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Rivers on the Secularization of the British Constitution

Julian Rivers (U. of Bristol Law School) has posted The Secularisation of the British Constitution. The abstract follows.

In recent years, the relationship between law and religion has been subject to increased scholarly interest. In part this is the result of new laws protecting religious liberty and non-discrimination, and it may be that overall levels of litigation have increased as well. In all this activity, there are signs that the relationship between law and religion is changing. While unable to address every matter of detail, this article seeks to identify the underlying themes and trends. It starts by suggesting that the constitutional settlement achieved by the end of the nineteenth century has often been overlooked, religion only appearing in the guise of inadequately theorised commitments to individual liberty and equality. The article then considers the role of multiculturalism in promoting recent legal changes. However, the new commitment to multiculturalism cannot explain a number of features of the law: the minimal impact of the Human Rights Act 1998, the uncertain effect of equality legislation, an apparent rise in litigation in established areas of law and religion, and some striking cases in which acts have been found to be unlawful in surprising ways. In contrast, the article proposes a new secularisation thesis. The law is coming to treat religions as merely recreational and trivial. This has the effect of reducing the significance of religion as a matter of conscience, as legal system and as a context for public service. As a way of managing the ever-deepening forms of religious diversity present within the United Kingdom, such a secularisation strategy is implausible.

Posted on by Michael Helfand

“Religious Arbitration and the New Multiculturalism” on The Legal Workshop

The Legal Workshop – one of my favorite websites – posted the short essay version of my recent article “Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders.”   I have to say that I really enjoyed the process of distilling the core points of the full version of the article (available here) into the shorter format, which is what I think makes The Legal Workshop such a useful venue for reading up on recent scholarship.

Posted on by Mark Movsesian

Kahn on the Trial of Geert Wilders

In 2009, a Dutch court decided to prosecute right-wing politician Geert Wilders for hate speech. Wilders had made several highly critical comments about Islam and had produced a film, Fitna, that explored Islamist violence in a way that some people allege incites hatred against Muslims.  In June 2011, the court acquitted Wilders of all charges. Robert Kahn (St. Thomas – Minnesota)  has posted a piece, The Acquittal of Geert Wilders and Dutch Political Culture, that discusses Wilder’s case and its implications for multiculturalism. The abstract follows. — MLM

The June 23, 2011 acquittal of Geert Wilders has been viewed as a victory for freedom of speech over multiculturalism. While containing an element of truth, this framing has limitations. First, even as Wilders’ “triumphed” over multiculturalism he still cast himself as a champion of Dutch tolerance. Second, Wilders’ victory was a narrow one. The court, while acquitting, noted that Wilders went right to the line of permissible speech. Wilders acquittal does not necessarily portend an end of Dutch exceptionalism or its hate speech laws. Instead, the trial was noteworthy for (i) its obsession with the Nazi past, (ii) its debate over the rights and duties of a politician, and (iii) the conflict that arose between one of Wilders’ witnesses and an appeals court judge who in 2009 ordered the prosecutor to bring charges against Wilders.

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Muniz-Fraticelli on The Distinctiveness of Religious Liberty

Victor M. Muniz-Fraticelli  (McGill – Faculty of Law) has posted The Distinctiveness of Religious Liberty. The abstract follows. – ARH

The model of religious freedom in diverse liberal-democracies has been mistakenly incorporated into the multicultural paradigm. The wholesale incorporation of the religious liberty paradigm into the multicultural paradigm is an institutional, historical, and conceptual mistake, and it distorts our understanding of the institutions that enshrine religious liberty and underlie our justification of them. The Western paradigm of religious liberty is a complex product of diverse historical conflicts and political traditions, and only contingently overlaps the multicultural argument. The purpose of this essay is to differentiate religious liberty from multiculturalism as theoretical categories, and to at least identify some of the consequences of this differentiation.