What place do law and religion occupy in European political societies? Do they overlap in such a way that conflict cannot be avoided?
Is there a conflict between law and religion? And if so, what can be done about it? To answer these questions one can take several paths. A very arduous, if not impossible, path would be to define what law is, what religion is and what conflicts amount due to the given nature of the two objects. Each of those tasks could easily take the space of several treaties, without much hope of success. This article takes a different path. It deliberately narrows down the question and looks at both law and religion as normative systems that vie for the regulation of power. From this viewpoint, law and religion necessarily conflict, since by stipulation they are competing systems of regulation of behaviour. So the question becomes: what place do they occupy in European political societies and do they overlap in such a way that conflict cannot be avoided?
The answer to that question is that conflict between law and religion cannot be avoided, but it can be apprehended and dealt with. To apprehend the conflict I offer a broad-brush genealogical approach; to deal with it I propose an ameliorative perspective. In other words, it is necessary to understand the problem before we can hope to improve on it.
A genealogical approach
Let me explain the genealogical approach first. The place of both law and religion evolved beyond imagination from Medieval Europe to contemporary Europe. From a world where religion was the polar star of any belief and behaviour we have arrived to a position where religion is a private matter of individual conscience.1 To arrive where we are in Europe, we went through a number of tremendous conflicts, which came in three waves. To begin with, in a fully religious world like 17th century Europe, the struggle for power and regulation of behaviour was between competing religious factions. The answer to religious wars was to eliminate conflicts between religions by separating them from each other and by giving each priority within the territory of a nation state. The presence of other religions would then be subject to moralizing toleration. The confusion between power and religion within the nation state had set up a ticking bomb that was merely waiting to explode.
The second inevitable wave of conflicts came when the nation state attempted to free itself from the domination of one church. This was particularly true in France, where the revolution had asserted state power in opposition to the privileges of the Church and the aristocracy. The 19th century saw a remarkable escalation of tension between state and church which culminated in the so called Loi de 1905 establishing a legal principle of laïcité, which amounted to a unilateral separation between the state and the church where the state was the dominating element. For the rest of the 20th century, most nation states in Europe attempted to find ways to police the boundary between Church and state either by separating the two like France or by entrenching the privileges of an established church like in the UK.
The third wave is more recent and has to do with the growing immigration of religious minorities in particular Muslim people from North Africa, the Middle East and the Far East. The presence of vocal religious minorities in turn rekindled the interest in mainstream religion. Religious minorities and majorities united to argue in favour of a bigger place for religion in the society. They also divided people between those who believe that Europe can only be Christian because of its roots and those who believe that Europe is secular. The two questions are linked but the way in which they are linked is unclear. My aim is to shed light on the last wave of conflict between law as the secular expression of power and religion. I do so by proposing a new model of secularism which goes beyond the church and state debate. To a large extent, the way in which European states deal with Christian churches has been settled. What is controversial is the place of religions within the public sphere at the national, European and international level: secular law faces an uphill struggle when regulating the presence of new religious voices that claim for more protection, more participation and exemption wherever secular law is incompatible with religious commands.
The new model can be described as inclusive secularism2; it is inclusive because it carves out a place for religion in the public sphere, while striving to maintain law free from any discrete worldview so that as many worldviews as possible will manage to flourish.
An ameliorative approach
The second aspect of the theory is what I call a perfectionist perspective. Conflicts between law and religion cannot simply be removed or avoided. They are bound to resurface and re-appear in different guises. I aim to understand those conflicts rather than to suppress them or define them away. The way in which we have to deal with them is not by abandoning secular law and compromising it with other forms of regulation of behaviour. Secular law stands for the necessity of a legal political framework that does not depend on a transcendental worldview, but is firmly rooted in our immanent world. Secular law is also the instrument through which the legal-political framework can be policed so as to guarantee human flourishing and social peace.
It nevertheless remains the case that the place of religion within the secular legal-political framework is contested, sometimes bitterly so. One predominant view seems to suggest that religion should be protected only insofar that it does not venture out of the private domain. According to this view, when crossing the rigid boundary between private and public, one is requested to divest herself of religious symbols and views and join the public sphere as a neutral participant.
Secularism in the 20th century is at times described as requiring the absence of religion from the public square. Law would then have to police the boundaries between the public and the private sphere. This dichotomy would also resolve the conflict between law and religion, since the former would be sovereign in the public sphere while the latter would be free in the private sphere. Secularism-as-absence has a side effect: it empties the public sphere of all vitality; public debates become largely technical and procedural. The quality of political discourse diminishes greatly.3 Mutual understanding between religious and non-religious people is more and more difficult. But it can even be worse: only technicians would be able to participate in public debate. The corruption of democracy begins here.
The new model of inclusive secularism I propose attempts a Copernican revolution along three dimensions: ethical, political and legal.
The ethical dimension
Firstly, it is necessary to elaborate a naturalistic ethics that distinguishes between toleration and tolerance. Toleration is regarded as a moralizing attitude that depends on a prior commitment to one religious truth; from that vantage point, other religions can only be tolerated as false but not dangerous. Tolerance is a natural human attitude that allows us to apprehend diversity of any type without preconceived opposition or full-hearted acceptance. Tolerance as a natural attitude is possible if, and only if, individuals are not overwhelmed by negative emotions – such as fear – towards diversity that are often misinformed images of a less-than-fully-known external object or person.
Following from that understanding of tolerance, we can place diversity-as-a-fact at the core of our concerns and attempt to build on it a new way of conceiving ethics that is no longer centred on notions such as autonomy and individualism. Individuals and groups cannot be autonomous in a strong sense because they cannot be the sole source of their norms of behaviour. Their behaviour is governed by heteronomous sources: by that I mean that the way in which each one of us develops is deeply dependent on external cultural and religious norms which we come to assimilate and take for granted. Thus to believe that individuals rely on their individual autonomy to guide their own behaviour presupposes a false idealized picture of human nature; a more promising depiction of human nature starts from the basic fact of diversity and attempts to reconcile this fact with the human necessity of living together under shared norms. For a long time, religion offered the basic unifying glue for individuals in a given socio-political space. But with the demise of religion in Europe, it was necessary to ground law and politics on different foundations.
The political dimension
Europe is still struggling to find a rationale for secular politics. Many avenues have been attempted without real success; in fact some secular strategies can even backlash in so far that they polarise the society between those who believe in a secular ideology and those who don’t. I distinguish between two conceptions of secularism that encapsulate competing
attitudes towards religious diversity. On the one hand, exclusive secularism believes in the idea that religion should be relegated to the private sphere, as it cannot offer reasons that can be shared by everyone for the purpose of public regulation. On the other, inclusive secularism believes that religion can offer a lot to political discourse even if the reasons it offers will eventually have to be translated into legal instruments that can be understood by both religious and non-religious people.
Public institutions at the national, supranational and international level play a crucial role in promoting mutual understanding between religious and non-religious people. The best way to bridge the gap between polarized groups is by promoting a model of education that does not exclude a priori religious reason from its premises and its syllabuses. For example, the school classroom should become a tolerance lab where religious and non-religious people test their beliefs and come to understand one another.
The legal dimension
The most difficult aspect of the relationship between law and religion is where to draw the boundary between the two. I suggest that both law and religion have reasons not to be reciprocally contaminated in order to prevent their mutual dilution. Secular law must always strive to be the law for everyone, while religious law is by definition only the law of a group culturally defined. Any attempt to impose the latter would smack as a unilateral negation of the value of other religious views as well as of the secular view. That said, secular law must always take the challenge that it is biased in favour of non-religious people seriously, and must always try to neutralize that bias if it exists.
Secular law is culturally specific but it also has a universal dimension, insofar as it constitutes a tool for the resolution of conflicts and the attainment of social peace. Secular law is neither an expression of religion nor science. It mediates the conflict between the two as well as the conflict between competing religious worldviews and those between competing scientific worldviews. Both religion and science mimic law when they need to deal with their own conflicts. In this sense, law’s institutional and procedural dimension makes it different from naturalistic and religious systems of thought. The risk of collapsing into one or another is always present, but secular law needs to constantly strive to preserve its independence and primacy.
The absence of a clear overarching secularism at the European level leaves the door open to any type of religious argument in the public sphere. In this confused atmosphere, various claims as to the religious identity of the European political project are put forward so that they can gain dominance. There are in fact four different models that have been put forward to describe the nature of the European political project: A Christian Europe, A Post-Secular Europe, A Laic Europe, and A Secular Europe, tout court. We are going to have a look at each one of those in order to single out the benefits of the last model that I defend.
A Christian Europe
The Vatican and some other scholars would like to propose a Christian foundation to the European polity.4 The idea is that Europe grew into a secularized set of states without ever shaking off its Christian roots. At the basis of European morality lie Christian values, which are the necessary building blocks and glue that keep all Europeans together. There is nothing else as strong and as widespread as Christian values, so the only winning bet for Europeans is to accept that beyond their doctrinal differences they are all Christians at base level. From this viewpoint, there is no need for a constitutional framework, since we already have an underlying ethos which penetrates all social institutions, including, of course, law. This model is simple and backward looking: it is about finding in the past the roots of our future, however slimmed and adapted to the present context. The next model wants to move forward rather than backward, but it may overestimate the power of reason to achieve a compromise between law and religion.
A Post Secular Europe
Some philosophers see Europe as being at the end of its secular trajectory.5 They equate the rise and decadence of secularism to the rise and demise of reason, as the sole leading principle of the Western World.6 Habermas, for example, attributes in his later work a great importance to imagination and religion as sources of inspiration and knowledge. The secular project, according to Habermas, shows its limitations in that it arbitrarily expels from our understanding ways of life and world-views that should be given more attention, also given the fact that life in a secular world has not necessarily brought ‘salvation’ beyond apparent material progress. It is therefore necessary to move to a post-secular world in which reason and religion are capable of communicating one with another. Europe would have to embrace post-secularism and come up with ways of regulating religion that are much more open and responsive to the contribution of religion in the public sphere.
A Laic Europe
In response to both those who defend a Christian Europe and a Post-Secular Europe, there are those who want to maintain a status quo biased in favour of ideological secularism, which I associate with a specific conception of French Laïcité.7 Of course, Europe cannot possibly embrace one national understanding to the exclusion of all the others, so the approach of a Laic Europe doesn’t cut any ice. Plus it is clear, that the social phenomenon of new religions in Europe is not something that can simply be dismissed or regulated out of view. It is something that needs to be addressed and understood. The laic approach does not aim at understanding but it simply wishes to impose one view, which is itself a historical relic. Law in this model would follow a precise plan to outlaw whatever form of religion, and the recent French prohibition of burquas in public streets confirm this point.
A Secular Europe
The model I defend is neither Christian, nor Post-secular, nor Laic, but simply secular. It may be argued that to insist on such terminology is not likely to advance the debate as much as desired, since the notion of secularism is too loaded anyhow. I disagree. I believe that we haven’t done enough to defend and promote a view of secularism which is not ideological or exclusive. A secular Europe does not have to rule out religion from the public sphere, since it can be confident of its achievement and openly address other perspectives without the fear of collapsing or giving in. If there is a problem, it is that secularism has always been too implicated with religion, even if official secular ideology wanted to portray itself as pure and distant. There is no need, and no real possibility, for strict separation between religion and law, religion and politics. The relation can be ascertained and even cherished to the extent that religion is in the business of preserving a well ordered community within which the peace reigns. It has an overlapping interest with secular law to this extent. Today’s business of secular law is to celebrate diversity while maintaining a unitary framework within which disagreements between different people can be dealt with peacefully.
A secular Europe respects the domain of the sacred as well as the domain of the natural. But the language in which secularism speaks is neither religious nor scientific, although it has links with them both. The language of secularism is that of the juridical domain, which goes beyond the national realm and informs all European institutions which are attempting more than ever to find a common framework where litigation can be coordinated. In terms of the protection of religion, the ECHR has a leading role, although it has shunned its responsibility to expand a conception of secularism that can provide a frame for understanding and adjudication of individual rights. It is to be hoped that the Strasbourg Court will reconsider its position in Lautsi and will formulate a sound conception of secularism along the lines offered in these few pages. Secularism at the European level should go beyond the Church and State debate and should be geared towards the protection of diversity. It is not because each state has a different conception of secularism that it is not possible to find a minimum common denominator on the basis of the idea of diversity within a legal framework.
Today’s Europe does not seek a deep unitary moral order, as was the case in Medieval and early modern Europe. We learned that the deep moral order preserved and promoted by religion comes at the price of violent strife between various religious sects who hold the truth about morality and rectitude. Religious conflicts were at the root of the creation of nation state, which embraced one discrete religious view over others. In turn the nation state rebelled against the established Church and became the secular state by positing a degree of separation between itself and religion. The separation between ones state and ones church allowed religious diversity to flourish again and to prosper at the national and international level. In contemporary Europe, the problem is no longer the relationship between the state and its Church. The problem concerns the relationship between politics and religious diversity. I attempted to suggest that we have to move on from Church-State debates and change our perspective on the relationship between law and religion. Secular law should be regarded as the tool to build a framework within which religious and non-religious people are able to live together.
About the author
Lorenzo Zucca is Reader in Jurisprudence at King’s College London. He holds the degrees of Maitrise (Paris 2 Assas), DEA (Paris 1 Sorbonne), Mjur (Oxford) and PhD (EUI, Florence). Lorenzo’s special interests are in jurisprudence, constitutional theory, EU constitutional law and human rights. He is the author of Constitutional Dilemmas- Conflicts of Fundamental Legal Rights in Europe and the USA (OUP, 2007) and articles on European human rights law and theory. He edited a book entitled Law, Religion and the State in Europe – Debates and Dilemmas (CUP 2012). He is currently working on a book on the relation between law and religion in the European public sphere, which will be published by OUP under the title A Secular Europe: Law and Religion in the European Constitutional Landscape, (OUP 2012).
References
1.For a full genealogical exercise, see Charles Taylor
2.(I will say more about it in the next section)
3.S. Smith
4.Joseph Ratzinger, Marcello Pera, Without Roots: Europe, Relativism, Christianity and Islam, London: Basic Books, 2007; see also Joseph Weiler, Un’Europa Cristiana, Milano: Rizzoli, 2003.
5.Jurgen Habermas, Between Naturalism and Religion, London: Polity, 2008.
6.For a debate between Ratzinger and Habermas, see The Dialectics of Secularization: on Reason and Religion, Ignatius Press, 2007.
7.Agustin Menendez, ‘A Christian or a Laïc Europe? Christian Values and European Identity,’ Ratio Juris, Vol. 18 No. 2 June 2005, 179–205.
