Bulletin n. 3/2010 | ||
January 2011 | ||
Bader Veit |
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Constitutionalizing secularism, alternative secularisms or liberal-democratic constitutionalism? A critical reading of some Turkish, ECtHR and Indian Supreme Court cases on ‘secularism’ | ||
in Utrecht Law Review , Vol. 6, issue 3 , 2010 , 8-35 | ||
In recent debates on the constitutional status of 'secularism' we can discern three positions. The first tries to overcome the absence of 'secularism' in most liberal-democratic constitutions by developing a more robust theory of constitutional secularism. The second develops theories of 'alternative secularisms'. The third, defended in this article, argues that we should drop secularism as a 'cacophonous' concept from our constitutional and legal language and replace it by liberal-democratic constitutionalism. I develop an analytical taxonomy of twelve different meanings of 'secularism' based on a comparative study of Turkish and Indian Supreme Court cases on secularism, and demonstrate that they are incompatible with each other and with the hard core of liberal-democratic constitutions. Next, I criticize the respective rulings in the Turkish and Indian context. Particularly in 'militant democracies', the appeal to a principle of 'secularism' turns out to be inimical to the liberal and to the democratic 'constitutional essentials'. I end with some normative recommendations on the role of constitutional review and judicial activism. Full text available at: http://www.utrechtlawreview.org/index.php/ulr/article/viewFile/138/134 | ||