28 November 2012


'Post-Secularism or Liberal-Democratic Constitutionalism?' by Veit Bader in 5(1) Erasmus Law Review (2012) comments that
The increasingly fashionable concept and framing of post-secularism aims to construct simplistic dichotomies and clear-cut ruptures between pre-secular, secular and post-secular ages or epochs, in order to paint generalised and homogenised pictures of societies and their inevitable evolution. This conceptual strategy drastically reduces, or even neglects, historical contingency and societal complexity. Against the background of a brief reflection on thepossibilities and limits of a transcultural and transhistorical concept of religion, this article engages in a critical discussion of ‘Secularisation and the Conditions of Post-Secularism’ from a sociological point of view and critically reflects on some of the ‘normative issues of how citizens’ of a ‘post-secular society should understand themselves’. In this regard, the main assertion is that we should opt to drop both secularism and post-secularism from our constitutional and legal language, and replace it with priority for liberal democracy or, more specifically, with liberal-democratic constitutionalism.
The article offers a perspective on Habermas' 'Notes on Post-Secular Society' in 25(4) New Perspectives Quarterly (2008).

Bader comments that
Secularism denotes a family of concepts such as secular, secularity, secularisation, and secularism, with regard to institutions, social processes and politics, principles, and meta-narratives. In order to understand these different meanings and their relationships, we have to disaggregate or disentangle this cluster and, in doing so, we have to use ordinary constitutional or legal language instead of treating it as a poor proxy of secularism. In a detailed analysis and criticism of Indian and Turkish constitutions and jurisprudence, twelve different meanings of secularism have been established. This analytical taxonomy, which could also be derived from constitutions and court rulings in other countries, serves a dual aim. It helps to clarify our semantic understanding, and it allows for the discussions of our normative disagreements on LDC [liberal-democratic constitutionalism] point by point, instead of mixing everything up. This article moves from rights and institutions, to principles and to meta-narratives or deep justifications.
Secularism 1: Secularity of the state or the autonomy of the state from (organised) religions.
Any decent and, a fortiori, any minimal liberal state, requires a certain threshold of institutional, organisational, and role autonomy, which is incompatible with theocracy and the replacement of state-law by encompassing religious law. This may be the least contested meaning of secularism. Yet it is also obvious that Western states were not secular in early modernity, that even nowadays none of the existing states is strictly secular, and that so-called secular states, such as Nazi Germany, the Soviet Union, Cambodia under Pol Pot, Iraq under Saddam or Libya under Khaddaffi, have violated minimal morality as often as, or even more so than, so-called religious states. Thus, the and the tricky issue involves spelling out the minimal threshold of differentiation of state, or even politics, from religion, since strict separation is, as we have seen, a non-starter.
Secularism 2: Equal associational freedoms and collective toleration.
LDC requires not only this first autonomy, but also a second autonomy of religions from the state, which is extensively violated by self-declared secular states (such as France and Turkey) through massive state-supervision and -control of religion. This version of secularism 1 is inimical to external and associational religious freedoms, and clearly incompatible with liberal constitutionalism 1. Collective toleration and associational freedoms are clearly not modern, liberal inventions, but liberal constitutionalism additionally requires equal legal associational freedoms and non-discrimination, not fully guaranteed in pre-liberal arrangements (e.g. in the Ottoman Empire).
Secularism 3: Freedom of conscience and individual religious freedoms.
The protection of freedom of conscience and of individual religious freedoms against the state, against all majorities – secular as well as religious majorities – and against all minorities (and their organisations) is a specific modern requirement of liberal constitutionalism 2. Yet, individual and associational religious freedoms are often in tension with each other, and this inherent tension between liberal constitutionalism 1 and 2, or in more common language, this conflict between individual and collective religious rights, is often neglected or downplayed in three ways. Firstly, by declaring religious freedoms as primarily a matter of individual conscience in the private sphere, and neglecting or severely curtailing external and associational freedoms. Secondly, by massive and illegitimate state intervention in the internal affairs of religious associations even in core issues of belief and practice. And thirdly, by doctrines and practices of unconditional or absolute deference that do not protect even the most basic rights of minors, women and dissenters within majority or minority religious groups and organisations.
Secularism 4: Protection of religious minorities against unbound democratic majoritarianism.
Liberal Constitutionalism, in addition, requires the protection of individual and associational civil rights and of minority rights. As such, it is generally incompatible with unbound democratic majoritarianism: liberal-democratic constitutionalism is constitutional democracy, not only majority rule. This liberal constitutionalism 3 is particularly important in two situations: Firstly, in cases of aggressive secular majorities – and even more so in cases of aggressive secular ruling elites not forming majorities, as in Turkey – threatening to seriously restrict equal religious freedoms of religious majorities and minorities. Secondly, in countries with potentially or actually totalistic, illiberal religious majorities which threaten – by majority-decision – to restrict equal freedoms from religion (of secular or non-religious people) not to believe and practice any religion, as well as the freedoms of religious minorities. Liberal Democracy is, as we should know, a fairly late historical and theoretical compromise of freedom and democratic equality, full of internal tensions.
Before turning to democratic constitutionalism, let me point out that these four pillars of liberal constitutionalism are phrased here in traditional constitutional terms; calling them secularism 1 – 4 clarifies nothing, and brushes over the tensions and incompatibilities between liberal constitutionalism and secularism.
Secularism 5: Popular sovereignty and protection against political discrimination: political secularism or secular democracy.
Modern democracy, again different from ancient, but also from classical, liberal democracy, stands for vox populi vox dei, for equal political status of all citizens and for equal political rights in opposition to all ascriptive discriminations, particularly on religious grounds. This is often called political secularism or democratic secularism. As in the case of the secularity of the state, one can call any democracy that does not discriminate on religious grounds a secular democracy. Thus, modern democracy is secular by definition, indicating popular sovereignty, or the condition that all defenders of absolute truth-claims, religious as well as secular ones, have to solve their respective fundamentalist dilemma that their absolute truths are treated as opinions when it comes to democratic decision-making. Yet, identifying secularism and democracy, or declaring their deep harmony, makes it impossible to see and investigate serious tensions. In my view, secularism can be, and actually is, inimical to modern, democratic constitutionalism, at least in four regards, and ironically, all these serious restrictions of democracy are legitimised as being necessary in order to defend democracy.
Firstly, modern democracy requires a free and equal political process and multiparty competition, and these minimal institutional requirements of democratic constitutionalism 1 have often been violated by secularism as an aggressive, elitist strategy of modernisation (e.g. by Kemalist secularism). Secondly, massive restrictions on the freedoms of political association, prohibition of political parties and dismissal of elected MPs, assemblies and even elected (state-)governments by militant democracies, such as Turkey or India, are inimical to this second core element of democratic constitutionalism. Thirdly, free speech, its third core element, is often violated or seriously restricted by secularism-restraints (see secularism 6). Fourthly, many varieties of foundationalist secularism (10 -12) are inimical to its fourth core element, the pluralist, non-foundational character of modern democracy.
Secularism 6: Freedoms of political speech or exclusivist secularism?
Freedoms of political communication, particularly of political speech, are the core of a liberal understanding of modern democracy, as opposed to elitist, majoritarian or statist restrictions. Restrictions on public reason or political speech by excluding religious reasons (as still defended by Habermas, see above) extend beyond legitimate restrictions on grounds of incitement to violence and serious discriminatory speech. Exclusivist secularism (in politics, law, constitutional jurisprudence or philosophy), incompatible with liberal democracy and inclusive secularism, does not clarify the issue: at stake is not the secular or the religious character of speech, but whether or not it presents a clear and present danger or seriously discriminates.
Secularism 7: A social or a socialist state?
Many constitutions require the state to be a social or even a socialist state (e.g. India), but what has this to do with secularism? On the one hand, one might say that the guarantee of basic subsistence rights (not just charity) to all citizens/residents should not allow for religious or all other ascriptive discriminations or exclusions. Yet, on the other hand, LDC seems compatible with a wide institutional variety of welfare regimes (faith-based providers amongst them) whereas secularism would require state-provision only, excluding faith-based welfare provisions.
Secularism 8: Strict separation?
Strong or moderate, benevolent, ameliorative secularism? In terms of institutional arrangements, the principle of secularism seems void and indecisive, allowing for both strict separation as a non-existent utopia (strong secularism), as well as various existing or alternative forms of selective cooperation between states, politics and (organised) religions. Does LDC require one state-law only for all citizens/residents, as strong secularism holds (as the Turkish Constitutional Court, endorsed by the Grand Chamber of the ECtHR in the Refah case 2003 declared), or is it compatible with limited opportunities for religious legal pluralism in marriage and divorce law under conditions of freedom of entry and exit and voluntary choice of law (of limited scope), and of state guarantee of basic interests and rights (as a whole variety of weaker versions of secularism suggest)?
Secularism 9: Strict neutrality or relational, inclusive neutrality, principled distance?
Strict equality or fairness as even-handedness? Second order principles are unavoidable; yet, highly abstract and indeterminate meta-rules (expressing something like the constitutional creed or faith), which may help interpret and balance conflicting legal principles and rights. The issue is whether secularism in general (or secularism-as-strict-neutrality and strict equality) contains the right principles in this regard, or wether these principles should rather be reconceptualised as relational or inclusive neutrality, or as fairness as even-handedness in cultural and religious matters (as I have argued with Carens, Bhargava, Ferrari and others).
Secularism 10: Ethical secularism?
Though modern, pluralist democracy cannot be strictly anti-perfectionist, it should be as anti-perfectionist as possible; it should not explicitly privilege a specific way of leading a good life (e.g. a comprehensive liberal ethics or a secular, humanist ethics as a supreme way of life). Ethical secularism (as declared by the Turkish Constitutional Court) – distinct from political secularism – is surely incompatible with LDC.
Secularism 11: Foundational or justificatory secularism?
Liberal-democratic constitutionalism does not require any deeper, metaphysical, philosophical or theological, normative foundation. Modern, pluralist liberal democracy is an open project helping to prevent the political form of a society from being seen as the realisation of a transcendent vision or an ultimate philosophical foundation. Secularism, also in this regard – e.g. the exclusivist claim of an independent political ethics mode (from Bayle and Spinoza to Habermas – see above) – is rather parochial (secularist or humanist enlightenment exclusivism), and potentially or actually inimical to liberal-democratic constitutionalism.
Secularism 12: A generalised meta-narrative or symbolic universe?
LDC thrives through competing symbolic universes (i.e. overarching cognitive and normative views of the cosmos, nature and society), and constitutionalising secularism as a meta-narrative of rationalism, science, modernisation or civilization (as in Turkey or India) is incompatible with the open character of pluralist democracies. It induces Contitutional Courts to declare rationalism or scientism as a general foundation and/or universally accepted ideal, to construct all religion as dogmatic and inimical to humanity, civility, freedom, democracy, and to speculate on the true, essential meaning of religions by declaring all contrary official statements of religious parties and representatives as a pretext.