Religious Rules, State Law, and Normative Pluralism - A Comparative Overview

Contemporary democracies are open to cultural and religious diversity, but encounter problems when prevailing values and norms are questioned in the name of religious or cultural beliefs and practices. In many Western liberal democracies, legal pluralism is high on the agenda of law and religion scholars because State centred legality fails to do justice to the complexity of social and normative interactions. Legal pluralism provides the intellectual tools for understanding how cultural and religious identities and norms are shaped in different sectors of society. Nonetheless, legal pluralism provides no direct and clear answer to the question of how social order and equality can be upheld under democratic constitutions. Pluralism alone does not guarantee that coexistence among people who live their lives in different groups can be sustained by prosocial attitudes, rather than undermined by conflict. Social psychology, cultural anthropology, and political science investigate how those attitudes can be nurtured. This chapter argues that to understand and manage the tensions generated by the intersection of state norms and religious norms, the law should also make use of the insights provided by these disciplines on human behaviour in society.

The negative effects of economic globalisation and the emergence of a host of post-Cold War political crises, accompanied by a drastic increase of global migration, have in many parts of the world, including the US, Canada, and Europe, spurred social movements lobbying for some or greater normative and institutional recognition of religion by the law of the state. Arguing that the resultant new religion-based legal pluralism must be theorised in the light of the increasing colonisation of the life-world by law (Habermas), I then discuss the different positions scholars have taken in the trans-disciplinary debate on “legal pluralism” since the late 1950s. In the course of this chapter, I seek to make three additional points: (1) once religious norms are accommodated in state law, they usually undergo a significant degree of transformation; (2) the term “law” should be reserved for state law only, not to obfuscate the hegemonic claim of the state and of the international community of nation states in the competition between different normativities; and (3) the common blackboxing of the category of “religion” by law-makers and scholars of “legal pluralism” alike has abetted the obscuration of the unequal treatment of religious communities in many countries.

One simple definition of legal pluralism is that it concerns the development of different legal traditions or legal sources within a single sovereign jurisdiction. It is often seen therefore to be a challenge to legal centralism or the thesis that the sovereign state has a monopoly over law making to the exclusion of all other sources. It is helpful to make a distinction between ‘weak legal pluralism’ and ‘strong legal pluralism’. The former refers to a situation where there may be various institutions at the central level of government or jurisdictions covering different regions or communities, which nevertheless remain under the hierarchical oversight and control by a state or empire. The latter refers to legal orders that govern over peoples but are not part of a single, hierarchical and integrated system. In short the weak-strong notion describes the degree of delegated legal authority to social groups, communities and institutions. The underlying question behind both forms is the issue of state sovereignty. Critics of legal pluralism regard the development as a threat to the sovereignty of the state and the coherence of a society. By contrast, it is possible to see legal pluralism as the natural companion of political liberalism allowing peoples and their institutions some protection from centralized authoritarian rule and in that regard legal pluralism is sometimes associated with the right of resistance against tyrannical powers. One historical issue in the debate about legal pluralism is its presence in empires such as the Ottoman Empire and attempts to control or eliminate legal pluralism during the rise of the nation state.

Austria is a secular State, which accommodates religious needs both of individuals and institutions. Religious rules are applied within the constitutionally guaranteed autonomy of religious communities. Civilly, they produce legal effects on the basis of reference by State law, including private international law. The same applies to religious adjudication. Beyond explicit reference religious communities may create arbitration tribunals according to the Code of Civil Procedure; as in private international law, the application of religious rules is limited by the public policy clause.

Whilst Belgian society is highly secularised, Belgian courts very often use the concept of “religious rules”, but its precise content remains undefined. Sometimes the concept of “religious rules” is very narrowly understood as an institutional and formal rule enacted by a religious authority. Sometimes the concept is largely open to include any individual feeling of religious duty. Sometimes the concept is only open to registered religions, sometimes it includes any kind of religious or philosophical groups. This report chooses a generous understanding of the concept, while focusing it on traditional religions.

This paper offers an overview of the current relation between State and religion in Brazil. It focuses on the descriptive examination of the legal context compared to the practices of public institutions regarding to secularism, pluralism and religious freedom in Brazil.

For centuries, the relationship with the Catholic Church has been in Colombia the only model. Thus, it is understandable that despite the new sociological situation of religious plurality (particularly with Christian non-Catholic denominations), the only-known system inspired the model of relations between the State and non-Catholic Churches. Actually, the development of the legal autonomy of religious entities has had as its main point of reference the situation of the Catholic Church and particularly the relationship between Canon law and the State legal system. Concordats, for example, reflect the existence and recognition from the State of an autonomous legal system (Canon law), with important consequences in civil life, such as recognition of a specific legal marriage system and legal personality for Canon Law entities.

The full extension to other denominations of a relationship like the one established with the Catholic Church has not been easy in some aspects. Marriage and civil recognition of legal personality requires the existence of a consistent law system in which the relevant matters have adequate legal regulation. It is not the case at least for the non-Catholic entities that signed in 1997 an Agreement with the Colombian State. These examples show that the simple approach of “giving the same” treatment, to the Catholic Church as well as to minority religions, besides being unrealistic, raises serious concerns from the standpoint of equality, understood not in terms of identity, but as proportion. Actually, the real equality cannot forget the different structure and organization of religious denominations. In some areas the extension of norms previously recognized only to the Catholic Church has been easier. This is the case of the rules related to religious ministers, holidays or conscientious objection.

The article explores the extent of application of religious rules according to the law in Estonia. It is argued that religious rules are applied both de jure and de facto in Estonia, for example, within contractual freedom between parties, in the framework of exemptions from generally applicable laws and autonomy of religious communities. There is a certain amount of individual and collective freedom to choose to live life according to one’s conscience and religious rules.

The author focuses on France’s legal framework and ecclesiastical policy towards the religions existing and operating in the national territory. The constitutional principle of secularism (laïcité) and the separation between State and religious denominations, which characterize the French legal system, are examined in a two-fold perspective: firstly, which past issues have helped to settle and how; secondly, the way they are currently contributing and may contribute in the future to manage the country’s religious diversity.

Hungary has no system of personal laws. Marriage became secular with the civil marriage law of 1895. State laws do not include religious rules in the strict sense. The autonomy of religious communities is respected by the state. This autonomy includes the respect of the identity of institutions run by religious communities. Internal rules of religious communities would qualify as “religious rules”. Religious rules are generally not applicable in the state legal system but in certain cases the state law does refer to the internal rules of religious communities. The internal jurisdiction (like on the issues of marriage in the case of the Catholic Church or other internal decisions) have no significance of any kind for the state. Traditional religious minorities are well integrated into society and the challenge of integrating large numbers of migrants with a diverse religious background has not gained much relevance yet. There are no indications in Hungary that a significant number of citizens apply religious rules in conflict with state laws.

The Israeli legal system may serve as a laboratory for the application of religious law in a multi-religious state. While defined as a Jewish State so many religions are represented here, some embracing large communities others having a little numbers of followers in some cases no more than a handful. It would be wrong however to view the Israeli system as a classic model. The approach to religion in the State of Israel is inherently eclectic. It combines traditional and new theories, communal and individual rights, freedom from religion and religious coercion, freedom of religion from state intervention, equality among religions and differential treatment of them. These eclectic principles are rooted in historical, theological, political and national grounds. Perhaps the most significant factor contributing to the complexity of relations between religion and state in Israel is that this part of the world – the Holy Land – is the birthplace of monotheism. It occupies a central place in the theology of many religions, including the three main monotheistic religions, each religion having its own view of the relationship between state and religion, which sometimes come into conflict. Moreover, the principles and practices of previous regimes that governed the Holy Land still have their influence, even though today Israel is predominantly Jewish in culture and religion. This essay aims to give a comprehensive yet concise overview of the status of the application of religious law in the State of Israel against this complex background.

This chapter intends to describe the controversial principles regarding the relationship between the Italian Republic and religious denominations. In particular, this analysis concerns the effects of the incoherent legal system about religious freedom and its weakness.

The historical background of colonization and the resulting diversity of communities in Malaysia is reflected in the legal framework which comprises of multiple parallel legal systems. Nevertheless, there are conflicts when the issues straddle over to more than one legal system. The conflicts with regards to jurisdiction of the respective courts, the enforcement of religious laws and the individual’s fundamental rights which at first blush seem to be highlighting religious tensions within the society are, it is submitted, part and parcel of the developing legal pluralism. The judiciary plays an essential role in resolving legal conflicts which arise from the existing legal pluralism by remaining true to the letter and spirit of the Federal Constitution which guarantees fundamental liberties to the individuals.

In the Federation of Malaysia, Islam is the religion of the Federation but this does not extend to the legal perspective. In other words, Islamic law is not the supreme law of the Federation because the Federal Constitution has clearly stated that the supreme law of the country is the Constitution itself. This article aims to examine the status and implementation of Islamic law in Malaysia. At the onset, the article analyses the historical background of Islam in pre-Malaysia era with particular focus on its Islamic law perspective. The independence of Malaya in 1957 led to the formation of the Federal Constitution which is considered the main source of law in the country. This article assesses a number of provisions in the Constitutions and some related cases that touch on Islamic affairs. Also, the divisions of jurisdictions for both civil laws and Islamic laws is analysed against the backdrops of the Federal Constitution and other relevant legislations. To sum up, it can be said that despite the fact that Islam is given a special position under Article 3(1) of the Federal Constitution, Islamic law is not fully implemented in Malaysia. The jurisdiction awarded by the Ninth Schedule, List II State List is very limited, only confined to Muslim followers and is mostly related to personal laws, including amongst others: marriage; divorce; inheritance and other offences that are against the precepts of the religion of Islam. Civil laws, on the other hand, are subject to federal jurisdiction, which cannot interfere with the State laws such as the Islamic laws which fall under the State jurisdiction.

Against the background of the thought-provoking lecture Rowan Williams, the former Archbishop of Canterbury, delivered in 2008 on the relationship between civil and religious law in England, this contribution explores the relationship between civil and religious law in the Netherlands. It analyses the various legal mechanisms through which this relationship is established in Dutch law, with special attention to the relationship between religious and civil arrangements of conflict resolution and the social acceptance of religious behavior and the acceptance of state law by religious believers. The conclusion is that the mechanisms through which Dutch law accommodates religious rules are satisfactory. With regard to some topics, however, a development can be discerned that religiously informed ethics or social traditions no longer run parallel with the generally applicable norms, but are acknowledged through legislative exemptions or even no longer accommodated by the law. Processes of value change both outside and within religious denominations play a role in these developments.

In this chapter the author defends the idea that religious rule is not among the legal sources of Quebec’s legal system even though some legal rules can find their socio-historical justification in religious beliefs. For the author, the application of a rule with a "religious root" depends on its integration – explicitly or implicitly – by the legislator or the judge. The plurality of "religious roots" and the diversity of "socio-cultural grounds" of Quebec laws are not, according to the author, synonymous with automatic application of religious rules in Quebec.

Résumé. Dans cet article l’auteur défend l’idée selon laquelle la règle religieuse ne fait pas partie des sources du droit positif québécois et cela même si certaines règles juridiques peuvent trouver leurs justifications socio-historiques dans des croyances religieuses. Pour l’auteur, l’application d’une règle «à racine religieuse » dépend de son intégration – explicitement ou implicitement – par le législateur ou par le juge dans le système de droit positif étatique. La pluralité des «racines religieuses» et la diversité des «terreaux socioculturels» du droit québécois ne sont pas, selon l’auteur, synonymes de l’existence d’un système de droit religieux applicable au Québec.

Singapore is a multi-racial, multi-ethnic and multi-religious country in which one does not have to look very hard to find active engagement with religion among many of its residents. There are numerous churches, mosques, temples and the like that operate in the country as well as religiously-linked charitable and other civil society organisations. While the government of Singapore is formally religiously uncommitted, it does not promote atheism and there is no formal separation of state and religion. Indeed, references to the diverse religious commitments of the peoples of Singapore are made in public speeches and debates, including in Parliament, and, for example, by the recognition of public holidays linked to Hindu, Muslim, Buddhist and Christian traditions. The special status of the Malay Muslim community in Singapore is also recognised in the Constitution of Singapore and in legislation that establishes Sharia (local spelling ‘Syariah’) courts in the country

Singapore is, however, concerned about maintaining ‘religious harmony’ and there are frequent, and recent, references to the need not to take racial and religious harmony for granted. As such, the state has equipped itself with strong legislative powers to manage religious harmony. While these powers are not actually exercised often, they make it clear that the state can step in to secure religious harmony if it feels it necessary to do so. While this model may raise concerns in the eyes of some, one should consider it in response to local demographic and other conditions and ask if it fits the context. More generally, perhaps a model of robust management of religious harmony might be salutary for other highly plural environments as well. In addition to outlining the scene in Singapore, this chapter also raises these questions.

All of this provides for a system which shows respect for human rights and especially freedom of religion, equality, non-discrimination and freedom of association. It also provides for religions in South Africa to take ownership of freedom of religion and to formulate their religious identity in terms of their given freedom of religion.

This chapter examines the interaction between religious and state laws in Spain. After describing the basic normative framework, the author analyses the main areas in which such interaction takes place: the civil effects of religious rules on marriage, State laws and institutions in which an identifiable religious origin can be observed, State laws aimed at offering a specific protection of the autonomy of churches and religious groups, the exemptions from generally applicable laws on religious or conscience grounds, and the wearing of personal religious symbols in public areas or institutions. The author notes that a large part of the reception of religious rules by State laws relies on the Concordat with the Catholic Church and similar cooperation agreements with three other religious communities. Among other criticism to Spanish current law and practice, the author points out that, by failing to extend the agreements system to other religious communities in comparable situation, the Spanish State ignores one of the main provisions of the 1980 Organic Law on Religious Freedom, in breach of the constitutional principle of equality.

The chapter provides an account of the many levels of relations between religion and law in England. The first section briefly outlines the historical developments leading to the establishment of the Church of England as the legally established church, and explains the current legal position of the Church of England and its relation to the Monarchy and the State. Subsequent sections analyse and discuss (a) the influence of Christianity on the English legal system, (b) the ways in which the English legal system accommodates other religions and religious organisations, (c) how religious beliefs and actions are accommodated in the work place, and (d) the legal and political response to ‘religious adjudication’ in Shariah councils or similar bodies. The chapter concludes that the English legal approach to the non-established religions can be described as a form of ‘benign neglect’. The State does not grant explicit minority group rights to religious groups, but it does not usually interfere in their internal affairs either.

This concluding chapter returns to the questions posed by Silvio Ferrari in his introductory chapter and his distinction between States that employ individual orientated strategies and those who favour community orientated strategies. Revisiting the arguments of Ayelet Shachar, it is argued that both of these strategies are required. Further, it is not a question of whether or not the State intervenes in religious legal systems but when and how they should do so. The chapter draws upon Shachar’s concept of ‘joint governance’ but rejects her much lauded variant of ‘transformative accommodation’. Instead, it draws upon three of Shachar’s five variants of joint governance to reach sixteen propositions of how States should proceed.