Tag Archives: Comparative Law and Religion

“Family, Religion and Law” (Shah, Foblets & Rohe, eds.)

This past June Ashgate publishing released Family, Religion and Law: Cultural Encounters in Europe, edited by Prakash Shah (Queen Mary University of London), Marie-Claire Foblets (Max Plank Institute for Social Anthropology) and Mathias Rohe (Erlangen-Nurnburg University).  The publisher’s description follows:

PPCspine22mmThis collection discusses how official legal systems do and should respond to the reality of a plurality of family types and origins within their jurisdictions. It further examines the challenges that arise for practitioners, including lawyers and judges, when faced with such plurality. Focussing on empirical research, the volume presents legal and sociological data of unprecedented comparative depth. It also includes a discussion of how members of minority families respond to the need to organise their legal relationships, and to resolve their disputes in the shadow of official legal systems which differ from those of their familial and communal traditions. The work invites reflection, and demonstrates the urgency and complexity of the questions regarding the search for justice in the field of family life in Europe today.

Peter Berger on the Anglican Establishment

At The American Interest, Peter Berger has an interesting post on the benefits of the Anglican establishment. He suggests, citing sociologist Grace Davie, that other countries should consider a soft establishment along Anglican lines, as a way “to combine a specific religious identity with freedom for all those who do not share it”:

Grace Davie, the distinguished British sociologist of religion, has proposed an interesting idea: A strong establishment of a church is bad for both religion and the state–for the former because the association with state policies undermines the credibility of religion, and for the latter because the support of one religion over all others creates resentment and potential instability. But a weak establishment is good for both institutions, because a politically powerless yet still symbolically privileged church can be an influential voice in the public arena, often in defense of moral principles. Davie’s idea nicely fits the history of the Church of England.  In earlier centuries it persecuted Roman Catholics and discriminated against Nonconformist Protestants and Jews. More recently it has used its “bully pulpit” for a number of good causes, not least being the rights of non-Christians. Thus very recently influential Jewish and Muslim figures have voiced strong support for the continuing establishment of the Church of England, among them Jonathan Sacks, the former Orthodox Chief Rabbi of Great Britain, and the Muslim Sayeeda Warsi, currently  Minister of Faith and Communities in David Cameron’s cabinet.

Of course it would be foolish to recommend that the British version of state/church relations be accepted in other countries—as foolish as to expect other countries to adopt the very distinctive American form of the separation of church and state. However, as I have suggested in other posts on this blog, the British arrangement is worth pondering by other countries who wish to combine a specific religious identity with freedom for all those who do not share it. For starters, I’ll mention all countries who want legislation to be based on “Islamic principles” (not full-fledged sharia law); Russia, struggling to define the public role of the Orthodox Church; Israel trying to define the place of Judaism in its democracy; India, similarly seeking to fit hindutva into its constitutional description as a “secular republic”. In a globalizing world, cross-national comparisons can be surprisingly useful.

 

O’Halloran, “Religion, Charity and Human Rights”

This month, Cambridge University Press releases Religion, Charity and Human Rights by Kerry O’Halloran (Queensland University of Technology). The publisher’s description follows:

For the first time in 400 years a number of leading common law nations have, fairly simultaneously, embarked on charity law reform leading to an encoding of key definitional matters in charity legislation. This book provides an analysis of international case law developments on the ever growing range of issues now being generated by clashes between human rights, religion and charity law. Kerry O’Halloran identifies and assesses the agenda of ‘moral imperatives’, such as abortion and gay marriage that delineate the legal interface and considers their significance for those with and those without religious belief. By assessing jurisdictional differences in the law relating to religion/human rights/charity the author provides a picture of the evolving ‘culture wars’ that now typify and differentiates societies in western nations including the USA, England and Wales, Ireland, Australia, Canada and New Zealand.

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“Democracy, Law and Religious Pluralism in Europe” (Requejo & Ungureanu, eds.)

Next month, Routledge Press will release Democracy, Law and Religious Pluralism in Europe: Secularism and Post-Secularism, edited by Ferran Requejo and Camil Ungureanu, both of Universitat Pompeu Fabra in Barcelona. The publisher’s description follows:

Democracy, Law and Religious Pluralism in Europe

In contrast with the progressive dilution of religions predicted by traditional liberal and Marxist approaches, religions remain important for many people, even in Europe, the most secularised continent. In the context of increasingly culturally diverse societies, this calls for a reinterpretation of the secular legacy of the Enlightenment and also for an updating of democratic institutions.

This book focuses on a central question: are the classical secularist arrangements well equipped to tackle the challenge of fast-growing religious pluralism? Or should we move to new post-secular arrangements when dealing with pluralism in Europe? Offering an interdisciplinary approach that combines political theory and legal analysis, the authors tackle two interrelated facets of this controversial question. They begin by exploring the theoretical perspective, asking what post-secularism is and looking at its relation to secularism. The practical consequences of this debate are then examined, focusing on case-law through four empirical case studies.

This book will be of interest to students and scholars of political theory, philosophy, religion and politics, European law, human rights, legal theory and socio-legal studies.

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Haseeb, “State and Religion in the Arab World”

On July 22, Routledge Publishing will release State and Religion in the Arab World, by Khair El-Din Haseeb (Centre for Arab Unity Studies).  The publisher’s description follows:

This collection focuses on the controversial relationship between religion and the state within the Arab Spring context and the evolving debates on democratic transition. In this book, democracy is not questionable; it is hailed by all those vocal on the political scene. The array of opinions presented here varies from a call for a secular state based on Islamic philosophy to a call for setting democratic institutions before working on solving this religion-state dichotomy. Meanwhile some prefer to have an ambiguous stand on which side to back up, the liberals or the Islamists, despite a detailed criticism of the ossified ways of those calling for a religious state (Al-Majd). The book starts with an analysis and a detailed account of how the sensitive issue of the relationship between state and religion developed in Arab though and society and it goes on to employ less the religious discourse in presenting their positions thus focusing on actual cases of this struggle for power in different Arab countries such as Tunisia and Egypt. The collection also provides insights and analysis of the ongoing debates and views on the role of religion in Libya and provides an analysis of the case of Morocco. In addition to this there is a special chapter that deals with how Muslim communities living in the West adapt to secular state politics. The collection ends with a thorough discussion by a number of Arab intellectuals and activists, Muslims and Christians alike, whereby core issues related to the debate on state and religion are presented. This discussion, in addition to reflecting the Islamist-secular dichotomy, demonstrates the richness of the ongoing debates that extend well beyond the discourse on this dichotomy.

This book is a compilation of articles published in Contemporary Arab Affairs.

European Human Rights Court to France: Do Whatever You Want

This week, Americans understandably have been occupied with the Hobby Lobby case and its implications for religious freedom in our country. But across the Atlantic, the European Court of Human Rights was handing down its own decision on the scope of religious freedom, S.A.S. v. France. The European Court held that France’s ban on clothing designed to cover one’s face in public–what everyone knows, for obvious reasons, as the “burqa ban”–does not violate the European Convention on Human Rights. The court’s ruling reveals the challenges of enforcing a regional, European standard with respect to religious expression.

Some background: Article 9 of the European Convention recognizes a right to manifest one’s religion or belief, subject to limitations that are necessary to promote certain legitimate state interests, including public safety and “the protection of the rights and freedoms of others.” Any such limitation must be proportionate to the interest the state asserts. The European Court has made clear that Article 9 need not apply uniformly across Europe. Given different national histories and cultures, states have discretion to adapt article 9 in light of the needs and values of their particular societies. The Europeans refer to this discretion as the states’ “margin of appreciation.”

France argued that the ban on burqas is necessary to promote public safety and protect the rights and freedoms of others–specifically, the right of people to live in an “open society” characterized by “civility” and “social interaction.” The court rejected the first argument. Even assuming the burqa posed a risk in some circumstances, it held, a blanket ban is disproportionate. If the concern were public safety, a more targeted ban would be appropriate–in the context of security checks, for example.

The court agreed with France, though, that the ban could be justified on the basis of promoting an “open society”–at least, an open society in the French manner. Obviously, not all societies see the burqa as problematic. In Europe, only Belgium has a similar ban. But the French people had decided that the burqa violates “the ground rules of social communication” in their country. This decision deserved deference, the court held. Given the margin of appreciation in such matters, the court would honor France’s determination that “the voluntary and systematic concealment of the face is … incompatible with the fundamental requirements of ‘living together’ in French society.”

This level of deference is really quite breathtaking. Essentially, the European Court is saying, a state can ban religious expression in order to maintain local norms of “living together.” What ban on religious expression would not be allowed under such a standard? Let’s pose a hypothetical case. France already prohibits conspicuous religious dress in public schools. Let’s assume France decides to extend this ban to all public places, arguing that conspicuous religious dress in public creates unnecessary tension and interferes with social interaction à la française. Under the court’s deferential approach, wouldn’t such a ban be permissible? What would be the basis for second guessing France’s assertion about what French social norms require?

The deference to national norms is unavoidable in the context of the Council of Europe, a regime that includes scores of states with widely varying cultures and histories. One size simply doesn’t fit all. If the European Court is to have any legitimacy, it will often need to defer to national judgments on sensitive issues. Still, the European Court purports to pursue a common European standard in respect of human rights. Decisions like S.A.S. suggest that pursuit has a long way to go.

Reflections on “International Religious Freedom and the Global Clash of Values”

Mark has noted the important and interesting talk that Pope Francis gave about the condition of religious freedom around the world–a very fitting address inaugurating our conference in Rome, “International Religious Freedom and the Global Clash of Values.” It really was quite special and memorable to have the Pope give remarks on a subject that we study here at the Center, at an audience we attended, for a conference that we organized. I thought to add a few thoughts about some of the themes that emerged from the conference presentations.

The keynote address was delivered by the Berkley Center’s Tom Farr, whose primary claim was that in order for international religious freedom to thrive as a human right, we need a deeper grounding–both principled and pragmatic–of the importance of the right of religious freedom as both an anthropological reality and as a practical necessity. I had the honor of moderating Tom’s talk and asked him whether in this particular climate what was needed was a thicker account of religious freedom or instead an (even) thinner account. He gave a thoughtful answer reflecting both the need for deep structures of justification and the difficulty of achieving consensus about them.

The first panel concerned the politics of international religious freedom and included the United States Ambassador to the Holy See, Ken Hackett, the United Nations Special Rapporteur on Freedom of Religion or Belief, Heiner Bielefeldt, and Pasquale Annicchino of the European University Institute. It was in Dr. Bielefeldt’s talk that a useful tension began to emerge among some of the speakers–between those who were bullish or optimistic about the prospect that international law can effectively promote religious freedom and those who were a little more skeptical. Dr. Bielefeldt falls into the more optimistic camp–a good thing indeed, given his position. He emphasized the difference between the promotion of religious freedom in order to advance civic peace, on the one hand, and its promotion in order to vindicate a basic human right, on the other. Here I was reminded of the controversial “civic peace” justification in the American law of religious freedom.

The second panel dealt with comparative perspectives on international religious freedom. The perspectives compared included those of the member states of the Council of Europe and of Italy specifically. Here I was particularly interested in Marco Ventura’s lucid presentation about the difference between divergent and convergent approaches to religious freedom among and across European member states. Professor Ventura described the move toward convergence and argued for even greater convergence than has already been achieved. I had some questions about this coming from a country that has also struggled with the issue of convergence and divergence in the constitutional law of religious freedom. Here again, the tension between globalism and regionalism was in evidence in a slightly different way.

The third panel concerned Islamic and Christian perspectives on international religious freedom, and included presentations by Abdullahi Ahmed An-Na’im, Olivier Roy, and Nina Shea. Here the primary point of tension involved the causes or roots of religious persecution of these two major religious groups. And here, too, there was skepticism, principally from Professor An-Na’im, about the efficacy of human rights regimes to protect religious freedom. “There was a world before international human rights, and there will be a world after international human rights,” he said.

In all, a very rewarding set of presentations.

Laïcité in Rome

S. Nicolas des Lorrains

This week, CLR Forum is in Rome, where we’re co-hosting our third international conference, “International Religious Freedom and the Global Clash of Values,” on June 20-21. For people interested in law and religion, Rome is an endlessly fascinating place. On practically every corner, you stumble upon evidence of the long relationship–sometimes cooperative, sometimes antagonistic–between church and state.

Here’s an example. The photo above shows the façade of the Church of San Nicola dei Lorensi, behind Piazza Navona. San Nicola one of a handful of historic French “national” churches in Rome–churches that historically have served as homes for pilgrims from France. The Church of San Luigi dei Francesi, on the other side of the piazza–the one with the famous Caravaggios–is a more well-known example. As the name suggests, San Nicola was the church for pilgrims from the region of Lorraine. It was built in the 17th Century, but must have fallen into grave disrepair over the centuries, because it was completely restored in the last decade.

Note the placard above the doorway in the photograph: “Liberté, Égalité, Fraternité.” This, of course, is the motto of the French Republic–the laïc French Republic. The motto is meant to capture the secular nature of the Republic and the separation of church and state. It’s not an insult, necessarily, but it definitely connotes a rejection of the Catholicism of the old regime. So what is the motto doing over the doorway of an old Catholic church in the heart of Rome?

The answer is, as far as I can tell, is this. San Nicola is owned by a French governmental organization called “Les Pieux Etablissements de la France à Rome et à Lorette,” administered by the French ambassador to the Holy See. According to its website (in French), the organization exists to maintain the historic French national churches, welcome French-speaking pilgrims, and organize cultural events that promote France in Rome.

This isn’t as strange as it may first appear. As readers of our 2010 symposium on laïcité know, the French government owns many church buildings in France, all that existed as of 1905, the date of the Law on the Separation of Churches and the State. Notwithstanding the commitment to laïcité, the 1905 law gives the French government title to church property; the government allows religious bodies to use the property at its discretion. At the time of enactment, the Third Republic required churches to affix signs with the republican motto on their doorways–to demonstrate, I imagine, that there was a new sheriff in town. Most of these signs have now disappeared, though you can still occasionally find them. I remember seeing one on the Church of Saint Julien-le-Pauvre in Paris a few years ago.

It isn’t strange, then, that the French government owns and maintains San Nicola today. According to the website of the French ambassador, San Nicola was restored in 2005 partly with funds from the Regional Council of Lorraine–that is, with public money. During the work, someone–a secularist council member? an embassy staffer?–must have decided it would be a good idea to restore the republican motto as well. So there it is today, a witness, to those who know the story, of the profoundly complicated relationship between religion and the state in France–and in Rome, too.

Al-Arian, “Answering the Call”

Next month, Oxford University Press will publish Answering the Call: Popular Islamic Activism in Sadat’s Egypt by Abdullah Al-Arian (Georgetown University). answering the callThe publisher’s description follows.

When revolutionary hero Gamal Abdel Nasser dismantled and suppressed Egypt’s largest social movement organization during the 1950s, few could have imagined that the Muslim Brotherhood would not only reemerge, but could one day compete for the presidency in the nation’s first ever democratic election. While there is no shortage of analyses of the Muslim Brotherhood’s recent political successes and failures, no study has investigated the organization’s triumphant return from the dustbin of history.

Answering the Call examines the means by which the Muslim Brotherhood was reconstituted during Anwar al-Sadat’s presidency. Through analysis of structural, ideological, and social developments during this period in the history of the Islamic movement, a more accurate picture of the so-called “Islamic resurgence” develops-one that represents the rebirth of an old idea in a new setting.

The Muslim Brotherhood’s success in rebuilding its organization rested in large part on its ability to attract a new generation of Islamic activists that had come to transform Egypt’s colleges and universities into a hub for religious contention against the state. Led by groups such as al-Gama’ah al-Islamiyyah (The Islamic Society), the student movement exhibited a dynamic and vibrant culture of activism that found inspiration in a multitude of intellectual and organizational sources, of which the Muslim Brotherhood was only one.

By the close of the 1970s, however, internal divisions over ideology and strategy led to the rise of factionalism within the student movement. A majority of student leaders opted to expand the scope of their activist mission by joining the Muslim Brotherhood, rejuvenating the struggling organization, and launching a new phase in its history.

Answering the Call is an original study of the history of this dynamic and vibrant period of modern Egyptian history, giving readers a fresh understanding of one of Egypt’s most pivotal eras.

History Goes On

At the Liberty Law Blog, my friend John McGinnis has posted a very perceptive criticism of Francis Fukuyama’s recent essay on the 25th anniversary of his famous article, “The End of History.” That extremely influential article, which Fukuyama wrote in the heady days of 1989, argued that liberal democracy owned the future. After the fall of the Berlin Wall, many commentators believed this. All other forms of social ordering had failed and nations across the globe seemed to be falling in line. Cultural differences that once mattered no longer did. From Bangkok to Ankara to Moscow, everyone wanted to be a liberal democrat. And even if they didn’t, the logic of liberal democracy was inescapable and its appeal irresistible.

Not everyone at the time felt this way, of course. The late Samuel Huntington wrote a great book, “The Clash of Civilizations,” that responded to Fukuyama and argued that old cultural patterns would remain relevant. For example, Huntington wrote, profound cultural differences divide Western and Orthodox Christian civilizations, and divide those civilizations from Islamic and Hindu civilizations. For writing this, Huntington was disparaged as a know-nothing by leading academics and commentators–the People Who Knew Better.

Twenty-five years later, Huntington appears to have made the better bet. The world hasn’t turned out as Fukuyama predicted. To his credit, John writes, Fukuyama concedes this. But he still maintains that liberal democracy is the only plausible system for modern society. John responds–correctly, in my view–that Fukuyama is wrong. There is an inherent tension between the two components of liberal democracy: liberalism, which privileges the individual, and democracy, which privileges the community. Different societies resolve the tension differently, depending on historical, geopolitical, and cultural traditions, including religious traditions. Russia and India provide powerful recent examples.

From the belief that everyone in the world should share your values, it’s an easy leap to the conclusion that everyone in the world does. John’s essay is a helpful correction. History goes on.