Constitutionalism and Religion

Constitutionalism and Religion

Elgar Monographs in Constitutional and Administrative Law series

Francois Venter

This topical book examines how the goals of constitutionalism – good and fair government – are addressed at a time when the multi-religious composition of countries’ populations has never before been so pronounced.

Chapter 6: Travails of the judges in religious cases

Francois Venter

Subjects: law - academic, constitutional and administrative law, law and society, legal philosophy

Extract

In the all too frequent emergence arising in societies of controversies involving religion and law – an occurrence seemingly on the increase in many jurisdictions around the world – it is mostly judiciaries that are called upon to resolve the disputes. The judicial forum is therefore the site where expression is most often given to the approach of the particular state's version of constitutionalism insofar as it impacts on religious matters. This chapter focuses on the manner in which religious disputes are dealt with by courts. For this purpose a categorization of kinds of dispute is made, and selected cases from various jurisdictions are then discussed as examples of how courts compose their interpretative arguments in the process of resolving religious issues. The intention is not to construct best judicial practice or to extract some kind of communis opinio iudicis, but to collect a range of responses by courts when confronted with the vexed questions of disputes concerning religion. At the end of the chapter an attempt is made to determine what judges have in common when dealing with cases involving religious considerations, despite having to function in legal orders that respond in fragmented ways to the issues concerned. For the purposes of this discussion the choice of jurisdictions from which judgments are selected is important, since the range of legal orders arranged according to standards of constitutionalism is wide.

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