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

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

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

Vincent Depaigne

Chapter 3 outlines three basic models of relations between culture and constitutional law, based on a broad overview of the status of culture and religion in contemporary constitutional law. It first looks at how contemporary constitutional law addresses the tension between ‘procedure’ and ‘substance’, looking initially 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 proposes three models for the link between constitutional identity and culture: the ‘neutral’, the ‘multicultural’, and the ‘asymmetric’. On this basis, three case studies are presented: France represents the ‘neutral’ model, India the ‘multicultural’ model, and Malaysia the ‘asymmetric’ model.

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