Nationalism, Populism, Religion, and the Quest to Reframe Fundamental Rights

39 Pages Posted: 20 Aug 2020

See all articles by Susanna Mancini

Susanna Mancini

University of Bologna School of Law; Johns Hopkins University (SAIS)

Michel Rosenfeld

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: August 19, 2020

Abstract

Liberal constitutionalism has institutionalized secularism and depended on sustaining a clear working separation between religion and the state. The separation in question has varied and was nowhere airtight, but it succeeded in de-politicizing religion and in promoting a pluralistic accommodation of various religions and non-religious conceptions of the good. Institutional secularism has come under increasing attack, however, due to the “re-politicization” of religion in various parts of the world starting in the last decades of the twentieth century. This new phenomenon has been complex and variegated. In some cases, such as in that of Iran, a secular regime has been replaced by a theocratic one; in others, such as that concerning Protestant fundamentalists in the US, religious fervor has motivated strong political organization and deployment with notable policy successes but without thus far altering the basic constitutional order. One of the most salient and far reaching attributes of the re-politicization of religion is its starkly anti-pluralist thrust, which is perhaps best exemplified by contemporary instances of religious nationalism and of religious populism. In both of these cases, what is crucial is not whether or not there is a significant or widespread commitment to religious belief or dogma, but instead the use of religion as the basis for forging identitarian bonds that are strongly exclusionary of those cast as the “Other”. In religious nationalism, national identity is defined above all by one’s belonging to a single (usually majoritarian) religion—whether in terms of religious belief and practice or in terms of embrace of the cultural mainstays associated with the religion in question. Moreover, this religious belonging implies that commitment to other (usually minoritarian) religions is contrary to, or erosive of, the unity or coherence of the imagined community bound together by its own distinct national identity. On the other hand, religious populism as all populism consists in projecting a part as the whole when circumscribing “the people”. Accordingly, the people may be the ordinary citizens led by their charismatic leader against the “elites”; the native born versus the immigrants; a particular ethnic group against all others; and, in the case of religious pluralism, those belonging to one religion as opposed to all those who belong to other religions.

To the extent that nationalism and populism resort to religion to establish markers of inclusion and of exclusion, they seek to stand institutional secularism associated with liberal constitutionalism on its head. However, religious nationalism and populism do not thereby altogether cast secularism away. Instead, they tend to reposition secularism as a conception of the good to better suit their anti-pluralist inclusionary and exclusionary agendas. Furthermore, religious nationalist and populist polities, though illiberal and anti-pluralist, are often committed to honoring human rights and fundamental constitutional rights. Illiberal religious nationalist and populist polities tend to reinterpret those rights though in ways that suit their anti-pluralist agendas. Thus, for instance, Christian nationalists or populists may reinterpret freedom of religion rights in ways that disadvantage or exclude the rights asserted by Muslims. Also, polities dominated by certain religious traditionalists may promote versions of fundamental rights that may well exacerbate discrimination against women and sexual minorities.

The purpose of this article is to examine systematically how religious nationalism and religious populism mount a formidable challenge against liberal constitutionalism and one of its principal pillars, institutional secularism. As a consequence of the challenge in question, religious nationalism and religious populism seek to upend institutional secularism and to replace it where it suits their convenience by ideological secularism. Finally, the article will trace how religious nationalism and religious populism recast fundamental rights to conform with their anti-pluralist aims. This article will be divided into three parts. Part One will concentrate on how nationalism and populism can and have appropriated religion to erect an illiberal and anti-pluralist constitutional architecture and discourse. Part Two will examine how religious nationalism and religious populism undermines institutional secularism and how it seeks to replace it with, and make use of, ideological secularism to further its aims. And, Part Three will undertake a review of a sect number of salient cases and initiatives from many jurisdictions illustrating how human rights and fundamental constitutional rights may be reinterpreted to fall in line with the essential dictates of religious nationalism or those of religious populism.

Keywords: Institutional secularism; Religious nationalism; Religious populism; pluralism; illiberalism

Suggested Citation

Mancini, Susanna and Rosenfeld, Michel, Nationalism, Populism, Religion, and the Quest to Reframe Fundamental Rights (August 19, 2020). Cardozo Law Review, Forthcoming, Cardozo Legal Studies Research Paper No. 617, Available at SSRN: https://ssrn.com/abstract=3677401

Susanna Mancini

University of Bologna School of Law ( email )

Via Zamboni 22
Bologna, 40126
Italy

HOME PAGE: http://https://www.unibo.it/sitoweb/susanna.mancini/en

Johns Hopkins University (SAIS) ( email )

Via Belmeloro 11
Bologna
Italy

HOME PAGE: http://www.jhubc.it/OUR-FACULTY/profprofile.cfm/profid=175

Michel Rosenfeld (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States
212-790-0234 (Phone)
212-790-0205 (Fax)

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