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Susanna Mancini

This chapter introduces the Handbook on Constitutions and Religion. It first traces the impact of modernization and secularization in different parts of the world. Next, it assesses the impact of the re-politicization of religion that occurred throughout the globe since the 1970’s. In particular, the chapter focuses on the transnational emergence of religious nationalism and of religious populism and on the internationalization of political religious activism. Finally, the chapter introduces the various contributions to the Handbook, which collectively analyse and address the essence of the issues laid down in the previous sections. In doing so, it highlights how, across all of chapters of the Handbook, there is a recognition that in the contemporary context, neither constitutionalism nor religion can be fully grasped without a focus on their inescapable connections.

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Michel Rosenfeld

Modern liberal constitutionalism requires some form of secularism. There is, however, much dispute regarding what kind of secularism and how much of it is required. Secularism itself is Christian in origin and it does not significantly figure in the two other major Western religious traditions, namely Judaism and Islam. The Enlightenment has extracted secularism from its Christian moorings and has institutionalized it within constitutional ordering by combining a thrust to expel religion from the public sphere with a call for special protection for religious expression and practice within the private sphere. Western democracies have produced five types of constitutional models to regulate the relationship between the state and religion. These vary from the military secular model to a model that features an official state religion while commanding tolerance of other religions. In more recent times, the Enlightenment legacy has been challenged by the repoliticization of religion and by attacks against institutional secularism. This presents challenges and opportunities to Western constitutional secularism.

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Ratna Kapur

This chapter examines the contradictions and complexities present in the notion of secularism, by comparing the work that it has done in two different legal contexts: postcolonial India and the French republic. It exposes the political as well as normative contradictions that lie at the core of this perceived progressive “Western import” that are exposed through its encounters with the postcolonial “other” in the peripheries as well as within the center. The analysis engages with two important questions. First, what does this concept mean in terms of constitutional discourse more generally, and how does it actually operate in the West as well as in the non-West? Second, what are the implications of the model of secularism adopted in postcolonial India and the French Republic on the understanding of citizenship?

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Andrew F. March

This chapter explores developments in modern Islamic constitutional theory, roughly from the mid-nineteenth century to the present. It introduces the history of constitutionalism in Muslim countries as well as the development of constitutional jurisprudence in practice, especially where there are in effect constitutions that aim to guarantee some form of Islamic quality. The bulk of the chapter, however, focuses on late-twentieth century Islamic constitutional theory, where a distinct approach to questions of sovereignty, legal supremacy, judicial review and legislative authority has been developed.

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Peter G. Danchin

In analyzing a series of recent constitutional and international human rights cases involving claims to religious freedom, this chapter argues that there is a distinctive logic that simultaneously grounds and shapes the normative architecture of religious freedom as a fundamental right. Counterintuitively, this logic is shared across the Western and non-Western divide and operates in two main forms: first, in the political rationality of the modern state as a claim to state neutrality toward religion (“political secularism”); and second, in the constitutional adjudication of the right to religious freedom resulting in a distinctive modular and bifurcated structure of legal reasoning (“universal right”). The paradoxes and antinomies internal to the relation between political secularism on the one hand and universal right on the other have far-reaching implications for our understanding not only of the modern categories of religion and religious subjectivity, but also of conceptions of religious freedom understood as a fundamental right subject to the political rationality of the modern state.

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Silvio Ferrari

Does a European model of religious freedom exist? Is it possible to speak of the right to freedom of religion in terms that apply equally to countries as diverse as Russia, Spain, Norway and Greece (not to mention Turkey)? This chapter describes the main historical steps that marked the formation of the idea and the right to religious freedom in Europe. It highlights the characteristics that differentiate the European model from those existing in other parts of the world and explores the internal variations of the European model, concluding with a few observations on its possible future.

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Dia Dabby and Jean-François Gaudreault-DesBiens

This chapter examines constitutionalism and religion in common law North America, namely, Canada and the United States. While both countries share the broad contours of constitutional protection of religion, each country’s historical trajectory has shaped it irrevocably in its own mold. This chapter suggests that transversal frameworks permeate both Canada and the United States, such as indigenous spiritualities and reasonable accommodation: they indicate both tensions on the form and function of the legal protections of religion and a deep imbalance between the migration of constitutional concepts. This chapter analyzes particular sites of divergence or convergence between these two countries to illuminate the interplay of constitutionalism and religion through religious prayers in public institutions, marriage and end-of-life decisions.

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Julieta Lemaitre Ripoll

The first Latin American constitutions were confessional, following the model of the 1812 Cádiz Constitution, which not only declared Catholicism as the state religion, but also limited the rights of other faiths with the assertion that “error has no rights.” Confessional constitutions generally excluded religious freedom for other faiths: most of the first constitutions provided not only that Catholicism was the religion of the state, but also that it was the only religion allowed public worship; in some countries, even private worship of other religions was prohibited and constitutions declared that Catholicism was the only accepted religion “to the exclusion of all others.” After decades of intense political agitation, sometimes civil wars, between conservative defenders of Catholic establishment and liberal defenders of secularism, the twentieth century saw the emergence of constitutions that were, in varying degrees, secular and liberal, and that defended religious freedom as a cornerstone of their secular liberalism. Even so, many countries kept close ties with the Catholic Church, granting it through laws numerous economic and political privileges that Protestant churches decried as a violation of religious freedom. But by the 1990s, religious freedom - historically the banner of liberals and Protestants - found a new champion in the Catholic Church itself, eager to find constitutional protection against increasingly liberal governments in the region, and most countries adopted religious freedom laws.

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Charles Manga Fombad

Religious freedom was one of the important rights to preoccupy constitutional designers during the wave of constitutional reforms in Africa in the 1990s. These reforms were made against a background of persecution of religious minorities, especially of religious leaders or groups which had expressed dissenting political views in the pre-1990 era of military and one-party dictatorships. This chapter examines, from a comparative perspective, the manner and extent to which religious rights are now recognized, protected and entrenched in modern African constitutions. It begins with a historical overview of the diverse approaches taken in Africa toward the constitutionalization of religious rights; after which it examines the scope of the constitutional entrenchment of religious rights and the nature of the limitations and restrictions placed on their exercise. The chapter concludes that, as with most of the fundamental rights that have been formally entrenched in modern African constitutions, the full enjoyment of religious rights is hampered in practice by an array of challenges.

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Abdullahi Ahmed An-Na‘im

The main aim of this chapter is to demonstrate that Islam as a religion is fully consistent with the concepts, ethical norms, institutions and processes of comparative constitutionalism. The first part of the chapter describes the beginnings of Islam in Mecca and Medina during the first half of the seventh century; it then outlines the origins and development of Sharia in order to emphasize the historical and contextual nature of Islam, and of Sharia as the social and political normative system of Islam. The second part of the chapter explains that constitutionalism cannot succeed in Muslim majority countries - or anywhere else in the world - except through indigenous process of trial and error, whereby norms and institutions are developed gradually over time, combining lessons learned from bad experiences and good practices. Finally, the third part of the chapter discusses the need to come to terms with the post-colonial state, which entails transforming its anchor in colonial concepts, norms, and institutions to Islamic view of such anchor which is also consistent with constitutionalism.