Religion in the grip of the law

5This hypothesis primarily stems from empirical evidence. Whoever seeks to investigate this dimension of social life today can hardly do so without confronting the question of justice and the law. Religion is in the grip of the law. Of course, religion has always been subject to legal regulations, including within religious institutions themselves. However, this judicialisation seems to be on the rise. Legal research’s renewed interest in religious matters attests to this phenomenon, as does the discipline’s move towards creating a new field of legal specialisation. [10] If this is indeed the case, it is due to the fact that the law, its makers and implementers – from legislators to street-level bureaucrats – are increasingly forced to take a position on religious matters. Legal intervention is on the increase, as seen in the global proliferation of new laws concerning the wearing of the veil, while circulars, guidelines and charters all seek to codify best practices. As for the courts, whether their jurisdiction is constitutional, administrative, civil, criminal or even labour-related, they are likewise increasingly asked to rule on religious questions.

6Not only is the public regulation of religion increasingly becoming a legal matter, but it is also becoming more judicialised. Civil law countries are not exempt from this phenomenon, despite being traditionally more “legicentric” than common law regimes. The judicial arena has become a prime battleground for advocates of contradictory attitudes to religion, and its place in private life, public space and the political system. Since the 1990s, national supreme courts have thus been required to intervene in debates whose impact very often went beyond the courtroom’s walls. Many such cases were the subject of national discussion, including legal conflicts regarding the veil (in France and Germany), the presence of crucifixes in classrooms (in Bavaria and Italy), the construction of minarets (in Switzerland), circumcision (in Germany), the religious classification of groups, like the Jehovah’s Witnesses, that were alleged to be cults (in France), and the revival of religious courts with authority regarding family law (in Canada). But these highly symbolic controversies are sometimes only the tip of the iceberg, merely attesting to the more and more frequent use of the legal arena – by both religious actors and their detractors – to fight for what they believe to be their rights, stemming from contradictory worldviews.

7Far from taking place in a vacuum, neatly contained within national borders, as was the case, for example, for the controversial debates surrounding processions and the ringing of church bells at the beginning of the twentieth century in France, today’s conflicts have become international. A certain number of recent court decisions demonstrate that litigants no longer hesitate to bring a case before international courts, as can be seen in recent case law from the European Court of Human Rights (ECHR) and the United Nations Commission on Human Rights. [11] The consolidation of human rights in positive law, the proliferation of international declarations, covenants and charters, and the creation of bodies such as the United Nations Commission on Human Rights and systems of regional protection, including the Strasbourg Court, all represent a new legal opportunity structure making new resources and battlefields available. Individuals, now subjects of international law, have new access to tools enabling them to claim their subjective rights, consequently challenging the hitherto dominant superposition of individual rights, state affiliation and national identity. The legal arena is thus not simply one possible stage where the institutional checks and balances governing the relationship between public power and religion, state law and religious rights, and the legitimate position of religion in civic life are discussed: it represents a testing ground for national models of public religious regulation.

8If public regulation of religion is becoming an increasingly legal affair, this is evidently because religion is seen as a fundamental freedom. As such, it constitutes a symbolic stake when liberal democracies try to reconcile various freedoms with the preservation of the core values that guarantee the cohesion of national societies. But the law is also an important element in struggles and negotiations between those, both citizens and political leaders, who seek to define the rightful place of religion in the public sphere – and even at times in the private sphere. These redefinitions do not solely entail drawing a line between what is allowed and what is forbidden: they also have a highly symbolic dimension, [12] and many actors have highlighted the role that the law plays in weaving the social fabric, thanks to its effects of naturalisation, universalisation and legitimisation, [13] as well as its ability to influence our perceptions of the world and forge a “public consciousness” distinct from private ones. [14]

Moving towards the broader phenomenon of judicialisation

9Far from being specific to religious issues, growing recourse to the legal arena illustrates the role that justice plays in how public affairs are conducted today, thus providing our second reason for focusing on the court system. In political science and socio-legal studies more particularly, the process is commonly referred to as “judicialisation” [15] (or “judiciarisation”, to use the expression prevalent in French academia since the 2000s). [16] We should nevertheless nuance this popularly employed term, [17] lest confusion ensue. First of all, it is important to specify that, while judicialisation is a by-product of juridification, it is neither an automatic nor necessary consequence of the latter, but simply one of the possible forms of its expression. Hence the importance of making the distinction between the two. Next, we must emphasise that this term does not always refer to the same dimensions. A first dimension of judicialisation that is particularly prominent in English-language studies – and this is precisely the meaning given to the “judicialisation of politics” – exclusively applies to the rise in power of the judiciary and the effects of this on the legislative branch. [18] This trend is often seen as stemming from the unprecedented globalisation of the rule of law, a global evolution thanks to which judicial review procedures have been widely adopted (that is: constitutional review as exercised by a system’s higher courts). [19] A second dimension, mainly occurring in “realist” theories in political science and French studies, nonetheless differs from this restrictive interpretation, also called “constitutional politics”. In fact, phenomena as varied as the increasing recourse of social actors to legal proceedings; the growing criminalisation of social behaviours; and the penal responsibility of the political class are also associated with it; as are, conversely, the ability of political elites to exempt themselves from certain public choices and democratic deliberations by placing decisions in the hands of the judges. [20]

10Finally, we should emphasise that evaluating the scope of this phenomenon is not only the topic of debates which combine normative and theoretical considerations, but is also the object of ambivalent interpretations by authors. An optimistic interpretation of judicialisation, which appeared in the wake of the civil rights movement, views this phenomenon as strengthening democracy. [21] Some authors, especially legal experts, even go so far as to glorify an evolutionist view of judicialisation, one which entails a bright future where rights triumph over force. But for pessimists, this perspective is an illusion. The judiciary’s rise in power is seen by them as carrying the seeds of a “government of judges” that would be harmful to representative democracies and/or would evolve towards an unequal and exclusive “juristocracy” [22] serving to enshrine the interests of a hegemonic elite. This debate also runs through studies analysing the benefits for social movements of using the legal system. Among the pessimists we find those who believe that this kind of strategy benefits the “haves” more than the “have nots”, [23] or that a legal ruling, no matter how remarkable it might be, does not bring about change. [24] The optimists in this debate have a less definitive position when considering the positive impact that the use of the judicial system can have, even when it is negative, on social movements. [25]

11Whatever the extent of this phenomenon, public regulation today must deal with greater judicial interference. In this context, the judicialisation of religion must be viewed as reflecting the reconfiguration of the political landscape, adding complexity to the “chains of cooperation and interdependence” between the various categories of public actors. [26] Adopting this broader view of judicialisation, this thematic issue seeks to investigate the aforementioned changes in the political sphere as reflected in the public regulation of religion. Our goal is therefore not to determine whether we are now seeing redistribution among the branches of government, which would amount to essentialising the alleged boundary that separates them. Rather, on the basis of specific situations, we shall explore how actors, both the governing and the governed, concretely manage this new political landscape, pitting their worldviews against one another and exploiting the resources resulting from institutional reconfigurations stemming from judicialisation.

Observing the national effects of legal globalisation

12This goal necessarily goes hand-in-hand with an analysis of the consequences of legal globalisation such as it has occurred since the Second World War, and in which certain political scientists and sociologists believe they can identify the warning signs of the end of a historical cycle marked by the concept of the nation-state. [27] In this regard, investigating the reconfigurations of the public regulation of religious affairs constitutes an excellent antidote against the tendency to essentialise “national models”, widespread in studies of the relationship between states and religion. First of all, as some authors have suggested, [28] it is more fruitful to describe how such models are reconstructed by looking at legal controversies, rather than analysing the latter using reified models. This is especially important since legal controversies can often take different forms depending on the institutional space concerned, which suggests that the autonomy of institutional spaces imbues them with unique characteristics. In turn, because justice shows how, based on concrete cases, the links between internal and external normative regimes are established, it can illustrate what internationalisation does to national models. As a prime opportunity to analyse the ongoing redefinition of the legitimate place of religion in civic life, the reconfiguration of public action, and the effects of the growing interconnection between national and international processes, judicialisation offers a particularly heuristic angle from which to examine the governance of religion.

13This is doubtless why there are more and more researchers in the social sciences interested in the relationship between politics and religion and in exploring the role played by the justice system in governing religious matters. It is true that in the United States, due to the significant role played by the Supreme Court, [29] research on the litigation strategies of religious groups [30] and judicial interventions regarding religious minorities [31] is not a new phenomenon. However, as a consequence of academic enthusiasm for judicialisation and the influence, even if merely rhetorical, of the rule of law, more and more countries have been studied in this perspective since the 2000s. India, [32] Israel [33] and Turkey [34] are some of the most often-studied countries in this regard, but some scholars have attempted to identify the role of the justice system in the relations between church and state in post-Soviet countries and even in the context of “constitutional theocracies”. [35] The role of the judiciary with regard to the “affaire du foulard” in France and elsewhere has also piqued the interest of researchers. [36]

Approaching the phenomenon

16Let us start by highlighting what we believe to be the most salient point of this special issue: to offer significant insight into how researchers interested in the public regulation of religious matters employ the concept of judicialisation to address this question. This issue thus reflects the variety of angles and approaches that sociologists and political scientists frequently adopt.

17Massicard analyses the phenomenon by examining how social actors, in her case the Alevi minority, bring their cases to the judicial arena to fight against discrimination. Here we find the classic issue of using the law in protest, [37] with the Alevi minority acting as a noteworthy vector for analysis of the new legal and political opportunity structure created in Turkey by the emergence of an international regime of human rights. The significance of this study lies in revealing how this form of mobilisation – as well as its action repertoires – varies depending on whether it is based in Turkey or Germany, while highlighting the Alevi minority’s impact on different mobilisation spaces, including the supranational space, via recourse to the Strasbourg Court.

18Hirschl and Lépinard adopt a different strategy, working from the verdicts handed down by judges in national supreme courts (French and Canadian for the former, Israeli and Malaysian for the latter). Despite this similarity, the two authors pursue different objectives. By examining the important legal decisions made regarding religion, Hirschl is able to identify a judicial policy of containment with regard to religion. This conclusion in turn supports a more general hypothesis, according to which constitutional justice seeks to protect the secular values of the state or, at the very least, act as a bulwark against the most invasive forms of religion, including in constitutional theocracies. Lépinard, on the other hand, focuses on legal writing (“écriture juridique”). She uses this term to mean how the process of putting decisions into legal form, as it is subject to legal rules and techniques and specific normative values, in turn shapes the diction of the law. In short, the diction of the law cannot be seen as simply a variable dependant on factors that are outside the judicial sphere, but as the partial result of national legal traditions.

19Both de Galembert and Rayner & Voutat propose a third approach. Rather than limiting themselves to a single perspective – either that of the litigant or that of the judge – these authors broaden the scope. Instead of focusing on the interventions of the judicial system per se when analysing the burka controversy in France and the minaret issue in Switzerland, these articles examine how the law casts a long shadow over the political landscape and how such controversies are addressed. This approach leads the authors to consider the different arenas implicated by the controversies studied (political, judicial, media, etc.) and show how the expectation that the judiciary will intervene in fact juridifies controversies, thus changing their stakes. The two articles thus emphasise how politics and the law – through their respective professionals, but also through concurrent references to the rule of law, national sovereignty and the Republican tradition – confront each other and ultimately form a hybrid, with politics becoming judicialised and the judiciary becoming politicised. This relational and process-based approach to judicialisation highlights the political work undertaken by actors to perform the law, use it to their advantage, or even, as in the Swiss case, to muzzle the judiciary. Such an angle demonstrates the heuristic value of going beyond a reified view of legality, focusing instead on what actors use the law to say and do.

20Beyond the different perspectives presented in this issue, food for thought is provided regarding three important, crosscutting issues: the resistance of national models to judicial globalisation, the autonomy of the judicial system, and the contradictory effects of judicialisation.

National regulations and resistance to judicial globalisation

21This issue attests to the significance of the transnational discourse on human rights. Such proof lies in the repeated references to and uses of the European Court of Human Rights made by national actors (be they social, political, media or legal actors), by means of which these actors become fully implicated in the internationalisation of the law. [38] In France, contrary to what happened during the drafting of the 15 March 2004 law prohibiting the wearing of veils in school, it was the constitutional obstacle (rather than the conventional one) that took centre stage in the drafting of the law on full-face veils. Nevertheless, the threat of being censured by the Strasbourg Court played a significant part in the process – even if this was perhaps only the case because legal validation by the constitutional judge, although not providing protection against the European Court’s censure, was presented as a means to strengthen the judicial legitimacy of the law in the case (already observed) that actions were brought before the European Court of Human Rights. [39] The spectre of the Strasbourg Court also hung over Switzerland, where the issue of minaret construction was likewise being adjudicated. [40] One of the issues at play in the minaret controversy was knowing whether the European Convention on Human Rights fell within the ambit of jus cogens and if, consequently, invoking this right was likely to limit the scope of citizen initiatives. In Turkey, the effects of European human rights law and protection mechanisms can also be observed: recourse to the Strasbourg Court has been a strategic tool for the Alevi population, which is struggling to establish its religious specificity within Islamic Turkey.

22That said, all the articles contained herein lead to a certain scepticism regarding the “isomorphic” effects of the institutionalisation of human rights, a conclusion reached by a number of other studies. [41] The generalisation of human rights is neither automatic nor necessary. Massicard shows that there is often a large gap between the Strasbourg Court’s rulings in favour of the Alevis and how the rulings are implemented. When these rulings don’t come up against a “wait-and-see” policy and resistance from Turkey’s courts and executive branch, they are subject to localised and varying implementation. The Swiss and French examples in particular reveal the ability of national actors to hold at arm’s length the constraints imposed by European human rights, even if only temporarily. The Strasbourg Court’s recent ruling refusing to condemn France in a case brought by a young woman wishing to wear a full-face veil likewise deserves to be further explored. In this particular case, despite expressing significant reservations, the Court ruled in favour of France’s national margin of appreciation, recognising the country’s right to prohibit the concealment of one’s face, in the name of its own conception of society. The internationalisation of law is thus far from leading to the standardisation of national regulations regarding religion, a conclusion that has also been suggested by studies on other realms of public action. While international norms may be spreading throughout the world, this diffusion is highly shaped by national institutional designs and policy styles that still remain influential.

23As Lépinard reminds us, constitutional architectures do not offer the same possibilities within Western democracies. Consequently, the legal opportunity structure is shown to be markedly less favourable to Muslim minorities in France, a republic that conceives of citizenship as an abstract universalism, than in Canada, a country known for its tradition of reasonable accommodations. The reasoning of both Canadian and French judges reflects this when they restrict certain religious practices. The two national legal styles express themselves through form: Canadian constitutional justice operates in a more transparent and deliberative manner than French administrative or constitutional justice. The different styles are also manifest in the content of rulings, Canadian judicial practice better taking into account the subjectivity of minorities than French practice, which, imbued with its Republican tradition, instead strengthens the asymmetry between the dominant norm and minority subjectivity.

24This conclusion should not, however, lead us to believe that the internationalisation of the law leaves national models unchanged, a deduction that would in fact obscure the insight of the empirical studies contained in this issue: the way in which national models reinvent themselves while giving the illusion of continuity. Moreover, such a belief would lead us to overlook how actors call upon the argument for historical continuity or legal tradition to legitimise change. According to Lépinard, it is also erroneous to view prohibitive measures – such as those adopted in France during the past decade regarding female Muslim dress – as the automatic result of the strict separation engendered by the principle of secularism. Recontextualising this analysis in the long term shows precisely the contrary, revealing the semantic revolution that the interpretation of secularism seems to have undergone. De Galembert reaches the same conclusion. The legislative ban of the full-face veil does not only mark the legislative branch’s return to the secularism debate, begun in 2004 with the ban on wearing veils in public school. This legislative renewal is also accompanied by a “Republicanist” inflexion in secularism, which views the latter less as a principle for preserving individual freedoms than as one for guaranteeing shared values. This shift is particularly well embodied by the notion of the immaterial public order, which served as the basic argument for the prohibition of the burka. A similar reversal seems to have occurred in Switzerland. As in France, where the Council of State was long considered to be the peacemaker between the two Frances (“the regulator of parish life”, according to the famous phrase penned by Gabriel Lebras), the Swiss judge to whom traditionally fell the role of religious peacekeeper has been partially stripped of this power by sovereignist actors who used popular initiative to demand greater legitimacy than the judiciary to define the law, especially when that judiciary is foreign.

Dependence and autonomy of the judicial system with regard to politics

25A second concern that cuts across all the articles contained in this issue is the degree of autonomy possessed by the judicial system. Does justice always play the third role between the governed and the governing that is generally ascribed to it? [42] Studies on judicialisation provide different interpretations of this situation. Theoretical perspectives, usually adopted by legal experts, emphasise the political independence of the courts: they also assume that their positioning is dictated exclusively by judicial rationality, a form of transcendence of the law that supposedly imposes itself on political matters. Breaking away from this idealised view of justice and the law, “realist” perspectives following in Dahl’s footsteps [43] insist that courts are embedded within the political sphere. Such interpretations tend to view legal rulings as the product of power relations. For some authors, judicialisation is seen as allowing political elites to safeguard their interests. [44] The analyses contained herein stem largely from this latter perspective, with a number of subtle differences.

26The realist perspective is particularly well represented in the explanation that Hirschl provides for the secularising tendencies of the Israeli and Malaysian Supreme Courts. According to Hirschl, this tendency can be attributed to the interests of liberal elites who conceive of the Supreme Court as an instrument to curb the political ambitions of ultra-religious movements. He sees several factors helping to make these bodies effective tools in that regard: the control the state exercises over the courts by appointing judges and providing funding; the socialisation, social environment and closeness of judges with high-ranking government officials and the urban intelligentsia, as well as their membership in an international epistemic community that gravitates around constitutional justice; and the attractiveness of this arena to the social forces attached to a minimal form of secularism. Massicard’s article also follows in this analytical vein. If the Turkish constitutional court supports the Alevis’ demands for recognition, it is precisely because recognising this minority stems logically from the country’s philosophy of Kemalism and thus resistance to the rise of political Islam.

27Without denying the importance of external factors, the articles focusing on France and Canada invite us to seriously consider the autonomy of the judiciary. As indicated by Lépinard, if these factors constitute explanations for why rulings are made, they do not say anything about how they are formulated. If we are unable to crack open the black box of judicial decision-making, we may closely examine legal writing, including the form and content of legal arguments, to reveal the constraints imposed by the law with regard to the formulation of decisions, however political the rulings might be. The same concern can also broadly be found in de Galembert’s meticulous process-tracing of the judicial translation of the political proposal to prohibit full-face veils in public. The constitutional blessing received by the draft law designed to prohibit the concealment of one’s face in public – described by some jurists as a veritable “legal coup” – cannot be fully understood without taking into consideration the proactive efforts of political actors and the strategies of those who advocated for the adoption of such a prohibitory law. Moreover, the narrative would be incomplete if we neglected to mention all the political and legal work that went into opening up a “constitutional possibility” and engaging constitutional law, not to mention the argumentative creativity prompted by the tension between political actors determined to prohibit full-face veils and jurists who countered with the limits of legal feasibility.

The winners and losers of judicialisation

28The juxtaposition of the articles contained in this issue provides enough evidence to illustrate the contradictory effects of judicialisation. Is it possible to identify the winners and the losers associated with the judicial system’s rise in power with regard to the public regulation of religion? Nothing is less certain. Hirschl provides the most definitive response to this question: constitutional courts seem to be unfavourable to anything that could challenge the secularism of judicial authority and hostile to anything that could resemble competition by a form of non-state law. [45] The courts’ justification repertoires, and their affinity with the interests of the liberal elites would, in this perspective, pit them against the new religious elites – even and especially in societies experiencing the ascendency of religion in the public sphere. Looking at the situation in Israel and Malaysia confirms that judicial authorities are in the habit of “seeing like a state”. Israel’s Supreme Court thus counteracts the authority of the rabbinical courts, especially with regard to kosher certification and family law. It does so in a two-fold manner: on the one hand, by imposing more and more restrictive procedural norms on the rabbinical courts, and, on the other, by subordinating them to state legality, in particular the principle of gender equality. The Malaysian judicial elite has managed to block initiatives seeking to enforce Sharia law. Hirschl’s theory also seems to be confirmed by the pro-secularism position of the Turkish Constitutional Court.

29But is the situation the same in countries marked by a strong dominant religion as in countries where religious pluralism is growing? Are such configurations not more favourable to rights of religious freedom and the use of legal tools to protect the latter, in particular the European Convention on Human Rights? In other words, in a pluralist context, wouldn’t courts, rather than being operators of secularism, in fact act to demonopolise the religious landscape, opening up the public sphere to the expression of multiple religious identities? A certain number of studies suggest refining Hirschl’s thesis in this direction, highlighting the role of the courts in promoting immigrant rights in Europe [46] and the legal integration of religious minorities, especially Islam in the European context. [47] Here as well, however, we must be careful not to make sweeping generalisations. In addition to the fact that each controversy may have its own momentum, these kinds of changes are in no way irreversible. The positions taken by supreme courts regarding full-face veils clearly illustrate this; today, closing off seems to be the more prevalent trend. The support that Muslim minorities received from supreme courts in the 1990s perhaps suggested that new forms of constitutionalism would necessarily work in favour of minority rights and religious accommodation. However, this idea merits re-examination today. Given the recent court interventions on the veil in France and Canada, the way that such actions were partly suppressed in Switzerland suggests that, amid the tense opposition between the courts and the legislators regarding religion and the law, popular opinion seems to have gained new legitimacy by questioning the established equilibrium between shared collective values and individual freedoms. Long acting to protect minorities against the tyranny of the majority, courts today are rather more inclined to protect shared, majority values. [48] But here again we must slow down: what applies to the Muslim minority in France does not apply to Jehovah’s Witnesses, who have managed, at the end of a long national and international legal battle, to obtain recognition as a religious organisation and thus to benefit from certain advantages that had hitherto been denied to them.

30These differing historical variations and emphases depending on the controversies and actors involved suggest that we should reject a reified view of the rule of law and of legality. Moreover, they remind us of the sociological value of always contextualising the judge’s role within the law’s chain of production. This requires taking into account court rulings both upstream and downstream by examining their social and political impact. Hence the importance of being attentive to governmental and parliamentary reactions, especially when court rulings run counter to majority opinion. [49] In fact, a number of authors have underscored the backlash that judges’ rulings can produce when they go against majority values, as such decisions can always provoke counter-mobilisations or legislative reforms that relativise, or even at times cancel out, their impact. Hence also the importance of considering the reactions of supranational judicial bodies when supreme courts have no choice but to play the game of representative democracy.

31The articles which follow also offer an overview of the most significant aspects of the judicialisation of the public regulation of religion, a phenomenon that has proven to be endlessly multifaceted, as well as the source of contradictory effects. Although not an exhaustive depiction of how religious governance is affected by this phenomenon, these articles highlight the normative uncertainties produced by the revitalisation of religious identities, the radicalisation of religious pluralism, and the spread of religious individualisation and, concomitantly, by transformations in how power is exercised in the context of legal globalisation. This thematic issue demonstrates the value of using the religious landscape to concretely analyse the reality of the rule of law through both the references made to it and how such references shape and reconfigure the principle.