SOME THOUGHTS ON THE CURRENT CRISIS OF THE CONCEPT OF “RELIGIOUS FREEDOM”

By Grégor Puppinck, Ph.D | July 18, 2011

The concept of religious freedom, such as it has been developed in the second half of the twentieth century, is in crisis. Its validity as a universal principle is openly called into question. This challenge is not only the case for Muslim countries, but equally Orthodox countries and even the West. This is a legal crisis, clearly traceable through the evolution of positive law. However, this legal crisis is itself a manifestation of a deeper crisis.

The concept in question is that developed by the major post-war legal declarations, such as the Universal Declaration of Human Rights. The legally-protected religious liberty has both “positive” and “negative” aspects: it is an individual liberty from coercion which obliges or precludes from acting according to their conscience. This immunity from all coercion protects a liberty of value-neutral action, that is to say, without reference to property or certainty. This liberty is considered as universal because it is founded on human nature, and it is imperative as it is the expression of one of the aspects of human dignity. This positive law of religious freedom finds its source in the individual, autonomous conscience, and then, with its social events, it spills over (or overflows) into the public sphere.

This concept of religious freedom presupposes religious neutrality in societies: as only individuals have consciences, only they deserve the protection of their free exercise of conscience. As liberty is judged to be good by nature, constraint is then considered as intrinsically bad, a threat to liberty and ultimately, to dignity. So it is necessary to neutralise, that is to say deny, both the religious dimension of societies and the social dimension of religions to liberate the social space for the free exercise of the individual conscience. This denial applies to all societies and intermediary bodies: the nation, the family, schools, media etc. That is one of the principal causes of the crisis of the modern notion of religious liberty: this notion is based on a person with a conscience supposedly infallible by nature and evolving in a society conceived as value-neutral. But in fact, no society has a value-neutral public space, and the religious cannot be reduced to the individual, just like religion cannot be reduced to individual faith. This theory faces more than ever the social reality of cultures scarred by religious tensions. The identity crises, in their religious dimension, that pass through western and eastern Europe as well as Muslim culture countries, indicate that the social dimension of religion cannot be ignored forever. Socio-religious identity of a society cannot be durably “neutralised”: it can be denied, challenged and replaced, but not neutralised.

The challenge of validity of the modern conception of liberty of religion takes diverse forms depending on whether one is in the West, or the orthodox or Islam cultures. It seems that this challenge is always linked to the decline of the western model and the resulting reconstruction of identity. In the West, this challenge is also linked to the identity issue, but as an identity preservation against islamisation.

Most of Muslim countries have only reservedly accepted the international instruments which recognise religious freedom, especially the freedom to change religion which does not exist in muslim law. At the centre of these international institutions their dispute of religious liberty now takes the form of policy coordinated by the Organisation of the Islamic Conference and organised around concepts of defamation of religions and islamophobia. These concepts tend to justify the integration of the islamic public order into international law, submitting the public exercise of liberties, particularly of expression, in the duty not to offend islam and muslims. International law, such as it has developed since after the war, founded on an individualist conception of man, struggles to understand islam as a fundamentally political and community-based religion.

In the orthodox countries, we are now witnessing a reaffirmation of identity, which goes by the rediscovery of the national religious tradition and tries to defeat the Western model. In fact, the wall of separation between religious and civil spheres disappears to restore collaboration for the common good. Both the Orthodox churches and the civil authority consider these interventions as legitimate; they do not understand that this collaboration was tried and condemned by the Strasbourg Court as an intrusion of politics into religion. Again, it is the reaffirmation of the religious dimension of society and the social dimension of religion that led to questioning of the modern approach to religious freedom.

If the West, since the end of World War two, legally lives in a regime of religious freedom, in fact, it’s more a regime of simple religious tolerance that we have experienced, because religious minorities are less visible and did not claim to alter the religious identity of the nations to where they immigrated. The recent islam presence forces the Western countries to take a position. This choice is not only establishing a philosophical position on freedom and dignity, but has real major consequences for western identity.

There is no doubt that Europe is moving toward larger secularism, on one hand to preserve the public space which is seen to be threatened by islam. On the other hand it promotes a certain cultural model in which the absence of values (neutrality) and relativism (pluralism) are values in themselves supporting a political project which sees itself as post-religious and post-identity. This political plan has a monopolistic claim as a philosophical system.

The limits of the areligious public domain, that is to say, the secular domain, are extending more and more: it is not only the administration and the public establishments who are void of religious expression, but also the street, as well as the media. By extension to the street, the secular domain progressively covers the public space and in fact, actual society. Also, the inability of the modern conception of religious freedom to grasp the non-negative social dimension of religion and the religious dimension of society has meant that secularism is progressively extending to the rest of society as a whole. This extension is contrary to the initial intention of religious freedom. In the 20th century, this concept declared to protect society from State atheism. It has become an instrument of the social de-legitimisation and privatisation of religion, or in other words, secularisation. Religious liberty results in the paradox of claiming to protect freedom of religion by erasing religion from society. It turns against religion by justifying- and sometimes even forcing- the erasure of collective, natural religiosity from any society. The social domination of a religion, having been justified by historic reasons, is seen more and more as abusive and illegitimate in the world of pure individual conscience -which is felt to be necessary for the full exercise of religious liberty. This explains why (social) liberty of religion is more and more reduced to simply (personal) liberty of faith, in other words the freedom to have a private belief. However to limit religious liberty to protect the public sphere or the mere liberty of faith leads to the suppression of social and cultural conditions conducive to the realisation of the act of faith.

The contemporary limitation of religious liberty in the West, is accompanied by a shift of philosophy: religious freedom is no longer considered a natural right, primary or fundamental, issued directly from ontological dignity of the human being. It is currently considered to be a secondary right, derived from ‘the ideal of democratic pluralism’ which societies should aim to achieve. It is a conceptual reversal. Emanating from a right finding its source in the individual conscience (supposedly untouchable in its subjectivism) and acting against the collective identity (supposedly oppressive in its determinism), we turn to an individual right arising out of a society that is supposedly neutralized. The expression of religious convictions is then governed by the requirements of a public order equated to the pseudo-neutrality of a collective, pluralistic identity.

Finally, the modern conception of religious liberty does not resolve the problem of the misuse of that liberty, but entrusts only in the State the power to judge religious actions according to its contingent concept of public order. Although we wanted the individual conscience to triumph over the State, the apotheosis of the relativism has led to the structural establishment of the domination of politics over religion.

Confronted with this situation, we are generally torn between two temptations: we are tempted to take the side of religions and fight against secularism or hide behind the veil of secularism (laïcité) in the hope that this preserves Western culture. These two attitudes are pointless: they build a communitarianism in an illusory relativism or oppress to maintain a secularism that is against nature.

From a political standpoint, a realist approach to religious liberty, re-grounded in the cultural reality, must be adopted. The reactions of European culture against certain aspects of islam, like the ban on minarets, excision, polygamy or the burqua, show that we could already follow this direction. This implies there should be a rethink of the social dimension of religion and the religious dimension in society, which are not oppressive by nature, at least concerning Christianity. It must be politically possible to overcome the excessive religious indifference of the State, not in terms of truth, but through the cultural tradition. Christianity -whether we believe in it or not – possesses, in the countries of Christian tradition in particular, more public legitimacy than other religions, thus justifying a differentiated approach when necessary.

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