NEWSLETTER
ICLARS - N° 4  July 2011
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TABLE OF CONTENTS

Editorial: Religion and Constitution. Towards the second ICLARS conference (S. Ferrari)
News: Crucifixes in Italian State-school classrooms: the European Court of Human Rights finds no violation...and more
Review: Law and Religion in the 21st Century – Nordic Perspectives’ by L. Christoffersen, KÅ Modéer and S. Andersen (eds.) (E. Svensson)
Resources
Links




 
 
 
 
EDITORIAL

RESOURCES

Religion and Constitution. Towards the second ICLARS conference Books & Journals
The next ICLARS conference is devoted to the topic "Religion and constitution".  The place of God in the States constitutions has become a significant issue in many parts of the world and some remarks can be helpful as an introduction to the conference discussions.
   The fundamental principle that lies at the origins of Western constitutionalism, both in its French version and in that of the United States, is the power of men to “write” the constitution of the State. The new element that distinguishes the modern concept from the ancient one of constitution is that the constitution is no longer understood “as the set of fundamental principles that can be deduced from the functioning   institutions of a country”  but as “the primigenial act, antecedent to those institutions, which establishes and regulates them” (Dogliani). The difference between these two ways of conceiving the constitution was precisely perceived by the Catholic counter-revolutionaries of the early nineteenth century: it had not escaped them that, with the assertion of the new model, the traditional idea that “to God was due jus dare, to Parliament jus dicere” was destined to succumb before the claim of the Parliament to carry out both the former and the latter functions, as the organ of the sovereign will of the people or of the nation. 
   The crux of the separation between State and religion, which constitutes one of the fundamental features of Western constitutionalism, lies in this statement of the independence of the constituent power from every religious law that claims to limit the State’s right to make laws. 
   This concept substantially triumphed, with differences that are not determinant, throughout the West: both in Europe and in the Americas and in the other countries that have adopted the Western model, the constitution does not accept that the norms of a religion represent the basis on which the laws of the State must be founded or the limit that it must respect. In the majority of cases, the religious law does not even constitute the source of  the provisions to which is delegated, by sovereign decision of the State, the discipline of a specific sector of legal relations, such as marriage or family law: these area, which in the past were regulated by the religious laws, were progressively claimed by the “monopoly of the State over the production of law” (Troper)  and today they have largely passed under the latter’s control. Also the choice of  a State religion or Church, which represents the most visible deviation from the system of separation between State and religion, is in decline and, in the few countries where it resists, it has a modest impact on the legal system as a whole. In general, the laws of the religions play a residual role, testimony of the past rather than anticipation of the future. 
    The diffusion that the principles of Western constitutionalism have had throughout the world has imposed the separation between the State and religion also in geographical areas which did not have the social and cultural preconditions to realise this operation. Therefore it should not   come as a surprise that the success of the separation between the State and religion has not been complete: in contrast to Western countries, in these regions there are States in which a religious law is included among the sources of  State law, the constitutions that provide for a State religion are more numerous (and this declaration is not an empty box, as in the West), and it is far more frequent that the law of a religion continues to regulate important sectors of the legal system. 
    In a part of the Muslim world this resistance to Western constitutionalism is explicit and upheld by a coherent system of thought, which springs from the notion of the sovereignty of God to arrive at the affirmation of the primacy of the religious law over that of the State. In other geographical and cultural areas the same resistance is more elusive and it is manifested, at the level of the constitutions, in the impossibility to reduce them to a common model. This is particularly true for the areas of Asia where Hinduism and Buddhism constitute the majority religions: the examination of the constitutions of these countries does not allow us to identify any precise tendency, to the extent that it is doubtful whether the categories used to analyse the relations between religion and constitution in the Christian and Muslim countries are applicable to this reality.  This leads to the need to once more underline that only a better knowledge of the religious traditions of these countries will make it possible to  perceive, in their constitutional documents, elements that are otherwise invisible.
   The ICLARS conference wants to discuss  these issues and, through the contributions of eminent scholars and the debate of all participants, to reach a better understanding of the place to be given to religion in the world constitutions*. 

Silvio Ferrari
ICLARS President


*For the conference program see here
The Politics of Secularism in International Relations
Book
Conflictos entre consciencia y ley. Las objeciones de conciencia.
Book
State Religion Relationships and Human Rights Law. Towards a Right to Religiously Neutral Governance
Book
Veritas et Jus
Journal

Links

 

News   Reviews
 
Crucifixes in Italian State-school classrooms: the European Court of Human Rights finds no violation
In European Court's Grand Chamber judgment in the case of Lautsi and Others v. Italy (application no. 30814/06, judgement of 18.03.2011), which is final, the European Court of Human Rights held, by a majority (15 votes to two), that there had been no violation of Article 2 of Protocol No. 1 (right to education) to the European Convention on Human Rights.
The case concerned the presence of crucifixes in State-school classrooms in Italy, which, according to the applicants, was incompatible with the obligation on the State, in the exercise of the functions which it assumed in relation to education and to teaching, to respect the right of parents to ensure such education and teaching in accordance with their own religious and philosophical convictions.
The Court concluded that, in deciding to keep crucifixes in the classrooms of the State school attended by Ms Lautsi’s children, the authorities had acted within the limits of the margin of appreciation left to Italy in the context of its obligation to respect, in the exercise of the functions it assumed in relation to education and teaching, the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. Accordingly, there had been no violation of Article 2 of Protocol No. 1 in respect of the first applicant. The Court further considered that no separate issue arose under Article 9.

High Court Rules that Bangladesh is a Secular State

The Bangladesh High Court ruled on October 4, 2010, that Bangladesh is a secular state. As a secular state, everybody has religious freedom, and therefore no man, woman or child can be forced to wear religious attires like burqa, cap and dhuti, the High Court ruled. But nobody could be prohibited from wearing religious attires if he or she wishes to wear those, it said.

The full veil ban, passed by the French parliament in October 2010, has taken effect Monday, 11 April 2011.

The law establishes that anyone refusing to lift the face veil for an identity check can be taken to a police station where attempts would be made to persuade her to remove the covering. Penalties for failing to comply are fines of up to 150 euros (215 USD) and "re-education classes." Other more severe penalties (up to 30,000 euros, or about $43,000) are aimed at those who "through threats, violence, constraint, abuse of authority or power for reason of their gender"  force others to hide their faces in public. If the person coerced is a minor, the fines double, and a prison sentence of up to two years is possible.

  ‘Law and Religion in the 21st Century – Nordic Perspectives’ by
L. Christoffersen, KÅ Modéer and S. Andersen (eds.)


This very comprehensive and intriguing book places itself in the middle of a grand discourse, aiming at presenting a wide range of voices in the late modern age in the Nordic countries. ‘Law and Religion in the 21st Century’ concerns the interaction of law and religion at the threshold of the third millenium, at a time when the Nordic societies are changing rather rapidly. The book relates to macro- and micro-levels of society, and concerns both temporal and spatial questions.

In the introductory chapters, the book places itself in the Nordic discourse, and shows the relationship to the European as well as the American one. After this introduction, the first part of the book presents case studies of the Nordic countries. Rather often, the Nordic countries are patched together simply as the ‘Lutheran North’. Instead of falling in that trap, the book serves the reader an interesting tale of common and specific traits of the Nordic countries, presenting Sweden, Finland, Iceland, Norway, and Denmark, separately.

Part two of the book exhibits a variety of late modern challenges, to all the Nordic countries.  What is presented is a very interesting account of the change taking place in the Nordic countries, on several different levels. Voices are heard on the resacralization of society, the normative cracks in the legal dogmatic surface, the disestablishment of the minority/majority dichotomy, as well as how political theology can contribute to our understanding of law and time. Both lawyers and theologians are heard, speaking with the variety, which is such a specific trait of the late modern age. There is no single truth, instead the discourse is left as open as possible in order to interpret and reflect on the present time. Any reader who expects the book to give one answer on how law and religion relate to one another, in the Nordic countries as well as elsewhere, will be badly disappointed.

The third part of the book presents challenges from particular normative traditions. Different Lutheran voices are heard, as well as Catholic, Jewish and Islamic. Interestingly, and perhaps strikingly for both the book and for the late modern time, a feminist voice and a perspective from the  secular human rights horizon, are also presented as normative traditions.

For a scholar who is interested in not only what is happening in the Nordic countries, but in the field of law and religion in many parts of the world, ‘Law and Religion in the 21st Century – Nordic Perspectives’ offers a great challenge for the discourse surrounding these issues. With the words of John Witte, Jr, in his chapter on the American discourse, its ‘readers are in for a real treat’.


Emma Svensson
University of Uppsala
 
 


Newsletter editor: Vincenzo Pacillo.
Kurt Martens, Angelika Guentzel, and Maria Elena Pimstein
are respectively responsible of the sections devoted to books, journals and links.


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