Comparative Studies on Religious Liberties

Aims

In most countries, some forms of religious liberty are guaranteed constitutionally and encroachments on these rights are effectively protected. But there is a striking diversity in understandings of the nature of religious liberty and, more especially, in properly institutionalized systems of religious neutrality within the state.

The purpose of this course is: (a) to establish the nature of religious liberty and the religious neutrality of the state in legal systems which every student is familiar with, (b) to understand the real diversity which exists on the understanding of religious liberty and state’s neutrality with respect to religion, and (c) to develop the comparative perspective essential to finding effective ways to protect religious liberty in a globalized legal system.

Contents

Looking at the legal principles governing the relationship between state agencies and religious groups, we find a variety of different models: (i) unity of legal and religious rules, (ii) a system of state religion with extensional guarantee of religious freedom, (iii) religious neutrality of the state and recognition of cultural importance of religious groups within public life, (iv) a system of separation of church and state, and (v) laicism. The fundamental principle of religious neutrality is decided in every legal system in accordance with the existing cultural and historical situation and also according to its understanding of personal liberty and conception of democratic process (pluralistic or republican).

In this course, students are first provided with fundamental historical and comparative models (i-v above). Then, some actual cases are introduced (crucifixes in classrooms, ban of Islamic veil in classrooms, state subvention of religious private schools, Christmas trees erected by local authorities, visit of prime minister to war-memorial, etc.). Over the course of the discussions, students are expected to acquire an understanding of the existence of a mutual dependency and tension between religious liberty of the individual and the state’s religious neutrality. On the basis of this understanding, the question of how to resolve the tension will be investigated.

Teaching and evaluation methods

This course consists of lectures, national reports by students, and discussion. After the general introduction, lectures about historical and comparative models will be given. These lectures are supplemented within a week by discussion time in which every student will contribute short national reports. In the latter half of the course, actual problems will be treated, either introduced by the lecturer referencing judicial cases in several countries or introduced in the form of extended national reports by participating students. At the end of the course, students are expected to provide a final report proposing ways of resolving national and global problems and guaranteeing the peaceful coexistence of people with different beliefs.

Evaluation will concern the contributions each student has made in the form of (short/extended) national reports and participation in discussion as well as his/her final report.

This course is open to all students without any requirement of prior knowledge.

Evaluation:

(1) 30% contribution to discussions

(2) 30% national report presented aurally and/or paper-based

(3) 40% written final report (including the core facts presented in (2) supplemented by global comparison, analytical evaluation thereof and future perspectives.

Reading

András Sajó and Renáta Uitz, ‘Freedom of Religion’ in M. Rosenfeld and A. Sajó (ed.), The Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University press 2012

Dieter Grimm, ‘Conflicts between General Law and Religious Norms’ (2009), 30 Cardozo Law Review 2369

Matthias Mahlmann, ‘Freedom and Faith: Foundation of Freedom of Religion’ (2009), 30 Cardozo Law Review 2473

Micheal McConnell, ‘The Origins and Historical Understanding of Free Exercise of Religion’ (1990), 103 Harvard Law Review 1409