Table of contents: Governing Religion with Judges - Force the Law to Speak Against the Burqa - Styles of Judicial Deliberation and the Regulation of Minority religious Practices in France and Canada - Judicialization vs Democracy _ The Judicialization of the Alevi Issue - Constitutional Courts as Religious-Harnessing Agents Read More
Claire de Galembert et Matthias Koenig
GOVERNING RELIGION WITH JUDGES
While the comparative study of secularism has become a thriving field of research, the precise political processes underlying the governance of religion is still a field to be srutinized. Such processes cannot be understood without paying attention to the judicial arena. Building upon the burgeoning literature on the judicialization of politics, this article highlights that practices of social movement actors and public policy-makers are embedded not only in national constitutional traditions but also in global rights discourses and international judicial frameworks. Introducing case studies on France, Quebec, Switzerland, Turkey, Israel and Malaysia, assembled in this special issue, it lays out an array of methodological strategies and analytical perspectives that allow studying the multi-level dynamics, complex power configurations and ambivalent consequences of governing religion with judges.
Claire de Galembert
FORCE THE LAW TO SPEAK AGAINST THE BURQA. A JUDICIAL POLITICS À LA FRANÇAISE?
This article traces the controversy generated by the political enterprise to legislate against full veils in the public space in France. The decisionmade in 2010 by the Conseil Constitutionnel validating the law and putting an end to the constitutional controversy could be interpreted as the byproduct of both a legicentric tradition and the French assertive secularism. Yet, stating this tells nothing about how this decision was made possible. Delving into the lawmaking process, the article shows how seriously the constitutional law has been taken into account and follows the way political stakeholders and legal experts have disputed and adjusted with one another. It highlights the virtue of process-tracing analysis to understand, how constitutional law frames the political game and determines the path of the law, and conversely how political and legal stakeholders manage to enlist the law to their political enterprise, forcing it to speak against full veils.
STYLES OF JUDICIAL DELIBERATION AND THE REGULATION OF MINORITY RELIGIOUS PRACTICES IN FRANCE AND CANADA
This article proposes an internal perspective on judicial traditions to explain judicial decisions in favor of accommodating or prohibiting minority religious practices such as wearing religious dress in two liberal states with opposing judicial traditions: France and Canada. By comparing the two styles of legal writing and judicial traditions, I show how the Canadian judge, thanks to legal techniques such as contextual analysis, tends to include the minority point of view in its decisions, leading to greater accommodation, while the French judge tends to privilege the majority point of view, leading to the exclusion of the religious minority perspective from its decisions and to subsequent prohibitions of religious dress.
Hervé Rayner et Bernard Voutat
JUDICIALIZATION VS DIRECT DEMOCRACY. THE BAN ON MINARETS IN SWITZERLAND
Launched by UDC representatives with the aim of circumventing political and judicial decisions made at both local and national levels, the 2009 federal popular initiative calling for a ban on the construction of minarets rekindled the stigmatization of Muslims living in Switzerland. Within the prevalent institutional configuration it moreover revived controversies surrounding issues such as direct democracy versus fundamental rights, or "the will of the people" versus "the power of the judges" whether national or international. "Judicialization" is a polysemous concept. It will not be understood here as the transfer to the courts of matters of political significance – in this instance the public regulation of religion – but as a process of juridification (or juridicalization) in which court rulings were constantly anticipated in the political debate provoked by the popular initiative.
THE JUDICIALIZATION OF THE ALEVI ISSUE, FROM TURKEY TO EUROPE
The judicialization of the Alevi issue in three judicial spaces – Turkey, Germany where numerous Alevis have settled, and the ECHR – shows that there is no judicial globalization, defined as a standardization of doctrines, case law, and networks of actors on an international scale. In each context, courts are mobilized by various actors and for different reasons, and lead to various decisions. However, there are circulations and a complex play of cross references between those levels. This, in turn, impacts the way state-religion relationships are negotiated : the normative framework and case law linked to the transnational field of human rights but also to rights obtained in other national contexts provide opportunities for demands by religious minorities, while also shaping the way they can be claimed for in the judicial field.
CONSTITUTIONAL COURTS AS RELIGION-HARNESSING AGENTS. LESSONS FROM ISRAEL AND MALAYSIA
In this paper I examine the evolving role of constitutional law and courts as religion-harnessing agents in Israel and Malaysia – two complex constitutional settings, “ethnic democracies” by some classifications – that occupy the largely uncharted middle-ground between a strict separation of religion and state, and a full-fledged “constitutional theocracy”. As I show, a combination of instrumentalist and systemic factors, most notably the embedded “statist” inclination of the constitutional domain, generate landmark jurisprudence that supports a nationalized, state-endorsed variant of religion and at the same time disarms religion of its radical edge and brings it under constitutional check. As a result, the constitutional domain in these and other similarly situated countries has become an attractive arena for those who oppose the expansion of religion-based morality beyond the boundaries of the canonical national meta-narrative.