the French Laïcité from its old Messianism, and insist on the specific implications of constitutionally solid values. In a way, these authors wish to render more technical and operational the possibilities offered by the rule of law. They want reflection on the future of France in a pluralistic society to be more geared to prospecting and forecasting, even if this requires a further grinding down of national narrative, where diversity would become the most revered value.19

(Paris: Gallimard, 2005). See also Claude Nicolet, L’idée républicaine en France (Paris: Gallimard, 1982). 17 René Rémond, ed. Histoire de la France religieuse, Vol. 3: Du Roi très chrétien à la Laïcité républicaine, XVIIIème-XIXème siècles (Paris: Seuil, 2004),,Troisième Partie, Une vitalité religieuse toujours forte. Paul Airiau, Cent ans de laïcité française. 1905-2005 (Paris: Presses de la Renaissance, 2005); Yves Tripier, La laïcité, ses prémices et son évolution depuis 1905 (le cas breton) (Paris: L’Harmattan, 2003). 18 J. Battut, C. Join-Lambert, Vand, 1984, la guerre scolaire a bien eu lieu (Bruxelles: Desclée de Brower, 1995). 19 Jean Baubérot, Vers un nouveau pacte laïque? (Paris: Seuil, 1990).

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P O S I T I V E V E R S U S N E G AT I V E S E C U L A R I S M : TENSIONS IN THE FRENCH SECULAR MODEL Though there is an implicit understanding not to question the secular model in France today, this does not mean that secularism ‘à la française’ is a fixed model. France is ‘unanimously’ secular for sure, but this unanimity is recent: it is the sum of accommodation between opposing views and continues to evolve. First, there are at least two forms of secularism in France: the imagined and the legal. The legal, fixed by the constitutional framework, is characterised by the State’s neutrality, a nonreligious legal order, equality before the courts, the prohibition of discrimination, and above all, strong protection for religious freedom. Freedom to practice any religion is real and more and more ensured because legislation, administrative practice, and judicial doctrine, including institutions such as the Council of State, have helped the concept of secularism evolve from a strongly polarised position on the neutrality of the State and strict separation, toward ensuring more respect for freedom of conscience and worship. Today, legal secularism is finally focused on defining the concept of religious pluralism as a constitutional value that is still legally unclear, and also on reducing the effects of discrimination, which still affects small and new religious minorities.20 It is true that the coming of the secular state in France was not a quiet continuum and corresponds to a long war between two different conceptions of the state and its relations with religion. A first monist conception, in which the state, itself denominational, favours one unique religion of which it is the protector (the former French system) opposes another monist conception, in which the nondenominational state does not favour any religion and, moreover, uses its power to contain religious expression outside its own sphere of influence, replacing it by a strong civil religion (Republican France). The model in both cases is that of the historical, pre-existing state, although Edmund Burke affirms the extreme autonomy of the society of the old French regime. The state in France pre-existed citizenship and the civil order. Thus, rights and freedoms for citizens are subjected to an order that remains sovereign and limits rights and freedoms under the law, itself strictly 20

Blandine Chelini-Pont. “L’émergence normative du pluralisme religieux et ses conséquences sur la laïcité française,” in Pluralisme et Idéologie, Actes du colloque LID2MS 2009, Collection Droit et Mutations sociales, PUAM, 2011, pp. 110-136.

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delineated. It has been a difficult challenge to pass from a monist state, which has excluded the temporal influence of Catholicism and methodically reduced the influence of this religion on society as a whole, to create a state based on legal principles, subject to the rule of law, and kept distant from the religions professed by its citizens, integrating denominational pluralism as a new constitutional value. This needed the recent debates on religious discrimination towards Muslims —or towards very small and too proselytic religious minorities—21 so that, a new consideration for the citizens’ religious diversity —as well as for their spiritual vitality— is now taken into account by the law, without really affecting the form and official philosophy of the French secular state. But this new consideration is still challenged by an imagined one, which acts like a civil religion and, in any case, which is part of the essential themes of French political debates between Right and Left: the Left stating that secularism means no religion at all in the public space, and the Right saying that secularism means a selective freedom of religion for those religions that are compatible... French imagined secularism is, in a way, a perpetual building site and the mediocre result of several opposing trends, competing over a correct understanding —and using it to defend a political objective. For example, in the 1950s, secularism was a concept employed by some of the French Left to ‘defend’ public schools against competition from private Catholic schools. Secularism as a theme fuelled the Schools War, pitting one camp against the other, and the Right did not like this theme one bit. So when, in 1958, the new Constitution declared the French republic a secular republic, the Gaullist fathers of the Constitution were careful not to define the content of this adjective. The Schools War ended with the 5th Republic, and academic freedom, coupled with freedom of conscience, was declared a constitutional right by the Constitutional Council. In exchange for support by the state for Catholic school salaries, Catholic dioceses agreed to take up the mission of teaching as a public service, jointly with the public education system. They also accepted that parents could freely choose to enroll their children, or not, in classes on the Catechism in Catholic schools. This is a very French secular arrangement that has greatly contributed to reconciling Catholics with the secularism of institutions and civil law.

21

Françoise Gaspart and Fahrad Khosrokhavar, Le foulard et la République (Paris: La Découverte, 1995). Claire de Galembert, ed., special edition, Le voile en procès, in Droit et Société 68.1 (2008).

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The issue of secularism almost disappeared from the political debates of the 70s and 80s, except as an identifying characteristic of some of the French Left, for whom religion —still understood as ‘Catholic’— remained the time-honoured enemy of any progress of the revolutionary people... The ideals of philosophical emancipation and teaching freedom of thought have remained strong in the education system and have been a weapon for socialist activists in the country until today. But secularism as a reference was no longer the subject of debate or political identification. It was in the late 80s, with the appearance of Muslim veils in public schools, twenty years ago now, that the notion of secularism as a sum of the values of the French Republic resurfaced. In twenty years ‘secularism’ has become the spirit of the French Constitution. It has served as a key word to define the identity of the French citizen.22 This major shift has two faces that confront one another, like those of the Roman god Janus. The first face is defined by one of our greatest sociologists on religion in France, Jean-Paul Willaime, as a positive shift, because it gave rise to the so-called secularism of recognition of religions, which President Sarkozy’s team defined as positive secularism, with a very Christian narrative on the participation of religion in the affairs of the Republic. The two orders are well separated: the temporal from the spiritual, and people have the right to believe anything they want, as long as civil society, as an assembly of all citizens of the Republic, is organised within the framework of a set of common laws with a self-regulating political order sui generis.23 Consensus-based secularism can survive without religion - or live in peace, coexisting alongside religion. According to Willaime, the French today are much less tense about the fact that religion can be a very important element in people’s lives. They admit that there are some very religious people amongst them; and more than before there is a diversity of beliefs. They also increasingly admit that organised religions play a role in civil society and express their views in social debates, etc. This greatly benefits the Catholic Church and its presence in the public arena, the charity sector, healthcare, and especially in education. But to this positive secularism, which can also been seen in the development of jurisprudence,24 particularly through the history of many case laws 22

Jean Bauberot, Histoire de la Laïcité en France (Paris: Presses universitaires de France, 2011). 23 Jean-Paul Willaime, “Pour une sociologie transnationale de la Laïcité,” in Archives des Sciences Sociales des Religions (June 2009): pp. 201-216. 24 Latest to date, five administrative case laws of the State Council were issued in July 2011, making changes in the relations between local governments and cults. In all cases, the Council

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concerning the Jehovah Witnesses, there is, however, a negative secularist reaction that continues to resurface. Negative secularism means not accepting being called into question by ‘newcomers,’ or those who lack discretion, and who, in a sense, ‘attack’ the tacit agreement imposed by secularism —i.e., a pact of religious discretion— when people ‘mix’ with others in the street, at school, or in government offices, etc. The visibility of religion causes the reaction of ‘secularism in danger,’ like the revolutionary model of the ‘Fatherland in danger.’ In fact, those most affected by this secular reaction are the Muslims, since the Catholics in France have been deeply secularised since the 70s, and went practically unnoticed for twenty years. France is populated by some 66 million people, with three key characteristics that merge together: a long-standing, firmly rooted population with very numerous and diverse local traditions and lifestyles; a long-established urban population, as a consequence of the different industrial revolutions; and a clearly defined melting-pot population, constantly being renewed since the 19th century. A country of strong immigration, as is the United States, France today has a total of four million foreigners, a permanent number made up by the difference between the newcomers and long-standing immigrants who have now become or are becoming new citizens. Moreover, France today receives millions of immigrants, but more with long-standing or recent European roots (Italy, Belgium, Poland, Spain, Portugal, Romania, Greece, Hungary, Lithuania); recent North African roots (Algeria, Morocco, Tunisia); continental African roots (Mali, Chad, Senegal, Niger, Burkina Faso, Ivory Coast, Togo, Benin, Zaire, Congo, Rwanda, the Comoros, Madagascar), and Asian roots (Vietnam, China, Sri Lanka). agreed with the local authorities, demonstrating a rather liberal view of the 1905 law. Municipalities “may fund projects related to buildings or cult practices,” despite Article 2 of the 1905 Act, provided they comply with the neutrality of religion and be of “local public interest,” be it cultural, economic, or health-related. For example, the Basilica of Fourvière in Lyon is a religious building but it is also the first tourist site of the Rhône-Alpes region; the mayor of Lyon can therefore install a lift. The church organ, financed by the community of Trélazé, can also be used for music lessons or concerts open to the public. As for the construction of a sheep slaughter house in the city of Le Mans, mainly for Muslims, this is justified for reasons of “safety and public health.” The State Council also validated an agreement for a long term lease (99 years and a symbolic one euro per year) between the Mayor of Montreuil and a religious association, for the construction of a mosque. Finally, the State Council considered that a community —in this case the city of Montpellier— shall “allow the use of one of its premises for the practice of a religion” provided that at all times “financial conditions exclude any donations.” Furthermore, a community shall not prohibit the use of any of its premises for religious purposes...

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This extreme diversity is due to a number of different factors: the (past) attractiveness of being one of the major countries of the industrial revolutions in Europe; the demographic shortfall caused by the two World Wars; the extraordinary post-war economic growth; and the vast wave of immigration that followed the French Empire’s decay. The existence of a French speaking area as an imperial heritage still favours France as a destination in the current process of African immigration. If, today, economic immigration now affects all countries in Europe, for a long time in the past, France, Germany, and the United Kingdom were the only countries affected. Since the 70s, citizenship policies in France (by request, birth, or marriage) favoured a rapid extension of citizenship to economic immigrants with their families. The goal of this policy was to ‘assimilate’ them faster. This term means that once a French citizen, former immigrants have to adopt a tacit, unwritten agreement involving specific behaviour as to religious beliefs: and acceptance to be discreet about this in the public arena and social relations. This model, equally inherited by complex French history on its controversial path towards political modernity, was contested in the 1980s. Two phenomena developed that, step by step, changed well-founded certainties and habits. The first one was the denunciation of the strong discrimination existing towards immigrants at work, in housing queues, education, salary levels, and above all, in terms of social respect. The second phenomenon was the protest against French secularity, as a social practice of civic discretion in the public sphere. This practice began to be denounced as an insidious form of discrimination, as ‘forcing’ everyone to keep his religious association to ‘private’ space would in fact favour contempt of the new religions. In the 1990s, hostility toward Muslim visibility was, in a way, overshadowed by the hostility toward new religious movements, all lumped together, like the dangerous totalitarian cult movements that were contrary to freedom of thought. A strong anti-cult policy developed in the country during those years, however public opinion eventually lost interest. This is no longer a success today. We are once again in the presence of the development of Secularism on the defensive, in which Muslims are the attackers. Indeed, there are concerns about this turn of events. These events are not only French; they affect the entire European continent. But, getting back to the first point: if, in the rest of Europe, secularism is pointed to as the vilified vector of multi-culturalism, the atheism of the welfare State, a de-Christianisation orchestrated by elite liberals with no con-

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science, and the direct cause of the Islamisation of the continent, in France, in fact the exact opposite is true. Secularism is put forward in France as a protective shield against these same phenomena, especially against Islamisation and the destruction of French culture. Secularism in France is now used as an argument to respond to the awakening of the same nationalist identity that has taken hold in parts of Europe. Faced with the global economic crisis; increasing immigration, particularly in countries that have never known this phenomenon, such as Scandinavia; and a feeling of loss of status, a dangerous anger is mounting from the depths of the old world. Thus, the originality of French secularism today is that it is promoted by certain groups united against ‘Islamisation,’ when this same secularism is denounced by many in Europe as one of the main causes of Islamisation. In both cases, ‘Muslims’ become the metaphysical enemy. And having lived through the historical experience, we Europeans know that a portrait of the metaphysical enemy against the backdrop of the economic crisis does not lead to political appeasement.25 Let us give just two very symptomatic examples of what is going on: in France, the National Front party has played the role of acting as the denouncer of the ‘Muslim invasion’ as a result of uncontrolled immigration. But it is now joined in this denunciation by some of the Gaullist electorate, and by the formation of a sub-group in the Gaullist majority party called the People’s Right, both of which are pushing for a stop to immigration. A significant group of secular activists, normally more left wing, are also supporting this portrait of ‘Muslims’ that undermines the historical values of France. The debate in 2011 sparked by Muslim ‘squatters’ praying on the sidewalks of certain cities in France (due partly to the lack of space in the Mosques and partly to the attractiveness for ‘religious traders’ of uncontrolled cash gifts), such as Paris, Lyon, and Marseille, is a striking example of the way the media feeds on the political statements of these groups that ignite heated debates. At the same time, we are witnessing a rise in popularity of right and left wing associations that define themselves as ‘Republican resistance’ organisations, led by Le Bloc identitaire (the Identity Block) (rightist) born in Nice, and the Riposte laïque (Secular Response) (leftist) born in Paris, whose websites are particularly popular.26

25 26

Jean Baubérot, La Laïcité falsifiée (Paris: La Découverte, 2012). http://www.bloc-identitaire.com/, http://ripostelaique.com/

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Other groups are also visited on the net, such as Bivouac or Résistance républicaine. These new groups organised a public Republican aperitif (sausages & wine) on 18th June 2010 in Paris —the day General de Gaulle called for the Resistance against Nazi victory— and again on the 18th of June 2011. They also organised the same type of aperitif on the 4th of September 2010, commemorating the 140th birthday of the 3rd French Republic. These new ‘Republican resistance’ groups have recently come up with a slogan: neither Sharia nor Burkq in the Republic! Each time, the media has extensively covered these events. C O N C LU S I O N : Without exaggerating the issue, tensions are mounting in Europe, and the thresholds of tolerance are giving way to the thresholds of saturation. In this context, paradoxically, the legislative strictness in France on the issue of the Burka being forbidden in public, as well as negotiations on the way with Muslim associations to avoid praying in the streets, can be considered as prevention rather than stigmatisation. The development of the French secularist narrative over the past twenty years has vacillated between openness to religious pluralism and a closed nationalist identity, and in this balancing act has shifted today in a reactionary direction, within the image of the political and cultural mood of the old continent.

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PROTESTANTISM IN THE LATIN WORLD: RELIGION AND SECULARISM

Jean-Pierre Bastian University of Strasbourg, France

If Rome and ‘Latinity’ are terms that are inseparable, the same can be said about Calvin as the leading symbol and agent of the anti-Roman, Protestant reform of Christianity in the Latin world, who linked both the legal rigour of his statements with the force of his conviction. But the term Latinity is problematic as it covers a range of situations and of States that claim it for themselves, from the ‘Latin’ countries of Europe, to Latin America, and including Romania. But Latinity can be interpreted as a specific geo-political and cultural area with its own characteristics. These include a combination of linguistic markers (languages derived from Latin), juridical markers (predominance of Roman law over common law), and religious markers (hegemony of Catholicism). For our purpose, the latter marker is particularly significant, because it defines a common reference for nation-states in which the specific cultures are very much determined by a unitary, centralised, Catholic religious reference. The geography of Latinity is closely linked to the Catholic marker that goes beyond linguistic differences and forges a sentiment of cultural unity that was built up historically, largely in opposition to other geopolitical areas with different religious habits. Just as Islam helped define the southern and eastern fronts of Latinity, and Orthodoxy the eastern front, Protestantism defined a much less homogeneous group of nation-states in northern Europe. At the same time, European colonial projections in America built up a bi-polar cultural and political configuration that was expanded during the ‘Europeanisation’ of America, broadly opposing a centre and

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south that were Latin and Catholic, to a north that was Anglo-Saxon and Protestant. However, historically Protestantism is not a religion that belongs only to the Anglo-Saxon, Germanic, or Nordic cultural area. It was, and still is, a religious component of Latinity, though characterised by its minority position, with just a few exceptions, in a context of Catholic hegemony. This relationship of Protestantism with Latinity needs to be explored from a broad European and American perspective, and over the long term. It should be seen first on the basis of the Christian differentiations induced by the Reforms of the 16th century and their opposition to Catholicism in a movement in which Protestantism brought the values of secularising modernity. Also of note was the way in which Protestantism maintained its position in a political and religious area that it aimed to eradicate, and was transformed into a secularising avant-garde. My purpose is to explore the contemporary changes in Protestantism that reveal how the dissemination of enthusiastic forms of Protestantism tie in with a process of religious fragmentation in a secularised society.

RELIGIOUS REFORM

AND

H E T E RO D OX Y

IN THE

L AT I N W O R L D

In the 16th century, nothing predisposed the nascent Protestantism to be limited to a specific geo-political area. From the start, it was a religious movement with many heads, and the emblematic figures of Luther, Calvin, and the English Puritan preachers (Baxter) clearly stressed the various spatial and linguistic/cultural components of Protestantism. It is true that each of these three reforms embraced specific cultural, political, and linguistic environments, although Calvinism also grew in some of the German länder and the Netherlands, and in parts of England and Scotland (where it fell under the leadership of John Knox). All the same, there is a sort of elective affinity between a certain type of Protestantism —Calvinism— and the Latin world, to the extent that both Lutheranism and English Puritanism were almost absent from the Latin geo-political area, apart from the migrant diasporas from Germany (Lutherans in southern Brazil and Chile) and England (pockets of Scottish or Welsh Evangelists in Argentina) in 19th-century Latin America. Nor did anything predispose Protestantism to continue being an ultraminority movement in the Latin world. In the middle of the 16th century, France was a shared territory from the confessional point of view, and the religious and political balance of power could have tipped just as easily one way

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or the other. However, the same cannot be said for the Iberian Peninsula, where the slow Reconquest from Islam led very early on to the equating of national identity with religious affiliation. There, the small numbers of alumbrados and other converts (such as Luis Vives) to the ideas of the Reformation were quickly overwhelmed by the State apparatus, with renewed activity of the Inquisition, which had been set up long before, as from 1492. This was in a balance of European power during which Charles V, and later Philip II of Spain, became champions of the Counter-Reformation or the Catholic Reformation, which set up a bi-partite European division based on the principle of cujus regio ejus religio. From the Kingdom of Naples to the Spanish Netherlands, Catholicism continued to be the restraint of princes, eradicating any possibility that the ideas of the Reformation might be adopted in such territories. With the Catholic Reformation that stemmed from the Council of Trent (1545-1563), the repression of heterodox ideas intensified, hounding out not only those of the Protestant Reformations, but also anything related to tolerant humanism. The ideas of Erasmus, and of the miller condemned by the Inquisition in Frioul for his pragmatic materialism,1 were repressed. The same happened with Catholicism in the north of Europe, which continued to be the religion of foreigners to the extent that a relatively homogeneous religious front was eventually constituted after the Peace of Westphalia (1648). A “divergence of development”2 emerged that for many years opposed Catholic modernity to Protestant modernity. The first expression of this divergence appeared with the break-up of the Spanish Netherlands and the autonomy of the Northern Provinces in the early 17th century. This break-up was more marked in the Americas, as stated by Hegel in his Lectures on the Philosophy of History.3 Following Samuel Eisenstadt,4 we can consider that there Protestantism and Catholicism created two antithetical civilisational areas. In the north, a culture informed by a covenantmaking Protestantism and by a pioneering society led to a civil society that was observed by Tocqueville in La démocratie en Amérique to be founded on reli-

1

Carlo Ginzburg, Le fromage et les vers (Paris: Aubier, 1993). Alain Peyrefitte, La société de confiance. Essai sur les origines et la nature du développement (Paris: Odile Jacob, 1995), pp. 115-125. 3 Cited by Peyrefitte, op. cit., pp. 355-356. 4 Samuel N. Eisenstadt, “Culture, religion et développement dans les civilisations de l’Amérique du Nord et de l’Amérique latine,” in Georges Couffignal ed., Amérique latine, tournant de siècle (Paris: La Découverte, 1997), pp. 141-160. 2

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gion. Even if racial equality did not prosper there, the Puritan imagination crafted a sort of egalitarian man and society, both of which were hard-working and marked by temperance. To the south of the Rio Bravo, in the Hispano-Portuguese colonial area, neo-Thomism confirmed the principles of a pyramidal order legitimising racial differences that were sanctioned as being ‘natural.’ Baroque times, with their exaggeration of form, were the expression par excellence of a society in which passion predominated over reason, ostentation over asceticism, and inquisition over free choice for the individual. The Latin order that was exacerbated in America reveals how much room was left for Protestantism. It was persecuted by the colonial Inquisition as ‘Luther’s sect,’ alongside those of Muhammad and Moses. Defined as a heresy, it was the religion of the political enemy and of trading competitors —mostly England and the United Provinces. With the Enlightenment, it gradually became the equivalent of ‘tolerantism’ and of the ideas of liberal modernity. Books by Protestant authors were confiscated and burnt alongside those by French and English philosophers. Protestant otherness was synonymous with ‘exogeneity.’ Social exclusion of non-Catholics, and especially of Protestants, led to the creation in the 19th century of the cemeteries for acatólicos that can be found from the port of Valparaiso in Chile to Rome (close to Sao Paolo fuori le Mura), where the tombs of the English poet Percy Shelley and of the Italian Marxist Antonio Gramsci lie alongside those of Italian Protestants and Freemasons. Reducing heretics to foreigners and to subversive ideas within the Catholic order allowed for work to get done on drawing up the symbiosis between Catholicism and proto-national identity. What was done in Spain, from the period of the Catholic monarchs at the end of the Reconquest (1492), with the identification of the nation with Catholicism, in the colonies took the form of proto-nationalism as explained by Jacques Lafaye (1974) in his book Quezalcoatl to Guadalupe.5 He showed how in New Spain, the incipient Mexican identity was structured around the symbol of the dark-haired virgin of Guadalupe, who gradually became emblematic of National-Catholicism. A similar process soon appeared throughout the Hispano-Portuguese colonial area, reaching its peak in the 19th century after the independence processes with the constitution of nation-states and the consecration of various countries to a Marian representation. 5

Jacques Lafaye, Quelzalcoatl et Guadalupe, la formation de la conscience nationale au Mexique (Paris: Gallimard, 1974).

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In spite of the fortunate parenthesis of the Edict of Nantes, France did not escape this trend, which led to the tragic Revocation of 1685. The mass abjurations, sentences to the galleys, the revolt of the Camisards (17021704), and the Huguenot Refuge were all manifestations of the same process of identifying Catholicism with the nation-state and excluding any religious difference. The 1789 Revolution crossed a secularising threshold, from which there was no return, and which allowed Protestantism to find a place once again within the national space. Although socially acclimatised and in line with post-revolutionary ideas, it was still suspected of virtually betraying national values,6 especially because the enemy from then on was first English, then Prussian. Catholic opposition to the French Revolution and the fight between the “Church and bourgeoisie”7 defined the terms of the debate on the construction of Latin modernity. This was taking place at a time of tension and division between those who sought modernity in continuity with Catholic values, and those who considered it impossible to secularise Latin societies without reducing Catholicism to liberal modernity. This fight went on throughout the Latin world, and throughout the 19th and 20th centuries, leading to, amongst others, the civil wars of what Antonio Machado denominated the two Spains (1936-1939), Mexico (in both 1858-1860 and 19261929), and the conflict in France. In all of these, the lay, republican side essentially opposed the Catholic, ultramontane side. The resulting fractures designated the place allocated to Protestantism in the Latin world, which inevitably was in the camp of liberal, republican modernity.

P ROT E S TA N T I S M

AND

LIBERAL MODERNITY

IN THE

L AT I N W O R L D

Protestantism was only able to revive and expand in the Latin world after the second half of the 19th century, under the protection of liberal and republican regimes and constitutions that guaranteed the main freedoms of association, education, and faith. Until then, it had been a matter of foreigners

6 Jean Bauberot and Valentine Zuber, Une haine oubliée ? L’anti-protestantisme avant le pacte laïque 1870-1905 (Paris: Albin Michel, 2000). Also, Jean Bauberot, “1905-2005: La laïcité française et les minorités religieuses,” in Etudes Théologiques et Religieuses, 82.1 (2007): pp. 67-80. 7 Emile Poulat, Eglise contre bourgeoisie. Introduction au devenir du catholicisme actuel (Paris: Casterman, 1977).

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accepted because of some specific contribution to the nation, or a matter of heretics that had to be reduced to Catholic unequivocalness or condemned. The exception was French-speaking Switzerland, and especially the townstate of Geneva, attached to the Helvetian Confederation, at a political and religious distance from Savoy and France, which were Catholic. Geneva is the only Latin ‘nation’ in which Protestantism became the state religion without being imposed from outside, and in which the term ‘National Protestant Church’ has lasted until today, in spite of the separation of Church and State in 1909 and the slump in the number of followers (only 16% of the population of the Geneva canton was Protestant in 20038). In the neighbouring cantons of Vaud and Neuchâtel, crossovers to Protestantism after the Reformation were determined by the Bernese conquest in the former, and by the Prussian domination in the latter, both of which toppled them or kept them within the orbit of reformed Protestantism. Everywhere else, apart from the invincible ‘pocket’ of Waldensians in the Italian Piemonte, the Montbéliard territory under the Orange-Nassau trust, Alsace on the frontier of the German and Latin worlds, and the Miskito ethnic group that became Moravian under English rule on the Atlantic coast of Nicaragua, Protestantism was absent from the former Latin regimes. From then on, republican triumphs and, above all, the adoption of the principles of freedom of faith were the essential conditions for the revival of Protestant sociability in the Latin world. Specific political rhythms in the different countries were behind this, although confusion of the terms of heterodoxy and Protestantism remained anchored in the collective unconscious, especially in Latin America and in the Iberian Peninsula. A corrido (popular song) from the times of the liberal Reform in Mexico (1854-1860) bears witness to this: “Madre mía de Guadalupe que gane la religión que protestantes tenemos y corrompen la razón.”

This requires a brief explanation. Reason and religion were synonymous for Mexicans at the time. Reason was the reason of the Thomist neo-Scholasticism that was forged in Rome and that influenced the predominant ultramontane trend within Catholicism, a trend that was both anti-modern and anti-liberal. The term ‘Protestant’ took on a special meaning in that there was not yet any association of this type in the Mexican society of the 1850s, ex8

Le paysage religieux en Suisse (Neuchâtel: Office fédéral de la statistique, 2004), p.17.

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cept for the limited presence of foreigners. In line with the terminology of the Inquisition, it was applied in a general way to any action that fell outside Catholic logic. So accusing Protestants of ‘corrupting reason’ had to do with the process of secularisation that Protestantism, amongst others, had helped set up, and which was perceived as a threat for the corporatist social order based on the Catholic-Thomist reason. Around 1860, in Latin America as well as in Spain, Portugal, Italy, and Wallonia, it was difficult to find religious expressions that were not Catholic or subordinated to the Church. With the triumphs of liberal minorities and under the protection of constitutions that established freedom of faith or at least religious tolerance, Protestantism began to be seen in the Catholic world as a ‘society of thought’ (‘société de pensée’), a modern form of association. Returning again to the analyses made by Furet regarding revolutionary lodges and sociabilities in France prior to 1789,9 these should be considered as laboratories that were designing a new type of citizenship, and in which democratic values and practices were being anticipated. In the logic of ‘societies of thought,’ Protestantism promoted a ‘spirit of association’ as opposed to the ‘esprit de corps’ of Catholic society. Protestantism was necessarily a small movement, one of converts. It was a type of ethical Christianity that attracted liberal minorities in search of both religious and democratic modernity. It was therefore of interest, above all, to the new social sectors (factory workers, employees, small landowners, day labourers, teachers, etc.) that were keen to break with the dominating methods legitimated by the conservative Catholic order. It thus came to be closely associated with lodges in the second half of the 19th century, and with the mutual aid societies that nurtured Christian socialism amongst workers. It worked to achieve progress in the fields of education, health, and democracy. With their liberal political and religious culture, Protestant societies demonstrated a republican public-spiritedness in which the festive and commemorative calendar consistently went against the calendar of Catholic patron saint festivities, for example in Mexico.10 With the help of liberal, republican triumphs, Protestant societies flourished during the Spanish First Republic (1868-1874), were then repressed and went into clandestinity, reappeared during the Second Republic (19311936), and were repressed again with the triumph of the Franco regime.

9

François Furet, Penser la révolution française (Paris: Gallimard, 1978). Jean-Pierre Bastian, Los disidentes, sociedades protestantes y revolución en México, 18721911 (Mexico: Fondo de Cultura Económica, 1989). 10

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They appeared in Mexico during the period of the restored Republic (18671876) with its fiercely anti-Catholic liberalism, and participated subsequently in the resistance to the conservative liberal dictatorship of Porfirio Diaz (1876-1911), who led a policy of active reconciliation of interests with the Catholic Church. They then found themselves at the forefront of the revolutionary struggle that brought down the regime in 1911. Everywhere else in Latin America, and at different times, they were closely linked to movements to restore liberal policies and persecuted by conservative regimes. They constituted an anti-Catholic liberal front that was not much of a threat for the hegemony of the Catholic Church in religion. However, the latter systematically reacted against Protestant and spiritualistic movements with repeated Pastoral Letters of condemnation to dioceses and Episcopal conferences in a context of broader conflicts between liberals and Catholics. This was the case throughout the second half of the 19th century and the first half of the 20th century. In Mexico, persecutions of Protestants and liberals were constant under Porfirio Díaz, and continued sporadically throughout the 20th century with occasional bursts of activity. After the liberal interval in Colombia, the same happened beginning from 1889 with the restoration of the ‘Catholic Republic.’ Particularly brutal persecutions took place during the period known as ‘La violencia’ that ran from 1948 to 1952, affecting both Protestants and liberals. These attitudes that were supported more or less openly by the Catholic hierarchy were seen throughout the region, including Guatemala and Peru. Protestantism was considered a clearly identified enemy described pejoratively as a ‘sect’ in the sense that had been forged by the colonial Inquisition. The ideological and theological fight was a long process, spurred on especially by the 1864 Syllabus and the intransigent condemnations of Pius IX. Protestantism was perceived as the starting-point for the mistake of modernity that the Church was by no means prepared to accept, and battle was waged against it just as it was against liberal and socialist ideologies. Throughout the 20th century, the terms Protestant and Communist were often juxtaposed in the denunciations of revolutionary agents by the Catholic Right and by the Catholic hierarchy. In Latin America, this went together with anti-Americanism because the Latin-American Protestant organisations were the fruit of North-American Protestant missionary societies. These had financed a relatively significant network of primary and secondary schools and higher education institutions. The latter aimed to recruit the elites and thus competed directly with renowned Catholic schools. While the Church and conservatives advocated

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pan-Hispanism rooted in the ideology of the Spanish Catholics Jaime Balmes (1810-1848) and Juan Donoso Cortés (1809-1853), the Protestants, following Spanish Krausism and the liberalism of Emilio Castelar (1833-1899) and Miguel de Unamuno (1864-1936), advocated a pan-Americanism that they promoted in a journal addressing the élites, La Nueva Democracia (19201962). The Church responded with pamphlets against the ‘Protestant sects’ and Pastorals denouncing them or excommunicating anyone prepared to take the risk of joining them. In the context of the fight against Communism and in various countries in the region, affirmation of National-Catholicism took the form of consecration to Marian figures, as in Mexico with the Virgin of Guadalupe in 1895, then the Sacred Heart of Jesus (Ecuador 1874, Colombia 1902, Costa Rica 1921, Bolivia 1925, and Panama 1959). The erection of monumental sculptures to Christ the King in Mexico (Cerro del Cubilete), Chile (Cristo de los Andes), and Brazil (Corcovado) is a clear illustration of this. Non-Catholics were thus seen as disciples of the anti-Christ, and therefore as unlikely to be faithful to the nation. As in the rest of Latin Europe, the Spanish Catholic Church adopted ultramontane, intransigent positions in the 19th century along the lines of the Encyclical Quanta Cura and the Syllabus (1864) and Vatican I (1870). ‘Intransigent Catholicism’11 was enriched by thinkers such as Donoso Cortés, who wrote in favour of anti-liberalism and anti-republicanism.12 Such expressions became more intense in opposition to the ‘Glorious Revolution’ of 1868 and an ephemeral First Republic whose Constitution of 1869 established religious freedom. With the liberal and republican triumph, Spanish evangelism was born and the Iglesia evangélica española was set up in Seville that same year. The movement was not confined to a province that was happy to oppose Castilian power (Anarchism); almost simultaneously a similar initiative appeared in Madrid, where the ground was much less fertile. The return of the monarchy in 1876 brought a restrictive policy for religion, marked by a new Constitution (1878). This, in its article 11, restricted nonCatholic religious practice to the private sphere and placed evangelism firmly within the limits of a liberalism radicalised by its anti-Catholicism. This brief reminder of the historical situation in which Spanish evangelism was born allows us to understand one basic aspect of the movement. Far from

11

Emile Poulat, op. cit. in footnote 7. William J. Callahan, The Catholic Church in Spain, 1875-1998 (Washington D.C.: The Catholic University of America, 2000). 12

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being, from the sociological point of view, a sectarian phenomenon, it was above all a type of sociability that stemmed from the model of the ‘societies of thought.’ If we consider the various traits (conversion, millenarianism, thaumaturgy, revolutionary, reformist) put forward by Wilson to characterise a sect,13 none of these is appropriate for understanding the protestant movement in Iberia in the 19th century except for conversion. But conversion aimed to promote a vision of the world that was both religious and political based on liberal modernity in terms of vindication of tolerance, civil law, education, pluralism, and secularisation. Far from being conversion of a sectarian nature, on the contrary the aim was to disseminate the religious values of liberalism and to seek the religious, intellectual, and moral reform of Spain. This is why the definition given by Furet of a ‘society of thought’ as a laboratory in which the practices and values of modernity are anticipated, and in which a new type of subject is built —that is, the citizen of a representative democracy— , ties in better with these expressions of political liberalism from the religious point of view that were adopted by Iberian Protestantism at the start. The demonstration could easily be extended to Italy, where similar links developed between extremely limited Protestant sociabilities, lodges and Risorgimento,14 or to Portugal, where the advent of the First Republic (1910-1926) brought with it a flowering of ‘societies of thought’ including Protestants. One of the figures of Italian Protestantism is precisely the former priest, liberal patriot, and revolutionary, Alessandro Gavazzi (1809-1889), chaplain to Giuseppe Garibaldi (1807-1882). During the liberation of Rome in 1870, he founded the Chiesa libera evangelica italiana, whose church was located very symbolically on the banks of the Tiber at the Ponte Sant’Angelo, opposite the Castel Sant’Angelo and the Vatican. The idea of a front of sociabilities opposed to the National-Catholic order gives a clear indication of the close links maintained, for example, by the Spanish Protestant pastors and followers with other ‘societies of thought,’ lodges, mutual aid societies for workers, liberal political clubs, and spiritualistic circles during the last third of the 19th century, and again, more intensely, with the triumph of the Second Republic from 1931 to 1936.15 These sociabilities shared a common destiny in opposition to the rise of National 13

Bryan Wilson, Les sectes religieuses (Paris: Hachette, 1970). Jean-Pierre Viallet, “Anticléricalisme et laïcité en Italie. Bilan historiographique,” in Mélanges de l’Ecole française de Rome. Moyen-Age, Temps modernes. 98.2 (1986): pp. 837862. See also Giorgio Spini, Risorgimento e protestanti (Milan: Mondadori, 1989). 15 Jean-Pierre Bastian, “Le lien maçonnique des dirigeants protestants espagnols, 18691936,” in Revue d’Histoire et de Philosophie Religieuse, 3(July-Sept 2004): pp. 265-287. 14

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Catholicism, and were privileged places for inculcation and training in liberal values. This makes it easier to understand why Spanish evangelism was close to the Spanish Krausist16 movement that aimed, against intransigent Catholicism and against positivism, to reconcile reason with faith, science with ethics, and secularising modernity with Christianity.17 This evangelism was adopted in a dialogue with one of the great Castilian intellectuals of the time, the philosopher Miguel de Unamuno (1864-1936), who sought the religious and moral reform of Spain as a premise for economic and social transformation.18 To restore this interpretation is of capital importance for understanding one of the poles, very much in the minority, of contemporary Iberian Protestantism that arose directly out of this experience, and which tended to become blurred in that political regimes characterised by political and religious repression led the pietistic and fundamentalist dimension of evangelism to gradually come to the forefront, especially during the terrible repression of Franco. In other words, while the model of the ‘societies of thought’ was fading, that of the conversionist sect in the Wilsonian sense became stronger with the limited expansion of the Baptists, Plymouth Brethren, Adventists, Jehovah’s Witnesses, and other similar Protestant societies. But in Spanish contemporary Protestant memory, awareness of the early years remains and helps sustain a certain representation of self and of a link with society. The same can be said for Portugal and Italy, where historical Protestant churches today face an explosion of Evangelical and Pentecostal churches finding support amongst immigrant populations. It would be too ambitious to trace the relationship of French Protestantism with the State in the 19th century. Its history differs somewhat from that of its Iberian and Italian neighbours to the extent that real Protestant enclaves survived in certain territories (Cévennes, Béarn, Poitou, AlsaceMoselle) where the system of cujus regio ejus religio predominated, in spite of persecutions and exile. But after the first Napoleonic threshold of secularisation that allowed the historical Protestant churches (Lutheran and Reformed) to enjoy State recognition, the Protestants moved towards a second, much

16

Karl Christian Friedrich Krause (1781-1832), a Hegelian whose thinking was disseminated in Spain beginning from the 1850s by Julián Sanz del Río (1814-1862) and the Escuela Libre de Ensenanza. 17 Juan José Gil Gremades, Krausistas y liberales (Madrid: Dossat, 1981). 18 Segundo Serrano Poncela, El pensamiento de Unamuno (Mexico: Fondo de Cultura Económica, 1978).

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more radical threshold, in which a sort of liberal, freemason, spiritualistic, and Protestant front predominated against the partisans of Catholicism. During the ‘Guerre des deux France’, the Protestants became the soldiers of the Republic, defending the principles of secularism. This is because they were the key agents (Ferdinand Buisson) in the school reforms of the 1880s, in the enactment of the law of separation of 1905 (Louis Méjean), and in the promotion of solidarity among associations. In general, the Protestant churches found themselves on the side of the Republic. However, in spite of the principle of triumphant secularism, they hardly received any dividends from their support of the Republic and were hardly able to move beyond the historical territories to which they had retreated after the end of the religious wars of the 17th century. Protestant elites were founded during the Republic, and Protestantism became an organisation that was recognised, along with others, as part of a nation in which, as sustained by Jean Baubérot, “the rejection of pluralism remained violent... creating a typically French suspicion of religion, which was considered responsible” for attacking freedom of thought.19

T H E P RO B L E M AT I C R E L AT I O N S H I P B E T W E E N P ROT E S TA N T I S M A N D C O N T E M P O R A RY L AT I N I T Y This difficulty for Protestantism for conquering the masses in a Latin context, even in a favourable context such as that of the French Third Republic, requires consideration. In fact, whether in Latin Europe or in Latin America, Protestant religiosity has remained very much for a minority, with the above-mentioned exceptions in French-speaking Switzerland. So why did a simple religion that chooses to align with liberal modernity not impose itself more, considering that certain liberal elites went so far as to advocate its expansion so that “the Indians can learn to read rather than to burn candles,” as was stated by the Liberal President of Mexico Benito Juarez (1806-1872). Why did France continue to be a lay country with a Catholic culture, even though the political conditions were right for the privatisation of religious matters, and therefore for the dissemination of a religiosity centred on a pluralist culture of choice and going beyond both Catholic political and religious communitarianism and lay and republican monism? Why did Protestantism, 19

Jean Bauberot, “1905-2005: La laïcité française et les minorités religieuses,” op. cit. in footnote 6.

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which benefited a priori from being associated with the wellbeing of the peoples of northern Europe and the deployment of capitalism, not attracted the elites in Spain, Portugal, Italy, or Latin America? An answer to this question can be sought in Unamuno (1864-1936). He was undoubtedly one of the Iberian intellectuals who reflected the most upon the relationship between religion and modernity in Spain.20 He was convinced that only religious reform could bring his country the economic and cultural wellbeing that it aspired to, and he was sympathetic towards Protestant sociabilities, although he never converted. His anti-Catholicism did not lead him to deny the Christian values that constituted Spanish identity. He was receptive towards German Protestant theology, but considered that Protestantism was a religion suited to cold Nordic climes. He did not see it as a religion that could satisfy the need for the aesthetic, emotive, and mystic aspects of Spanish idiosyncrasy, in which Saint John of the Cross was one of the main figures. He advocated a “religious revolution for the Latin peoples, something that would do what the Reform did for the German and Anglo-Saxon peoples.” Deeply marked by German liberal Protestant theology (Harnack, Ritschl), he sought a religious reform in accordance with what he considered to be the ‘Spanish soul.’ He condemned dogmatic, legalistic Catholicism, but without completely adopting liberal Protestant ideas, which he felt were either too rationalistic or risked being overpowered by Biblical literalism. According to him, Protestantism fluctuated “between slavery to the word and the sort of rationalism that evaporates the life out of faith.” Above all, he sought an original Latin and Spanish religiosity that could form part of the mysticism of the reformed Catholicism of Ignacio de Loyola, while integrating certain basic aspects of the Protestant Reform of the 16th century. His ‘tragic sense of life’ stemmed from this gap between the Spanish soul and the modernity that was being imposed from outside. In his opinion, only a religion that allied the ethical rigor of Protestantism with Latin aesthetic and emotional requirements would be able to conquer the Spanish people. We might wonder if today the Pentecostal explosion (Bastian 1997)21 that is shaking the foundations of Latin America and, more marginally, of

20 José María Martinez Barrera, Miguel de Unamuno y el protestantismo liberal alemán, una aproximación critica al estudio de la personalidad del escritor vasco (Caracas: Talleres de la Imprenta nacional, 1982). See also Serrano Poncela, op. cit. in footnote 18. 21 Jean-Pierre Bastian, La mutación religiosa de América Latina. Para una sociologia del cambio social en la modernidad periférica (Mexico: Fondo de Cultura Económica, 1997).

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Latin Europe (but mostly affecting Protestant minorities) can be understood from this perspective as a response to Unamuno. Today Pentecostalism represents the majority of Protestant organisations in the Latin context, and has moved Latin Protestantism from its European historical centre to the periphery of the West. European Latin Protestantism (about five million followers) is now in a ratio of 1 to 12 to Latin American Protestantism, most of which is Pentecostal (about sixty million followers). Born in the United States in the early 20th century, Pentecostalism drank from the emotional Protestantism that takes from Methodism a marked piety based on participation of subjects in their own individual salvation. It is a practical religiosity, structured around three types of enthusiastic manifestation —glossolalia, thaumaturgic practices, and exorcism— in a spirit of praise and emotion. Spreading fast through the world, in 1910 it reached Latin America. There it remained underground and invisible during the first half of the 20th century, but it then took off and has seen exponential growth over about thirty years under the wing of ‘globalisation.’ Being very changeable in its forms of worship and not very demanding from the point of view of theological formulation, it has become the new popular Latin American religion that combines the hyper-archaism of magic and religious rituality with popular hyper-modernity, while offering a morally rigorous lifestyle that breaks with the prevailing laxism and the ethos of Catholicism. A large number of historical Protestant societies became Pentecostal in order to stem the outward flow of followers that was threatening their very existence. The same can be said of the Catholic Church, which, through a charismatic revival, has introduced Pentecostal forms and practices of praise. Far from stopping at the frontiers of Latin America and together with Evangelism, it is the form of Protestantism that is growing fastest in the Iberian Peninsula, as well as in France and Italy amongst the immigrants or gypsy ethnic groups. To some extent, we are beginning to see what Unamuno was calling for. This iconoclastic religiosity, unlike rationalistic Protestantism and baroque Catholicism, can be interpreted more as an emotional religiosity that is suited to the Latin world than as the expression of a Protestant ethic informed by systematically drawn-up theology. The Pentecostal thrust seems to confirm the failure of Reformed Protestantism in the Latin context and the receptiveness of the region to emotional religious expressions that can make up, at least in Latin America, for the tension between tradition and modernity. Latin America is a region in which there is still a clear divide or maladjustment between rationalising economic forces and political and cultural

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reasoning. It relates to modernity in a tragic way with regard to this tension between values and rationalisation. A Mexican intellectual grasped this particularly well when he wrote, Is the real situation of today’s world not that of the condemnation borne by the people of our time that makes them be Catholic in a situation that could well be described as secularised Protestantism? That is what has become of Latin American man, born into the life and history that stem from Spanish Catholicism... but nevertheless obliged to behave with regard to the economic, social and political aspects in a society, a political scene and an economy that were passed down to him by secularised Protestantism. There is thus a permanent wrench for Latin American man, a horror that requires him to dissemble, to pretend he is in agreement with the logic of industrial society, with modern political values and with contemporary neo-Liberal economics, when really these do not tie in with the world into which he was born or with the values in which he was brought up.22

Underlining the tension between mentalities, behaviour, and development imposed by poorly understood modernity, which seems foreign from the point of view of values, helps us understand the place Protestantism has occupied in peripheral modernity or in the Latin American “Far West.”23 The tension between exogenous religious values and habits can be seen the other way around and in a different mode in Latin Europe, which has developed towards secularised modernity with Catholicism, to a large extent, taking on secular values. Protestantism has therefore lost what marked its difference and gave it a certain hallmark as something new. It has even become dissolved in this secularised modernity, to the extent that it only stands out because of sectarian enthusiasms related to the Pentecostalism of migrant diasporas. These should be examined to see how they relate to historical Protestantism. As stated by Jean-Paul Willaime, emotion is socially unstable and easy to manipulate. It is also semantically available, as is the interpretation of glossolalia. If Pentecostalism represents a certain culture of emotion, that which exists in the universe of Protestant Christianity, this symbolic framing of emotion may become blurred by an experiential religion that is semantically malleable and fluctuates with circumstances and the inspira22

Enrique González Pedrero,“Reflexiones barrocas,” in Vuelta, Mexico, 162 (14 May 1990): p.26 23 Alain Rouquie, Amérique latine: introduction à l’extrême Occident (Paris: Seuil, 1987).

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tion of one agent or another. Semantic availability allows for all sorts of coding. We need to question whether the groups emerging can be considered to form part of the Pentecostal universe.24

And, I would add, of the Protestant universe. With no intellectuals in the sense of theologians bringing critical hermeneutics, this emotional Protestantism emerges, especially in the Latin American peripheries of Latinity, as a regressive form of Protestantism that stems more from the burgeoning of religion in late modernity than from a movement for intellectual and moral reform. It is similar to what was perceptively described in 1965 by Pierre Chaunu as “Christianity without a priest for part of the masses.”25 In response to certain questions on the evolution of Protestantism in Latin America,26 Sébastien Fath goes to the extreme when he observes the evolution of Evangelical circles in France and notes that “the trend towards ‘everything charismatic’... poses this major question: is not part of the Pentecostal/charismatic trend becoming separate from Protestantism (including the Evangelical branch)? We could go even further and ask whether the break has not already happened.”27 From this perspective, Pentecostalisms seem to belong less to Protestantism than to an emotional Christianity. They participate fully in the explosion or the crumbling of what is religious into communitarianism in the transnational urban space, in a market logic in which the cult of performance predominates over the logic of truth. Because, by becoming global, religion becomes standard, just like clothing or food. People must be able to ‘consume’ anything, in a more or less ‘local’ but standard version. Pentecostalism has gone along with this trend, a global phenomenon par excellence that is both individualistic and communitarian, that renews itself with forms of magic/religious thinking (miracles, trances, exorcism), and that mobilises high-tech communication tools in intense assemblies.

24 Jean-Paul Willaime, “Le pentecôtisme, contours et paradoxe d’un protestantisme émotionnel,” in Archives des Sciences Sociales des Religions, 105 (1999): pp. 5-28. Quotation taken from p. 9. 25 Pierre Chaunu, “Pour une sociologie du protestantisme latino-américain,” in Cahiers de Sociologie Economique, (Le Havre), 12 (May 1965): pp 5-18. Quotation taken from p. 17. 26 Jean-Pierre Bastian, Le protestantisme en Amérique latine: une approche socio-historique (Genève: Labor et Fides, 1994), p. 273. 27 Sébastien Fath, Du ghetto au réseau. Le protestantisme évangélique en France, 1800-2005 (Genève: Labor et Fides, 2005), p. 301.

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Olivier Roy28 has recently stated that secularisation, far from having abolished religion, has made it autonomous by freeing it from politics. By detaching religion from our cultural environment, he writes, “we make it appear to be pure religion.” The space for political theology, formerly occupied by the nation-state and historical churches, is shrinking. Because for religion to circulate freely in open societies, it has to become detached from its cultural, historical, and institutional markers, this being the only way for it to become international. Pentecostalism is well armed to respond to the global demand amongst uprooted, immigrant populations in a growing urban network, especially in the periphery of the West. Being both transnational and transcultural, it reformulates religion, adapting it to the ideologies of self-fulfilment and to a ‘gospel of prosperity’ based on the culture of miracles, rather than on that of the Protestant ethic as explained by Max Weber.29 Once it no longer has a territory nor historical depth, it attaches itself even more to the literality of the scriptures and to the Holy Spirit, which can breathe anywhere and everywhere. ‘Speaking in tongues’ becomes the real de-contextualised global language that can easily be made universal. Going back to the opinion of Calvin on “the fantastic, furious sect of libertines who consider themselves to be spiritual,” we could say that this is a “wild language in which people babble in a way that is just as incomprehensible as birdsong.”30 The message is simplified to the extreme, but it is immediately accessible on the understanding that it is easier to share emotions than ideas. As stated by Olivier Roy, “religion circulates outside knowledge.”31 The time is ripe for communication, not for critical and theological reflection stemming from the relation with philosophy and literature. Paradoxically, in Latin Europe, Protestantism remains a religion for active, critical minorities but tends, in its evangelical and Pentecostal manifestations articulated for communities of immigrants, to be more an expression of late modernity in search of experience and of an emotional soul than an agent for intellectual, moral, and social reform. The future of Protestantism in the Latin world is being played out in the tension between the need for reflexive, critical, socially weak religious modernity, and emotional management of re-

28 Olivier Roy, La sainte ignorance. Le temps de la religion sans culture (Paris: Seuil, 2008), p. 24-25. 29 Max Weber, L’ethique protestante et l’esprit du capitalisme (Paris: Plon Pocket, 1964). 30 Jean Calvin, Œuvres (Paris: La Pleyade, 2009), p. 743. 31 Olivier Roy, op. cit. in footnote 28, p. 21.

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ligion that is intellectually impoverished but is growing exponentially. In Latin Europe, from a statistical point of view, historical Protestantism dissolved in secularising modernity is disappearing (one sign of this is the recent proliferation of museums to preserve its memory), and is being reborn in an enthusiastic form that it did not pass down in spite of claims to the contrary often made by certain Evangelicals. In Latin America, it has been transformed into a popular religion of miracles and of prosperity, into a sort of ‘Christianity of the south’ that is far from any sort of Protestant affiliation. This dual, converging dynamic revives the debate introduced by Unamuno on the relation between Protestantism and contemporary Latinity. But it also shows how a religious expression that historically bore the secularising values of modernity has been recycled into manifestations of enthusiasm in late secularised Modernity. These correspond to a fragmentation of religion that is characteristic of the place religion occupies in secularised society.32

32 The interested reader should also consult the following sources related to the topics here presented: Jean-Pierre Bastian and Juan Bautista Vilar, eds., Las minorias religiosas en España y Portugal, pasado y presente. Anales de Historia contemporánea (Murcia: Universidad de Murcia, 2001); Jean-Pierre Bastian, La modernité religieuse en perspective comparée, Europe latine-Amérique latine (Paris: Karthala, 2001); Enrique Gonzalez Pedrero, “Reflexiones barrocas,” in Vuelta, Mexico, 162 (14 May 1990): pp. 22-27; Nelson R. Orringer, Unamuno y los protestantes liberales (1912). Sobre las fuentes de “el sentimiento trágico de la vida” (Madrid: Gredos, 1985); and Juan B. Vilar, Intolerancia y libertad de culto en la España contemporánea. Los orígenes del protestantismo español actual (Madrid: Istmo, 1994).

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REX TAUATI AHDAR is Professor at the Faculty of Law in the University of Otago. He earned his LL.B. from Hons University, his LL.M. from Canterbury University, and his Ph.D. from the University of Otago. He has been a Fulbright Senior Research Scholar at UC Berkeley (1991), and participates on the Editorial Board of the Australian Business Law Review and the New Zealand Business Law Quarterly. He is author or editor of Competition Law and Policy in New Zealand (North Ryde, NSW: Law Book, 1991); with John Stenhouse of God and Government: The New Zealand Experience (Dunedin, NZ: University of Otago Press, 2000); Law and Religion (Aldershot: Ashgate, 2000); Worlds Colliding: Conservative Christians and the Law (Aldershot: Ashgate, 2001); with Ian Leigh of Religious Freedom in the Liberal State (Oxford: Oxford University Press, 2005); and with Nicholas Aroney of Shar’ia in the West (Oxford: Oxford University Press, 2010). He has published articles in journals such as: The Antitrust Bulletin; Oxford Journal of Legal Studies; McGill Law Journal; Lloyd’s Maritime and Commercial Law Quarterly; Journal of Law and Religion; The Journal of Church and State; Religion and Human Rights; European Competition Law Review; Journal of Contract Law; and the Emory International Law Review. JEAN-PIERRE BASTIAN is Professor of Sociology and Religion at Strasbourg University, and Research Director at the Latin American High Studies Institute (IHEAL) at Paris III University. Among his publications, he has written: Le protestantisme en Amérique latine, une approche socio-historique (Genève: Labor et Fides, 1994); La mutación religiosa de América Latina (Mexico: Fondo de Cultura Económica, 1997); Religiöser Wandel in Costa Rica. Eine sozialwissenschaftliche In-

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terpretation (Mayence: M. Grünewald Verlag, 2001). The publication of the following collections has been under his direction: La globalisation du religieux (Paris: L’Harmattan, 2000); La modernité religieuse en perspective comparée: Europe latine-Amérique latine (Paris: Karthala, 2001); Les minorités religieuses en Europe, approches sociologiques et juridiques (Paris: Presses Universitaires de France, 2007); Pluralisation religieuse et logique de marché (Berne/Frankfort: Peter Lang Verlag, 2007); and Religions, valeurs et développement dans les Amériques (Paris: L’Harmattan, 2007). ZOILA COMBALÍA received her first Ph.D. in Canon Law from Navarra University and a second Ph.D. in Law from Zaragoza University in Spain. She is currently full Professor of Ecclesiastical Law at Zaragoza University. She has been Visiting Scholar at Harvard Law School (USA) and at Toronto Faculty of Law (Canada). Nowadays, she is a Member of UNESCO Chair “Ciudadanía Democrática y Libertad Cultural” and of EURESIS Network (European Studies on Religion and State Interaction). She is author of a dozen or more scholarly journal articles dealing with issues of law and religion, Islamic law and church-state relationships. Her work includes El derecho de libertad religiosa en el mundo islámico (Pamplona: Navarra Gráfica Ediciones, 2001); (co-editor) The Religion and Fundamental Freedoms in the Countries of the United Nations: Constitutional Texts (Granada: Comares, 2003); Recepción del derecho islámico matrimonial en la jurisprudencia estadounidense (Granada: Comares, 2006); “Interculturalism and the Law: the Accommodation of the Legislation for the Plurality of Belief ” in VV. AA., State-Church Relations in Europe. Contemporary Issues and Trends at the Beginning of the 21st Century (Bratislava: Ed. Institute for State-Church Relations, 2008); and is co-editor of Derecho islámico e interculturalidad (Madrid: Ed. Iustel, 2011). JAIME CONTRERAS received his M.A. and Ph.D. from the University Autónoma of Madrid. He is currently full Professor of Modern European History at Alcala University in Spain. He has taught at numerous universities, including the Sorbonne (Paris III, IV), l’École des Hautes Etudes Hispaniques et Ibériques, UNAM in Mexico, and Agdall University in Rabat. He was Director of the International Center for Sephardi and Andalusis Studies, and Vice President of Postgraduate Students at Alcala University. He has been the main researcher of twelve national and European competitive projects. Contreras is author of over ten volumes. His work includes Sotos contra Riquelmes (Madrid: Anaya and Mario Muchnik, 1993; also published in a French Edition as Pouvoir et inquisition en Es-

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pagne au XVIe siècle: “Soto contre Riquelmes” (Paris: Aubier Flammarion, 1997)); “Forty-four Thousand Cases of the Spanish Inquisition (1540-1700). Analysis of a Historical Data Bank” in G. Henningsen, J. Tedeschi, and C. Amiel, eds., The Inquisition in Early Modern Europe: Studies on Sources and Methods (Dekalb, Illinois: Northern Illinois University Press, 1986); “The Impact of Protestantism in Spain, 1520-1600” in S. Haliczer, ed., Inquisition and Society in Early Modern Europe (London-Sidney: Croom Helm, 1987); “Family and Patronage: The JudeoConverso Minority in Spain” in M. E. Perry and A. J. Cruz, eds., Cultural Encounters: The Impact of the Inquisition in Spain and the New World (Berkeley: University of California Press, 1991); and is co-editor with Rosa María Martínez de Codes of De Inmigrante a ciudadano (Cuenca: Editorial Aldebaran, 2009). BLANDINE CHELINI-PONT received her Habilitation from the Ecole Pratique des Hautes Etudes de Paris, her Ph.D. from Science Po Paris, her M.A. and Aggregation in History from the Sorbonne University. She is currently an Associate Professor in History, Law, and Religion at Aix-Marseille University in France, where she teaches French and European Contemporary History, International Relations, Law and Religion, and Religious Geopolitics. She is responsible for the academic journal Annuaire Droit et Religion. Her most recent publication is La droite catholique aux Etats-Unis, histoire d’une conquête politique des années cinquante à nos jours (Paris: DDB, 2012). T. JEREMY GUNN received his Ph.D. from Harvard University, M.A. from the University of Chicago, and Juris Doctor from Boston University. He is currently Associate Professor in International Relations at Al Akhawayn University in Morocco. He has taught at universities in the United States, Canada, Germany, France, Tunisia, and China. He previously worked for the U.S. Department of State and the U.S. Commission on International Religious Freedom. He was a member of the Advisory Council on Freedom of Religion or Belief of the Organization for Security and Cooperation in Europe from 1998-2012. He is author of Spiritual Weapons: The Cold War and the Forging of an American National Religion (Westport, CT: Praeger, 2009). He is the editor, with John Witte, Jr., of No Establishment of Religion: America’s Original Contribution to Religious Liberty (Oxford: Oxford University Press, 2012). DAVID LITTLE retired in 2009 as Professor of the Practice in Religion, Ethnicity, and International Conflict at Harvard Divinity School, and as an Associate at the Weatherhead Center for International Affairs at Harvard University.

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Until the summer of 1999, he was Senior Scholar in Religion, Ethics, and Human Rights at the United States Institute of Peace in Washington, DC. From 1996 to 1998, he was member of the Advisory Committee to the State Department on Religious Freedom Abroad. Little is co-author with Scott W. Hibbard of the USIP publication, Islamic Activism and U.S. Foreign Policy (Washington, DC: United States Institute of Peace,1997). Little is also author of two of the volumes in the USIP series on religion, nationalism, and intolerance (RNI): Ukraine: Legacy of Intolerance (Washington, DC: United States Institute of Peace, 1991), and Sri Lanka: The Invention of Enmity (Washington, DC: United States Institute of Peace, 1994). The RNI conference report on Tibet, Sino-Tibetan Coexistence: Creating Space for Tibetan Self-Direction, written by Little and Hibbard, also appeared in 1994. He has edited two recently published volumes, including the co-edited volume with Donald K. Swearer Religion and Nationalism in Iraq: A Comparative Perspective (Cambridge, MA: Harvard University Press, 2007), and Peacemakers in Action: Profiles of Religion in Conflict Resolution (Cambridge-New York: Cambridge University Press, 2007). J. PAUL MARTIN is the Director of Human Rights Studies at Barnard College, Columbia University. Previously, he was the founding Executive Director of Columbia’s Center for the Study of Human Rights. He received his Ph.D. from Columbia University with a dissertation on the role of missionaries in the first years of the white presence in Lesotho, South Africa. His writing and courses at Columbia and elsewhere have focused on religion, rights, and international affairs, on human rights education, on social change in Africa, and on rights-based development. At Columbia, he initiated two masters’ programs in human rights, as well as the Human Rights Advocates Program, which since 1989 has brought annually 10-14 successful human rights advocates from developing countries to Columbia for four months of advanced training, fundraising, and networking. ROSA MARÍA MARTÍNEZ DE CODES is Professor of American History at the University Complutense in Madrid. Previously, she was Vice Director of Religious Affairs at the Spanish Ministry of Justice (1996-2002) and Vice-President of the European Latin American Association (1998-2003). She received her Ph.D. in History and her M.A. in Philosophy, English Philology, and History from the University Complutense. Nowadays, she is an Honour Committee Member of the Association Internationale pour la défense de la lib-

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erté religeuse, and Vice President of the International Religious Liberty Association. She has taught at Universities in Chile, Argentina, Mexico, and France. Her works include International Consultive Conference on School Education in relation with Freedom of Religion and Belief, Tolerance and Non-Discrimination (Madrid: Ministry of Justice, 2001); The Contemporary Form of the Relationship between Religious Minorities and the State in Spain (New York: Columbia University Press, 2002). She is the editor, with Jaime Contreras, of De inmigrante a ciudadano (Cuenca: Alderaban, 2009). NICHOLAS MILLER is Associate Professor of Church History at Andrews University in Berrien Springs, Michigan, where he also directs the International Religious Liberty Institute. He is a graduate of the Columbia University Law School, and has a Ph.D. in American Religious and Legal History from the University of Notre Dame. Dr. Miller has appeared before the U.S. Supreme Court in a number of cases, including representing the plaintiffs in the case of Mitchell v. Helms, and has drafted numerous briefs for other federal courts in cases relating to religious freedom. He is the author of a dozen or more scholarly journal articles and book chapters dealing with issues of church, state, and society, including several in The Journal of Church and State. His book on the development of religious freedom in America, The Religious Roots of the First Amendment, was published by Oxford University Press in 2012. PHILIPPE PORTIER is Professor of Political Science at the Ecole Pratique des Hautes Etudes (Paris-Sorbonne), and Director of the research group Societies, Religions, and Secularism for the Centre National de la Recherche Scientifique (CNRS) in Paris. His research focuses mainly on the comparative analysis of secular regimes, the sociology and the philosophy of French secularism, the relationship between religion and politics, and the sociology of Catholicism in European societies. He recently published La pensée de Jean-Paul II (Paris: L’Atelier, 2006); co-edited with Micheline Milot and Jean-Paul Willaime Pluralisme religieux et citoyenneté (Rennes: Presses Universitaires de Rennes, 2009); with Jaqueline Lagrée, La modernité contre la religion? (Rennes: Presses Universitaires de Rennes, 2010); with Michel Veuille and Jean-Paul Williame, Théories de l’évolution et religions (Paris: Riveneuve Editions, 2011); and with Brigitte Feuillet-Liger, Droit, éthique et religion. De l’âge théologique à l’âge bioéthique (Bruxelles: Bruylant, 2012).

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