My near philosophical musings about the world in general its problems and possible ways out.


Religion's role in law and governance

In a panel discussion on religion and governance during the 2017 U.S.-Islamic World Forum, Brookings Senior Fellow Shadi Hamid asked the rhetoric question: Is Islam inherently political? Hamid emphasized that all religions may be similar in their general objectives, but that they have different characteristics and metaphysical underpinnings—and that matters. Islam’s founding moment, for example, intertwined religious and political functions, and this shapes how many, if not most, Muslims view religion’s role in law and governance. This doesn’t mean it’s a bad thing in public life, he said.

From an enlightened European point of view however it is “a bad thing”, even a very bad one. Not keeping religion and stately affairs strictly separate is the antithesis to any liberal democratic society. As in the major organised religions men speak on behalf of their god, for which by the very nature of the matter no verifiable justification can be given, no credible democratic legitimation can be demonstrated.

A democratic legitimation however is the fundamental precondition of any effective political activity. Therefore religion’s role must not interfere with that of law and governance if we don’t want to allow rolling back the achievements in political and personal liberation and inclusive participation of the last three centuries.

There is an open conflict brewing since the very first inception of the ideas of enlightenment. Of course, as these were genuinely European ideas, the conflict is confined to Europe. Consequently it can only be well understood here. Nevertheless aggressive European expansion exported these ideas to various places in the world – however with expectable varying degrees of success during their implementation.

So, historically this conflict is not new to us. Rather it is an old story for which we, if not a solution, we but found a Modus Vivendi. First monarchs and other worldly rulers, later democratic societies and their lawmakers and law enforcers, eventually managed to curb the powers of religious leaders to a more or less tolerable level.

The struggle however is far from being over – even if this might be the dominating impression. Most European states missed the chance for a truly secular constitution. One might well co-exist with a tamed, almost castrated church, which is carefully limited in its rights and whose influence is closely monitored.

We should have no illusions about the generally perceived compatibility of our Christian churches with the values of the Enlightenment. After all, it was only with the Second Vatican Council that the Catholic Church was pulled its poison fangs. Only by then in 1962, under Pope John XXIII, the Roman Catholic Church declared its support for religious freedom in the civil societies and advocated an intensified dialogue with those of other faiths or non-believers.

With the advance of a younger and even more aggressive religion in the heart of Europe, whose very concept is inherently political, as innocently stated above by the renowned scholar Shadi Hamid, the incompleteness of the transitions of our European constitutions to define truly secular states becomes strikingly apparent and may even result in fatal consequences.

A few years ago this perception may have been viewed as an extreme position or more bluntly as a kind of political paranoia. With the electoral successes of political retro-movements across the globe however, every liberal democrat with some respect for the achievements since the inception of enlightenment cannot be paranoid enough.

Not only that religious neutrality is far from being achieved globally, even in Europe, arguably the most secular region of the world, seven countries still have laws on the books dealing with blasphemy.

In Ireland, Malta, Poland, Greece, Italy, Russia and Denmark, it is still possible to face criminal charges for blasphemy, although in practice such prosecutions are rare and in most cases impossible due to constitutional guarantees on freedom of expression.

As another example of restorative ultra-conservative politics just recently the Bavarian Premier Markus Söder gave order to mount crosses or crucifixes in all public stately buildings. This move was sharply criticized even by head of the German Bishops' Conference as not helpful and an abuse of religious symbols for plain political purposes.

On one hand the brilliant German constitution expresses its strict neutrality towards religious affairs and no person is allowed to be discriminated due to his beliefs. On the other hand however, the jurisdiction of the Federal Constitutional Court has so far evaded a really clear consequence in cases, such as the famous crucifix ruling.

The renowned German lecturer of constitutional law, Horst Dreier, has recently published a book on this problem. It is currently only available in German and, admittedly, deals with these global issues in a very German context. I elaborated on it (but also in German) elsewhere before.

Horst Dreier warns against a neo-obscurantism that in the course of a worldwide retro movement even creeps into the otherwise so sober arguments of constitutionalists.

He devotes an entire chapter to a key state-law sentence which is indispensable for understanding the fragility of the free constitutional state and which has become known as the "Böckenförde Dilemma" .: "The liberal, secularized state lives on conditions that it itself cannot guarantee. ...”. This sentence expresses that the state rests on a foundation of values that it can influence but has not created itself. 

The Böckenförde dictum, however, points in the direction in which the main work ahead of us has to be done: to compose a set of basic values which underpins the fragile structure of the "secular constitutional state" with a stable and sustainable foundation, despite all the diversity of its people.

Today we foolishly accept the civil liberties for granted. Last year I even had an unsettling discussion with an otherwise lucid thinker, stating: “The classic liberalism, which fought for civil liberty, is done in the West - mission accomplished. Today we find that the Western lifestyle - SUV, diving in Bali, eating meat seven times a week – is destroying our planet.” Another participant added “In my humble opinion, classic liberalism, which was quite meritorious, essentially had its day 100 years ago. Since the end of the 19th century, the main challenges of modern people have been the collective regulation of social and economic problems.“ 

Besides some misconceptions about the nature of the liberal ideas (do be dealt with 
here later) I don't think classical liberalism is obsolete. 

In a few Western countries we may no longer have to fight for our civil liberties. This work was indeed done by our forefathers. It was them, who once won these freedoms in struggles against secular and religious authoritarian rulers. And quite a few gave their lives in devotion for these goals.

But today again we have to defend them, if we like to continue enjoying them. They are currently under attack from several sides – not least from the renewed attempts to intermingle the rational world of politics with the metaphysical world of religious beliefs.

My repeated reference to the early days of struggle for civil liberties hints us at the limitations of liberal societies: We must not allow intolerance to be tolerated. It cannot be the characteristic of an open and free society to give room to the enemies of civil liberties to eliminate the very same again.

No, quite to the opposite, we should stand up as we once did, when civil liberties had been “invented” some 300 years ago.

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