Johan D. van der Vyver (Emory University School of Law) has posted The Contours of Religious Liberty in South Africa. The abstract follows. – ARH
As far as religion and religious diversity are concerned, the South African Constitution can be described as one of profound toleration and accommodation. The Constitutional Court has on several occasions emphasized the importance of religion for the State. South Africa is therefore not a secular State but can best be described as a religiously neutral State.
The constitutional principle of non-discrimination applies not only to discrimination by the State, but also to discrimination by private individual and non-State institutions, including religious institutions. The Promotion of Equality and Prevention of Discrimination Act of 2000 amplified the constitutional proscription of discriminatory practices. When applying the non-discrimination decree to religious institutions, State courts will not unduly interfere in the internal sphere sovereignty of such institutions. Read more
The first time, you don’t notice. The second time, you start to pay attention. By the third time, you can’t help but see a pattern. Three times here at the Forum 2000 Conference, other participants – not, I hasten to say, the other participants on my panels – have asked me, very politely and sincerely, “Why are you interested in law and religion?” The tone of the question is curiosity more than anything else: whatever would make you devote your time to this topic? Now, you might think, this is normal chit-chat among academics at conferences, like “where do you teach?” I have to say, however, that when I’ve attended past conferences in Europe to speak about private international law, no one asked me a similar question. And I’ve never been asked the question in American academic settings. No: religion, here, seems different. There has to be a particular explanation, a reason beyond ordinary academic interest, why someone would make this the subject of his work. It reminded me of something the French sociologist Danièle Hervieu-Léger once wrote. If you study religion in France, she observed, everyone immediately asks you if you’re religious – the implication being, if you invest so much time in the subject, you must have a personal interest. No offense taken, of course. It’s a legitimate question, and all the more credit to the Forum 2000 organizers for making law and religion a theme for the conference. But the question does stand out. Perhaps the question reflects the fact that secularism is the default option for many European intellectuals. – MLM
Forum 2000‘s first law-and-religion panel, “Religious Law and Human Rights,” took place this afternoon, chaired by Prince El Hassan bin Talal of Jordan. Prince Hassan opened the panel by speaking of the need for a real “bill of rights” for the “West Asian/North African” region, one that includes the right to be free from religious discrimination. Michael Melchior, the Chief Rabbi of Norway, followed. He noted the size of the audience that had gathered to hear the panel and said it reflected a new interest among intellectuals and policymakers in religion as a social phenomenon. “God,” he said, “has returned to history.” All religions, he continued – speaking of the Abrahamic faiths – have both totalitarian and dialectical impulses; we need to “minimalize the former and maximalize the latter,” and predicted that religious and political leaders have only a limited window of opportunity to accomplish this. Journalist Shahira Amin from Egypt spoke about her doubts that the Arab Spring will usher in a secular society. Although Egypt is historically a moderate society, she said, present-day Egyptian Islam is becoming radicalized as a result of Wahhabi influence. Discrimination against Coptic Christians is a problem. She noted, though, that the Muslim Brotherhood has been speaking in more moderate terms since the revolution, perhaps in an attempt to appear politically responsible. Tibetan Buddhist scholar Geshe Tenzin Dhargye spoke of the two key ethical principles in Buddhism, the laws of causation (karma) and non-harming behavior, and how they would inform a Buddhist approach to law and society. In the final presentation, Bishop Václav Malý of the Catholic Archdiocese of Prague argued that Christianity provided the philosophical roots for human rights, “at least in Europe.” Although people have now forgotten those roots, as a historical matter it was the Christian concept of Imago Dei that implied human dignity and freedom, including freedom of conscience and religion. He ended by saying that the Catholic Church in the Czech Republic does not favor a confessional state, but a pluralist state in which people with different religious and philosophical commitments, including non-religious commitments, can peacefully co-exist. – MLM
For those not fortunate to be liveblogging from Prague, a live feed to Forum 2000 can be found here. – ARH
As Marc DeGirolami has previously noted, John D. Inazu (Wash. U. School of Law) organized the September 9, 2011 Law & Contemporary Problems symposium, “Theological Argument in Law: Engaging with Stanley Hauerwas.” Inazu has recently posted a special editor’s introduction to that symposium entitled, Stanley Hauerwas and the Law: Is there Anything to Say? The abstract follows. – ARH
This essay is the special editor’s introduction to a forthcoming symposium in Law & Contemporary Problems that explores the work of theologian Stanley Hauerwas and its implications for law and legal scholarship. Although not well-known in the legal academy, Hauerwas is an important scholar and public intellectual who has written scores of books and hundreds of articles, been named “America’s Best Theologian” by Time Magazine, and delivered the prestigious Gifford Lectures. He has arguably “articulated the most coherent and influential political theology in and for the North American context” and has been “at the forefront of major transformations in theology” including virtue ethics, the role of narrative and community, and understandings of medicine and illness. The inattention to Hauerwas in legal scholarship is particularly odd given that he has written for decades about issues central to thelaw: violence, liberalism, bioethics, theories of disability, theories of interpretation, capital punishment, just war theory, reconciliation, public reason, patriotism, euthanasia, abortion, and religious freedom, to name only a few of the more obvious connections. And the general lack of familiarity with Hauerwas by legal scholars (even among many of those who write in the area of “law and religion”) has contributed to a growing divide. Read more
I’m writing this week from Prague, where I’m participating in the Forum 2000 Conference, convened annually by Vaclav Havel. This year’s theme is “Democracy and the Rule of Law.” The conference begins today, but I had the occasion this weekend to chat with Petr Mucha, the Project Coordinator for Forum 2000’s Interfaith Dialogue, which brings together scholars and religious leaders from around the world.
Mucha was kind enough to give me his analysis of religion in the Czech Republic today. He confirmed the conventional wisdom that the Czech Republic is one of the most secular places in Europe (given how secular Europe is, that’s saying something). I asked why that is so. Mucha said that the story is a complicated one, but, as is so often the case, it has largely to do with history. Centuries of religious warfare on Czech soil – Prague, history buffs will recall, was the site of the famous defenestration (below) that started the Thirty Years War, which in turn led to the Westphalian state system and the principle of cuius regio, eius religio –left a distinct distrust of institutional religion. As a result of the war, Protestantism was more or less defeated in the Czech lands; the Catholic Church became identified with the Hapsburg Empire that suppressed Czech nationalism. During the Communist period, religion never became a rallying point against the state (though dissident priests were involved in the resistance), a situation that differs dramatically from neighboring Poland, where the Catholic Church formed a strong element of national identity.
Mucha believes that is it antipathy for organized religion, not spirituality as such, that characterizes the view of religion in Czech society today. Indeed, according to him, it’s not even correct to characterize the situation in terms of antipathy. Most Czechs are simply indifferent about religion; they don’t think about it much one way or the other. – MLM
Lorenzo Zucca (King’s College London) has posted Monism and Fundamental Rights in Europe. Though the piece does not directly reference or discuss cases of religious liberty in Europe (nor, curiously, Isaiah Berlin for that matter), the application of the author’s approach to such questions should be evident. Among other reasons, I am posting the piece because it represents a point of view nearly diametrically opposed to the one that I defend in my forthcoming book, Tragedy and History: The Quality of Religious Liberty. The abstract follows. — MOD
Fundamental Rights in Europe are protected by national, supranational and international judicial bodies. Yet, the likelihood of discrepancies between the solutions reached by those bodies opens the whole practice to a number of problems and risks. Legal Pluralists claim that the risk of conflicting views should not be regarded as a problem, and should instead be regarded as an occasion to engage in a dialogue between various jurisdictions.
In this article I resist the legal pluralist claim and suggests that the only way of understanding the relationship between fundamental rights and law is monist. There are two opposite monist understandings of the same relationship. On the one hand, there is a value monist approach which argues for the unity of value across law and morality. On the other hand, there is a legal monist perspective, which argues for the unity of legal norms and claims that disagreements about fundamental rights are settled by competent institutions within the monist legal framework. I defend the latter legal monist position and suggests that that is the best way of understanding law and fundamental rights at the national, supranational and international level.