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Lecture 8) Law and religion in comparative perspective - Coggle Diagram
Lecture 8) Law and religion in comparative perspective
Relation between law and religion
Navigating the intersection of law and religion in multicultural societies, where diverse beliefs coexist, is even more complex and important.
Recognizing the place of religion within a constitutional system is essential for addressing both everyday issues and high-profile problems, and ensuring that legal decisions are informed and fair.
Despite the modern emphasis on the separation of state and religion, religious influences continue to exist within legal cultures worldwide, influencing interpretations and practices.
The Atheist State
Completely removes religion from both the public and private spheres.
The government actively discourages or bans religious practices and beliefs.
Religious activities are not permitted in public spaces.
The government may promote atheism as the preferred belief system and may even actively work to eliminate religious institutions and symbols from society.
Aspects of the intersection of constitutional law and religion
Shaped by a historical dissolution of the connection between spiritual and secular spheres.
Belonging to a religious belief is a fundamental aspect of human experience, mainly in the private sphere, while religion also embodies an institutional perspective.
Examining the intersection of constitutional law and religion.
The different types of religion and controversies about the constitutional state that arise from these models.
The different constitutional models for regulating the relations between state and religion.
Binary model, where the neutrality of the state necessitates secularism.
Although secularism is inherent in the DNA of constitutionalism, the degree of separation between state and religion varies across constitutional experiences. Nevertheless, religious influence still has an impact on the legal rules that are established by secularized institutions. This poses challenges for judges when dealing with the complexity of multicultural societies, where religious beliefs coexist with secular legal frameworks.
Assertive Secularism
It is a powerful way of keeping religion separate from public life.
In this approach, the state actively promotes secularism as a core part of its identity.
It sees secularism as a national belief system.
This form of secularism is assertive and strong and is focused on the custom of religious activities in public spaces.
It does not approve of any form of religion in public life, because the secular nature of the country can be trusted.
It is about actively shaping the identity of the country around being secular.
Seperation as State Neutrality toward Religion
Separating states do not favor any religion.
Instead, they remain impartial or neutral when it comes to religious beliefs.
Treating all religions equally and not favoring any specific religion.
It ensures that everyone has the freedom to practice their religion without interference from the state.
Weak Religious Establishment
In these states, there is formal recognition of a particular religion by the state, but its influence on legislation is minimal.
Countries such as Norway, Denmark, Finland, Iceland and the United Kingdom fall into this category.
Formal Seperation with De Facto Pre-eminence of One Denomination
Formal separation of church and state, the constitution guarantees freedom of religion and separates religion from the state.
One faith often has considerable influence in the legal and constitutional arena due to long-standing patterns of politically systematized church hegemony/morality.
Seperation Alongside Multicultural Accomodation
Combines a formal separation of religion and state with an accommodating approach to diversity and religious differences.
Religion and government are kept separate, and at the same time there is multicultural accommodation.
Respect and inclusion for all different religions.
Different cultures can retain their unique characteristics and still contribute to the overall national identity (ethnic mosaic).
Religious Jurisdictional Enclaves
In a state with religious enclaves, different religious communities can follow their own rules in certain areas, even though they live under the same government and laws.
Strong Establishment
Religion is deeply embedded in the legal and constitutional system.
One religion or belief system is officially endorsed by the state.
The constitution enshrines the texts and guidelines of the religion as the primary source of law, meaning that laws may not conflict with the teachings of the religion endorsed by the state.
Despite this, modern constitutional principles such as the separation of political and religious power, the protection of religious freedoms for minorities, and judicial review still exist. However, certain aspects of decisions by religious courts can be reviewed by higher courts, which are often established and administered by the state.
Religious bodies and courts have considerable authority and sometimes even operate alongside or instead of civil courts.
Classifying state and religion into models
Subordination
(how states and churches relate to each other).
Church-subordination systems
: where the church is under the control of the state.
Church-subordination systems:
where the state is under the control of the church (theocracy).
Seperation
and
coordination.
Separation model
: the government remains neutral with respect to religion. There is a clear separation between government and religious affairs.
Coordination model
: The state and religious groups make agreements or pacts about how they will work together. Although there may be some separation between state and religion, the degree of independence can vary depending on these agreements.
Hirsch and Cavalcanti argue that this division is too simplistic and does not accurately reflect reality. In many countries, the relationship between state and religion is more complex and nuanced than these three models suggest.
Hirschl identifies eight constitutional models for regulating the relationship between state and religion
, each of which illustrates features that define the rules for dealing with state and religion in each context.