Tag Archives: Comparative Law

“A Coat of Many Colors”

In this post, I want to pick up some of the themes I alluded to in my first post and respond to Marc’s observations here and Mark’s observations here. The title of this post is from Justice Harlan’s discussion of neutrality in Bd. of Educ. v. Allen, 392 U.S. 236, 249 (1968)(Harlan, J., concurring).

Marc points out the inherent uncertainty as to the meaning of “neutrality” within each system. Indeed, I agree that there is great indeterminacy in both systems; and there are different judicial and academic interpretations. In fact, one of the premises in my book was that – even though the term is used frequently in constitutional decisions in both countries – we don’t really know enough about what neutrality means in each system. Given this uncertainty, I advocated for a contextual inquiry into the meaning in each system before turning to a comparative perspective.

The German Federal Constitutional Court offered two noteworthy interpretations of neutrality in its landmark Crucifix and Headscarf decisions. In my last post, I quoted the Crucifix decision as saying that “[t]he state, in which adherents of different or even opposing religious and ideological convictions live together, can guarantee peaceful coexistence only if it itself maintains neutrality in matters of faith.” In the Headscarf case, the court offered its most elaborate discussion of state neutrality to date, stating that

the religious and ideological neutrality required of the state is not to be understood as a  distancing attitude in the sense of a strict separation of state and church, but as an open and comprehensive one, encouraging freedom of faith equally for all beliefs. Article 4.1 and 4.2 of the Basic Law also contain a positive requirement to safeguard the space for active exercise of religious conviction and the realisation of autonomous personality in the area of ideology and religion. The state is prohibited only from exercising deliberate influence in the service of a particular political or ideological tendency or expressly or impliedly identifying itself by way of measures originated by it or attributable to it with a particular belief or a particular ideology and in this way itself endangering religious peace in a society. The principle of religious and ideological neutrality also bars the state from evaluating the faith and doctrine of a religious group as such.

So here we have an example of the court itself setting up different interpretations of neutrality. (Professor Markus Thiel – among other insightful observations – recently raised some interesting questions regarding the interpretive role of the Federal Constitutional Court in relation to academic scholarship in our exchange here.)

A quick final point about taxation, an issue raised in the comments to Mark’s post. One of the more striking features of the German system is the concept of “limping separation” that allows for certain benefits of state-recognized religious bodies – perhaps most notably from the U.S. perspective, the collection of church taxes by the state. Mark pointed out correctly that the German church tax may be avoided by resigning church membership. And, as some may remember, the German Federal Administrative Court last year addressed the question of resigning church membership (reported for example here). Moreover, under the jurisprudence of the European Court of Human Rights, while nonadherents may be taxed by an established state church for delegated state functions (such as keeping birth and death records, maintaining cemeteries or performing marriages) they may not be taxed for religious activities. I’ve written about some of those funding aspects in comparative perspective in my recent article “Transnational Nonestablishment” published in the George Washington Law Review and available online here.

And with that, I’ll leave Lautsi and symbols for next time.

If It Looks Like A Duck…?

Thanks so much, Mark, for the warm welcome! I want to use my time here to write about some comparative issues in law & religion.

A growing body of literature in comparative constitutional law discusses themes of constitutional convergence. Do constitutional provisions converge across legal regimes? Do international human rights norms cause them to do so? These and related questions are enormously rich and thought-provoking, and the literature is expanding and getting increasingly sophisticated. But another question is perhaps as interesting as the question of textual convergence: interpretive convergence. Imagine two courts charged with interpreting a functionally similar, yet textually different constitutional provision using the same term as their analytical basis. Does that indicate convergence?

Here is the context in which I have addressed this question. The German Federal Constitutional Court and the U.S. Supreme Court both use the language of “neutrality” in their respective interpretations of constitutional provisions concerning religion-state relations. It’s interesting that we have two constitutional regimes, with constitutional provisions that say “Congress shall make no law respecting an establishment of religion” and “there shall be no state church” respectively—neither of which, incidentally, mentions the word “neutrality”—and two courts interpreting these provisions and finding an underlying requirement of state neutrality.

Two examples: the U.S. Supreme Court in McCreary County (quoting Epperson) has this to say about neutrality: “The touchstone of Establishment Clause jurisprudence is the requirement of governmental neutrality between religion and religion, and between religion and nonreligion.” In the Classroom Crucifix Case, the German Federal Constitutional Court found that “[t]he state, in which adherents of different or even opposing religious and ideological convictions live together, can guarantee peaceful coexistence only if it itself maintains neutrality in matters of faith.”

From a comparative perspective, it might be tempting to assume that the courts say the same thing about the relationship between church and state, because they are both using the term neutrality.  But we have to look beneath the surface. The meaning of neutrality evolved contextually, separately in each system. If we take the language of neutrality at face value, without regard to history and context, we fall into the convergence trap: we see one thing that looks just like the other thing, and we assume they’re substantively the same.

On a wide-angle view, starting from opposite sides of the religion-state relationship spectrum—a historically strong notion of separationism on the U.S. side and close cooperation on the German side—it seems that while the degree of separation may be declining in the United States, it is increasing in Germany. And the language of neutrality tracks those developments. But sufficient room for the individual interpretation of neutrality remains in both systems.

A more detailed view, however, might focus on the diverging meanings of the term. The substantive content of neutrality in both constitutional systems is characterized by significant underlying indeterminacy. Neutrality is notoriously ambiguous in both systems; it seems almost impossible to define an abstract, universally applicable, single meaning. This indeterminacy has led some scholars to argue that we should simply do away with the concept of neutrality in religion-state relations. But while I am not going that far, we should not expect too much from the neutrality principle in terms of resolving individual disputes.

To some extent, we are also dealing with a moving target. Take for example parity between the Catholic and Lutheran churches in Germany. Equal treatment of the two would have arguably satisfied the neutrality requirement in the past, but given the changing composition of the population that is likely not the case anymore. Similarly, the growing number of nonbelievers in the United States poses a challenge. So the doctrinal framework must be squared with changing societal realities.

Ultimately, the point is that what initially seems to be the same in fact is not. The underlying trajectory is different in that the starting points might be identified as polar opposites: a strong notion of separation in the United States, and an extensive system of cooperation in Germany. However, we can observe a narrowing gap between the two systems that is reflected in the use of the language of neutrality. In the United States, neutrality as it is used today means “less distance” between religion and state. In Germany, conversely, neutrality means “more distance” between religion and state.

An Exchange on Claudia Haupt’s “Religion-State Relations in the United States and Germany”

Here is a nice, short, and generally quite positive review by Markus Thiel (Cologne) of Claudia Haupt’s Religion-State US Germany(Columbia) recent book, Religion-State Relations in the United States and Germany: The Quest for Neutrality (CUP 2011).  Professor Haupt has an interesting reply as well just below the review.  The exchange is worthwhile among other reasons on the question of the value of comparative scholarship in this area.  From Professor Thiel’s review:

The reviewer is an avowed skeptic about the scientific benefit of comparative research in constitutional law in general. It oftentimes achieves the sole result that the legal world is colorful and diversified. Therefore, it is more reasonable to compare particular (legal) provisions and institutions and not the legal system on the whole. But even this approach has to keep in mind that a comparison is complicated by diverging legal and social frameworks and circumstances. It is all the more important for comparative constitutional and political research to provide a precise description of the applied scientific methods, the questions of interest, and the objects of research. The author commences her book with a substantial and instructive chapter on her understanding of a comparative approach. Here, the reader notices that the book restricts its view on questions regarding the interpretation and application of legal provisions. This may be due to the fact that it is based on a dissertation in Political Sciences, but especially the relevant articles of the German Grundgesetz should have been the starting point for any analysis of the neutrality principle in Germany. A German reader with a legal background misses the presentation of the relevant constitutional law “dogmatics” to a certain extent.

And from Professor Haupt’s reply:

Comparative constitutional law in particular benefits from a wide-angle view not merely focused on doctrinal questions. Doctrinal rules, the law on the books, may play out much differently in practice. Take, for example, the paradigmatic example in U.S. religion-state relations, the much maligned Lemon test. Technically, as a matter of blackletter law, Lemon still governs; but engagement with religion-state relations that goes beyond examining the current doctrine in the United States quickly uncovers that, first, the test itself is under siege; second, case law suggests that it does not apply in a number of circumstances; and finally, there is a trajectory of development that suggests the U.S. system of religion-state relations is on a different path altogether, one that is more concerned with the meaning of neutrality than the mechanical application of this three prong test. In short, we learn very little about religion-state relations in the United States from looking at the Lemon test. By contrast, studying the larger societal, historical, and political context allows scholars to identify trends that put the doctrine into perspective.

Amara, Abu-Saad & Yiftachel (eds.), “Indigenous (In)Justice”

Next month, Harvard University Press will publish Indigenous (In)Justice: Human Rights Law and Bedouin Arabs in the Naqab/Negev edited by Ahmad Amara (PhD Candidate, NYU), Ismael Abu-Saad (Ben-Gurion University of the Negev), Oren Yiftachel (Ben-Gurion University of the Negev).  The publisher’s description follows.Indigenous (In)Justice

The indigenous Bedouin Arab population in the Naqab/Negev desert in Israel has experienced a history of displacement, intense political conflict, and cultural disruption, along with recent rapid modernization, forced urbanization, and migration. This volume of essays highlights international, national, and comparative law perspectives and explores the legal and human rights dimensions of land, planning, and housing issues, as well as the economic, social, and cultural rights of indigenous peoples. Within this context, the essays examine the various dimensions of the “negotiations” between the Bedouin Arab population and the State of Israel.

Indigenous (In)Justice locates the discussion of the Naqab/Negev question within the broader Israeli-Palestinian conflict and within key international debates among legal scholars and human rights advocates, including the application of the Declaration on the Rights of Indigenous Peoples, the formalization of traditional property rights, and the utility of restorative and reparative justice approaches. Leading international scholars and professionals, including the current United Nations Special Rapporteur on Violence against Women and the former United Nations Special Rapporteur on the Rights of Indigenous Peoples, are among the contributors to this volume.

Ten Napel on An Alternative Approach to Limiting Government Religious Displays in the Public Workplace

Hans-Martien Ten Napel (Leiden Law School) has posted Beyond Lautsi: An Alternative Approach to Limiting the Government’s Ability to Display Religious Symbols in the Public Workplace. The abstract follows.

One of the central ideas underlying the chapter is that the questions regarding the limits of the government’s ability to display religious symbols in the public sphere, and how judges should deal with the manifestation by citizens of religious symbols in public institutions, are closely interrelated.

First, the Chamber and Grand Chamber judgments in the Lautsi case and several related cases in the Italian context will be discussed. Next, two prototypical reactions will be described: one (Mancini’s) agreeing with the Chamber judgment; the other (Weiler’s) agreeing with the Grand Chamber judgment. Finally, after a brief comparison with U.S. case law, an alternative approach inspired by the concept of positive secularism is sketched as a possible way out of this deadlock. This concept has recently been defended in the report of The Consultation Commission on Accommodation Practices Related to Cultural Differences (CCPARDC), which was responsible for analyzing the challenges posed by a new migratory situation in Québec, Canada, among others. The chapter ends with a conclusion.

Beaman on Is Religious Freedom Impossible in Canada?

Lori G. Beaman (U. of Ottawa) has posted Is Religious Freedom Impossible in Canada? The abstract follows.

The idea of religious freedom is not new in Canadian law or wider public discourse, although it has taken on a life of its own in the post-Charter era (1982 onward) and certainly in the last several years. As the courts wade more fully into the swirling abyss that is religion they find themselves struggling with the issues that preoccupy scholars of religion (and for which they have found no conclusive answer): what is “religion” and how can it be defined in a manner that is inclusive and meaningful? This article takes as its point of departure the provocative and compelling argument made by Winnifred Sullivan in her book, The Impossibility of Religious Freedom (2005), that religious freedom as a legal promise is untenable. In this article I argue that while plausible and convincing in the context of the United States, Sullivan’s thesis may be less applicable in Canada for three key reasons. First, the embeddedness of Roman Catholicism in Canadian social structure has resulted in a textured and nuanced understanding of religion, or, at the very least, a recognition that religion is in some measure a multifaceted notion. Secondly, the recognition of group rights, however defined, means that there is a space created for alternative religious discourses, in part because of the constitutional recognition of multiculturalism. Thirdly, the recent turn by the Supreme Court of Canada to an understanding of the subjectivity of religious freedom strengthens the idea that religion must be conceptualized in relation to the ways in which individuals understand and practice it in their day to day lives.

Hascall on Restorative Justice in Islam

Susan C. Hascall (Duquesne U. School of Law) has posted Restorative Justice in Islam: Should Qisas be Considered a Form of Restorative Justice?  The abstract follows.

The restorative justice movement challenges conventional approaches to sentencing and punishment by involving the victim, community, and perpetrator in sentencing. The movement is characterized by an emphasis on the restoration of relationships, healing and rehabilitation. Like the restorative justice movement, Islamic law embraces a conception of justice that involves healing relationships. Shari’ah, the religious law of Islam, is based on Islamic teachings on justice and divine revelation. In classical Shari’ah jurisprudence, crimes are divided into several categories, which do not easily correspond to the categories defined in modern Western law. One of these categories, the crimes of qisas, is distinctive in that it gives the victim and his/her family final decision making power in punishment for physical wounding and murder. Although the victim(s) may choose retaliation in kind, payment, or forgiveness, emphasis is placed on the latter. This paper explores whether (1) qisas is a form of restorative justice (2) whether restorative justice adherents should examine the qisas processes for inspiration or methodology.

This paper begins by discussing the ideology behind the restorative justice movement and then proceeds to describe the classical Islamic law of qisas. Subsequently, examples of modern codes incorporating the law of qisas are provided. One of these exemplars highlighted within the text, particularly demonstrative of the abovementioned amalgamation, is northern Nigeria. The article concludes by emphasizing that, irrespective of the option for retaliation in kind, enough similarities and goals in the approaches of classical qisas jurisprudence, as exemplified in the modern codes of northern Nigeria, restorative justice scholars should examine qisas. There is also a calling for further field research on the processes of qisas in modern Shari’ah-based criminal jurisprudence.

Movsesian on Laws Prohibiting Religiously Offensive Speech

CLR Forum Director Mark Movsesian appeared this week on Voice of America’s “International Edition with Avi Arditti and Kate Woodsome” to discuss the regulation of religiously offensive speech in the United States, Europe, and around the world. Click on the player below to listen. 

Tagari on Human Rights and Personal Systems of Family Law

Hadas Tagari (student at Bar-Ilan University–Faculty of Law) has posted Personal Family Law Systems – A Comparative and International Human Rights Analysis.  The abstract follows.

This article analyzes the structures and substances of personal systems of family law based on religious affiliation within their social, political and historical contexts, explores the varied ways in which they infringe on the human rights of those governed by these systems – gender equality implicated by most – and the way international law and jurisprudence of human rights respond to these challenges. This analysis wishes to suggest that looking at the specific manifestations of personal family law systems in concrete contexts illuminates significant human rights implications which have not hither to received sufficient attention in mainstream human rights discourse, for various legal, cultural and political reasons. The contexts which this article will draw on are personal family law systems in Israel, India, Lebanon and Morocco, which comprise a varied sample of family law structures and legal, cultural, social and political contexts.