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Europe is confronted with the challenge of religious and cultural diversity and does not know how to face it. Freedom of religion is at the center of the debate: some want to restrict it in the name of security and national identity, others believe that the peaceful integration of the faithful of the new and minority religious communities can be attained only if they are completely free to profess and practice their religion. I think that the problem has much deeper roots and cannot be solved focusing on freedom of religion only.
Religious freedom is part of a larger set of rights, obligations and responsibilities. Taken all together, they constitute the horizon of options that State law offers to all citizens and residents to shape their life according to their choices. Enlarging this horizon and extending the number of legal options among which people can choose on equal footing is much better than imagining a system of religiously inspired personal laws, where people of different religion can follow different rules and apply to different courts in matters concerning their personal status.
What I mean with “enlarging the horizon of options that are available to all citizens and residents” can be explained with reference to family law.
“Religious freedom is part of a larger set of rights, obligations and responsibilities.”
In the last 30 years, family law underwent an impressive process of transformation in many European countries. In some of them this change resulted in the pluralization of the legal patterns of family formation, giving citizens the possibility to choose among opposite- and same-sex marriages, civil partnerships, domestic unions and other forms of family relationship. In different ways, the same process of pluralization affected the dissolution of marriage and adoption. Gender, rather than religion, has been at the heart of these transformations and answering gender diversity has been the goal that States pursued through the reform of family law. I wonder whether the same process can be replicated to address the issue of religious diversity, enlarging the internal pluralism of State family laws to give people of different religions the same variety of family patterns that has been granted to people of different sexual orientations.
What would be the practical implications of this choice is widely discussed. Some advocate the extension of the area of individual autonomy, allowing spouses to enter into prenuptial arrangements that can accommodate their religious demands. Others place the accent on mechanism of mediation and arbitration that grant citizens the right to choose between the jurisdiction of State courts and alternative disputes resolution procedures and institutions. A few scholars go one-step farther and are in favour of enlarging the range of marriage models offered by State law, for example ensuring the possibility to conclude covenant marriages as already happens in some parts of the United States. Each of these proposals raises a number of serious questions that concern public order, equal treatment, and the rule of law. However, the weight of these reservations should not detract from the significance of these enlargement strategy, whose main point of interest is
“religious diversity in Europe is not a threat to be contained through special group rights but an opportunity to build a more inclusive European public space.”
the fact that it is not reserved for the members of a religious group but is open to all citizens. These reforms of family law aim to answer the needs of the whole society instead of those of particular groups, starting from the principle that the increasing religious diversity in Europe is not a threat to be contained through special group rights but an opportunity to build a more inclusive European public space. Here is the main difference between the notion of freedom of religion that developed in Europe, and more generally in the West, and the models of religious freedom that are prevalent in other parts of the world. Leaving aside those countries where there is little or no religious freedom, in the latter freedom of religion is granted through diversity, maintaining systems of personal laws that allow citizens to enjoy different civil (and sometimes even political) rights according to the religion they profess. In Europe, freedom of religion has been granted through equality, discarding the regimes of religiously-based personal laws that were in force until the 18th century and replacing them with a uniform legal system.
If we want to answer the challenge of religious diversity in a way that is coherent with the European legal heritage, we need to reflect on this difference. In Europe religion has become irrelevant in reference to the enjoyment of civil and political rights granted to all citizens on equal terms, while it remains fully relevant for building a lively civil society. In this context, social and legal conditions that reflect the increasing religious diversity without creating different classes of citizens are required. This means that the inclusivity of the public sphere must be assured not through a system of personal law regimes but through reforms that grant the pluralization of the legal options offered to citizens by the States’ legal systems. Some scholars have underlined that these reforms are an expression of “weak legal pluralism” as opposed to forms of deep legal pluralism where “members of certain communities function in accordance with their own legal norms”. This “weak” pluralism is fully compatible with the European legal tradition and does not entail a differentiation of the rights enjoyed by citizens according to their religion. On the contrary, forms of “deep” pluralism would run against this tradition and would require a differentiation of rights and obligations based on the religion professed by each person, something that has been extraneous to the European legal systems since about two centuries.
In conclusion, the questions posed by religious diversity to our legal regulation of freedom of religion go well beyond the need to reduce the disparities between majority and minority religions and to recognize the role that religion can play in building an inclusive and cohesive society, as rightly suggested by the “Living with difference” report. They require a much deeper and extensive reconsideration of how much freedom our laws have left to individuals and communities to shape their lives according to their religious (or non-religious) convictions within the framework of the same legal system.
|Silvio Ferrari is Professor of Law and Religion, University of Milan and Catholic University of Leuven. Visiting professor at the University of California, Berkeley, (1994 and 2001), at the Institute for Advanced Legal Studies (London, 1998-1999) and at the Ecole Pratique des Hautes Etudes (Paris, Sorbonne, 2004). His main fields of interest are law and religion in Europe, comparative law of religions (particularly Jewish law, Canon law and Islamic law) and the Vatican policy in the Middle East.|
To cite this article, please use the following: Ferrari, Silvio. (2017) ‘The transformations of freedom of religion and belief: reflecting on Europe today’, Public Spirit (Jan, 2017: http://www.publicspirit.org.uk/?p=4604&preview=true)