Religion and Constitution Making in Comparative Perspective
Chapter written for: Handbook on Comparative Constitution Making, Edited by David Landau and Hanna Lerner, Edward Elgar (2019 Forthcoming)
32 Pages Posted: 1 Mar 2019
Date Written: February 10, 2019
The chapter reviews some of the key questions that arise in constitution-writing concerning the relationship of state and religion, including in religiously-divided societies. We begin by addressing the question of why the regulation of religion-state relations in constitutions presents a distinctive set of issues worthy of study. While religiously-divided societies have received comparatively less scholarly attention, compared with ethnically-divided societies, there is a growing agreement that the issues raised by religious divisions may require distinct strategies in terms of institutional design and other potential strategies. Second, we analyze the differences between constitutional debates that occur under two distinct types of religious divisions—inter-religious divisions between different religious groups and intra-religious divisions between more conservative and more liberal members of the same religion. We discuss the different sets of constitutional tools that constitutional drafters have developed in addressing the two types of religious divisions and the conflicts they engender. Finally, we turn to canvassing some of the constitutional design tools that have emerged from cases outside of the western context where religion is a central axis of constitutional debate. The growing comparative work on constitution making in societies marked by religious conflict reveals a variety of constitutional strategies, which we have divided into three categories, each with its own advantages and limitations: (A) institutional solutions such as federalism, special groups rights, power sharing or other institutional design tools which often applied in the context of inter-religious tensions, (B) incrementalist strategies including avoidance, ambiguity, deferral and nonjusticiability which are often used by drafters to address intra-religious conflicts, and (C) legal pluralism, which even if not formally entrenched in written constitutions, may be regarded as an essential constitutional strategy for both inter- and intra-religious conflicts.
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