Gila Stopler (NYU School of Law) has posted Religious Establishment, Pluralism and Equality in Israel—Can the Circle be Squared? The abstract follows.
Israel’s constitutional structure purports to combine strong establishment of the Orthodox Jewish religion in the state with respect for liberal values such as pluralism equality and liberty. Whereas the establishment of the Orthodox Jewish religion is achieved through laws regulations and administrative power, liberal values that are only partially enshrined in law, are mostly defended and articulated by the Israeli Supreme Court. Focusing on the internal conflicts within the Jewish majority the article will show how the power granted to the Orthodox Jewish religion by the state has been used to circumvent liberal values and will examine the role of the Israeli Supreme Court in ameliorating this problem. It will argue that although in countries in which religion and the state are separated a ‘hands-off’ approach to pluralism may be sufficient to protect liberal values, in a country such as Israel with a strong religious establishment a more activist approach, which will be termed ‘egalitarian pluralism’ is required. The article will argue that an egalitarian pluralist approach is needed in order to maintain Israel’s dual commitment to its nature as a ‘Jewish and Democratic’ state and will assess and critique the partial implementation of this approach by the Israeli Supreme Court.
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.
Jeremy Patrick (University of Southern Queensland School of Law) has posted Religion and New Constitutions: Recent Trends of Harmony and Divergence. The abstract follows.
The explicit incorporation of Islamic principles in the constitutions of Iraq and Afghanistan has highlighted concern over the past decade that theocratic constitutionalism has become a rival to traditional liberal constitutionalism. Whereas liberal constitutionalism ascribes religion special value but places it in the sphere of the private through guarantees of religious freedom, equal protection of religion, and non-establishment, the emerging ideology of theocratic constitutionalism holds the potential to redefine all rights through the lens of a particular religion.
This Article is an empirical study of whether, and to what degree, liberal constitutionalism has been supplanted by theocratic constitutionalism. Every constitution enacted since the year 2000 has been examined, and its provisions relating to religion sorted into the following categories: Preambular, Ceremonial Deism, Established Religion, Freedom of Religion, Equal Protection of Religion, and (non-)Establishment Clause. Analysis of the prevalence of these categories in new constitutions demonstrates that most new constitutions display some evidence of both liberal and theocratic constitutionalism.