Elgar Monographs in Constitutional and Administrative Law series
Chapter 7: The weaknesses of contemporary statehood in the face of religious pluralism
Remarkably, amidst the rhetorical expansion of secularism, the warranting of freedom of religion continues to be one of the important characteristics of the law of constitutional states such as the USA, Germany and South Africa. And yet, when dealing with the plurality of religion in their populations, the legislatures, executives and judiciaries of all three of these states have often stumbled inelegantly, as can be seen in some of the judgments discussed in Chapter 6 above. The reason for this must be sought in the conventional pre-programmed responses to the challenges of religious pluralism, and the continuing exposure of the shortcomings of the currently available constitutional instrumentation that was designed for the justification of liberal democracy. This chapter reviews the crumbling foundations upon which the notions of sovereignty, citizenship, the social contract, pouvoir constituant and the counter-majoritarian dilemma, all central to the conventional understanding of the state as preserver of justice, are based. The weaknesses of the standard responses of states when called upon to maintain justice amidst religious pluralism in a post-secular world are thereby pointed out. The ‘state’, ‘sovereignty’, ‘nation’, ‘citizenship’ and similar terms belong to the daily fare of lawyers, and also of practitioners of disciplines such as political studies, economics and geography. The exact meaning of these concepts has never been settled, and this uncertainty has fuelled many a scholarly analysis. The law, in particular international law and constitutional law, cannot function without the notion of the state.
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