Journal Article

Preliminaries to a concept of constitutional secularism

András Sajó

in International Journal of Constitutional Law

Published on behalf of The New York University School of Law

Volume 6, issue 3-4, pages 605-629
Published in print January 2008 | ISSN: 1474-2640
Published online July 2008 | e-ISSN: 1474-2659 | DOI: http://dx.doi.org/10.1093/icon/mon018
Preliminaries to a concept of constitutional secularism

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Constitutional arrangements, today, are facing the challenge of new forms of strong religion that have the apparent goal of reconquering the public space. These movements’ strategies typically involve Trojan horses designed to smuggle religion into constitutional law by arguing that a democratically achieved religious takeover of legislation, for the purposes of imposing divine command, is not constitutionally suspicious per se. Constitutionalism looks vulnerable to certain claims of strong religion when presented in terms of the free exercise of religion and pluralism. As a first step toward a more robust theory of constitutional secularism, this paper reviews some inherent difficulties of the concept. Constitutionalism relies on the use of the human faculty of reason and on popular sovereignty. The first consideration translates into the duty of public reason giving in law and denies the acceptability of divine reasons; the second precludes any source of law but the secular. A robust notion of secularism, animated by these considerations, is capable of patrolling the borders of the public square.

Journal Article.  11796 words. 

Subjects: Constitutional and Administrative Law ; UK Politics

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