Week 8 - Law and religion in comparative perspective Flashcards
(16 cards)
What is secularism?
While private choice of each individual may be guides by religious motivation, public choice must be grounded in neutral principles that are shareable by generality of citizens.
Secularism is the concept of the devision of state and religion. The neutrality of the state regarding religion is what we call secularism.
Secularism is in the DNA of constitutionalism. Does this mean that every state is completely neutral?
There are various degrees of intensity in which the separation of state and religion can manifest in different constitutional experiences.
When classifying state and religion into models, there are different systems based on subordination that tell something about how the state and the church relate to each other. What systems are there?
- Systems involving the subordination of the church to the state. In these systems, the church is under full control of the state.
- Systems involving the subordination of the state to the church. The state is under full control of the church. The church has more power than the state. This is also known as a theocracy.
When classifying state and religion into models, they can be placed in systems based on separation and systems based on coordination. What is the difference between these models?
In the separation model, the government stays neutral when it comes to religion. There is a clear separation between the government and religious matters.
In the coordination model, the state and the religious groups make agreements or pacts on how they will work together.
A different system is that of the confessional states. What are confessional states?
Confessional states maintain a close connection with a particular church or religious group without establishing conditions of subordination to the government.
These states typically establish one religion as the official or main religion recognized by the constitution. This doesn’t mean that a confessional state is not liberal or democratic. Confessional states, like the UK, often still uphold principles like religious freedom.
Hirschl identifies eight constitutional models for arranging the relationship between state and religion, each illustrating features that define rules of engagement between state and religion in each setting.
Why did Hirschl argue that the traditional classification (systems based on subordination, separation and coordination) is restrictive?
According to Hirshl (and also the professor) the different grades of state and religion relations are not reflected in the subordination, separation and coordination systems. Many legal systems combine features from more than one model or do not fit neatly into any of them.
Hirschl identifies eight constitutional models for arranging the relationship between state and religion, each illustrating features that define rules of engagement between state and religion in each setting.
What are these eight constitutional models?
- Atheist state;
- Assertive secularism;
- Separation as state neutrality toward religion;
- Weak religious establishment;
- Formal separation with de facto pre-eminence of One Denomination;
- Separation alongside multicultural accommodation;
- Religious jurisdictional enclaves;
- Strong establishment.
What is an atheist state?
An etheist state removes religion from both public and private spheres, viewing it as backward, linked to colonialism and promoting false consciousness. The government actively discourages or prohibits religious practices and beliefs.
We see this model in China.
Explain what the model of assertive secularism contains.
This model goed beyond simple neutrality and actively promotes secularism, showing intolerance towards religious expressions in public life - while still guaranteeing religious freedom. It views secularism as a fundamental element of the state, one that shouldn’t be subject to expectations.
We see this model in France.
What is the difference between an atheist state and assertive secularism?
The difference between these two lies in their treatment of religion. While both aim to keep religion out of public spheres, assertive secularism still allows freedom of religion in private spheres. In contrast, an atheist state seeks to eradicate religion entirely, even in private spheres.
Explain the model of separation as state neutrality toward religion.
This is the most common model among separationist states. It emphasizes the impartial, neutral stance on the state towards religious beliefs rather then active advancement of secularism. It ensures that everyone has the freedom to practice their religion without interference from states.
We see this model in the US.
Explain the model of weak religious establishment.
There is a formal, mainly ceremonial, designation of a religion as state religion even if this designation has few or no implications for public life.
We see this model in Germany.
Explain the model of formal separation with de facto pre-eminence of one denomination.
This model is characterized by a formal separation between church and state and by the guarantee of religious freedom. However, at the political level, the influence of one particular religious denomination remains especially strong, shaping public morality and often influencing political and legal decisions. It is a model typically found in Catholic countries.
We see this model in Colombia.
Explain the model of separation alongside multicultural accommodation.
This model is characterized by the formal separation between state and religion, as well as the guarantee of religious freedom. Unlike other secular models, it accepts the possibility of applying exceptions to the law for religious or cultural reasons, with the aim of ensuring respect for and promotion of multiculturalism.
We see this model is Canada and the Nederlands.
Explain the model of religious jurisdictional enclaves.
This model is based on the selective accommodations of religion in certain areas of the law. The general law is secular, yet a degree of jurisdictional autonomy is granted to religious communities, mainly in matters of personal status and education.
We see this model in Israel and Lebanon.
Explain the model of strong establishment.
The entire legal and constitutional system is based on a dual commitment to religious fundamentals and constitutional principles, or a bi-polar system of constitutional and sacred texts and authority.
This model is characterized by the presence of a singel religion as state religion, the constitutional enshrining of the religion (its texts and interpretation as a or the main source of legislation and interpretation of the law), a connection between religious bodies and tribunals and adherence to some or all core elements of modern constitutionalism.
We have seen this model in Iran.
