The Constitutional Context of Secularism, Religious Freedoms, and the State: A critical comparative study of the contemporary secular state reviewed in the context of the thoughts of George Jacob Holyoake (original) (raw)
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Western Australian Jurist, 2017
Section 116 of the Australian Constitution states that the Commonwealth shall not make a law establishing any religion. This is commonly understood in the literature as equivalent to the establishment of a secular state. However, the implicit dichotomy between religion and the secular is questionable when neither term is clearly defined in an establishment context. Some constitutional jurisprudence appears to explicitly or implicitly view the 'secular' as a type of religion. This understanding has important implications for High Court jurisprudence surrounding non-establishment. In particular, this article argues that if the secular is a kind of religion, like all other religions it is conceivably subject to the prohibition against state establishment. It follows that the 'secular state' is not a constitutionally coherent approach to the relationship between religion and the state. Article can be accessed online at https://walta.net.au/wajurist/vol8/secularism-as-a-religion-questioning-the-future-of-the-secular-state/
2 The Christian origins of secularism and the rule of law
Law and Religion in Public Life, 2013
Secularism is a means of organizing political, legal and constitutional matters so as to exclude religious considerations and institutions from public affairs. This may be seen as a way of denying the legitimacy of particular religious considerations as a basis for public deliberation, of prohibiting certain religious actions from public spaces or institutions, or removing the rights of religious institutions to be formally represented in particular public forums. As a consequence, secularism is represented as a belief or a method different from and explicitly opposed to religion in public affairs. Secularism is distinguished from any particular religion by its apparently equal opposition to the involvement of all religions in state affairs. A state aligned with a particular religion may exclude the considerations, actions or participation of other religions, but secularism purports to exclude all of them. In the following pages I will question secularism's neutrality and its apparent independence from religion, and specifically from Christianity. The inquiry proceeds by first outlining the historical and theological context of the rise of secularism in Western Europe, and then by investigating three legal principles at the heart of modern secular assumptions. In exploring the Christian origins of those principles I will consider the extent to which theological tropes, imagery or paradigms persist in their contemporary manifestations.
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SSRN Electronic Journal, 2000
ABSTRACT Secularism has become a popular and controversial topic in discussions of politics and culture. However, secularism itself is a nebulous concept that has manifested in diverse iterations in diverse terrains. This paper aims to elucidate the distinctions among different conceptions of the secular state. It first defines secularism itself through detailed exploration of the concept through history, then applies this definition to identify secular nations. I will evaluate previous scholarly efforts to compare different approaches to secularism, and propose two distinct “schools” of secularism in the modern world: laïcité and separation of church and state, using the United States and Canada as exemplars of “separation” states, and France and the Turkish Republic as laïcité countries. The litmus test to distinguish between a separation and laïcité nation lies in the language of its constitution. The French and Turkish constitutions explicitly state that the country is a secular (“laic”) nation; the constitutions of the United States and Canada contain no such provision, but instead guarantee freedom of religion. I address how the practice of secularism is informed by the interplay of historical, geographical, cultural, psychological, economic, demographic, and other elements, which create the situation of a particular nation’s secularism. Finally, by analyzing court cases, legislative initiatives, and public response to various controversies, I explore how both forms of secularism inform a country’s approach to freedom of expression, the treatment of minorities, government interference in religious affairs, and other potential sites of debate.
Preliminaries to a concept of constitutional secularism
International Journal of Constitutional Law, 2008
Constitutional arrangements, today, are facing the challenge of new forms of strong religion that have the apparent goal of reconquering the public space. These movements' strategies typically involve Trojan horses designed to smuggle religion into constitutional law by arguing that a democratically achieved religious takeover of legislation, for the purposes of imposing divine command, is not constitutionally suspicious per se. Constitutionalism looks vulnerable to certain claims of strong religion when presented in terms of the free exercise of religion and pluralism. As a fi rst step toward a more robust theory of constitutional secularism, this paper reviews some inherent diffi culties of the concept. Constitutionalism relies on the use of the human faculty of reason and on popular sovereignty. The fi rst consideration translates into the duty of public reason giving in law and denies the acceptability of divine reasons; the second precludes any source of law but the secular. A robust notion of secularism, animated by these considerations, is capable of patrolling the borders of the public square.
Stato, Chiese e pluralismo confessionale, 2011
1. Introduction-2. Relation-Collaboration between the State and Churches in Constitutional Democracies-3. The laicité à la française Tested by a Deprivatised Religious Process-3.1. The French Rigid Secularism. Freedom (of Religion) through the State-4. Canada's Open Secularism. The Question of Religious-Based Family Law Disputes-4.1 Reasonable Accommodation and "New" Religious Nomoi Groups-5. Collaboration-Relation between the State and Churches in Italy-5.1. The Italian Secularism Tested by the New "Religious Geography"-6. Conclusion. 1-Introduction Under the pressing process of immigration, in recent years many Western constitutional democracies have moved from a number of creeds sharing, more or less, a common Christian background, to today's variety of different religions, ethnicities and cultures. These legal systems have now to deal with an era of unprecedented religious diversity producing paradoxes that stress the issue of secularism. On one hand, the proliferation of different nomoi groups 1 , brought by the mighty flux of migration, increases the cultural and religious pluralism. On the other, it raises widespread demands for recognition of religious organizations and relative precepts in the public space. We are in other words witnessing the deconstruction of traditional Western "religious uniformity" 2. *An abridged version of this article (reported by Prof. Nicola Colaianni, University of Bari "Aldo Moro") was presented at the Seminar on "Secularism and Liberal Constitutionalism", held at the University of LUISS "Guido Carli" (Rome) on 6 th July 2010.
Secularity and religious neutrality in the context of democracy: Origins and concepts
Anali Pravnog fakulteta u Beogradu, 2015
The paper aims to reflect on utility of principles of future articulation of church-state relations in democratic political systems, particularly in Western democracies, especially with regard to the requirement that the state and law be secular. Secularity was born and grew in the shelter of the Christian philosophical tradition, not only because that tradition assumed respect for human dignity and fundamental freedoms, but also because the Christian doctrine of two empires served as fertile ground for decoupling of politics and religion. Modern-day Western democracy also grew with its roots in Christian heritage and tradition. Consideration is given to the arguments contained in the concept of post-secular society, proposed by Habermas, and in the theses of Pope Benedict XVI, which both suggest that secularity is not an end in itself, as well as that religion provides inner bonds of the society, in terms of identity, solidarity, values, political motivation, that are indispensable for the ability of a society to enjoy democratic process. Particular attention is given to understanding the encounter between Western democracy and Islam, as well as to the question whether secularization of Western democracies can proceed further, or should it backtrack, if democratic standards attained in the West are to be preserved and furthered? Out of the three actualized paradigmatic models of secularity in developed democracies of the West -those of France, the U.S., and Germany -key legal aspects of the last two, which both recognize the role of religious organizations in public life, are also considered. The findings shall be employed for a practical purpose: determining which concept, secularity or religious neutrality of the state, can be more useful for conceiving church-state relations in democratic political systems, political those belonging to the Western type of democracy, in the future.
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International Journal of Constitutional Law, 2009
The failure of the European Constitution ignited two apparently independent debates: what is the future of European states on one hand; and what is the place of Christian values in the European public sphere. In recent years, the latter question became more and more burning; so much so that the future of European secular states is considered to be very much dependent on its ability to cope with the alleged threat of religion. This paper distinguishes two competing diagnoses of the same problem and suggests that the only way out for Europe is to be committed to a robust form of secularism that does not exclude religious minorities from the public sphere.
Religion and the Secular State
American Journal of Comparative Law, 2010
CATHERINE MA MCCAULIFF* ... 2. PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE 400 (2002) (quoting from a Puritan descendant and advocate of separation of church and state, William M. Grosvenor, [b]efore it is too late and the hordes of Europe and Asia ...
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