Ten Napel, “Constitutionalism, Democracy and Religious Freedom”

In May, Routledge will release “Constitutionalism, Democracy and Religious Freedom: To be Fully Human,” by Hans-Martien ten Napel (Leiden University).  The publisher’s description follows:

In both Europe and North America it can be argued that the associational and institutional dimensions of the right to freedom of religion or belief are increasingly 9781138647152coming under pressure. This book demonstrates why a more classical understanding of the idea of a liberal democracy can allow for greater respect for the right to freedom of religion or belief.

The book examines the major direction in which liberal democracy has developed over the last fifty years and contends that this is not the most legitimate type of liberal democracy for religiously divided societies. Drawing on theoretical developments in the field of transnational constitutionalism, Hans-Martien ten Napel argues that redirecting the concept and practice of liberal democracy toward the more classical notion of limited, constitutional government, with a considerable degree of autonomy for civil society organizations would allow greater religious pluralism. The book shows how, in a postsecular and multicultural context, modern sources of constitutionalism and democracy, supplemented by premodern, transcendental legitimation, continue to provide the best means of legitimating Western constitutional and political orders.

Venter, “Constitutionalism and Religion”

In December, Edward Elgar Publishing will release “Constitutionalism and Religion” by Francois Venter (North-West University, South Africa). The publisher’s description follows:

This topical book examines how the goals of constitutionalism – good and fair government – are addressed at a time when the multi-religious composition of countries’ populations has never before been so pronounced. How should governments, courts and officials deal with this diversity? The widely accepted principle of treating others as you wish them to treat you and the universal recognition of human dignity speak against preferential treatment of any religion. Faced with severe challenges, this leads many authorities to seek refuge in secular neutrality. Set against the backdrop of globalized constitutionalism in a post-secular era, Francois Venter proposes engaged objectivity as an alternative to unachievable neutrality.

Bringing together the history of church and state, the emergence of contemporary constitutionalism, constitutional comparison and the realities of globalization, this book offers a fresh perspective on the direction in which solutions to difficulties brought about by religious pluralism might be sought. Its wide-ranging comparative analyses and perspectives based on materials published in various languages provide a clear exposition of the range of religious issues with which the contemporary state is increasingly being confronted.

Berger, “Law’s Religion: Religious Difference and the Claims of Constitutionalism”

Next month, the University of Toronto Press will release “Law’s Religion: Religious Difference and the Claims of Constitutionalism” by Benjamin L. Berger (Osgoode Hall Law School). The publisher’s description follows:

Prevailing stories about law and religion place great faith in the capacity of legal multiculturalism, rights-based toleration, and conceptions of the secular to manage issues raised by religious difference.  Yet the relationship between law and religion consistently proves more fraught than such accounts suggest. In Law’s Religion, Benjamin L. Berger knocks law from its perch above culture, arguing that liberal constitutionalism is an aspect of, not an answer to, the challenges of cultural pluralism.  Berger urges an approach to the study of law and religion that focuses on the experience of law as a potent cultural force.

Based on a close reading of Canadian jurisprudence, but relevant to all liberal legal orders, this book explores the nature and limits of legal tolerance and shows how constitutional law’s understanding of religion shapes religious freedom.  Rather than calling for legal reform, Law’s Religion invites us to rethink the ethics, virtues, and practices of adjudication in matters of religious difference.

Mallat, “Philosophy of Nonviolence: Revolution, Constitutionalism, and Justice beyond the Middle East”

Next month, Oxford University Press will release “Philosophy of Nonviolence: Revolution, Constitutionalism, and Justice beyond the Middle East” by Chibli Mallat (S.J. Quinney School of Law at the University of Utah). The publisher’s description follows:

In 2011, the Middle East saw more people peacefully protesting long entrenched dictatorships than at any time in its history. The dictators of Tunisia, Egypt, and Yemen were deposed in a matter of weeks by nonviolent marches. Imprecisely described as ‘the Arab Spring’, the revolution has been convulsing the whole region ever since. Beyond an uneven course in different countries, Philosophy of Nonviolence examines how 2011 may have ushered in a fundamental break in world history. The break, the book argues, is animated by nonviolence as the new spirit of the philosophy of history.

Philosophy of Nonviolence maps out a system articulating nonviolence in the revolution, the rule of constitutional law it yearns for, and the demand for accountability that inspired the revolution in the first place. Part One–Revolution, provides modern context to the generational revolt, probes the depth of Middle Eastern-Islamic humanism, and addresses the paradox posed by nonviolence to the ‘perpetual peace’ ideal. Part Two–Constitutionalism, explores the reconfiguration of legal norms and power structures, mechanisms of institutional change and constitution-making processes in pursuit of the nonviolent anima. Part Three–Justice, covers the broadening concept of dictatorship as crime against humanity, an essential part of the philosophy of nonviolence. It follows its frustrated emergence in the French revolution, its development in the Middle East since 1860 through the trials of Arab dictators, the pyramid of accountability post-dictatorship, and the scope of foreign intervention in nonviolent revolutions. Throughout the text, Professor Mallat maintains thoroughly abstract and philosophical arguments, while substantiating those arguments in historical context enriched by a close participation in the ongoing Middle East revolution.

Wijeyeratne, “Nation, Constitutionalism and Buddhism in Sri Lanka”

This September, Routledge will publish Nation, Constitutionalism and Buddhism 9780415462662in Sri Lanka, by Roshan de Silva Wijeyeratne (Griffith University, Australia). The publisher’s description follows.

Nation, Constitutionalism and Buddhism in Sri Lanka offers a new perspective on contemporary debates about Sinhalese Buddhist nationalism in Sri Lanka. In this book de Silva Wijeyeratne argues forcefully that ‘Sinhalese Buddhism’ in the period prior to its engagement with the British colonial State signified a relatively unbounded (although at times boundary forming) set of practices that facilitated both the inclusion and exclusion of non-‘Buddhist’ concepts and people within a particular cosmological frame. Juxtaposing the premodern against the backdrop of colonial modernity, de Silva Wijeyeratne tells us that in contrast modern ‘Sinhalese Buddhism/nationalism’ is a much more reified and bounded concept, one imagined through a 19th century epistemology whose purpose was not so much inclusion, but a much more radical exclusion of non-‘Buddhist’ ideas and people.

In this insightful analysis modern Sinhalese Buddhist nationalism, then, emerges through the conjunction of discourse, power and knowledge at a distinct moment in the trajectory of the colonial State. An intrinsic feature of this modernist moment is that premodern categories (such as the cosmic order) were subject to a bureaucratic re-valuation that generated profound consequences for State-society relations and the wider constitutional/legal imaginary. This book goes onto explore how key constitutional and nation-building moments were framed within the cultural milieu of modern Sinhalese Buddhist nationalism – a nationalism that reveals the power of a re-valued Buddhist cosmic order to still inform the present.

Given the intensification of the Sinhalese Buddhist nationalist project following the defeat of the Tamil Tigers in 2009, this book is of interest to scholars of nationalism, South Asian studies, the anthropology of ritual, and comparative legal history.

Acevedo on Secularism in the Indian Context

Deepa Das Acevedo (Ph.D. Student, U. of Chicago) has posted Secularism in the Indian Context. The abstract follows.

Indian constitutional framers sought to tie their new state to ideas of modernity and liberalism by creating a government that would ensure citizens’ rights while also creating the conditions for democratic citizenship. Balancing these two goals has been particularly challenging with regard to religion, as exemplified by the emergence of a peculiarly Indian understanding of secularism which requires the non-establishment of religion but not the separation of religion and state. Supporters argue that this brand of secularism is best suited to the particular social and historical circumstances of independent India. This article suggests that the desire to separate religion and state is integral to any understanding of secularism and that, consequently, the Indian state neither is nor was meant to be secular. However, Indian secularists correctly identify the Indian state’s distinctive approach to religion-state relations as appropriate to the Indian context and in keeping with India’s constitutional goals.

Garnett on the Virtues of Waiting

Have a look at our friend Rick Garnett’s short article at Commonweal on the the dangers of executive overreach — in this as well as prior presidential administrations — in response to the generally salutary frustrations of constitutionalism.  A bit from Rick’s essay:

The apparent urgency of these challenges prompts many to contend, understandably enough, that we have to act now and dramatically, that something bold must be done, that progress matters more than process, and that—in the words of one of President Barack Obama’s campaign themes—“we can’t wait.”

Last October, for example, after Congress responded coolly to his proposed jobs bill, the president promised—or warned—“If Congress won’t act, I will.” And he has. In a variety of contexts, he has moved on policy and personnel in ways designed to avoid the time-consuming gridlock that sometimes results from procedures mandated and constraints imposed by the Constitution. That document prescribes how high-ranking federal officials are to be appointed and gives the Senate a role in that process. The president—like, but to a greater extent than, other recent presidents—has avoided that check by creating a stable of “czars,” whose selection and portfolios are generally not reviewed by legislators. He has also outdone his predecessors in exploiting the Constitution’s authorization of “recess appointments” to install controversial appointees in powerful positions. Rather than wait for Congress to revise unpopular requirements of the No Child Left Behind law, he has offered to waive those requirements on the condition that states adopt practices, standards, and guidelines supported by his administration. Like other presidents, he has used both executive orders and the administrative-rulemaking process to implement substantive policies that the Republican-controlled House of Representatives would likely reject. And, in a widely criticized effort to leap over the jurisdictional limits imposed by the First Amendment, his administration argued before the Supreme Court that the Constitution’s religious-freedom guarantees should not stand in the way of anti-discrimination lawsuits brought by ministerial employees against religious institutions.

Again and again, we hear the same rationale: “If Congress won’t act, I will,” because “we can’t wait.” This should worry, not rally. In the politics of a free society committed to the rule of law, we (usually) can wait, and even when it seems like we can’t, we sometimes have to. It is easy, but mistaken and dangerous, to equate disagreement with bad-faith obstructionism, and to cast one’s own side as an enlightened vanguard, empowered by this or that emergency to do whatever it takes to achieve unity, to make progress, to bring about change. In this election season, though, what is needed—from candidates and citizens alike, and on both the left and right—is humility, restraint, and patience. These are more than useful life skills. They are constitutional virtues.

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