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Legitimacy Gap - Secularism, Religion, and Culture in Comparative Constitutional Law by Depaigne, Vincent (13th July 2017)

Introduction: The Secular State and Its Legitimacy

From: Legitimacy Gap: Secularism, Religion, and Culture in Comparative Constitutional Law

Vincent Depaigne

(p. 1) Introduction

The Secular State and Its Legitimacy

Jesus said, ‘My kingdom is not of this world’.

John 18:36

I am my brother’s keeper. I am my sister’s keeper.

That’s a value.

President Obama

Speech at the University of Vermont

30 March 2012

1.  The European ‘Legitimacy Gap’

In his ‘legacy speech’, a former president of the European Commission talked of the ‘legitimacy gap’ affecting the European Union.1 The ‘legitimacy gap’ he saw was characterized by a lack of ownership in European politics, due to the distance between the decisions taken in Brussels and those at the national level. Another issue he referred to was that the legitimacy of the European Union depended on the delivery of concrete results. His proposed response was essentially to reinforce democracy: democratic legitimacy was the answer to the perceived ‘legitimacy gap’.

The present book will develop the idea that the ‘legitimacy gap’ runs deeper than this. It is not a feature of the European Union only. The ‘legitimacy gap’ is a feature of the contemporary secular state. It is part of the very construction of the contemporary secular approach to politics.

The evolution of the European Union illustrates some aspects of a wider legitimacy crisis affecting the national state. Since its origin, the European Union has evolved from an ‘economic’, result-oriented legitimacy towards a legitimacy built (p. 2) on values based on a particular cultural and religious heritage. Weiler outlines three forms of legitimacy for the European Union: first, an output legitimacy (result-based), which depends on the ability to provide a given (economic) result; second, an input legitimacy (process-based), which is essentially democratic legitimacy; and third, a ‘telos’ legitimacy or ‘political messianism’, which is aspirational and refers to general ideas such as peace, fundamental rights, or social development.2

The European ‘legitimacy gap’ can be found in the contradiction between the result-based approach and the aspirational ideals of the European Union, as the reliance on the economy to advance a political project makes the legitimacy of the whole construction hostage to its concrete economic results. An output-oriented legitimacy tends to be fragile as it is based on results, on the ability of the political institutions to respond to immediate needs, while at the same time failing to provide the foundations which would enable these institutions to respond to such needs.

The first goal for Europe was to establish ‘world peace’, as stated in the 1951 Schuman declaration. Weiler cites the Schuman declaration as an example of ‘political messianism’, with its insistence on general humanistic and civilizational ideals. At the same time, the Schuman declaration linked this general aspiration to a concrete economic programme based on the development of common steel and coal production. The 1957 Treaty of Rome confirmed this ‘outcome’-oriented approach: in its preamble, it referred to the goal of peace, but its focus was on an ‘economic legitimacy’ based on economic and social progress and with the essential objective of improving living and working conditions.

The draft constitution for the European Union, adopted in 2004, had a much more ‘civilizational’ tone, underlining in its preamble the particular characteristics of European civilization as the basis for the European Union (prompting a discussion around the Christian nature of the Union) and the importance of values such as fundamental rights. The draft constitution referred to the inspiration provided by ‘the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law’.

The draft constitution was eventually rejected, underlining not only the gap between Europe’s noble aspirations and its ability to translate these aspirations on the ground, but also, more deeply, the inability of the European Union to evoke a sense of belonging among its citizens—which is precisely what the ‘legitimacy gap’ is about. Europe is seen as a delivery mechanism rather than a community to which one belongs—and this is increasingly true for national states.

The discussion around ‘Christian values’ in the context of the European constitution illustrates what the ‘legitimacy gap’ is about. Weiler talks of a ‘Christian deficit’ in the European Union, arguing that Christianity is a central part of European (p. 3) culture and should be recognized as such.3 The proponents of Christian references in a European constitution argue that the European project can be deepened only if it asserts more strongly its own identity, part of which is based on Christianity. This claim is based on a view of legitimacy as substantive, as requiring the assertion of specific cultural elements as the basis of the political community. It does not mean that there is no room for other cultures or identities within the political community, but these minority identities are recognized as part of a wider framework based on a majority culture. What this view recognizes is that the European Union cannot be based solely on technical expertise, on achieving results, but needs a deeper commitment: former Commission President Delors talked of giving a ‘soul’, a ‘spirituality’, to Europe.4

The ‘legitimacy gap’ is—I suggest—directly linked with the role of religion and culture in the secular state, in particular in its contemporary form in Europe. The withdrawal of religion as a source of legitimacy questions the foundations underpinning the values on which the secular state is based and how the secular state might respond to the ‘legitimacy gap’ created by the withdrawal of religion.

Legitimacy represents a particular problem for the secular state. The legitimacy gap is about the failure of the secular state to produce a distinct source of legitimacy which could replace religion. Secular legitimacy, I argue, is essentially procedural in nature: it is based on rights granted to members of a political group and on specific modalities to ensure democratic expression. These elements are mainly functional and do not provide for a substantive form of legitimacy, and cannot, as such, legitimize the existence of a particular state or political community. The European example shows that the ‘legitimacy gap’ lies between the procedural and the substantive dimensions of legitimacy.

As a result, the secular state is ill equipped to respond to claims by groups which found their existence on substantive forms of legitimacy, in particular (but not only) where these groups are religious. One could argue that it is precisely the tolerance and openness of the secular state which allows such questioning. However, failure to win the adhesion and support of its citizens is a source of weakness for the state. For many states, using or referring to traditional forms of legitimacy, based on religion or more generally on cultural traditions, has been a way to respond to this challenge, the reference to religion or culture being seen as essential to legitimize the state.

In its now famous Lautsi judgment concerning the display of crucifixes in public classrooms in Italy,5 the European Court of Human Rights (ECtHR) held that the reference to religion in the state did not in itself contravene the secular nature (p. 4) of the state. For the Italian judge, Christian teachings confirmed the autonomy of the temporal power vis-à-vis the spiritual power, rather than their opposition: the idea that religious symbols should be completely excluded from public places is only a particular ideological interpretation of secularism, and not the one retained in the Italian Constitution. The Italian judge also made a distinction between the cultural and symbolic dimensions of the crucifix as opposed to its narrowly defined religious dimension: while the crucifix is clearly a religious symbol, it also evokes a history and values not limited to the believers of a particular religion.6 The Italian government added that keeping crucifixes in schools was a matter of preserving a centuries-old tradition.7

The ECtHR recognized that while the presence of crucifixes in state-school classrooms conferred preponderant visibility on the country’s majority religion, this was not in itself sufficient to denote indoctrination.8 The ECtHR also held that the reference to a particular tradition within the state was in itself legitimate, as long as it did not infringe rights and freedoms enshrined in the Convention.9 Furthermore, the ECtHR noted that this asymmetry in favour of one religion was compensated by the fact that the school environment in Italy is also open to other religions.10

For a concurring judge, ‘a court of human rights cannot allow itself to suffer from historical Alzheimer’s. It has no right to disregard the cultural continuum of a nation’s flow through time, or to ignore what, over the centuries, has served to mould and define the profile of a people’.11 In their observations, a number of state parties considered that states should not have to divest themselves of part of their cultural identity simply because that identity was of religious origin.12

The persistent influence of religion can be found in a number of other countries with secular constitutions. In the United States, religion is a common facet of political life, not only through the use of explicit religious themes in political speech, but more generally to underpin and reinforce a secular political discourse, an example of which can be seen in President Obama’s use of biblical or faith-based arguments and references.13 The Turkish Prime Minister has rejected the idea that his party is made of ‘Muslim democrats’, but claims to represent the values of a ‘conservative democracy’ which reflects the traditional values of Turkish society. In his view, his political programme is not religious, it is democratic, meant to reflect (p. 5) the ethos of the people, and its religious or cultural dimension is mediated through the democratic process.14

The above shows the difficulties one faces when discussing the nature of values in a secular state. Are such values to be found solely outside religion, as secularists would maintain? Or can secular values have religious foundations? But then what is the meaning of the ‘secular’ in this context? Does it mean that any reference to religion is removed from the public sphere, or can ‘secular’ have other meanings?

2.  Secularization and Legitimacy

Two broad responses to the ‘legitimacy gap’ can be outlined. The first response has been to expand the idea of the ‘secular’ by developing a view of secularism for which the basis for politics is the removal of religious references. The second has been to attempt to find a secular cultural basis (be it ethnic, cultural, or linguistic) which would serve as a non-religious source of legitimacy, political rule thus being based on a reference to a particular cultural or ethnic community.

These two approaches point in two opposite directions, both of which are inherently contradictory. The first approach is ‘universalist’ in its ambition; it aims to find a new basis for the state which would be independent from any affiliation—religious, ethnic, or cultural—the state being defined precisely by its ability to overcome social divisions, as the source of its legitimacy. However, such an approach is ultimately based on a purely procedural view of secularism, essentially based on the protection of human rights. This ‘thin’ view of secularism leaves the issue of the particular identity of the state unanswered. The second approach is self-defeating, as its appeal to a particular cultural identity re-inserts the issue of religion in the public debate, in particular as it raises the issue of the status of minorities (and of their religion). The issue of culture (and religion) is thus bound to re-surface in the secular state.

The hypothesis developed here is that the ‘secular’ should not be seen as (necessarily) separating culture (including religion) and politics, but rather in terms of how meaningful links between these two dimensions can be built. A number of authors have developed a contextual and reformist approach to the notion of the secular which will be further discussed in this work.15 The resurgence of religion in (p. 6) largely secularized societies is considered by some as evidence of a new ‘post-secular’ era: what I suggest is that the ‘post-secular’ is essentially a new reading of what ‘secular’ means.16 In the views developed by many of these authors, secularism does not mean that any reference to religion should be rejected. Cultural identity may be religious in origin, but it may also be ‘de-religionized’:17 religious symbols or holidays are ‘secularized’, religion being thus not entirely absent, but invested with new cultural meaning. For Parekh, in Europe, ‘religion survives as culture’ with the continuing cultural influence of Christianity in largely secularized societies.18

2.1  The ‘secular’ as worldly politics

For Taylor, three meanings of the ‘secular’ can be found: first, as a withdrawal of religion from the public space; second, as a decline in religious belief; third (and this is the definition he retains), as freedom, the possibility to retain or not retain a given belief.19 I propose here to follow Taylor and his view of the ‘secular’ as freedom, rather than as a separation (from religion), and to explore what the implications that may have in legal terms.

Secularization is generally seen as opposed to religion, but the secular state is not necessarily or solely based on neutrality vis-à-vis religion. Not only is the break with religion incomplete, in the sense that states often remain engaged with religion and retain a religious basis (which may often be symbolic), but one can question whether an absolute neutrality, attained by divesting the state entirely from any religious matters, is actually required to respect the secular nature of the state.

Secularization is better defined as a process of secularization of religion, rather than as a process of religious withdrawal. The notion of the ‘secular’ need not be framed in purely negative terms as opposition to religion. It can also be defined in terms of engagement with religion, implying a positive (and reformist) approach to religion. The original, religious definition of the ‘secular’ was in opposition to (p. 7) the ‘regular’, the ‘secular’ clergy being ‘in-the-world’, in contact with the general population, whereas the ‘regular’ clergy remained ‘out-of-the-world’, in monasteries solely dedicated to religious life. The secular means the entry of religion ‘in-the-world’ rather than an exclusion of religion from worldly politics.20

Secularization does not mean the disappearance of religion so much as a transformation of its social role.21 Max Weber underlines the role of religion in transforming the ‘world’, how an ‘out-of-the-world’ religion becomes a source of change ‘in-the-world’. In his Protestant Ethic, Weber refers to this positive or reformist posture as one of a ‘secularized’ asceticism, in which religious rules and practices are deemed to extend beyond the sphere of a religious order, into the ‘world’. This idea is also to be found in Bader’s work, in which he speaks of ‘protestantization’ to describe a similar process in other religions, based in particular on the individualization of religious belief.22 A parallel has been drawn between Buddhism and Protestantism to describe efforts to reform Buddhism since the nineteenth century: ‘Protestant Buddhism’ is defined as a compromise between strict monastic life and worldly life.23 In these contexts, ‘secular’ means—as in its original version—religion entering ‘into the world’, rather than a strict dichotomy between religion and other social spheres.

This view of the ‘secular’ provides a better account of the co-existence of secular and religious spheres of activity—for example, how a social service (hospital or school) can be run by a religious group while fulfilling a secular purpose. Conversely, a non-religious institution may accommodate religious elements (religious teaching or holidays such as Christmas). The fact that there might be an opposition between secular and religious views (for example, on abortion or religious teaching) does not in itself undermine the secular character of a political community. In a secular community, different views may be expressed and potentially clash. What is required is some form of regulation of pluralism to ensure that differing political—and more general—world-views can be expressed. The issue is how religion can be part of ‘this-world’, of secular worldly politics.

2.2  The nature of secular legitimacy

Referring in particular to Max Weber and his account of modern law, I suggest that the ‘secular’ suffers from an inherent problem of legitimacy. In his account (p. 8) of legitimacy, based on three forms of legitimacy (‘traditional’, ‘charismatic’, and ‘rational–legal’), Weber delineates a move from a traditional form of authority based in particular (if not solely) on religion towards a modern rational form of authority.24 Weber’s account of legitimacy is one of a transition from a ‘substantive’ form of (traditional) legitimacy to a ‘procedural’ (rational–legal) one—the charismatic form of legitimacy offering only a temporary, transitional form of legitimacy (not one that can form a permanent basis for a legal order).

More importantly, however, Weber’s account leaves a ‘legitimacy gap’. Weber does not solve the issue of the basis of rational–legal legitimacy, which thus appears as an incomplete form of legitimacy: it defines an internally coherent, yet partial, form of legitimacy. The rational–legal form of legitimacy means that the law is valid because it follows a number of procedural steps, but it does not provide a basis for the law outside the legal process. In the Weberian account, secular legitimacy is confronted with the problem of its own foundation.

In Western legal and political thought, the problem of secular legitimacy has been the concern of a number of thinkers who have responded with the idea of a ‘social contract’, in particular as developed by Hobbes and Rousseau, who were largely concerned with finding a legitimate basis for sovereign political power. In doing so, social contract theories had to solve ‘the intriguing tension between order and consent’.25 Social contract theories were based on the simultaneous existence of consent by the people and an agreement on an order forming the basis of the political community. Faced with the issue of legitimacy, social contract theories were based both on the sovereign power of the people and on the idea of natural law as providing the ultimate basis on which the whole theory would rest.26

Social contract theories offer only a partial response to the question of the ‘legitimacy gap’, which finds echoes in the contemporary debates concerning the reconciliation between democratic rule and the protection of rights. These theories leave open the problem of ensuring that the deliberation of the sovereign (people) always results in respect for rights, and more generally that this deliberation necessarily results in building a viable political order. Social contract theories leave open the following question: on what basis can ‘the people’ be represented by the state? The issue for the secular state is to provide a positive definition of ‘the people’, to define the identity of a group which is not bound by any particular, prior link—a group for whom religion is no longer the sole or main reference point.

(p. 9) 2.3  Secularism: procedural or substantive legitimacy?

Secularism has been considered as a way of responding to the ‘legitimacy gap’. However, I suggest that it is unable to provide a fully convincing answer. In its contemporary, essentially legalist and constitutional version, it has become primarily a ‘procedural’ secularism, in which what could form its ‘substantive’ dimensions is insufficient to underpin its legitimacy. Secularism thus needs to associate itself with other elements in order to reinforce its legitimacy—in particular by linking itself to nationalism, thus leading to what I call a ‘nationalization of secularism’, linking the secular with a distinct cultural identity.

Secularism is caught between the ambition of proposing an alternative comprehensive doctrine to religion and that of ensuring that all persons are being treated equally regardless of their religion (as well as their cultural or racial background). The idea that rationality can provide a substantive justification for secularism has either failed or is contradictory with the non-exclusivist, liberal values inherent in secularism. Such an approach is premised on the idea that the law can be derived from the existence of a higher rational truth, which contradicts the liberal notions of freedom of conscience and equality at the heart of secularism. As I will argue in Chapter 2 of this book, reason cannot provide a basis for a substantive conception of legitimacy, but should rather be seen as instrumental, as providing the basis for a procedural form of legitimacy.

Early accounts of secularism, based on Enlightenment thought, linked the ‘secular’ with rationality (a positivist, rational–legal view of the law) and with natural law. However, these accounts of secularism have proved increasingly ineffective as a way to sustain secularism today. Early versions of secularism, derived from the French Revolution and based on some form of ‘civil religion’, on references to natural law and on positivist and rationalist ideologies, do not seem capable of providing the basis for a legitimate political order today. In some way, secularism is the victim of its own historical success: contemporary constitutions are based on the idea that the law is essentially a secular matter to be decided through ‘rational–legal’ procedures, but such procedures do not say anything about the content of the law. A secular legal system can say how the law should be enacted, but not what sort of laws and on the basis of which substantive values.

As a result, secularism has essentially become a doctrine based on the assertion of human rights as its core, and as such can offer a procedural basis for a political order, but cannot define its substantive basis. Secularism, in this procedural definition, comes down to the liberal concept of human rights, but does not appear to have a sufficient collective dimension. The ‘secularist’ state is generally regarded from a purely ‘negative’ and ‘procedural’ angle, as a way to keep religion and politics apart. Defined in this way, secularism means not only the removal of religion but also the removal of cultural references from the public sphere (at least, cultural references which are seen as excluding sections of the political community) so as to ensure a true neutrality of the state.

The removal of cultural or religious references from the public sphere is in many respects incomplete, religion and culture remaining a strong implicit element to (p. 10) define the political community. Bader proposes dropping secularism from the constitutional legal vocabulary altogether: the reference to secularism should be replaced by the reference to democracy as the basis for a pluralist community based on ‘non-foundationalism’ and a pluralist view of the state.27 Taking the opposite view, Sajó defends a concept of ‘constitutional secularism’ essentially based on public reason and popular sovereignty.28 Neither a substantive nor a procedural account of secularism seems satisfactory. As Sajó points out, the search for substantive foundations to the secular state may refer to non-secular foundations (the French Declaration of Rights is inspired by a ‘Supreme Being’). Conversely, a purely procedural view of secularism tends to dilute the concept of secularism itself, as Bader points out. A middle position could be termed ‘contextual’ or ‘ameliorative’ secularism and would propose an open and pluralist view of secularism.29 Exploration of these different dimensions of secularism will be at the core of the case studies which will be developed in the present book.

2.4  Secular legitimacy and the ‘x’ factor: the idea of the nation

Secular legitimacy is characterized by its incompleteness, because of its essentially procedural nature. To put the issue succinctly: secular legitimacy = ‘popular legitimacy’ + ‘rational-legal decision-making’ + x. This ‘x’ factor is, I suggest, to be found in a particular culture or history, in what Weber would call the traditional form of legitimacy.

In response to this incompleteness, the idea of the nation has been a way to provide a basis for the legitimacy of the secular state. The assertion of the people as the holder of legitimate political authority in the tradition of social contract thought has historically been linked to the idea of the ‘nation’, which responds to the question of the nature of the people both as a legally constituted unit and as a pre-political entity, linking the idea of the people as a body of citizens and as a cultural community.30 The nation emerges as a way to fill the ‘legitimacy gap’ of the secular state—in the form of the nation-state.

The ‘civic’ view of the nation, derived in particular from the French Revolution, is based on the idea of a ‘contractual community’ linking individuals regardless of their culture. For French anthropologist Louis Dumont, the nation is composed of persons who are defined and see themselves as individuals: in this way, citizenship represents the ideal model of the link between individual and collective levels.31 The nation-state responds to the need to protect both individual and group and, in (p. 11) order to do so, it aims to transform the individual and his or her private, personal attachments into a citizen guided by a concern for the public good.32

In this view, the individual is recognized both as a member of a political community (a citizen) and as a holder of rights (a human). As a result, the nation-state is dependent on a double source of legitimacy: the consent of the citizens (supposed to form a nation) and the respect for individual rights. The constitutional framework in which human rights apply (the state) and the group to which these norms apply (the nation) are supposed to be automatically ‘congruent’.33

However, the idea of the nation, with its attempt to reconcile the universal and the particular within the state, is ‘Janus-faced’.34 As social contract theories show, the idea that the sovereign deliberation of the people always respects human rights is grounded on the idea that rights somehow pre-exist the constitution of the people, that rights find their origin in natural law. Nationalism is typical of the ‘reiterative universalism’ of Walzer, for whom the actuation of a universal principle is always particular.35 The universal reach and potential of the (civic) nation is always linked to its particular (ethnic) nature: what makes a nation is also what unmakes it.36 The idea of nation brings culture, but also religion, back into the universalist community created by the state.

The concept of a ‘civic’ nation does not seem to offer a way out of the dilemma of the ‘legitimacy gap’. The ‘civic’ nation is based on a separation between culture and nation in much the same way as secularism is based on the separation between religion and politics. The idea of a ‘civic’ nation, like the idea of secularism, risks being seen as an empty shell if its cultural or religious basis is removed or concealed.

A number of writers on nationalism have developed and explored the opposition between ‘civic’ and ‘ethnic’ nationalisms and whether and to what extent national identity can be considered as truly distinct from other forms of ethnic or cultural identities. For Montserrat Guibernau, nations become increasingly ethnic and ethnicities increasingly national.37 Jaffrelot underlines the ‘congruence between theories of ethnicity and theories of nationalism’, and the idea that ethnic identities are largely constructed.38 The distinction between (political) nationalism on the one (p. 12) hand as neatly opposed to (cultural) ethnicity on the other can be questioned: ‘the convenient, but false, dichotomy between political and cultural nationalism should be discarded in favour of an analysis of the dialectic between politics and culture within each concrete nationalism.’39

Secular legitimacy depends on some form of cultural legitimacy: legitimacy is inherently linked to a particular history, a particular culture which can provide the common basis for political authority. The issue is the extent of the role that culture (and religion) may or should continue to play in a secular state.

3.  Models of Constitutional Legitimacy: Looking at Secularization in Asia and Europe

The dynamics of the problem developed above, that of the legitimacy of the secular state, will be explored by looking at the constitutional answers to this issue through the medium of different models of constitutional legitimacy.

The aim of the second part of the present book will be to assess how the notion of the secular state and the issue of legitimacy play out in different cultural settings. In order to do so, the second part will outline constitutional models and the way in which they articulate three sources of legitimacy just identified (people, rights, culture). These developments will be based on the idea that in contemporary constitutional law, three broad sources of legitimacy can be distinguished: the people, the protection of the fundamental rights of citizens, and the promotion of a cultural or religious identity. Each of these may be seen to offer sustenance to different kinds of constitutional formation and to different legal–political arrangements. Each also responds in different ways to the problem of secular legitimacy.

The proposed models will be built around the constitutional provisions which refer to the three core aspects of legitimacy: people, rights, and culture. This means looking at issues such as the definition of the people, of sovereignty, and of the nation; the recognition of constitutional rights of individuals; and the provisions which refer to a particular cultural identity, such as the legal recognition of an official religion, culture, or official language, and the provisions on the protection of minorities and on the recognition of religious or customary sources of law.

I propose to develop four broad models on the basis of the above parameters:

  • Model 1: Constitutional model based on the ‘displacement of culture’—the ‘neutral model’.

  • Model 2: Constitutional model based on diversity and pluralism—the ‘pluralist model’.

  • Model 3: Constitutional model based on tradition—the ‘asymmetric model’.

  • (p. 13) Model 4: Constitutional model based on a single and exclusive religious, cultural, or ethnic group—the ‘separatist model’. This last model is of marginal and mainly historical interest, since contemporary constitutions are about recognizing the rights of all citizens and not of one group (an example of the latter is the South African apartheid regime). It will therefore be excluded from those developed in the present work.

Table 1 summarizes the main elements of the models outlined.

Table 1  Models of constitutional legitimacy

Unity (of the people) (emphasis on individual rights)

Diversity (of the people) (emphasis on group rights)

Cultural neutrality/Equality

(1)Neutral model:

  1. (a)  ‘Substantive’ secularist version: ‘thick’ common civic culture

  2. (b)  ‘Procedural’ secularist version: ‘thin’ common civic culture

    • ‘Negative’ equality: non-discrimination

    • Reasonable accommodation, symbolic recognition of minorities, affirmative action

    • Integration (language, education policies aimed at fostering a common culture)

    • State–church separation

(2) Multicultural model:

  • ‘Thin’ common civic culture

  • ‘Positive’ equality: recognition of cultural/language/religious difference

    1. (a)  ‘Deep’ multiculturalism (self-governance, legal pluralism): autonomy rights, indigenous rights, personal law

    2. (b)  ‘Thin’ multiculturalism: cultural, linguistic rights

      • Multicultural/multilingual policies (pluralistic and multilingual education)

      • Positive recognition of religions

Cultural asymmetry/Inequality

(4) Separatist model:*

  • State based on one ethnic/religious/cultural group (at the exclusion of others)

  • Inequality as separation: forced assimilation, segregation/apartheid

  • Absence of legal recognition for non-members of dominant group: non-members of dominant culture are denied rights

  • State based on a single and exclusive religion

(3) Asymmetric model:

  • State based on one ethnic/religious/cultural group

  • Inequality as asymmetry: special rights for established religion, dominant culture, ethnic group

  • Limited legal recognition for non-members of dominant group: limited set of rights for minorities

  • State religion receives privileges and special protection, other religions enjoy limited rights

As explained previously, this model is excluded from the rest of this work as it can be considered mainly of historical or marginal interest: the South African apartheid regime could be considered an (historical) example.

While the models just described can be found in both Asia and Europe, contrasting the Asian and European approaches to secularization is useful to better understand the dynamics of secularization and its different modalities. In broad terms, (p. 14) one can argue that Asia (to be more accurate, South and South-East Asia) offers examples of a religious approach to secularization, while the European approach is one of withdrawal of religion. Secularization in Asia is based on a deeper role given to religion, which very often remains part of the legal system (unlike in Europe). The foundation of an ‘Asian secularization’ can be found in the distinct religious traditions offered by Hinduism and Buddhism.

While European secularism is based on the establishment of a universalist legal framework applied to a particular political community, the Asian approach to secularism has been the opposite: using a particular religious tradition to reach to the ‘universal’ political community. The view from Asia is a way to revisit the European approach to secularism. Even if secularization can be considered as European in its origin, it can also be considered as a global phenomenon which takes into account the particular cultural dimension in which it is rooted.

Looking at both Europe and Asia offers a deeper contrast than would be the case if using an approach limited to Europe or just to Asia. The most typical ‘neutral’ model can be found in Europe (here France), even if a number of Asian countries could also fit (for example, Japan or China—albeit in a different way). The ‘pluralist’ and ‘asymmetric’ models can also be found to some extent in Europe where pluralist approaches to religion exist (in Belgium or Germany), and in countries based on a particular religion (Scandinavian countries, Greece, Poland), but the Asian models offer cases of deeper pluralism or asymmetry.

The above models of constitutional legitimacy will be developed through three case studies taken both from Asia and from Europe—France, India, and Malaysia—looking in particular at how religion (and secularism) is dealt with under the constitution. Each of these three cases can be considered as typical of one of the three models developed in this book. The case studies will address in particular the status of religion in each model, and examine how the treatment of religion informs the nature of legitimacy in each model.

A number of hypotheses can be drawn from the models, which will be developed in this work. First, if most states can, in one way or another, be considered secular, the secular nature of the state varies greatly. The various constitutional schemes in place around the world may be understood not so much in terms of the formal affirmation of, or opposition to, religion, but rather in terms of differentiated constitutional patterns within which religion and culture manifest themselves in different ways, and such a process is best understood as one of cultural (and religious) reform.

Second, all constitutional arrangements can be defined in terms of general, universal norms, based on human rights equality as the core principle, and in terms of particular, local arrangements which rely directly or indirectly on particular cultural or religious references, be they established for the majority or for the minorities.

Third, while there is a good deal more uniformity in the various schemes of constitutional order than might at first be assumed, the legitimacy of constitutional arrangements cannot be based on a set of impersonal norms which can be replicated from one country to another. It needs to be based also on a specific cultural foundation which can inform the way in which the constitution operates. In each of the (p. 15) three case studies chosen, the majority religion is different and the three proposed models are thus best understood in the light of the role played by the dominant religion.

The book’s conclusion will address the role played by secularism in the constitutional order and what this means for the impact of secularization in the contemporary state, in particular on its cultural and religious dimensions. In particular, the conclusion will look at how secularism can underpin a constitutional order, or—alternatively—the limits of secularism, in particular when it is separated from its cultural (or religious) context.

4.  Plan of the Book

The book is divided into two parts. The first part will look at the theoretical dimensions of secularization and how they affect the legitimacy of the state. The second is based on a comparative approach and addresses a number of typical models—taken from Europe and Asia—articulating rights, religion, and culture.

Part I looks at the theoretical aspects of the ‘legitimacy gap’ and how the theories of Max Weber and of the social contract can respond to this ‘gap’. It then turns to the contemporary forms of legitimacy in the secular state, underlining the dominance of a procedural form of legitimacy which leaves a ‘legitimacy gap’, calling for substantive—cultural and religious—forms of justification of political authority.

Chapter 1 develops the idea of the ‘legitimacy gap’ in the secular state. After providing a discussion of secularization and of the transformation of the role of religion in the state, this chapter looks at the theory of legitimacy developed by Max Weber and how this theory can explain the nature of the ‘legitimacy gap’ left by the decline of traditional forms of legitimacy. It then turns to social contract theories to show how they can be considered a response to the ‘legitimacy gap’ and how the theories of Hobbes and Rousseau, with their concern to legitimize sovereignty, require substantive norms binding the community created by the social contract.

Chapter 2 suggests that contemporary forms of legitimacy are marked by a move from ‘substantive’ towards ‘procedural’ legitimacy based on democratic rule and the decline of the legitimacy of human rights. It also suggests that ‘substantive’ forms of legitimacy are required to sustain the legitimacy of the contemporary secular state and that this means ‘locating culture’ in the state. It concludes by showing how the central problem of constitutional law—defining ‘the people’—cannot be solved by a purely procedural approach, but needs to refer to a substantive dimension.

The purpose of the second part of the book is to apply the general forms of legitimacy defined in the first part. First, based on a broad overview of the status of culture and religion in contemporary constitutional law, three basic models of relations between culture and constitutional law will be outlined. On this basis, three case studies are presented, each of which can be considered as representative of the three models outlined—France represents the ‘neutral’ model, India the ‘multicultural’ model, and Malaysia the ‘asymmetric’ model—with a view to considering in particular the debates on the secular nature of the state in each of these countries.

(p. 16) Chapter 3 looks at how contemporary constitutional law addresses the tension between ‘procedure’ and ‘substance’ identified in Part I. I look first at how culture is ‘located’ in constitutional law. It is suggested that legitimacy in the context of constitutional law has three aspects: people, rights, and culture. Based on an overview of forms of legitimacy in today’s constitutions, and looking in particular at their cultural dimensions (religion, state culture, official language, minority protection, legal pluralism), the chapter will propose three models for the link between constitutional identity and culture: the ‘neutral’, the ‘multicultural’, and the ‘asymmetric’.

Chapter 4 looks at France as the archetypal ‘secular nation’ and outlines the limits of this model. The central question for the French secularist state is—I argue—the definition of ‘the people’. The difficulty since the French Revolution has been that of providing a substantive definition of the people. The definition of ‘the people’ based on the assimilation to a universalist model was bound to be faced with the issue of cultural difference, in particular during the period of colonization. This chapter shows how colonization brought about a tension between legal unity and a plural reality, and how this tension remains central to the status of overseas territories. In the current debate on laïcité, a similar tension between legal unity and cultural plurality is at play, resulting in a tension between a ‘procedural’ and a ‘nationalist’ view of secularism.

Chapter 5 looks at the ‘reformist’ conception of secularism in India. First, it addresses the historical origins of Indian secularism, in particular against the background of the Partition between India and Pakistan at the time of independence. From this origin can be traced a tension in Indian secularism between nationalism and ‘communalism’. This chapter highlights how the rise of Hindu nationalism has questioned this pluralist and reformist view of secularism, in particular in the wake of the landmark Shah Bano Supreme Court judgment. This model also shows the dilemma of contemporary multiculturalism: how the state can be involved in religious matters and ensure equality among different (religious and cultural) groups without losing its secular nature. As in France, a trend towards a ‘nationalization’ of secularism can be discerned, in reaction to a perceived excessive engagement of the state with minorities.

Chapter 6 looks at the ‘asymmetric’ model of Malaysia. First, as in the chapters on France and India, it will look at the historical background of secularism in Malaysia and how the Constitution of Malaysia, conceived as a ‘social contract’ between the Malay, Indian, and Chinese communities, was seen as secular. Second, it looks at the position of Islam in the Malaysian Constitution, assessing whether it is a secular and an Islamic state, in particular in the light of the Lina Joy judgment of the Federal Supreme Court. This chapter will assess whether Malaysia can be offered as an example of a secular and religious state. In much the same way that ‘nationalization’ is proceeding in France and India, I suggest one can discern an ‘Islamization’ in Malaysia, leading to a ‘de-secularization’ of the state. This trend raises the issue of the nature of the secular state and where its limits are, in particular when faced with the ‘separatist’ legal claim from a religious community.

The book’s conclusion suggests that the secular state is taken between ‘de-secularization’ and ‘nationalization’. In reviewing how the three dimensions of (p. 17) legitimacy in a secular state (people, rights, and culture) are articulated in the proposed models, I suggest that rights and popular legitimacy are necessary elements of contemporary secular legitimacy, but not sufficient ones. Popular legitimacy and rights require an added ‘x’ factor which is of a cultural nature. I suggest that the ‘civic’ nation moves towards the ‘nationalization’ of universal values, leading to a situation where universal, neutral values are interpreted through the prism of national identity. ‘Civic’ values become a way to legitimize a particular national identity. The essential value of the secular state is that it offers a framework in which identity is a disputed and democratically contested concept. Rather than the removal of religion—not to mention culture—from the state, the issue is the nature and status of culture (and religion) in the secular state. It is about the ability to ‘universalize’ a particular culture.(p. 18)


1  José Manuel Durão Barroso, ‘On Europe—considerations on the present and the future of the European Union’ (speech, Humboldt University of Berlin, 8 May 2014), <http://europa.eu/rapid/press-release_SPEECH-14-355_en.htm> accessed 30 October 2016.

2  Joseph Weiler, ‘In the face of crisis: input legitimacy, output legitimacy and the political messianism of European integration’ (2012) 34 Journal of European Integration 825.

3  Joseph Weiler, ‘A Christian Europe? Europe and Christianity: rules of commitment’ (2007) 6 European View 143, 145.

4  Cited in Ronan McCrea, ‘The recognition of religion within the constitutional and political order of the European Union’, LSE ‘Europe in Question’ Discussion Paper Series (LEQS), LEQS Paper No 10/2009, September 2009, <http://www.lse.ac.uk/europeanInstitute/LEQS%20Discussion%20Paper%20Series/LEQSPaper10.pdf> accessed 30 October 2016.

5  European Court of Human Rights, Lautsi and others v Italy, App no 30814/06, 18 March 2011 (hereafter Lautsi and others v Italy).

6  Ibid., para 16.

7  Ibid., para 36.

8  Ibid., para 71.

9  Ibid., para 68.

10  Ibid., para 74.

11  Ibid., concurring opinion of Judge Bonello.

12  Ibid., para 47.

13  For an analysis of the religious dimension in Obama’s discourse, see Henri De Vries, ‘Simple dreams, small miracles’: the Obama phenomenon’ in Philip S Gorski, David Kyuman Kim, John Torpey, and Jonathan VanAntwerpen (eds), The Post-Secular in Question: Religion in Contemporary Society (New York University Press 2012) 105; see also ‘The gospel according to Obama’ and ‘In Obama’s first term, an evolving Christian faith and a more evangelical style’, CNN, 21 and 27 October 2012, <http://religion.blogs.cnn.com/2012/10/21/to-some-obama-is-the-wrong-kind-of-christian/>; <http://religion.blogs.cnn.com/2012/10/27/in-obamas-first-term-an-evolving-christian-faith-and-a-more-evangelical-style/> accessed 30 October 2016.

14  Cited in Nur Bilge Criss, ‘Dismantling Turkey: the will of the people?’ (2010) 11 Turkish Studies 45, 46.

15  See in particular Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford University Press 2003); Etienne Balibar, ‘Cosmopolitanism and secularism: controversial legacies and prospective interrogations’ (2011) 44 Grey Room 6; José Casanova, Public Religions in the Modern World (University of Chicago Press 1994); Simon Critchley, The Faith of the Faithless—Experiments in Political Theology (Verso 2012); Jean-Claude Monod, La querelle de la secularisation, de Hegel à Blumenberg (Librairie philosophique J. Vrin 2002); Olivier Roy, La laïcité face à l’islam (Editions Stock 2005) [English translation: Secularism Confronts Islam (Columbia University Press 2007)]. There are also a number of recent collective works which revisit the notions of the ‘secular’ and of (public) religion in a more contextual and pluralist sense: Anders Berg-Sørensen (ed) Contesting Secularism: Comparative Perspectives (Ashgate 2013); Craig Calhoun, Mark Juergensmeyer, and Jonathan VanAntwerpen (eds) Rethinking Secularism (Oxford University Press 2011); Rafael Domingo, God and the Secular Legal System (Cambridge University Press 2016); Barry A Kosmin and Ariela Keysar (eds) Secularism & Secularity: Contemporary International Perspectives (Institute for the Study of Secularism in Society and Culture 2007); Eduardo Mendieta and Jonathan VanAntwerpen (eds) The Power of Religion in the Public Sphere (Columbia University Press 2011); Winnifred Sullivan, Robert Yelle, and Mateo Taussig-Rubbo (eds) After Secular Law (Stanford University Press 2011).

16  The ‘post-secular’ concept has been developed in particular by Jurgen Habermas: see Habermas, ‘A ‘post-secular’ society—what does that mean?’, Reset Dialogues on Civilizations (16 September 2008), <http://www.resetdoc.org/story/00000000926> accessed 30 October 2016; see also Henri De Vries and Lawrence Eugene Sullivan (eds) Political Theologies: Public Religions in a Post-Secular World (Fordham University Press 2006); Philip S Gorski, David Kyuman Kim, John Torpey, and Jonathan VanAntwerpen (eds) The Post-Secular in Question: Religion in Contemporary Society (New York University Press 2012).

17  Dominic McGoldrick, ‘Religion in the European public square and in European public life—crucifixes in the classroom?’ (2011) 11 Human Rights Law Review 451, 480.

18  Bhikhu Parekh, ‘Europe, liberalism and the “Muslim question” ’ in Tariq Modood, Anna Triandafyllidou, and Ricard Zapata-Barrero (eds) Multiculturalism, Muslims and Citizenship: A European Approach (Routledge 2006) 189.

19  Charles Taylor, A Secular Age (Harvard University Press 2007) 2–3.

20  Iain T Benson, ‘Notes towards a (re)definition of the “secular” ’ (2000) 33 University of British Columbia Law Review 519, 520, 537–8; see also Veit Bader, ‘Religion and the myths of secularization and separation’, RELIGARE Working Paper, No 8, March 2011, 8–9, <http://www.religareproject.eu/content/religion-and-myths-secularization-and-separation> accessed 30 October 2016. Louis Dumont also makes a distinction between ‘in-the-world’ individualism and ‘out-of-the-world’ individualism, between a secular–modern individualism and a traditional–religious individualism: Louis Dumont, Essai sur l’individualisme (Editions du Seuil 1983) [English translation: Essays on Individualism: Modern Ideology in Anthropological Perspective (University of Chicago Press 1992)].

21  Max Weber, The Protestant Ethic and the Spirit of Capitalism (Routledge 1992) 105, 117.

23  Richard Francis Gombrich and Gananath Obeyesekere, Buddhism Transformed: Religious Change in Sri Lanka (Princeton University Press 1988).

24  Max Weber, Economy and Society (University of California Press 1978) 215this issue will be discussed in detail in Chapter 1 of this book.

25  Johan Tralau, ‘Thomas Hobbes, Carl Schmitt, and three conceptions of politics’ (2010) 13 Critical Review of International Social and Political Philosophy 261, 264.

26  Michael Freeman talks of a ‘hidden god’ in human rights to describe the link made by theorists of the social contract (here Locke) between natural law and religion and sees human rights as a secularization of the idea of natural rights, which initially had a religious dimension: Michael Freeman, ‘The problem of secularism in human rights theory’ (2004) 26 Human Rights Quarterly 375.

27  Veit Bader, ‘Religious pluralism: secularism or priority for democracy?’ (1999) 27 Political Theory 597.

28  András Sajó, ‘Preliminaries to a concept of constitutional secularism’ (2008) 6 International Journal of Constitutional Law 605.

29  Veit Bader, ‘Constitutionalizing secularism, alternative secularisms or liberal-democratic constitutionalism? A critical reading of some Turkish, ECTHR and Indian Supreme Court cases on “Secularism” ’ (2010) 6 Utrecht Law Review 8.

30  Bernard Yack, ‘Popular sovereignty and nationalism’ (2001) 29 Political Theory 517, 526.

32  Hannah Arendt, The Origins of Totalitarianism (Harcourt 1968, 1966) 290–302.

33  Ernest Gellner, Nations and Nationalism (Blackwell Publishing 2006) 1.

34  Jurgen Habermas, The Inclusion of the Other—Studies in Political Theory (Polity Press 1999) 115.

35  Michael Walzer, ‘Nation and universe’, The Tanner Lectures on Human Values (Brasenose College, Oxford University, 1 and 8 May 1989), <http://tannerlectures.utah.edu/_documents/a-to-z/w/walzer90.pdf> accessed 30 October 2016.

36  Peter Fitzpatrick, ‘‘We know what it is when you do not ask us’: nationalism as racism’ in Peter Fitzpatrick (ed) Nationalism, Racism and the Rule of Law (Dartmouth 1995) 3–26; Patricia Tuitt and Peter Fitzpatrick, ‘Introduction’ in Peter Fitzpatrick and Patricia Tuitt (eds) Critical Beings: Law, Nation and the Global Subject (Ashgate 2004) xi–xx.

37  Montserrat Guibernau, Nations Without States: Political Communities in a Global Age (Polity Press 1999) 6.

38  Christophe Jaffrelot, ‘For a theory of nationalism’ in Alain Dieckhoff and Christophe Jaffrelot (eds) Revisiting Nationalism: Theories and Processes (Hurst & Co. 2005) 37–45; on the difficulty of defining ethnicity, either based on biology, which is too narrow, or on culture, which is too wide, see Dominique Schnapper, La Communauté des Citoyens (Gallimard (folio essais) 1994) 16–19 and Alain Dieckhoff, ‘Beyond conventional wisdom’ in Alain Dieckhoff and Christophe Jaffrelot (eds) Revisiting Nationalism: Theories and Processes (Hurst & Co. 2005) 65.

39  Alain Dieckhoff and Christophe Jaffrelot (eds) Revisiting Nationalism: Theories and Processes (Hurst & Co. 2005) 4.