Religions and Constitutional Transitions in the Muslim Mediterranean

The Pluralistic Moment

Alessandro Ferrari, James Toronto, Alessandro Ferrari, James Toronto

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781472457561
• eBook ISBN: 9781317067115
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book investigates the role of Islam and religious freedom in the constitutional transitions of six North African and Middle Eastern countries, namely Morocco, Algeria, Tunisia, Egypt, Turkey, and Palestine. In particular, the book, with an interdisciplinary approach, investigates the role of Islam as a political, institutional and societal force. Issues covered include: the role played by Islam as a constitutional reference – a "static force" able to strengthen and legitimize the entire constitutional order; Islam as a political reference used by some political parties in their struggle to acquire political power; and Islam as a specific religion that, like other religions in the area, embodies diverse perspectives on the nature and role of religious freedom in society. The volume provides insight about the political dimension of Islam, as used by political forces, as well as the religious dimension of Islam. This provides a new and wider perspective able to take into account the increasing social pluralism of the South-Mediterranean region. By analyzing three different topics – Islam and constitutionalism, religious political parties, and religious freedom – the book offers a dynamic picture of the role played by Islam and religious freedom in the process of state-building in a globalized age in which human rights and pluralism are crucial dimensions.

Part I
The general framework

1
Dynamics of religious freedom on the two Mediterranean sides

An interconnected history

Alessandro Ferrari

Introduction

To speak of religious freedom in the Muslim-majority Middle East and North African countries might seem to be simply a rhetorical exercise. From a European perspective, the idea that secularism, democracy, and religious freedom are an inseparable trio intimately and exclusively linked to the Christian experience is quite widespread. According to this view, not only is Christianity the only religious tradition able to separate God and Caesar, thereby allowing democracy and religious freedom to flourish, but histories and contemporary surveys also try to demonstrate how Islam and this trio stand in opposition.¹ “Islam, and not Islamic fundamentalism”, would be the “underlying problem for the West”² and the most dangerous Schmittian “enemy” of Western civilization. In a notorious 2003 decision, the European Court of Human Rights (ECHR) solemnly legitimated these assumptions. Presuming to solve centuries of debate within Muslim communities concerning the closing of the “gate of the ijtihâd”, the Court declared sharī’a to be “stable and invariable”, a source of law where “principles such as pluralism in the political sphere or the constant evolution of public freedoms have no place”, and finally, “incompatible with the fundamental principles of democracy, as set forth in the Convention”.³ Ernest Renan’s conviction that “Islam is the most complete negation of Europe” remains a live option in the European landscape.⁴

Nevertheless, these ideas, which have their counterparts in the Muslim world, are not persuasive. They understate the complexity of the situation and are self-contradictory. They are based on the idea of the existence of pure civilizations and pure concepts. Further, because of their essentialist and neo-orientalist character, these assumptions undermine the universality of the “religious freedom” they pretend to define, defend, and propagate. Finally, more simply, many of these assumptions are strictly dependent on a political and economic agenda that uses “religious freedom” to export a comprehensive neo-liberal societal model.⁵ This is neither new nor surprising, but the awareness of the multiple interests involved in this campaign should help both to evaluate the political role of the “right to religious freedom” and to relativize a too paternalistic Western-Christian attitude toward majoritarian-Muslim countries.

This chapter does not intend to address the broad question of the genesis and meaning of the idea of religious freedom and its present international role.⁶ Rather, moving beyond the narrative of a Christian Northern side and an Islamic Southern shore as incommensurable realities, the chapter will propose the possibility of a common interconnected Mediterranean history of what has been formally called, since the nineteenth century, the “right to religious freedom”.⁷ In particular, I will emphasize the role played, on both Mediterranean shores, by the passage from an earlier plural and undefined religious freedom differently understood by a range of societal actors, including religious individuals and communities, to a right to religious freedom shaped and monopolistically controlled by modern nation-states. In fact, only these modern states today, like Humpty Dumpty in Through the Looking Glass, can claim that the right to religious freedom “means just what [they] choose it to mean – neither more nor less”.⁸

The chapter will first highlight the consequences of the simultaneous birth of European modern nation-states and the right to religious freedom. Moving to the present, it will describe the influence of the post-Second World War constitutionalism on this “right”. This constitutionalism, connected with the idea of universal human rights, has confronted nation-states of both shores with internal pluralism, created new spaces for civil society and external cooperation, and opened national legal systems to a pervasive international law. Today, globalization imperils nation-states, and post-Second World War constitutionalism seems to have lost its attraction. In both the North and the South, nation-states are concentrating their security fears on Islam, adopting similar efforts to shape and control Muslim “national churches”. The trans-Mediterranean simultaneity of the debate reveals once again the special political role of the right to religious freedom that still appears, on both Mediterranean shores, as the would-be essential guardian of the nation-states’ public orders. The chapter will then argue that what is experienced on both shores is, seventy years after the end of the Second World War and the decolonization, a trans-Mediterranean “constitutional citizenship question” rather than an “Islamic” or a “right-to-religious-freedom” specific question. This contemporary “constitutional question” tests the real capacity of nation-states to renegotiate their relationships with civil society and so to renegotiate the boundaries between institutional, public, and private spaces.

Religious freedom on the “Northern-Christian” shore

In Europe, nation-states and the right to religious freedom share the same date of birth. In fact, recognition of the right to religious freedom was the precondition for the triumph of nation-state legal systems over their predecessors, the Holy Roman Empire and the Roman Catholic Church.⁹ This recognition has also accompanied the transfer to the nation-states of the force – and violence – previously unleashed directly by religion. This new right to religious freedom had an amphibious nature, being characterized by both personal and collective dimensions. With recognition of individual religious freedom, nation-states established with their subjects a fundamental personal and direct bond of loyalty.¹⁰ At the same time, while they used the protection of personal religious freedom (interpreted as forum internum) to affirm their supremacy and make citizens faithfully linked with the state authority, nation-states used control over external manifestations of religions (forum externum) to shape their collective identities on homogeneous religious boundaries, represented by the new national churches, to ensure social cohesion and public order for the new national apparatus.¹¹ The right to religious freedom was strictly connected with a common national citizenship and perceived as a direct consequence of the political exclusivist link that tied citizens to their nation-states. Recognition of religious affiliations became only secondary compared to the bond that connected citizens to the state. Over time, in fact, Europe separated civic apostasy from religious apostasy, providing citizens a common personal status imbued with the national religious traditions, but under the exclusive scrutiny of secular state authorities.¹² Without being an explicit constitutional principle and perfectly compatible with formal confessional statements, secularism was the implicit rule of modern nation-states, representing their (dream of) separation from civil society and absolute political primacy in the public and private spheres.¹³ From the nineteenth century on, the “absolutely free” individual side of the right to religious freedom provided the narrative masking a permanent Christian Church-centered collective that, despite formal separation, Kulturkampf, and an explicitly anticlerical secularism, was never perfectly in line with the liberal assumptions of state neutrality.

After the Second World War and the Shoah, a new European constitutionalism introduced important changes. First of all, it softened the primacy of nation-states, introducing a new universalistic discourse about “human rights” into national frameworks.¹⁴ From “national citizenships” based on a thick and “natural” sharing of specific cultural and religious historical values, this constitutionalism has promoted a citizenship based on the sharing and learning of the common principles and rules of a constitutionally democratic political experienced life.¹⁵ In fact, the national constitutions, the signing of the European Convention for Human Rights, and the progressive establishment of the European Union have opened the nation-states’ legal systems both to an “internal” recognition of cultural and religious diversities and to an “external” cooperation with other national systems. In this framework of softer nation-state sovereignties, “pluralism” has substituted “social cohesion”, “public order”, “security”, and “nationalism” perceived as old authoritarian symbols.¹⁶ Entering the constitutional language and overshadowing “separation”, pluralism has also become the authentic translation of a secularism recognized for the first time as a fundamental constitutional principle.¹⁷ In this way, post-war European constitutionalism managed to fully combine liberal arguing, a public discourse formally aspiring to liberal principles of secularity and rationality with democratic bargaining,¹⁸ a political life also shared by religious forces that do not necessarily sympathize totally with the same liberal and rational assumptions. Consequently, secularism was transformed from an ideological instrument excluding religion from the public sphere, as it was from the late nineteenth century, to the constitutional regulator of a plural society. The central role played by democratic bargaining has provided an opportunity for traditional European religions – and in particular for Catholics – to start conciliating with liberal arguing, with self-sufficient, secular, forms of political power, and with “human rights”.¹⁹ At the same time, individuals and not churches have become the real interpreters of new forms of spirituality and the protagonists of the right to religious freedom.²⁰ However, disproving any overly simplistic idea of the end of history and of “uninterrupted progress”, universality and pluralism “in action” are presenting nation-states (and national churches) with the fait accompli of their evaporated sovereignty. Both the “external” process of European unification and the end of “internal” social homogeneity have eroded national boundaries and state-centered primacies.

These deep changes have not been acknowledged by European nation-states; they were papered over during the Cold War. Yet repression of these deep changes has not been possible in the long run. The end of the cold war was followed in 2004 by the largest enlargement in the history of the European Union; permanent settlement of a large number of Muslims in the Continent and a deep economic crisis have caught European nation-states at a crossroads.²¹ The inability and the indecision of European nation-states in addressing the insecurity and identity anxieties caused by implementing structural universalism and pluralism have polarized societies between those who retreat to old warm national ties and those who gamble on the new multicultural policies. Ideology plays a big role in this context, and so does religion: reference to national religious traditions both by the contestants and by the partisans of the new globalized order has become common. Also nation-states have started again using “religious narratives” for their needs. In fact, not only do religious traditions represent one of the nation-states’ most powerful resources, but the right to religious freedom represents one of the few in relation to which European nation-states have kept some autonomy vis-à-vis Brussels and the European Court of Human Rights.²² In particular, after September 11th 2001 and July 7th 2005, when British Muslims attacked the London underground, and January 7th 2015, with the attack on the French magazine Charlie Hebdo, Islam has been seen to symbolize the limits of European tolerance, of what multiculturalist policies could accept, of “European boundaries”, and ultimately, of the “negotiated order” of the Old continent.²³ These discourses have reactivated sentiments of old colonial European orientalism which now fuel worries about increasingly scarce welfare resources against immigrants and especially against Muslims who are perceived as untitled and dangerous aliens. But these discourses also unmask, or at least undermine, the European universalistic pretension of a “constitutional citizenship” equally fair towards different religious or cultural backgrounds and opened to democratic bargaining. In fact, since the second half of the 1990s, this “constitutional citizenship” has been countered by Leitkultur, or “cultural citizenship”, based on a thick and “natural” sharing of specific national ties.²⁴ Pluralism is being challenged by securitarian fears and the reappearance of “public order”, a concept that had lost its centrality in post-Second World War constitutionalism.

The need to preserve public order and to restore “social cohesion” reassigns a pivotal political role to a church-centered right to religious freedom in the strategy of nation-states. If in the thirty years between the 1960s and the 1980s the right to religious freedom seemed to be mostly interpreted as an individual freedom of choice, since the 1990s, it has been mostly perceived in its political and institutional dimension.²⁵ The need to protect “social cohesion” has served as the rationale for the French and Belgian legal bans of the burqa; in the same ways, secularism as public order had been the rationale for the ban of the headscarf from French state schools.²⁶ In both cases, individual autonomy and self-in...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Notes on contributors
• Preface
• PART I The general framework
• PART II National cases
• Index