Religion on Trial. Interview with Astrid von Busekist
In her book La Religion au tribunal. Essai sur le délibéralisme (Religion on Trial. Essay on Deliberalism, Albin Michel, Paris 2023), Professor of political theory Astrid von Busekist shows that the encounter between state law and religious commandments are more complex than the notorious “wall of separation” suggests. Reflecting on three case studies, Busekist suggests that the confrontation between civil and religious norms can be successfully solved through a pragmatic balance between public virtues and individual freedoms.
Can you tell us about the three cases you work with in your book and how the public authorities dealt with them?
The three cases I have selected allow me to reflect on a variety of different and changing dialogues between the State and the Churches in the broadest sense. I use an inductive approach: I start with the cases and try to understand what exactly happens when “Religion is on Trial”. Judges and parliamentary assemblies sometimes have to make difficult calls, namely when they have to decide whether members of religious communities should be accommodated or not.
The first case involves a Christian evangelical family who preferred home-schooling and refused to send their children to school, while schooling is compulsory in Germany. The German government indeed believes that education entails not only elementary education but should aim at the formation of a democratic will, tolerance, pluralism and dialogue. The constitutional duty to protect children’s autonomy is upheld by the German judges and the European Court of Human Rights against the fear of “parallel societies” such as the Evangelical communities. The parents’ application for “political asylum” in the United States was initially granted and ultimately rejected.
In the second case, a regional court in Cologne, Germany, in a now famous judgement, criminalised circumcision following a minor incident during the circumcision of a Muslim boy by a Muslim doctor. The judges arguably decided that the boy’s physical integrity had been violated without the young boy’s consent. A cross-party initiative supported by the government called for the ruling not to be applied.
The third case is the most complex, bringing together two legal systems: halakha(Jewish law) and civil law. It involves the rules of Jewish divorce, called Get. In the Jewish tradition, it is impossible to divorce without mutual consent, and a Get cannot be given under duress. As it happens, it is usually men who refuse to grant a Get , leaving their wives “chained”. A civil divorce is of little help, as it cannot free the spouse from the bonds concluded in conformity with the “laws of Moses and Israel”. To correct this inequality, common law countries have responded by inventing a system of cooperation between rabbinical communities and civil courts to facilitate get procedures.
Beyond the individual cases, what do these decisions tell us about the relationship between politics and religion?
Each case is a particular version of secularism or laïcité. I show that secularism is not a “thick” concept, it is above al
l a practice, a way of adjudicating pragmatically. Judges interpret the law and respond to specific dilemmas contextually.
Take the case of homeschooling.In the German case, this is a typical instance of separationism. Schools are meant to educate autonomous and tolerant citizens, respectful of pluralism. But the state must justify restricting the parent’s constitutional right to educational freedom and socialisation. The judges ruled in favour of negative religious freedom, namely the right of the child to be protected from its parents’ religion. They also decided that the child should benefit from an “open future”, in other words an unconstrained set of options, including religious ones.
Your book also talks about coexistence, about the possibility to practice your faith in a secularised society…
Yes, typically in the case of the circumcision debate, where an almost impossible balance of principles and values was at stake. The overarching principle of bodily integrity on the one hand, religious freedom, the right to perpetuate obligations of faith on the other hand. In this complicated case the judges had to decide whether the right to physical integrity, self-ownership and the child’s religious freedom outweighed the parent’s religious beliefs and the ritual practices of the communities—Jewish and Muslim. They chose to reason in terms of anticipated autonomy rights: the child’s freedom tomorrow must be protected today. They set aside the fact that circumcision is, for Muslims and even more so for Jews, the symbol of the covenant, the very sign of belonging to a community.
Angela Merkel’s government had understood this, and in light of Germany’s guilty history demanded the issue to be treated with utmost sensitivity: criminalising circumcision meant preventing Jewish life de facto in Germany. The interpartisan initiative ruled in favour of civil peace and a form of civic friendship. They felt that criminalising circumcision was a specific form of injustice that affects both individuals and communities in their integrity as believers and in their dignity as groups. In the book, I analyse the arguments of both sides and conclude that a positive-sum decision has been reached, respectful of the obligations of faith and of pluralist, multiethnic and multifaith democratic coexistence.
A fine example of the interplay of norms that I have labelled composition of norms.
Can dialogue and compromise really solve all conflicts over religious issues in a democracy?
No. And I’m not overly confident in dialogue and compromise in general. But I do believe in pragmatic reason: what can and should be accommodated without denying the underlying values of liberal democracies? I believe that playing with norms does not mean giving up on norms, nor carving out exceptions or accommodations: sometimes playing with the rules, within reasonable limits of course, realises important values of egalitarian liberalism itself.
Consider the New York Get laws. The Getis a problem posed by the Jewish lawthat only the Jewish lawcan solve. In principle, civil law has nothing to say do about religious divorce issues, neither Jewish, Muslim not Catholic. So why does the legislator intervene? The legislator does not act on their own; they cooperate with the Rabbinate. In other words, the representatives of two different normative orders without renouncing any of their respective principles, constitutional or halakhic, have found a common ground and a common interest. That is the beauty of this joint initiative: it serves both the citizen and the believer.
For the legislator equality between women and men qua citizens outweighs the husband’s religious freedom qua believer. This may run contrary to the well-entrenched principle of freedom of conscience, but I show that this hierarchy of principles is legitimate from a philosophical, legal, and political point of view. Why so? Because if it were otherwise, the standing as citizen would be corrupted by religious affiliation: the Jewish wife would suffer legally and politically because of her religious identity. That cannot be fair and is certainly non in line with egalitarian liberalism.
This is typically a case of cooperative pluralism, a kind of a successful philosophical-legal dialogue between the state and the representatives of rabbinical communities agreed upon ex ante. The transaction is a successful translation: the actors agreed to translate their laws into the language of the other legal code.
What do you call deliberalism?
As the term suggests, deliberalism is the encounter between democracy and liberalism; between our moral obligations as individuals and our legal obligations as citizens. I try to requalify liberalism through this confrontation with democracy, recalling that the encounter between the two “doctrines” came about late and not without frictions.
My aim was to conceptualise the following idea: our freedom is constrained by the freedom andequality of our fellow citizens. The classical no-harm principle (Liberty consists in the freedom to do everything which injures no one else) seems to do too little work. I suggest adding another principle: Liberty and equality consist in not harming our collective endeavours in a democracy. This is a broader principle that includes the protection of groups and their obligations of faith (under conditions that need to be pragmatically decided upon). My claim is that the combination of the two principles is key to reciprocity and civic friendship.
“Deliberationists” are committed to dialogue and compromise and want issues to be solved pragmatically. They may accommodate a little beyond the threshold of our secularist expectations, but they do so with the hope to foster civic friendship. They may at times resist accommodations or exemptions, but they do so in the name of public reason and fair distribution of voice in the public sphere. In short, deliberalism is a doctrine of the fair balance between equality and freedom in liberal democracies.
It is certainly not a failproof recipe, but rather a realistic vision of the many imperfections of our democracies; a way of recognising that we must measure the respective merits of equality and freedom contextually; and the certainty that a fair pragmatism is within our grasp. Deliberalism may cure the tensions that so often arise when we discuss questions of faith and the role comprehensive doctrines should actually play in liberal democracies.
Interview by Corinne Deloy, translated by the author.
Illustrations copyright: banjongseal168 (first illustration) and Jacqueline F. Cooper (second illustration) for Shutterstock
