I • C O N D E B AT E !
The crisis that was not there: Notes on
A reply
András Sajó*
In this response to Lorenzo Zucca’s critique (… A reply to Professor Sajó) of his 2008
article, Preliminaries to a Concept of Constitutional Secularism, Professor Sajó
pronounces himself grateful for the opportunity to examine specific examples of the
rationales being advanced in order to “create a space for special practices that do not
conform to constitutional values.” At the end of the day, he remains persuaded of the
dangers of including religious phraseology and concepts in law that would give “too much
aid and comfort” to already privileged religious organizations, in the name of free exercise
of religion.
1. Why am I grateful to Mr. Zucca?
Mr. Zucca’s Reply1 demonstrates how discrimination-inspired concerns convince people to raise the protective umbrella of pluralism and multiculturalism
(mistaken for a flag) without realizing who is sheltered from rain.
Mr. Zucca’s Reply conveniently corroborates one of my original concerns in
a second sense, too. My article was written against “Trojan horses,” ideologies
that are smuggled into constitutional doctrine in order to create a space for special practices that do not conform to constitutional values and thus undermine
the social beliefs supporting the secular constitutional order. Mr. Zucca offers an
elegant version of such attempts (certainly without the “strong religion” flair)
when he claims that religion “does not want to conquer political institutions
because it understands the crisis of national state.” (Is this to say that secularists
can be assured that there is no intention to take over their bankrupt national
system?) Mr. Zucca describes religions as eager to participate in the “social
game” in global communities. “An example is the idea of the Umma as a global
* University Professor, Central European University, Budapest (currently on leave); Judge, European Court of
Rights. Email: [email protected]
Lorenzo Zucca, The crisis of the secular state—A reply to Professor Sajó, 7 INT’L J. CONST. L. (I•CON)
494–514 (2009). For my article, see András Sajó, Preliminaries to a Concept of Constitutional Secularism, 6 INT’L J. CONST. L. (I•CON) 605 (2008). For additional thoughts and empirical material that
might ease some of Mr. Zucca’s concerns, see András Sajó, Constitutionalism and Secularism: The
Need for Public Reason 30 CARDOZO L. REV. (forthcoming, 2009).
1
© The Author 2009. Oxford University Press and New York University School of Law.
All rights reserved. For permissions, please e-mail: [email protected].
I•CON, Volume 7, Number 3, pp. 515–528 doi:10.1093/icon/mop014
Advance Access publication June 15, 2009
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community of believers. Another example is the pope’s suggestion that Christian
values should be at the core of the European civil society.”
It would be naïve to believe that a purely social, that is, nonpolitical, game
is possible. The social game is about the allocation of public money; it is about
such matters as public safety; and it concerns public, legal decisions. More
importantly the social game determines citizens’ mentalities, and certain mentalities are destructive to constitutionalism.
Mr Zucca refers to the role of Christian values in European integration. No
doubt, there are values that originate from Christianity, among other (not all
religious) sources. These are worthy elements of the value system of a future
European civil society, but to keep them in their original Christian packaging
(a mixed bag) is divisive. As for the Umma, this is an even more exclusionary
position than “Christian values,” as it is open to believers only. (“Believers of
what?” one may ask—but I do not want to press a politically incorrect question.)
2. Why am I flattered?
Mr. Zucca treats my remarks as if I had written a whole treatise, even if misguided, on “the crisis of Europe” caused by religion. However, my article was a
humble jurisprudential exercise; I did not intend to deal with the future of
European secularization as civilization, which is supposedly in a cul-de-sac
(the end of the road being a little too frightening a prospect for travelers).
I never thought nor wrote “that religion is the major problem we have to tackle
head on.” I was professionally worried about the claims of “strong religions.”
All I proposed, as a constitutional strategy, was not to swallow whole the forceful religious and pseudoreligious claims that strong religions make in the name
of freedom of religion. Strong religions and religious organizations inspired by
them—even those that have accepted a primarily spiritual role2—represent a
challenge to the constitutional value order with regard to specific constitutional issues, without being fatal, destructive forces within “Western society.”
Strong religion is a term of art in the sociology of religion. It is true that all religions probably have in common among their doctrines the germs of concepts that
may be interpreted in a fundamentalist mode and, similarly, they are probably
capable of making the sort of claims that characterize strong religion. Strong religions challenge constitutionalism—or, at least, they challenge the broadmindedness, tolerance, and pluralism that operationalize constitutionalism (according to
the language of the European Court of Human Rights [ECtHR]). Broadmindedness
implies independent critical thought that strives for reason and rationality, which
are the epistemological precondition of personal autonomy.
2
On November 28, 2008, Cardinal Jean-Louis Tauran, president of the Pontifical Council for
Inter-Religious Dialogue, thanked Muslims for bringing God back into the public sphere in Europe.
“Muslims, having become a significant minority in Europe, were the ones who demanded space for God
in society ” See http://www.cardinalrating.com/cardinal_111__article_7965.htm, Nov. 28, 2008.
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Probably all denominations have internal conflicts between, on the one hand,
those religious leaders and their acolytes who would like to impose a divinely
proclaimed order on the political community and, on the other hand, others
who do not see this as their mission. The constitutional order is challenged only
by those religious belief–based claims that insist that public life, and the political
sphere in particular, should be structured according to divine command.
Some conflict with the constitutional order of secularism is inevitable anyway because many modern constitutional systems, by virtue of the horizontal
effect of the constitution,3 interfere with the private sphere to guarantee that
certain fundamental constitutional values, such as equality, are respected.
Religion and religiously shaped family life are subject to constitutional control,
although the state should still be respectful of religion when strong religions’
influence on sensitive private spheres. But secular and religious claims on the
private have direct impact on public affairs, too.
Respect for pluralism does not necessitate the recognition of plural legal systems. Depending on its content, religious family law might be recognized on secular grounds and, within a single legal system, private conflict resolution can
provide an alternative to state courts. It is available as a matter of expediency, in
particular, where family relations are considered a private matter. Secularism has
no position on this; family, as a private matter, does not affect popular sovereignty
and its epistemological conditions, which lie at the heart of secularism. But religion, as an issue in family-law arbitration, might necessitate the conversationstopping intervention of the secular legal system. A conversation-stopper role for
secularism means the non-admissibility of religious considerations in legal decision making. When a religious arbitrator, or any other private arbitrator, would
enforce values contrary to the constitution, considerations of ordre public must
prevail. Encouraging religious family arbitration easily lends support to oppressive family arrangements, given that most religions carry the baggage of patriarchalism and tribal parochialism. But this is a risk that legislators are free to take,
or not. What matters is that the admissibility of such arbitration shall not be based
on the acceptance of a specific theological perspective. Nor should the resort to
arbitration courts constitute a recognition of a doctrine of one or another religion
that aggressively claims that its freedom of religion (or minority group identity)
can only be sustained if the state refrains from intervening in family matters,
while other religions as well as atheists are not accorded such a privilege because,
on this point, at this particular moment in time, their beliefs are less demanding.
My article was about constitutional doctrines that can be used in deciding
constitutional cases, given that constitutional tolerance traditionally has left us
vulnerable in the face of fanaticism. Mr. Zucca believes that “constitutional doctrines … [should] aim at consensus.” We disagree. Why would a constitutional
theory have consensus as its goal, even if it were a political theory of good social
3
This is comparable to the American doctrine of third-party effect. See also Stephen Gardbaum, The
“Horizontal Effect” of Constitutional Rights, 102 MICH. L. REV. 387 (2003).
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order? To my mind, a constitutional doctrine is not about political theory; it is a
jurisprudential concept. My paper intended to contribute to a doctrine that
helps to solve judicially manageable conflicts; for this reason, it was submitted
to a constitutional law review. I distinguished between secularism and secularization (the social/cultural phenomenon)4 and tried to fine-tune the first.
Consensus is a dream (more like a nightmare) in all societies other than that of
the angels (and they must be bored for all eternity). All that any theory can afford
us is, at best, consensus on the right to disagree. Constitutional theory (or “doctrine” in Mr. Zucca’s parlance) should find reasons for, as well as means and forms
of, coexistence for dissenters. There is a debate between those who seek a coexistence in which differences are maximized and those who believe that such coexistence in a society characterized by fundamental differences is unacceptable or
impossible due to its self-destructive nature. Mr. Zucca suggests consensus building, but he also claims that the bill of rights provides the rules of the game where
comprehensive views can exist without agreeing on background values. I assume
that in such a society people with comprehensive views will live in mutual and
perpetual disagreement. (In the newspeak of Trojan horses, this is called a
“dialogue for consensus.”) Such disagreement on background values is not
troubling per se to secularism, which has to maintain neutrality in exercises of
counting the angels on a given pin and computing camel/needle ratios. Agreement
on background values may not be a condition of citizenship and inclusion.
However, this does not impose on the constitutional state a duty to take into legal
consideration views that disregard background values. If you deny personal
autonomy and gender equality, even on the grounds of divine command, you
voluntarily disqualify your arguments in terms of the political game though you
remain free, nonetheless, to hold such beliefs and worship accordingly.5
3. Religion—the savior of the West and its
constitutionalism?
Mr. Zucca and I, we seem to agree to disagree on points that I have not even
discussed. For him, it is not (strong) religion that causes polarization but, rather,
4
I call the social process of secularization a historical project. The historicity of a phenomenon does
not deny its social nature. For this reason I did not consider it an “intellectual” project, and I would
not call it organic, especially in light of the conflicts that enable it.
5
There is a tension, here, when it comes to public advocacy: antihomosexual religious teaching in
the public (outside the protected walls of church and religious practice) is interpreted as criminal
harassment in certain countries. This criminalization is somewhat parallel to the criticism of religion
that I found protected from a secularist perspective. The difference is that the religion-based attack on
the sinful nature of homosexuality and homosexuals is about an immutable personal characteristic,
while the attack on the religion is about an idea, where believers are attacked for their problematic
choices. In terms of the hatred generated, there is a difference between the accusation that one is
stupid for believing in a religion that insists on discrimination, and the accusation that certain people
are disgusting for what they are, as far as their gender or sexual preference are concerned.
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“the inability of the secular state to cope with the fact of pluralism.” This grand
concern exceeds my humble jurisprudential interests. Now that the issue has
been raised, however, I must say that it is not the secular or nonsecular nature
of the state that disables its capacity to deal with pluralism, if this happens at
all. I was not concerned with the disappearance of the unity of our “Western
societies”—a unity that, for any conflict-oriented sociologist, has never existed
within these societies. I did not assert “our values” vis-à-vis religion, except to
the extent that I claimed state neutrality vis-à-vis religions. If strong religion,
indeed, is threatening “our values” and the “cohesion of our polities” (a matter
to which I did not refer), then this is a concern about the shared epistemological
foundations and the possibility of communication and understanding in the
constitutional political community. Such epistemological unity enables the
exchange of divergence as well as a reaffirmation or affirmation of some homogeneity or at least tolerance that enables living together.
Secularism is about a form of communication accessible to all, relying on
intellectually accessible arguments, which contributes to a community of
sorts. If (and this is a really big “if”) pluralism or multiculturalism means the
end of such accessibility, that is regrettable indeed.
I am a true believer in the power of paradox. Therefore I admire, but cannot
share, Mr. Zucca’s paradoxical position that “religion can only help [the secular
state] in the endeavor of becoming stronger vis-à-vis growing numbers of conflicts between various constitutive parts of the society.” The genuine help coming from religion would be a change of heart in some religious communities
regarding their religious doctrines, by emphasizing those elements of the doctrine that fit into the tolerant public order. Leave wrath to Whom it belongs.
4. Headscarf and local negotiation
I am pleased to be able to agree with Mr. Zucca that “secularization does not
set some standards according to which the public square can be considered
neutral.” However, factual arrangements have normative power and secularism as a constitutional doctrine should provide standards to deal with that
normative power. My concern is that—because of its softness and fuzziness,
and because of secularization’s cheap compromises in the face of politics and
lifestyle varieties—secularism will fail. Of course, a laissez-faire approach is
attractive since, supposedly, it leaves individuals and communities ample
room for maneuvering. Perhaps it is for this reason that Mr. Zucca calls for
bright-line rules limiting freedom. The French tried dress-code laissez-faire for
a while: the Conseil d’État left headscarf practices to be regulated at the school
level. As far as French schoolmasters were concerned, however, laissez-faire
did not work. The French learned the hard way that, although decentralization has its virtues, it means uncertainty and perennial local conflicts, which
potentially aggregate. The ECtHR, which is praised by Mr. Zucca for its OttoPreminger-Institut judgment, has recently unanimously upheld the French
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“headscarf” law.6 For the court, the centrally determined prohibition served
the goals of respect for pluralism and the freedom of others.
Given the nature of strong religions, the likelihood of successful local negotiations on the issues they raise is not great. Such negotiations are very different
from other kinds of local negotiations, which concern the cultural identity of a
group. Most other aspects of cultural identity are not all-encompassing in a
totalitarian way (that is, they do not want to impose an exclusive way of life that
denies the fundamental values of the constitution and even of the political community). Under these circumstances, robust secularism diminishes the role of
locally negotiated rules and tends to endorse centrally defined bright-line rules.
Are centrally defined bright-line rules detrimental to vulnerable migrant communities as religious minorities? I would distinguish between these two concerns because the problem of vulnerable migrants is primarily a social one.
Respect for private religious choices was affordable, in regimes of soft secularism, as a matter of accommodation and public support in a historical compromise with dialogue-seeking, privately oriented religions. This may not work
with strong religions that reclaim the public square or would like to carve out
of it a private sphere for themselves that is off-limits for secular sovereignty.
The troubling consequence of a robust secularism that would disregard some
of the claims of accommodationists is that it either continues to allow a double
standard, favoring its client religions, or else takes a less preferential stand visà-vis its old favorites. This is what the French did when they prohibited all conspicuous religious signs in school. However, in private schools, the law does
not apply; thus, the real issue of secular equality is the number of Islamic
denominational schools that receive public funding as compared with the
schools of other denominations.
5. French exceptionalism? Peut-être, ce sont les Anglais
Contrary to Mr. Zucca’s allegations, secularism as laïcité is not exceptional.7 (By the
way: Where did I claim that secularism is identical with the constitutional arrange-
6
7
Dogru v. France, App. No. 27058/05, 2008 Eur. Ct. H.R.
To ascertain that secularism is not a French particularism, it would have been enough to look into a
recent survey by Ronan McCrea of the London School of Economics and Political Science. McCrea
demonstrates that the EU “has seen excessive religious influence in the legal and political arenas as a
threat to the autonomy of the public sphere, to individual autonomy in the private sphere as well as to
important values such as gender equality.” Ronan McCrea, Limitations on Religion in a Liberal Democratic Polity: Christianity and Islam in the Public Order of the European Union (London School of Economics Legal Studies Working Paper Series, No. 18/2007, 2007; New York Law School Islamic Law and
Law of the Muslim World Research Paper Series, Paper No. 08-09, 2007), available at http://ssrn.
com/abstract = 1033332. I agree with McCrea that the preferential treatment of “‘established’
churches,” which goes back to a time before the current challenge associated with immigration,
results in double standards. It is exactly for this reason that a robust secularism should be less tolerant
of existing concessions that result from soft tolerance and compromise.
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ments of France and Turkey?) As to laïcité, I suggest a quick reading of Swiss constitutional documents. The Hungarian Constitution states that the church, or
indeed churches, operate separately from the state. More importantly, even cooperationist models of church-state relations can satisfy secularism, as long as the
terms of cooperation are determined by the state. Cooperation, even in its German
version, where cooperation historically has meant privileging certain denominations and their religious organizations, does not entail the acceptance of nonsecular arguments nor of conducting politics along religious lines.
My concept of secularism is not a generalization of an alleged French hobbyhorse; the sovereignty of all citizens with equal mental endowment to participate in the making of sovereign decisions might recall French doctrines, but
it is certainly a doctrine of democracy and not laïcité. Popular sovereignty is a
reality in the United Kingdom, too, regardless of the irrelevant fact that the
sovereign people of England have a Queen, who happens to be the head of the
constitutionally irrelevant Church of England.
6. On efficiency in immigration
Mr. Zucca believes that the aggressive French secularist response to strong religion was inefficient. In his view, the headscarf law was an answer directed not
to religion but to social problems created by immigration. We should not confuse a problem with the circumstances of its emergence. True, without immigration and, may I add, without colonization, we would not see children
dressed in an “ostentatiously” religious way in a public school. However, the
ominous French law was not about immigration.8
Frankly, my concerns about secularist jurisprudence were not reflections
on immigration, which Mr. Zucca considers vital for European economy.
Immigration policies and laws, especially as applied, might be discretionary,
even biased; however, this is not related to secularism or its defense. I am much
less certain than Mr. Zucca that the intensification of secularism in France was
a response to suburban riots. The “headscarf law” was enacted in 2004; the
emblematic Paris suburb riots occurred in 2005 and were probably the result
of the desperation felt over not being able to integrate on the secular terms
promised by the French Constitution. I do not think that jurisprudential standards concerning the separation of church and state have to answer concerns of
assimilation, nor do I think that France is the greatest villain on any European
roster of dishonor with respect to discrimination, thanks to her secular (albeit
imperfect) assimilationist politics that are blind to diversity, a French disease
that is spreading to good old England. I would not blame France if a “Rousseauist
myth of British values” were suggested in response to the London subway
8
For a criticism of the current French immigration law that does not confuse problems of citizenship with religion see PATRICK WEIL, HOW TO BE FRENCH: NATIONALITY IN THE MAKING SINCE 1789
(Catherine Porter trans., Duke Univ. Press 2008).
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attacks.9 For the record: 75 percent of the British population would restrict
immigration compared to 68 percent in France; according to public opinion
surveys, 69 percent of Frenchmen have Muslim friends, compared with 36
percent in Great Britain. Forty-two percent of French Muslims consider themselves Frenchmen first, compared with 7 percent of Muslims in Britain who are
British first, and Muslims only after that. By the way, France is slightly more
secularized than Britain; at least, slightly more Britons than Frenchmen claim
that morality is not possible without faith.10
The above figures may indicate a policy crisis in both states, but the multicultural policy of local negotiations seems to be the less successful, at least at the
moment.11 Not that success is decisive in the normative context. I am not competent to pass judgment on a related claim that Mr. Zucca makes, namely, that
inefficient minority politics have resulted in the crisis of the state. Even if there
were such a crisis, I would not blame secular constitutionalism for it. Robust
secularism is concerned with legislation and judicial decisions, and about the
public square with equal access to all. Secular constitutionalism might be unattractive to certain religion-based minorities, and there are all sorts of people
who find neutral governmental arrangements offensive, claiming discrimination, for not allowing them, and only them, to have their precarious and totalitarian life-form prevail. But discontent is a poor constitutional argument.
7. Where the presumption favoring vulnerable people
might be irrelevant
Is it true that a secularist oversight of the public sphere makes ethnic minorities (immigrants, in particular) more vulnerable? As a tool of protecting ethnoreligious minorities, Mr. Zucca has some good words for blasphemy laws,
which have the alleged advantage of preventing the stirring up of religious
hatred. He refers to the position of the ECtHR in Otto-Preminger Institut
v. Austria. I am not in a position to comment on this judgment,12 which states
9
I am afraid that there is a little bit of France-bashing at work, here, in the name of liberty-loving
British virtues. Even in 2004, Niall Ferguson speculated that Britain was the likely place “of a
happy fusion between rapidly secularized second-generation Muslims and their post-Christian
neighbors.” Niall Ferguson, Eurabia?, N.Y. TIMES, April 4, 2004 (Magazine).
10
World Publics Welcome Global Trade – But Not Immigration: 47-Nation Pew Global Attitudes Survey,
THE PEW GLOBAL ATTITUDES PROJECT (2007), available at http://pewglobal.org/reports/pdf/258.pdf.
11
It would be not only unfair but statistically wrong to argue that strong religion resulted in a
series of terrorist attacks in Britain but not in France.
12
For the same personal reason I find it inappropriate to comment on the Refah Partisi judgment,
except to say that the latter case was not about the prohibition of the political association of moderately religious people but, rather, about party leaders’ acts that may be attributed to a party.
Mr. Zucca tends to challenge secularism by attributing to it positions about believers, whereas
the position of secularism concerns, rather, religious doctrines and organizations, which claim to
represent religion and believers.
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that the banning of the semiprivate show of a blasphemous film does not violate freedom of expression, given that the restriction protects the rights of others, namely, the religious feelings of the overwhelmingly Catholic majority of
Tirol. I would like merely to call the attention of the reader to other cases, such
as Ginieweski v. France13 or Klein v. Slovakia,14 where the religious sensitivities of
believers were understood from a different perspective.
I follow Mr. Zucca’s distinction: blasphemy is an attack on Deity and, as
such, it differs from stirring religious hatred. The latter presents believers of a
religion in a hateful way, with specific consequences coming from third parties; it is not about the feelings of believers (including feelings of hatred that
they might feel against those whose speech they find outrageous, when confronted with critical, even troublingly disrespectful attacks on religious teachings). I see no reason why the sensitivity of communities that follow the dictates
of strong religions, even when they may feel they have been humiliated, would
deserve specifically privileged treatment.15 Religious sensitivity is, in a way,
related to identity. It does not command specific legal respect. The opposite
would be an abuse of the exceptionalism of free exercise. Such claims to exceptional treatment are a favorite argument of strong religions and undermine
constitutionalism as a secular political structure. According judicial recognition to the practice of crying ‘religious hatred’ every time a disrespectful statement is made about a religion runs the risk of institutionalizing the heckler’s
veto in public discourse, especially where hecklers seem to rely on their welldeveloped anxiety and personal uncertainty.
Mr. Zucca turns my “authoritarian” position into one that would exclude
from the world of constitutional secularism (and, I take it, somehow from the
political community tout court) those who fail to meet certain “standards”
(of secular constitutionalism?) and do not fit into reasonable positions. I find
here a troubling confusion of a political fight against anti-immigration political
forces with a position on robust secularism that would not allow privileged
religious knowledge to dictate public decisions. The disregard of certain religious arguments cannot be equated with punitive governmental measures or
ostracism of those who propose them. There is nothing unusual or oppressive
in a legal theory that claims that some positions are reasonable and others are
unacceptable according to some criteria.
I did not propose “to exclude religion, the agent provocateur,” in order to
cope with disagreement. Strong religions are not about disagreement; they
13
Giniewski v. France, App. No. 64016/00, 2006 Eur. Ct. H.R.
14
Klein v. Slovakia, App. No. 72208/01, 2006 Eur. Ct. H.R.
“[R]estrictions on human rights in order to satisfy the dictates of public feeling—real or
imaginary—cannot be regarded as meeting the pressing social needs recognised in a democratic society, since that society must remain reasonable in its judgement. To hold otherwise
would mean that freedom of speech and opinion is subjected to the heckler’s veto.” Vajnai v.
Hungary, App. No. 33629/06, 2008 Eur. Ct. H.R. at 57.
15
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seek the exclusive imposition of their divinely commanded positions. Secularism
does offer space for disagreement and, indeed, this is offered against the typical
unilateralism and exclusivism of religions, strong or mild. As far as constitutionalism is concerned, religions are not only free to disagree but, in fact, freedom of religion is, rightly, about the excessive protection of dissent, going so far
as religious accommodation.
Finally, I would not confuse the constitutional challenge posed by strong
religion with the social and political problem of certain groups of immigrants
in Europe and their descendants who have found their communal identity
(among others) in strong religion. My article was written with majoritarian
strong religions in mind; these politically endorsed religions increasingly claim
that their arguments must be accepted in constitutional discourse as the position of the (relative) majority. This is less characteristic of European religious
minorities acting in accordance with a comprehensive worldview. However,
I do not intend to make a constitutional distinction dependent of the numerical
power behind strong religion. The challenge is a qualitative one, originating in
an all-encompassing emotional intensity. The secularist constitutional answer
applies to all antisecularist positions, regardless of the size and political place of
the believers of a strong religion. As to certain European immigrant groups,
they may well have genuine social and legal problems related to their minority
situation, are often victims of prejudice, and may suffer from structural discrimination. All this can be and should be tackled legally (“head on”) but not
by confusing it with the privileged, untouchable nature of their religion, or any
other religion, or any other worldview, for that matter.
Being vulnerable does not put your beliefs beyond standard criticism, and if
you bet your identity on the inviolability of your way of life—well, that is your
problem. Respect for sensitivity is not an ethical or professional must; moreover, I know that many people call such respect, proffered out of tact and taste,
an act of hidden contempt or disrespect, an attitude of false tolerance akin to
the treatment of children on the basis of their presumed cognitive immaturity.
John Stuart Mill had written in this style about immature people, and for this
he figures high on the “wanted” list of Orientalist malefactors. There are valid
grounds for the moral position of those who claim that we should treat all
adults as grown-ups; this is the way enlightenment works.
8. What are public reason and public space? Plus some
professorial pettiness
8.1.
Preface: I never claimed that human rights do not incorporate fundamental
values that have emerged, from time to time, in various religions—a culturally, though not constitutionally, relevant fact. Nor did I claim that the arguments and activities of ecclesiastical organizations and of believers motivated
by their doctrines are illegitimate in the public square. Such activities may
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often be socially beneficial, sometimes even exemplary, showing the power of
intense belief and the courage that might derive from it. Still, there is no guarantee that religiously motivated views and acts will be socially beneficial or
right, and, therefore, they cannot be beyond criticism.
Second, nothing precludes even the atheist from learning from the religious
person, and there is a lot to learn when it comes to service and humility, and
from the experience of being persecuted and of being a persecutor. What can be
learned from the fundamentalist aspects of religion (other than intolerance) is
a completely different story. I have not seen Jürgen Habermas advocating the
virtues of communicative community with strong religions and with intolerants. Again, the fact that someone is a member of an intolerant (religious or
secular) community is not a reason not to engage in discussion with such religious person. Nor would I disregard personal views of the religious person and,
in particular, his experiences in social discourse.
8.2.
Mr. Zucca, attributing to me a passage I quoted from Yehoshua Arieli,16 claims
that I would propose a categorical exclusion of religion (or the religious) from
the public sphere. If I did so, I have to be grateful to him, once more, for correcting a mistake. However, to my knowledge I dealt only with a very specific
public discourse, namely, with legislative and judicial decision making.
Religious people are as free as anyone else to make arguments in public. The
problem with religious arguments in law is their reliance on divine command
or other privileged, transcendentally oriented practices of the religious community. Such an attitude denies that secularism is politically entitled to impose
an equal burden on legally relevant reasons, where, if you would like to show
that a tobacco advertisement is detrimental to children, you have to get
involved in epidemiology and social psychology instead of treatises on kashrut.
This is quite painful and burdensome for such ignoramuses as the lawyer or
politician with a B.A. in literature who finds it unfair that a nice quote from
William Blackstone or William Blake is irrelevant, and statistics are not on the
square.
8.3.
When I referred to Richard Rorty’s position on religion as conversation stopper, I clearly stated my intention to paraphrase17 him, not to apply his position.
For Rorty, religious arguments were conversation stoppers in the sense of
being private opinions brought up in a debate about a public matter: “[T]he
ensuing silence masks the group’s inclination to say, ‘So what? We weren’t
discussing your private life; we were discussing public policy. Do not bother us
16
Zucca, supra note 1, at 506.
17
Sajó, Preliminaries, supra note 1, at 629 (emphasis added).
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with matters that are not our concern.’”18 Religion, or religious arguments,
can be and are used as conversation stoppers in a different sense, too; namely,
when the religious position claims superiority and exclusive knowledge. In this
scenario, the religious position accuses the secular one of a lack of understanding (of the superiority of divine command, say); while the religious position
understands the public reason, it just finds it irrelevant. Relying on its constitutionally protected status, “religion” will claim that the protection shall extend
to the recognition of its positions in legislation. Thus religion abuses its privileged position.
The use of secularism as a conversation stopper is intended to stop this abuse
of a privileged position in legal discourse and adjudication, in particular.
Therefore, this is not a matter of stopping conversation among social groups
that are perfectly free to continue their dialogue ad nauseam.
I do not think that Mr. Zucca means to imply that I was unaware of the
difference between the early Rawls and the later Rawls in connection with
translation theories, or that the shift in Habermas’s views has remained a
secret to me. Both of these authorities might have been wrong in their later
positions, or in both of their positions; however, neither registered a change
in position when it came to political and, in particular, legal and judicial decisions. Here, the duty of translatability of religious arguments continues to
prevail.
Because I was concerned with arguments admissible in legislation and judicial decisions, I was not prepared to rely on any specific contemporary concept
of public reason. The common-sense understanding of public reason (that is,
accessibility to an argument without the privileged position of faith or precondition of belief) is sufficient here.19 Rawls would not have allowed public officials to rely on religious arguments; for him, this would be simply too divisive.
To which I would also add, in a robust secularist mood, that even where we
have acceptable translations of religious arguments, a certain reservation is
18
RICHARD RORTY, Religion as Conversation-Stopper, in PHILOSOPHY AND SOCIAL HOPE 171 (1999). It is
perhaps of some interest that religions see each other as conversation stoppers when they rely on
their doctrine. In an interview with the French daily La Croix, Cardinal Tauran said that currently
inter-religious dialogue can take place “with some religions, yes. But with Islam, not at this time.
Muslims do not accept discussion about the Koran, because they say it was written under the dictates of God. With such an absolutist interpretation, it’s difficult to discuss the contents of the
faith.” Cardinal Tauran: “La religion fait peur, car elle est pervertie par le terrorisme” [Cardinal Tauran:
Religion Causes Fear, Because It Has Been Perverted by Terrorism], LA CROIX, Oct. 18, 2007, available
at http://www.la-croix.com/article/index.jsp?docId = 2317870&rubId = 4078.
“The public use of man’s reason must always be free, and it alone can bring about enlightenment
among men; the private use of reason may quite often be very narrowly restricted, however, without undue hindrance to the progress of enlightenment. But by the public use of one’s own reason
I mean that use anyone may make of it as a man of learning addressing the entire reading public.”
IMMANUEL KANT, An Answer to the Question: “What is Enlightenment?” in POLITICAL WRITINGS 55 (Hans
Reiss ed., Cambridge Univ. Press 2nd ed. 1991).
19
Sajó
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The crisis that was not there
527
appropriate.20 For example, given the secular, power-related agenda of most, if
not all, ecclesiastical organizations and strong religions (an assertion not
intended to deny that churches might be guided by moral considerations apart
from their theological concerns), there is a need to look into the consequences of
a legal decision based on arguments that are neutral but correspond to ecclesiastical positions. It might be, for example, that a secular welfare distribution
policy or a public education policy could “accidentally” grant advantages to
churches, with detrimental effects to neutral education. This “position of alert”
is one possible reading of the Folgerø decision of the ECtHR,21 where the teaching of Christian religions in Norwegian public schools as part of the national
Christian culture had disparate, negative effects on nonbelievers.
8.4.
Finally, not only am I aware of Rorty’s reconsideration of his position regarding “conversation stoppers,” but I was also quite shocked when I was first told
about it. In any case, even a less-than-careful reading of the 2003 article would
make clear that the so-called “reconsideration” is about the strategy of dialogue with religion. Contrary to his earlier position, Rorty proposed that atheists and anticlericals should not “stop” discussion just because religion is a
conversation stopper. As there is no clear truth, the discussion should continue. Religion remains an attempt to stop conversation, but people with
Rorty’s all-encompassing relativism should not care about that. But the nonstop conversation idea was never intended to apply to legislation, and in no
way did it indicate a change in Rorty’s position regarding the damage ecclesiastical organizations cause. Contrary to Rorty, I believe that the anchoring of
thought in a divine text is intrinsically wrongheaded for a democratic polity of
autonomous citizens,22 since it undermines the personal autonomy and competence needed for political decisions in any polity that is based on popular
sovereignty. Like Rorty in 1999, I would argue that there is a place for conversation stoppers in a democracy, but I accept that we “should put off invoking
conversation-stoppers as long as possible.”23 However, this moment of rupture
arrives in law when the constitutional judge has to pass judgment. I continue
20
The above reservation is not directed against religion; a similar consequentialist analysis is commendable in determining if there are no disparate effects of the secular arrangements burdening
free exercise of religion.
21
Case of Folgero and Others v. Norway, App. No. 15472/02, 2007 Eur. Ct. H.R., Grand Chamber.
22
This does not mean that we have any problem with believer citizens. In a secularized society,
with a relatively strong demarcation between the public/political and the private (which includes
religious beliefs and activities), the citizen believers may act with the same assumptions as any
other citizen in matters constitutionally relevant. Believers of strong religion might be different,
but it is constitutionally impermissible to draw any particular conclusion from this possible
empirical difference.
23
RORTY, supra note 18, at 148 (emphasis added).
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to believe, faithful to the tradition Rorty stood for, that—for the purposes of a
judicially applicable theory of constitutionalism—only a robust secularism
can resist “religious exclusivism, [and] contempt for people who should be
accorded the same respect as the rest of their fellow-citizens.”24 Without this
position, religious phraseology and concepts in law would give too much “aid
and comfort to [already privileged] religious organizations,” in the name of free
exercise of religion.
All things considered, it would be unfair to deny that the jurisprudential
effort is part of the larger social and political process, and judicial doctrine has
broader social and political consequences and implications. Mr. Zucca’s concern is legitimate, namely, that my insistence on secular considerations and
the exclusion of religious arguments from judicial decisions and legislation has
an impact on the very project of secularization, even as it reinforces it. I have
no reason to believe that Mr. Zucca would regret this. It is undeniable that such
developments may cause some “collateral damage” to the social self-confidence
of religious groups that find secularization frightening. Freedom begins where
fear ends.
24
Id.