This research will deal with the notion of protected democracy with regard to extremist Islamic movements and their role as anti-systemic forces. This topic is still mostly overlooked from a juridical, or rather a constitutional, point of view. This essay will evaluate the main legislative, administrative and judiciary measures that banned Islamist movements in some European countries (including Germany and Italy), with a particular focus on the case-law of the European Court of Human Rights. The purpose of this research is to identify parameters which the Government and Courts have used to assess the compatibility of the principle of freedom of expression with some active, anti-democratic – but not violent – behaviour in the context of the European free democratic order.
Religious communities in contemporary liberal democracies experience fundamental norm conflicts, but little is known on how they tackle them. How do religious decision- makers apply religious norms regarding gender and sexual orientation in an age of egalitarianism and liberalism? Bringing qualitative and experimental evidence from Israel and the U.S., this paper identifies a practice of “social impact discrimination” whereby religious decision-makers selectively enforce and subvert religious norms based on the perceived social impact of nonconformity. A controlled decision-making experiment (N = 559) reveals that social impact considerations shape real-time decisions and are highly consequential, significantly influencing decisions to dismiss sexual nonconformists and comply with unfavorable judicial decisions. The implications of social impact discrimination for the evolution and resolution of conflicts between law and religion are discussed.
India, Malaysia and Singapore recognise constitutional rights to profess, practise and propagate religion. Little attention has been paid so far to the first of these compared to the other two. I explore the concept of profession and argue that the right to profession is logically prior to the other two, because the act of profession constitutes one’s identity, of which practice and propagation are simply manifestations. I argue that the right to profession comprises not only the right to hold and state a faith, but also the right that the State recognise such a statement. The significance is that such professions, like any other statements, fall to be interpreted according to rules of evidence; to contain implicatures; and to be imputed. This provides an analytical framework which, I argue, illuminates the case law on various topics relating to religion, from Malaysian cases on conversion, to Singaporean cases involving national security, to the Indian ‘essential features doctrine’.
Sri Lanka’s constitutional policy regarding religion affords a ‘foremost place’ to Buddhism obligating the State to protect and foster the Buddha Sasana, whilst assuring the rights and freedoms of the other religions. By explicitly creating a special status for Buddhism, it has produced the category of “The Other”. This distinction is discriminatory in a pluralistic society and undermines the fundamental principle of equality.
Analyzing the public proposals on religion and debates of the Constituent Assembly, this study retraces the evolution of the Buddhism Chapter and identifies the contestations and their role in drafting the religion provision in the new constitution. This is particularly salient given the interconnection of the religious and ethnic identity in Sri Lanka.
The study hopes to contribute to the public and scholarly debate on constitution-making in deeply divided societies embedded with intense discord on state’s religious and secular identity.
A recent decision by the Italian Supreme Court (C. of Cassation, I, n. 24084/2017) has sparked a new strand of discussion on the relationship between liberty of religion, security, democracy, and cultural integration. The Court held an Indian national liable for criminal offence for carrying in his belt a Kirpan, the sacred cutter of Sikhism. Much criticism has attracted the reference in the decision to the “values of Western world” which an immigrant would be obliged to comply with. If multi-ethnicity is a necessity, the Court purports, this does not imply that the Constitutions welcomes 'cultural archipelagos'. This intimation of 'values' as a sort of overarching constitutional provisions is ambiguous to say the least. It invites, anyhow, a new reflection on what sort of constitutional 'principles' European societies share regarding citizenship, pointing either at one that ends up hinging on the opposition majority/minority or at a truly intercultural one
This paper compares the US Supreme Court’s and the German Constitutional Court’s approaches to religious accommodation. The US Court does not usually require the state to accommodate people through religious exemptions. I argue that Scalia’s critical view of accommodations followed from the political philosophy of Locke that was especially influential at the time of the US founding. In Germany, on the other hand, the Court has continued to require broad accommodations from otherwise valid and generally applicable law since the post-war founding of modern Germany. The paper argues that religious liberty is understood in German constitutional thought to be more closely linked to the concept of human dignity than it is to an apolitical state of nature. I contend that this difference accounts for the German court’s more favorable stance toward accommodations, and that the US court should move toward an understanding of religious liberty that more closely mirrors the German approach.