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1Notes:
° I wish to thank Tariq Modood, Rainer Bauböck, Ewald Engelen, Marianne Boenink, Pieter Pekelharing, Hent de Vries, Govert den Hartogh and Peter v.d. Veer for critical and constructive comments.
Throughout this article I use ‘(organized) religions’ as an umbrella concept covering churches, denominations and sects as well as religions that are even less formally organized. I refer to the traditional distinction between ‘churches’ (requiring either strong or weak establishment) and ‘denominations’ only when necessary.
2 In distinguishing between cultural and institutional pluralism, I use a very simplistic concept of institutionalization demarcated on the one hand against sociological notions which name all patterns of expectations institutions (cultural pluralism, then, would already include institutional pluralism), on the other hand against legal notions requiring explicit formalization.
3Religion is always understood as a mix of doctrine, institutions, ethos, belief and practice (following Durkheim, Martin, Casanova). Secularization affects all dimensions of religions although in different degrees and different tempi. See Bader 1999, note 1 for “(organized) religions”.
4Secularization is a contested concept. Its core meaning refers to the breakdown of the entire medieval ‘double dualist system of classification’ in three worlds. The world was divided, spatially, into ‘heaven’ and ‘earth’ and the earthly world itself was divided into the religious world (church) and the profane, secular world (saeculum); ecclesiologically into the invisible church (communio sanctorum), the visible church (una sancta catholica, apostolica ecclesia) and secular societies; politically into the city of God, the Church (Papal Kingdom) and the City of Man (Holy Roman Empire and States). José Casanova has developed a fairly detailed ‘theoretical analytical framework’ (1994:11f, 211f) for the purposes of a comparative study of public religions in the modern world. David Martin has presented a detailed analysis of basic patterns of secularization in his General Theory of Secularization (1978). I extensively and freely use these excellent studies in comparative sociology of religion.
6More systematically, the crucial events distinguished by Martin are: (1) success or failure of reformation, (2) English Civil War (3) American Revolution, (4) French Revolution, (5) Russian Revolution, (6) Dutch Revolution and Scottish and Swiss Reformations, (7) non-revolutions in Lutheran countries (see 1978:3, 18ff.)
7Where Catholicism remained predominant, no 60:40 mixed pattern could develop as a consequence of the cultural definition of unity, the integral definition of religiosity and systematic re-socialization programs (see 203).
8 See 1978:59, Figure: (1) the American pattern (high religious pluralism, low anti-clericalism, high cultic participation, high stability of democracy, center-left political orientation of Catholicism, religiously toned civil religion, broken church-state nexus, secular school system, non-existent religious parties). (2) The English pattern (medium religious pluralism, fairly low anti-clericalism, fairly low cultic participation, high stability of democracy, center-left political orientation of Catholicism, religiously toned civil religion, retained church-state nexus, religious and then semi-secular school system, non-existent religious parties). (3) The Scandinavian Pattern (low religious pluralism, low/medium anti-clericalism, very low cultic participation, high stability of democracy, secular civil religion, retained church-state nexus, secular school system with religious fringe, very minor religious parties). (4) The Mixed pattern (high religious pluralism, fairly low anti-clericalism, high cultic participation, high stability of democracy, center-left political orientation of Catholicism, mixed school system, influential religious parties). (5) The Latin pattern (very low religious pluralism, very high anti-clericalism, high/low cultic participation, low stability of democracy, high communist influence and right then center political orientation of Catholicism, strained or broken church-state nexus, increasingly secular school system and extensive religious parties). (6) The Right Statist pattern (e.g. Spanish and Portuguese fascism). (7) The Left Statist Pattern (in “Marxist-Leninist” RES-countries). (8) The Nationalist Pattern (churches of nations without secure state (e.g. Poland, Ireland)).
9For different reasons and with widely different results: compare the Protestant protest against the absolutist state and the ceasaropapist church, the ‘ceasaropapist embrace of throne and altar under absolutism’ in America with the radically laicist or secularist break in the French revolution which mirrors ‘Catholicism without Christianity’ (Martin 24) and with Ataturk’s radical dis-establishment of Islam in Turkey.
11 See Galanter 1996:226, 231f, 246f.
12See for actual inconsistency of state policies: Rath cs., see also Bader 1997a.
13See Rath et al. 1996 See Bader/Benschop 1989 and Bader 1996.
14See Rath et al. 1996:245 for these three general ‘goals’ of policies.
15 If one wants, for whatever reasons, to positively facilitate and stimulate the development of newly organized religions, there is no need to “establish” them constitutionally (and this argument is absent in the discussion about “establishment” at the PSI conference). One can use all legal, political, administrative and cultural means of facilitation which are not explicitly ruled out by general moral or legal principles. And these general principles (like religious freedoms, non-establishment, equal treatment, proportionality, evenhandedness) allow for wide margins of (historically developing) interpretations and considerable margins of discretion in their application. On the contrary, if one wants, for whatever reasons, to prevent or at least to restrain the development of new religions, there is no need to legally forbid them. Or if one wants to restrain old, formally recognized religions there is no need to disestablish them constitutionally. Policies of administrative impediment, for example, can be very effective and may be continued even in cases that courts have ruled their ‘manifest unfairness’ (High Court in 1992 in the case of the Islamic Primary School in Brent. See for the variety of administrative hindrances: Rath et al. 1996:224ff.). To focus only on “constitutional” establishment versus dis-establishment and to appeal to the mythical principle of “separation” of state from church is clearly not informative enough.
16My empirically informed typology is not the result of inductive generalization. The types should be seen as ‘ideal types’ of policy models. No empirical state or policy fits completely. (@@@ remark on method?)
17Dis-establishment directly presupposes "strong establishment" of one Church. Non-establishment in the strict sense of the term means that in a (new) state no Church is constitutionally or legally established. However, in both relevant cases, "strong establishment" is - at least indirectly - the relevant point of reference. In the case of non-establishment of the new American federal state more indirectly as opposition against known forms and experiences of "strong establishment" in European States or some American States. In the cases of ‘strong dis-establishment’ within an existing state (like France or Turkey) more directly. The differences between non-establishment, dis-establishment and possible new establishments (e.g. ‘plural establishment’) should be kept in mind for the purposes of practical evaluation.
18Modood 4, Herrick 48; Parekh 16f
19Institutional pluralism needs no “constitutional recognition” as the example of neo-corporatism shows clearly (neo-corporatism has been ‘constitutionalized’ only in Austria). In the Netherlands, building on the tradition of pillarization, a whole variety of institutional arrangements is used, particularly on so-called lower levels. More or less officially, but at least de facto recognized religious organizations are actual players in political contestation and institutionalized bargaining by different departments, mainly on a local level, and in different fields of policy making and implementation.
20Or, if it is recognized that civil society can only misleadingly be called “private”, as Rawls eventually has in his Political Liberalism, relegated to the ‘social sphere’.
21"Non-constitutional pluralism" would also be a promising alternative to avoid the exclusive alternative between either weak or pluralist establishment and “complete separation” in the case of Israel, lacking in the interesting paper by Alon Harel (1997).
22Obviously, this implies at least some differences between ‘formally recognized’ organized religions (which in this respect resemble the traditional concept of ‘church’ which has been ‘pluralized’) and ‘denominations’ which lack this recognition. See note 17@@@ for the difference between formally recognized trade-unions in collective bargaining and corporatist settings on the one hand, and old or newly organized unions lacking such recognition.
23 Practical reason, in itself, is more complex than most moral and political philosophers assume. A full normative evaluation of institutional arrangements would require a balance of moral, ethical, prudential and realist arguments. Such a task is way beyond my abilities and the limited goals of this article. I focus on the most important moral (III.1), ethical (III.2) and realist arguments (III.3) pro/con the relevant institutional options alluding to the PSI-debate which, like most practical debates, has the virtue of not neglecting the complexity of the issue at hand, a neglect so characteristic for the American philosophical debate.
24If necessary, some references. Refer also to Parekh (personal communication. Religious pluralism as a fact, as a positive value: Why? Refer to anonymous review (PT).
25A third meaning: ‘the freedom of the state from religion’ (Casanova 1994:57) is much more contested if interpreted as “complete constitutional and legal separation”. It may be a - dubious - ‘functional requirement’ of modern societies but it should not be presented as an interpretation or a direct consequence of religious freedom as a human right. See Galanter 1966:218ff. for a much more differentiated treatment of religious freedoms (freedom A till O).
26 This is highlighted by defenders of the Non-Establishment clause: see Galanter 1966:288ff: HLR Note 1987:1632ff
27I do not discuss the other type of constraint by “compelling state-interest”, “order”, “safety”, “health”, “morals” but hasten to say that these categories have to be very precisely and narrowly circumscribed. Otherwise, constitutional and legal guarantee of religious freedoms degenerate into empty rhetorical phrases barely able to hide the whole variety of restrictive administrative practices usually legitimized by reference to some “public interest”, as the jurisdiction of the Supreme Court has demonstrated.
281. Rights to Life and Health, 2. Bodily Integrity, 3. Employment, 4. Mobility and Assembly Rights, 5. Political Participation and Speech, 6. Free Religious Exercise for Women, 7. Rights of Property and Civil Capacity, 8. Nationality, 9. Marriage Rights, 10. Education Rights, 11. Reproductive Rights.
29See for Hindu- and Muslim law in India: Nussbaum 1997:115ff, Sen 1995, Mahmood 1983; Reitman (1998) for Jewish divorce-law in England; Rutten 1988, d’Oliveira 1995 for the Muddawanna in the Netherlands.
30Nussbaum 1997:98): ‘If the government defers to the wishes of the religious group, a vulnerable group of individuals will lose basic rights; if the government commits itself to respecting equal human rights of all individuals, it will stand accused of indifference to the liberty of conscience’ or better: the freedom to collective religious practices.
31This is the preferred “solution” of most liberals, but also of unreconstructed feminist liberals like Galenkamp 1993, 1998; Okin 1997, 1998, 1998a; Tamir 1997. Even Nussbaum seems to be completely converted by now: ‘religious liberty is a right of individuals’ and ‘liberals should emphasize this individualistic concept’ (125); any group rights, even in the case of national minorities are rejected (126ff), all forms of legal pluralism are declined as ‘medieval idea’ (124). HLR Note, on the contrary, not only, rightly, defends that ‘an explicit recognition of a first amendment right to church autonomy is necessary’ (1742), that the Supreme Court does not reserve constitutional rights ‘exclusively for natural persons’ (1746), that ‘religious institutions are more than mere aggregations of individuals; they are independent actors in the religious, social, and political world’ (1749), that organizational rights to autonomy imply a ‘partial surrender of autonomy from the individual to the group’ (1751) and the recognition of the internal decision making structure even if it may be strictly autocratic. In the defense of organizational autonomy, HLR Note goes so far as to defend racist selection criteria for membership in churches or sects disguised as requirements of religious faith (see 1758ff: no application of Antidiscrimination Laws to Religious Organizations). In this way, non-intervention into religious organizations is interpreted as an absolute claim and all conflicting civil rights claims are neglected or completely subordinated. The appeal to (the fiction of) free and informed consent by adults to enter, and the stress on exit-rights instead of real exit options, so characteristic for the American jurisdiction, is, in my view, insufficient reason to cancel prudent balancing of these conflicting rights and claims. The fear for ‘intrusive state regulation’ becomes paramount.
32For more sensible treatments of conflicts between individual (inside) and collective autonomy (outside) see Kymlicka 1997a, Raz 1997, Parekh 1997, Saharso 1999. For marriage and divorce law: Reitman 1998, Bader 1998a and Shachar 1998. Ayelet Shachar tries to distinguish between ‘demarcating functions’ of family law (crucial for the internal reproduction of the ‘nomos’ of groups) and its ‘distributive functions’ . In her ‘intersectionist joint governance approach’ she proposes to delegate jurisdiction about demarcating functions to ‘inside’ courts of religious groups and reserves jurisdiction about property matters to state courts, explicitly permitting inputs ‘from two legal systems - a groups essential traditions and the state’s laws - to resolve a single dispute’ (1998:299). This balanced form of legal pluralism allows productive ways out of hard cases (like the Martinez case). See for national minorities and, particularly, ‘First Nations’: Hoekema 1998 and 2000.
33Serious strategic tensions have to be taken into account. It is difficult to oppose external strategies of divide et impera by unity against outsiders and, simultaneously, by liberalizing and democratizing inside.
34Parekh (PSI, 18ff) distinguishes four interpretations of this ambiguous notion, mixing equal freedom
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