Law and Religion in Public Life

The Contemporary Debate

Nadirsyah Hosen, Richard Mohr

• Publisher: Taylor & Francis
• Year: 2011
• eBook ISBN: 9781136725838
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

With religion at centre stage in conflicts worldwide, and in social, ethical and geo-political debates, this book takes a timely look at relations between law and religion. To what extent can religion play a role in secular legal systems? How do peoples of various faiths live successfully by both secular laws as well as their religious laws? Are there limits to freedom of religion? These questions are related to legal deliberations and broader discussions around secularism, multiculturalism, immigration, settlement and security.

The book is unique in bringing together leading scholars and respected religious leaders to examine legal, theoretical, historical and religious aspects of the most pressing social issues of our time. In addressing each other's concerns, the authors ensure accessibility to interdisciplinary and non-specialist audiences: scholars and students in social sciences, human rights, theology and law, as well as a broader audience engaged in social, political and religious affairs. Five of the book's thirteen chapters address specific contemporary issues in Australia, one of the most ethnically diverse countries in the world and a pioneer of multicultural policies. Australia is a revealing site for contemporary studies in a world afraid of immigration and terrorism. The other chapters deal with political, legal and ethical issues of global significance. In conclusion, the editors propose increasing dialogue with and between religions. Law may intervene in or guide such dialogue by defending the free exchange of religious ideas, by adjudicating disputes over them, or by promoting a civil society that negotiates, rather than litigates.

Part I

Law, state and secularism

1 Classifying church-state
arrangements

Beyond religious versus secular

Darryn Jensen

Introduction

A major stumbling block to sensible discussion of the role of religion in contemporary society is a widespread, but mistaken, assumption that thorough secularization – by which is meant a conscientious detachment between religion and the political life of the community¹ – is a necessary concomitant of political modernization. Where this assumption takes hold, any degree of state support or endorsement of religion or religious organizations or any religiously motivated contribution to political discussion is taken to place the state on a slippery slope towards theocracy.²

The attitude that there are only two stable and coherent alternatives – theocracy and thorough secularism – is in tension with the fact that there is hardly a national polity in the world today which conforms perfectly to either type. Fox's empirical study for the period 1990–2002 concluded that separation of religion and state defined as ‘no government support for religion and no government interference in the religious practices of both the majority and minority religions in a state' (Fox 2006: 538) is the exception rather than the norm (Fox 2006: 561). Furthermore, while Muslim states were found to have higher levels of government interference in religion and Christian states were found to have lower levels of interference (Fox 2006: 562), there was found to be no significant difference between democracies and non-democracies in the level of separation of religion and state (Fox 2006: 563). Fox suggested that the findings of his study contradicted the assumption that modernization is associated with a diminution in the importance of religion:

It is precisely in those states where modernity has most undermined the traditional community that religious elements within the state are most likely to try and legislate religious morals and traditions that were previously enforced at the social level. Similarly, it is precisely the most modern states that have the greatest ability to interfere in the daily lives of their citizens, including the regulation of religion.

(Fox 2006: 562)³

At the very least, Fox's study reveals that the relationship between church– state⁴ arrangements, individual liberty, democratization and modernization is a very complex one and that a multiplicity of types of church–state arrangements have proved to be practically workable companions for political modernization. One would think that, if government support and endorsement of religion is so bad, fewer modern states would persist in providing it.

The various intermediate positions between theocracy and thorough secularism which exist today have arisen largely as pragmatic responses to particular historical contingencies – for example, the anti-establishment clause in the United States' First Amendment may be explained, in part, by the history of the American colonies as a refuge for a plurality of religious minorities who fled from persecution in Europe as well as experience of church establishments in particular colonies,⁵ and French laïcité might be seen as a reaction against the close relationship between the ancien régime and Roman Catholicism. Notwithstanding that these arrangements are, historically speaking, pragmatic arrangements does not prevent them from being stable arrangements – in the sense that they are capable of enduring in the long run – and philosophically coherent – in the sense that they are seen to be rationally justified within the frame of reference adopted by the communities which adopt those arrangements. Particular historical instances of the confrontation between religious authority and civil authority and the means used to resolve these conflicts are capable of illuminating the more general moral issue raised by the coexistence of the two forms of authority. Even if the particular arrangements which are adopted are not universally valid responses to the general moral issue, they may, nonetheless, be philosophically coherent responses to the issue within the context of the framework of basic values held by people who make up the relevant political communities. The rationality of particular church–state arrangements is not necessarily defeated by the mere fact that those arrangements represent an accommodation between religious authority and secular authority. Indeed, it may be a mistake to regard religiosity and secularity as opposite poles. That the various compromises represent commitments to deeper values than the paramountcy of either religious or secular authority is a plausible thesis.

Bases of classification

Madeley (2003a) surveyed the movement of church–state arrangements in Europe (including the USSR and Turkey) during the period between 1980 and 2000. The various church–state arrangements in European states were arranged on two dimensions. One dimension focused upon the state's formal stance, whether constitutional or otherwise, towards religion – namely whether the state's commitment was ‘religious', ‘secular' or ‘atheistic' (Madeley 2003a: 13). In 1980, Denmark (where the Evangelical Lutheran Church enjoys constitutional recognition as Den Danske Folkekirke) was religious, France was secular and the USSR and other communist states were atheist. The other dimension focused upon actual support or obstruction of religion by the state (Madeley 2003a: 15). This dimension ranged from states which existed solely to promote a religion – of which the Vatican was the only example – to states which attempted to suppress religion completely – of which Albania was the only clear example in 1980. When a table was constructed using both dimensions, it was apparent that, in 1980, not all of the states of Europe fell into a single line ranging from most religious to least religious. There were some notable outliers, such as Ireland (which was ‘religious' but neither supported nor interfered with religious activity) and Austria (which was ‘secular' but gave large subsidies to religious institutions). Nevertheless, the majority of states could be arranged along a diagonal line across the table. ‘Religious' states, for the most part gave significant financial support to religion and ‘atheistic' states tended to obstruct religion. The Netherlands (‘secular' and ‘indirect state aid') and France (‘secular' and state subsidies to religious schools and hospitals) occupied the centre of the table.

By 2000, there had been considerable movement among states. By far the most important factor was the collapse of communism and the ensuing break-up of Yugoslavia and the USSR. This resulted in a vacation of the ‘atheistic' column and a general movement towards the centre of the table. This movement to the centre also involved the reunited Germany. Germany's movement to the centre involved the adoption of a compromise between the religious stance and large state subsidies of the former West Germany and the atheistic, obstructionist stance of the former East Germany. Two new states carved out of former Eastern bloc countries, namely the Muslim countries of Bosnia and Azerbaijan moved from the ‘atheistic' camp to the ‘religious' camp and began to obstruct religions other than Islam.⁶ A less radical movement involved the disestablishment of the Lutheran Church in Sweden in 2000, so that Sweden was now formally ‘secular' but the state continued to provide large-scale financial support for religion. Madeley summarized the changes between 1980 and 2000 as follows:

In all but two cases change has been in the direction of dismantling controls on religion and increasing the availability of state assistance, whether in the form of funds for the rebuilding of cathedrals, as in Russia, or the widespread use of national taxation systems to funnel resources to recognised denominations.

(Madeley 2003a: 17)

The significant move away from controlling or obstructing religious practice should be understood as a one-off seismic shift precipitated by the demise of communism in Europe. The most important lesson of Madeley's survey was that there was, between 1980 and 2000, no significant tendency on the part of European states to distance themselves from religion. The two states which loosened the ties between the state and religion were the former West Germany – where the change was driven by reunification with the East – and Sweden – where the changes were extremely modest and have not resulted in a significant reduction of the practical entanglement between church and state.⁷ While the 1980 situation displayed a strong correlation between formal commitment to religion and practical support for that religion and formal opposition to religion and practical obstruction of religion, the 2000 situation was much more complex. Formal commitment to religion is not always matched with practical support for religion and vice versa. The distinctions between formally ‘religious' Denmark and formally ‘secular' Sweden and between formally ‘religious' Britain and Ireland and formally ‘secular' Holland are, in some respects, less interesting than the cultural and historical factors which result in Denmark and Sweden being similar to each other and Britain, Ireland and Holland being similar to one another in terms of the level of practical support given to religion.

It might be observed that both dimensions ultimately turn back on themselves. States with formal commitments to religion are usually committed to a particular religious vision, which might be, for example, Roman Catholicism, Lutheranism, Ukrainian Orthodoxy or Islam. The more committed a state is to one of these competing religious visions, the more we would expect it to support the favoured religious vision and discriminate against or obstruct the other religious visions. The more committed a state is to secularism or atheism, the more we would expect it to be active in promoting particular value systems which provide a substitute for religious value systems. There are two reasons why we might expect this to be the case. First, no political community can endure for very long without having at least a set of core political values which define the extent to which the apparatus of the state may make decisions for the community as a whole and which inform the decision-making process. Where traditional religion is suppressed, the vacuum needs to be filled by other values systems – in other words, civil religion. Secondly, a state's secularist or atheistic commitment will not necessarily be satisfied by the establishment of a framework of religiously neutral political values. It is not difficult to find historical examples of a state's strong secularist or atheist commitment (and corresponding hostility towards theistic religion) providing the setting for an attempt to replace traditional religious values with a single, comprehensive philosophy about the common good of the community. Atheistic communism is the example par excellence of a political system which is committed to the promotion of its own quasi-religious vision about the common good and to the suppression of alternative religious visions. Indeed, communism, being a comprehensive doctrine about the organization of society, is impelled to suppress the rival visions provided by theistic religions.

These observations point to an alternative basis for the taxonomy of church–state arrangements, namely the dimension of religious–ethical monism versus religious–ethical pluralism.⁸ A reconstructed taxonomy of church–state arrangements will now be attempted. In attempting this reconstruction, two assumptions are made. Firstly, states are not to be judged by their formal constitutional commitments alone. Political praxis and prevailing attitudes about political morality must also be taken into account in order to obtain a true picture as to whether a state is committed to a particular religious-ethical vision or seeks to facilitate an accommodation between a number of visions. Secondly, a state which is truly neutral between different religious-ethical systems is a practical impossibility. The existence of political community is predicated upon the widespread acceptance of political values which determine where the line is to be drawn between matters of public concern and matters of private concern and how disagreements about matters of public concern are to be resolved. The most liberal of states is not a neutral state but a ‘minimally committed state' (Galston 1991: 93).

Monism and pluralism

a Monism

‘Religious–ethical monism' is the idea that political community ought to be coextensive with religious communion or, at the very least, there is room for only one paramount system of values within each political community. Therefore, it is part of the state's role to promote a state religion or philosophy. Modern self-consciously Islamic states, such as Iran, are the obvious examples of states committed to religious–ethical monism. Since Islam is the frame of reference for discussion of social issues, ‘mediation with the other is achieved only through the prism of Islamic categories' (Marcotte 2005: 54).⁹ From the Peace of Westphalia in 1648 until the early nineteenth century, most west European states were committed to religious– ethical monism, in so far as the religion favoured by the ruler – Roman Catholicism or one of the versions of Protestantism – was established as an official religion which was meant to unite the people under their ruler and God and distinguish them from other societies (Bouma 1999: 11–12). A monistically committed state need not be religious in the traditional sense. A communist state is a monistically committed state because it enthrones a single philosophy as the paramount basis for ordering the life of the community and marginalizes or suppresses alternative philosophies. A weaker form of monism exists in modern France, in which the preamble and opening article of the Constitution sets out a national ideology which endorses values such as democracy, equality and laicism.¹⁰ A tendency to proscribe forms of religious expression by which one group distinguishes itself from the rest of the community, such as the wearing of Muslim head-scarves by students in public schools, needs to be understood in the context of the state's commitment to these values. The defining feature of a monistically committed state is that it enthrones a single philosophy about the common good of the community as the paramount frame of reference for resolving political questions.

One can envisage two theses which provide coherent (if contentious) justifications to religious–ethical monism. The first thesis is that the state has a mission to ensure that the ‘true' religion or ethical system prevails within its borders. This might be described as the ‘national salvation' thesis. If the state sees itself as a historical agent and protector of the true religion or philosophy and has the means at its disposal to enforce uniformity, it is rational for it to propagate and support that religion or philosophy and persecute the partisans of other religions or philosophies. The national salvation thesis stresses the state's obligation to promote and support a particular religious or ethical system because it is true. It is conceivable that versions of the national salvation thesis might be adhered to by the partisans of both theistic religion and atheist, ‘scientific' ethical systems. Indeed, national salvation might be regarded as being an underlying thesis for totalitarianism in all of its forms. The rationale and the obligations of the state are ultimately derived from a single philosophy relating to the common good of the community. It is self-consciously Islamic countries, such as Iran, and hard-line communist countries, such as North Korea, which conform most closely to this paradigm. Historical examples might include the Spain of Philip II, in so far as Philip sought to promote himself as a champion of Catholicism in Europe. Elizabeth I of England, on the other hand, seemed uninterested in becoming the champion of the Protestant cause and had other reasons for resisting the power of Spain (Sutherland 1973: 278–79).

The case of post-Reformation England points towards the other possible thesis in favour of religious-ethical monism. State support for a single religious vision might proceed on the basis that the stability of a shared commitment to (or, at least, a general acquiescence towards) a set of political values is underpinned by shared religious values or, at the very least, a shared story or mythology. Therefore, the state should endorse and provide material support for a particular form of religious expression. This thesis might be described as the ‘social cohesion' thesis. According to this thesis, religious minorities might legitimately be persecuted or discriminated against, not because they are heretics or infidels, but because they are politically unreliable.¹¹ Like national salvation monism, social cohesion monism may be either religious or secular. Where social cohesion monism continues to take the form of the state's support for traditional religion, it is not necessarily strict in matters of dogma. Madeley has observed that ‘some traditionally mono-confessional societies would appear to provide a natural context for the development of a broad moral consensus which embraces even the religiously indifferent' (Madeley 2003b: 29). Since it is social harmony rather than the standing of individual souls which matters, the religious establishment tends to be tolerant and latitudinarian and there is no significant tension between the religious culture and the surrounding secular culture. This tendency remains strong in Scandinavia (Jensen 2005: 38; Lamont 1989: 161–62), although the episode concerning the Muhammad cartoons in the Danish newspaper, Jyllands-Posten, illustrated the tensions which may arise between majority latitudinarians and intensely religious minorities.¹² Elsewhere, traditional theistic religion is privatised – in the sense that pu...

Table of contents

• Frontcover
• Law and Religion in Public Life
• Title Page
• Copyright Page
• Contents
• List of contributors
• Acknowledgments
• Introduction: Da capo: law and religion from the top down
• PART I Law, state and secularism
• PART II Religion and speech in a pluralist society
• PART III Religion as a factor in legal processes and decisions
• PART IV Negotiating religious law and personal beliefs
• Afterword
• Bibliography
• Index