Constitutionalizing Secularism, Alternative Secularisms or Liberal-Democratic Constitutionalism? A Critical Reading of Some Turkish, Ecthr and Indian Supreme Court Cases on ‘Secularism’

28 Pages Posted: 26 Nov 2010

Abstract

In recent debates on the constitutional status of 'secularism' we can discern three positions. The first tries to overcome the absence of 'secularism' in most liberal-democratic constitutions by developing a more robust theory of constitutional secularism. The second develops theories of 'alternative secularisms.' The third, defended in this article, argues that we should drop secularism as a 'cacophonous' concept from our constitutional and legal language and replace it by liberal-democratic constitutionalism. I develop an analytical taxonomy of twelve different meanings of 'secularism' based on a comparative study of Turkish and Indian Supreme Court cases on secularism, and demonstrate that they are incompatible with each other and with the hard core of liberal-democratic constitutions. Next, I criticize the respective rulings in the Turkish and Indian context. Particularly in 'militant democracies,' the appeal to a principle of 'secularism' turns out to be inimical to the liberal and to the democratic 'constitutional essentials.' I end with some normative recommendations on the role of constitutional review and judicial activism.

Keywords: Constitutional Secularism, Liberal-Democratic Constitutions, Constitutional Review, Margins of Appreciation, Militant Democracy

Suggested Citation

Bader, Veit, Constitutionalizing Secularism, Alternative Secularisms or Liberal-Democratic Constitutionalism? A Critical Reading of Some Turkish, Ecthr and Indian Supreme Court Cases on ‘Secularism’. Utrecht Law Review, Vol. 6, No. 3, pp. 8-35, November 2010, Available at SSRN: https://ssrn.com/abstract=1714323

Veit Bader (Contact Author)

University of Amsterdam ( email )

Spui 21
Amsterdam, 1018 WB
Netherlands

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