We use cookies to enhance your experience on our website. By continuing to use our website, you are agreeing to our use of cookies. You can change your cookie settings at any time.
Find out more
Jump to Content
Jump to Main Navigation
User Account
Personal Profile:
Sign in
or
Create
See all online law products
More
About
Subscriber Services
Take a Tour
FAQs
Help
Contact Us
Search
Browse all
Geographic regions
Geographic Regions
Africa
Americas
Antarctic Region
Asia
Europe
Oceania
Jurisdictions
Content type
Constitutional instruments and materials
Current constitutions
Constitutional amendments
Constitutional foundation documents
Constitutionally related documents
National instruments and materials
National legislation
Commentary and analysis
Book content
Encyclopedia entries
Bibliographies
Constitutional overviews (by jurisdiction)
Chronologies
Notes
US State
United States [us]
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
District of Columbia
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
United States Minor Outlying Islands [um]
United States Freely Associated States
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
Subject
Constitutional history
Constitutional law and processes
Cultures and people
Legal system
Policy areas
Politics and government
Rights
The state
My Content
(1)
Recently viewed
(1)
Bibliography
My Searches
(0)
Print
Save
Cite
Email
Share
Subscriber sign in
Forgot password?
Don't have an account?
Sign in via your Institution
Sign in with your library card
View translated passages only
Oxford Law Citator
Contents
Expand All
Collapse All
Legitimacy Gap - Secularism, Religion, and Culture in Comparative Constitutional Law by Depaigne, Vincent (13th July 2017)
Preliminary Material
Dedication
Preface
Acknowledgements
Table of Contents
Table of Cases
Court of Justice of the European Union
European Court of Human Rights
France
Germany
India
Malaysia
United Nations Human Rights Commission
United States
Table of Legislation
Europe
France
India
Israel
Macedonia
Malaysia
International Instruments
Table of Constitutions
Main Text
Introduction: The Secular State and Its Legitimacy
Preliminary Material
1 The European ‘Legitimacy Gap’
2 Secularization and Legitimacy
2.1 The ‘secular’ as worldly politics
2.2 The nature of secular legitimacy
2.3 Secularism: procedural or substantive legitimacy?
2.4 Secular legitimacy and the ‘ x ’ factor: the idea of the nation
3 Models of Constitutional Legitimacy: Looking at Secularization in Asia and Europe
4 Plan of the Book
Part I The Secular State Between Procedural and Substantive Legitimacy
1 The ‘Legitimacy Gap’ in the Secular State
1 Secularization, Religion, and Legitimacy
1.1 The religious legitimacy of the secular state
1.2 The ‘secularization of religion’ or religion as a source of secular politics
1.3 Secularism as an attempt to remove religion from the state
2 Max Weber and Legitimacy in the Secular State
2.1 Legitimacy in the secular state
2.1.1 The limits of a positivist approach to law
2.1.2 Linking power and authority in the secular state
2.2 Secular legitimacy as ‘rational–legal’ legitimacy
2.3 Natural law and democracy: the ‘legitimacy gap’
3 The Social Contract as a Response to the ‘Legitimacy Gap’
3.1 Hobbes or the ‘ladder kicked away’
3.1.1 From natural law to natural right
3.1.2 Natural law as a limit to sovereignty?
3.1.3 The role of religion in Hobbes’ political system
3.2 Rousseau: the ‘general will’ as a source of legitimacy, or ‘who speaks for the people?’
3.2.1 Who is the sovereign? Defining ‘the people’
3.2.2 Limits to sovereign power: universality of the laws, equality and unanimity
3.2.3 General will and the imperfection of government
3.2.4 Religion, culture, natural law, and the social pact
4 Conclusion: Substantive vs Procedural Legitimacy
4.1 The separation between sovereignty and government
4.2 Constituent and constituted powers
4.3 Substantive and procedural legitimacy
2 Constitution and Legitimacy: Procedural or Substantive?
1 The Move towards Procedural Legitimacy: Democratic Rule and the Decline of the Legitimacy of Human Rights
1.1 Republicanism as ‘civic religion’: reconciling rights and popular will
1.1.1 ‘Dualist’ republicanism in the United States: the Constitution and the people
1.1.2 Republicanism in France: the fusion of people and law
1.1.3 Republican positivism and the limits of legitimacy as rationality
1.2 Procedural legitimacy and its limits
1.2.1 The civic nation: does democracy require a nation?
1.2.2 The decline of natural rights: human rights as democratic procedure
1.3 Conclusion: procedural legitimacy and the limits of rational politics
2 Substantive Forms of Legitimacy: Locating Culture in the Secular State
2.1 The limits of universal law: the ‘Jewish question’, the ‘Muslim question’, and the secular state
2.1.1 Bauer and Marx
2.1.2 The ‘Jewish question’, the ‘Muslim question’, and the nation-state
2.2 Substantive legitimacy
2.2.1 Origins: constitution as foundation
2.2.2 Religion and social pact
2.2.3 Burke, Rousseau, and culture in the social pact
2.2.4 Carl Schmitt: the people as ‘substance’
3 The Problem of Contemporary Legitimacy: Defining ‘the People’
Part II Models of Reconciliation Between Constitutional Law and Culture
3 Locating Culture in the Secular State: Constitutional Law, Secularization, and the Status of Culture
1 Locating Culture in Contemporary Constitutional Law
1.1 Constitutional identity
1.1.1 ‘Constitution’ and constitutional law
1.1.2 Constitutional identity
1.2 Constitution and the definition of culture
1.2.1 The secular state: between separation of state and church and recognition of religions
1.2.2 From ‘established religion’ to ‘established culture’
1.2.3 Legal pluralism or ‘multiculturalism in law’
2 Models of Constitutional Legitimacy: Articulating Procedure and Substance
2.1 Models of secularization: secularization beyond Europe
2.2 Typology of culture and religion within the state
2.3 Models of constitutional legitimacy
2.3.1 Constitution based on the ‘displacement of culture’: the ‘neutral model’
2.3.2 Constitution as diversity: the ‘multicultural model’
2.3.3 Constitution as tradition: the ‘asymmetric model’
4 The Secular Nation: France, or the Limits of the ‘Neutral Model’
1 Defining the People: The Outer Limits of the Secular State
1.1 Who is French? ‘Good’ vs ‘bad’ citizen
1.1.1 ‘Universal’ sovereignty and the foreigner inside
1.1.2 Outsiders, insiders, and legal universalism
1.2 Citizenship, equality, and empire
1.3 ‘Internal’ and ‘external’ colonization: between emancipation and assimilation
1.3.1 Jewish ‘emancipation’: citizenship and assimilation
1.3.2 The status of Muslims in Algeria: personal law and citizenship
2 ‘Writing the Republic’: The Constitution, the French People, and Overseas Territories
2.1 The Constitution of 1958: France as an ‘asymmetric’ federal state
2.2 Defining the French people in the Constitution: how ‘French’ are overseas people?
2.2.1 The 1958 Constitution: the Republic and its people(s)
2.2.2 Who are ‘the people’?
2.3 ‘Common law’, special law, and personal law
2.3.1 An exception to the ‘common law’: special laws in overseas territories
2.3.2 Personal laws: reframing secular law
2.4 Conclusion: defining the French people, defining the Republic
3 Can Laïcité Define a Political Community?
3.1 Defining French constitutional identity: a ‘procedural’ republic?
3.2 The legal definition of laïcité : a ‘procedural’ definition of secularism?
4 Conclusion: A ‘Nationalization’ of Secularism?
5 ‘Reformist’ Secularism: Reconciling Pluralism, Equality, and Unity in India
1 Defining the People: The Origins of the Indian ‘Model’ of Secularism
1.1 Historical background
1.1.1 Secularization in Ancient India
1.1.2 Nationalism v communalism, or the specificity of contemporary Indian secularism
1.2 The Constituent Assembly and the definition of secularism
1.2.1 Establishing a constituent assembly: defining ‘the people’
1.2.2 Secularism and the role of religion
1.2.3 Secularism and personal law
1.2.4 The issue of official language: a preview of the ‘Hindutva’ debate?
2 Indian Secularism as ‘Ameliorative Secularism’
2.1 A secularism based on an open and reformist view of religion
2.1.1 Constitutional law and secularism
2.1.2 A reformist view of Hinduism
2.2 Caste and religion: towards a secular approach
2.2.1 Caste and religion: traditional–religious vs modern–secular view of caste
2.2.2 Towards a secular view of caste
2.2.3 Affirmative action in favour of Muslims: a secular paradox?
3 Pluralism and Secularism: The Shah Bano Case
3.1 The Appa case: secular legal reform, legal pluralism, and equality
3.2 The Shah Bano judgment
3.2.1 Secular law v religious law
3.2.2 Interpreting religious law
3.2.3 Uniform secular law in a plural context, or how to ensure equal treatment
4 Conclusion: Secularism between Pluralism and ‘Hinduization’
6 Malaysia: ‘Asymmetric’ Secularism
1 The Malaysian ‘Social Contract’: A Secular ‘Ethnic Democracy’?
1.1 The origins of the Malaysian Constitution: drafting a secular constitution, protecting Malay supremacy
1.1.1 The Reid Commission
1.1.2 The White Paper: Islam as state religion in a secular constitution
1.2 The Constitution as an asymmetric ‘social contract’
1.2.1 The Malaysian ‘social contract’
1.2.2 Is Malaysia an ‘ethnic democracy’?
2 The Position of Islam in Malaysia: A Secular and Islamic State?
2.1 The position of Islamic law in the Constitution: is Malaysia an Islamic state?
2.1.1 Religious law and constitutional law in Islam: between legitimacy and law
2.1.2 Islam in the Malaysian Constitution: from symbol to special treatment
2.1.3 The issue of jurisdiction and the expansion of Islamic law
2.2 Lina Joy , or the ‘Islamization’ of Malaysian law?
2.2.1 The Lina Joy judgment
2.2.2 Determining the limits of Islamic law
2.2.3 The issue of Islamic criminal law
2.2.4 Islam in the Constitution and the limits of the secular state
3 De-Secularization: Malaysia as a Secular and Religious State?
Conclusion: Between ‘De-Secularization’ and ‘Nationalization’
Preliminary Material
1 Finding the Source of Legitimacy in the Secular State: Reconsidering the Models
2 The Nationalization of ‘Majoritarian’ Secularism
3 The (De-)Secularization of Culture
4 A ‘Secular Religion’?
5 Secularization as Universalization
Further Material
Bibliography
Index
Sign up for alerts
Bibliography
From:
Legitimacy Gap: Secularism, Religion, and Culture in Comparative Constitutional Law
Vincent Depaigne
Content type:
Book content
Product:
Oxford Constitutions of the World [OCW]
Published in print:
13 July 2017
ISBN:
9780198803829
Prev
|
Next
Close
Go to full text on:
EUR-Lex
External Link
Oxford Law Citator
Users without a subscription are not able to see the full content. Please,
subscribe
or
login
to access all content.
[52.23.192.92]
52.23.192.92