CAIRN-INT.INFO : International Edition

1For the past two decades, liberal democracies have been confronted with the unprecedented diversification of their religious landscapes. While such changes stem from the growth and emergence of religious minorities as a result of immigration, they are also tied to increasing levels of individualisation and subjectivism in faith,the decline of traditional religious institutions, [2] and the appearance of new religious movements. [3] These reconfigurations have translated into demands for the construction of new places of worship, relatively unprecedented clothing and dietary practices, and challenges to existing family law. Such demands are symptomatic of the reassertion of collective, religiously based identities, which are experiencing unexpectedly renewed visibility in the public sphere. As a result, the established equilibrium that often favoured historical religious actors and, with regard to European and North American democracies, Christian churches in particular, has been upended. Demands for recognition have provoked more and more controversies, once again raising the question of how religion should be publicly regulated in a context where religious frameworks, grappling with increasingly subjectivised forms of faith, are losing ground. In fact, such demands threaten the normative principles and institutional modalities that guide public regulation of religion. This is the case for both countries governed by a strict separation between church and state, such as France and Turkey, and in countries with more permeable boundaries between politics and religion, such as the United States and Canada. But the same can also be said of those countries with a state religion, or which, like Israel, consider religion to be a fundamental element of civic life. While demands for religious recognition have clearly reintroduced the question of the legitimate place of religion in civic life, the whys and wherefores of the ongoing transformations are more difficult to pin down. The mounting disputes surrounding religious matters are unfolding in a context where the procedures, actors, processes, and production and implementation circuits of public policy have likewise increased in complexity. What is true for other sectors subject to public regulation applies also to religion, revealing the decline of the state’s central regulating power in favour of polycentric, multilevel regulation marked by the multiplication of actors; transformations which the concept of “governance” echoes. [4]

2Public authorities are not alone in being shaken up by this phenomenon. Political science has likewise been caught off guard by the return of religion to the public sphere and political interest in religious issues, as current events in France have clearly demonstrated. The theory of secularisation, which until recently served as a sort of sociological vulgate to think about the place of religion in modernity, has now been called into question. The resurgence of religion in political and public life directly challenges the assumption, widely accepted until the 1980s, that modernity meant not only a functional differentiation between religion and politics, but also the privatisation of religion, even its inexorable ousting from the social sphere. [5] The cognitive inertia of the great positivist narrative of political modernity, which ostensibly asserted itself against and beyond religion, has nevertheless proven to be tenacious. In addition to the fact that religion occupies only a vestigial place in traditional political science, the classic forms of analysis of the relation between religion and politics have proven to be ill suited to describe this new reality. [6] Of course, since the 2000s, the issue of the relationship between religion and politics seems to have attracted new attention from political scientists, in particular from comparative scholars analysing the relationships between states and religions, models of secularity and the rise of political Islam. [7] That being the case, the link between religion and public action, while intermittently referenced, [8] remains an issue rarely addressed directly. Political science, including in the United States, has up until now largely overlooked the role of religious leaders in popular mobilisations, as well as how political leaders use the latter and/or act publicly to define religious legitimacy. [9]

3This is the angle from which this thematic issue of the Revue française de science politique seeks to contribute to the budding discussion on religion and governance. We aim to do so from a specific perspective, by examining how public regulation of religion has not only been seized upon by the law, but is moreover becoming increasingly judicialised. We shall first demonstrate the basis of this argument by analysing the highly polysemic concept of judicialisation that runs through the articles contained herein, and then in turn examine some of their crosscutting reflections.

Governing religion from the perspective of judicialisation

4Three reasons justify our analysis of the public governance of religion through the lens of judicialisation.

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]

A few lessons from this issue

14As an additional indication of the value that this new field of research may present, this thematic issue offers an overview of a few of the aforementioned analyses, the goal being to provide an insight both into how researchers are addressing the question today and the lessons that have been gleaned from earlier work. Consequently, the articles found in this volume present studies which concern a variety of controversies and contexts.

15Claire de Galembert’s article, which revisits the constitutional review of the 2010 law prohibiting the concealment of one’s face in public, focuses exclusively on France, a country characterised simultaneously by the strict separation between the state and religion and a firmly rooted legicentric tradition. Éléonore Lépinard compares France to Canada, the land of common law and reasonable accommodation, by examining legal decisions regarding the dress of female Muslims over the past twenty years. Hervé Rayner and Bernard Voutat shed light on Switzerland, a country marked by strong federal polycentrism in terms of religious governance, but also a long tradition of direct democracy, as seen in the public’s involvement in the prohibition on building minarets. While the French, Canadian and Swiss cases analyse how a religious minority (Islam, in this case) is regulated in a historically Christian context, Turkey, while also having a separation between church and state, offers another perspective. Islam, the majority religion, is not at the centre of Élise Massicard’s investigation, but rather the Alevi minority, which uses the judicial system to demand its right to be differentiated from Islam. Finally, Ran Hirschl’s article moves away from the institutional regimes of religious governance organised in accordance with the principle of the state’s religious neutrality. The comparison that he makes between the rulings of Israel and Malaysia’s Supreme Courts concerning, in both cases, the majority religion (Judaism and Islam, respectively), reveals two states which, despite their differences, share a common trait: they are both constitutional regimes where the majority religion is recognised as the basis for national identity, at times even as a veritable source of law. The range of contexts and controversies presented in this issue does not, of course, claim to be either exhaustive or representative. Nonetheless, it does offer a spectrum of sufficiently different situations to permit us some general reflections.

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.


  • [1]
    This title refers to Alec Stone Sweet’s seminal volume Governing with Judges. Constitutional Politics in Europe (Oxford: Oxford University Press, 2000). The idea behind this thematic issue came from two workshops, one organised by the Munk School for Global Affairs at the University of Toronto (2011), and the other in the context of the Research Committee for Sociology of Law Conference in Toulouse (2013). The collaboration between the two conference coordinators also benefited from the support of the Max Planck Institute for the Study of Religious and Ethnic Diversity in Göttingen.
  • [2]
    Danièle Hervieu-Léger, Vers un nouveau christianisme? Introduction à la sociologie du christianisme occidental (Paris: Cerf, 1986).
  • [3]
    Danièle Hervieu-Léger, Le pèlerin et le converti. La religion en mouvement (Paris: Flammarion, 1999), and La religion en miettes. La question des sectes (Paris: Calmann-Lévy, 2001); José Casanova, “Immigration and the new religious pluralism. A European Union/United States comparison”, in Thomas Banchoff (ed.), Democracy and the New Religious Pluralism (New York: Oxford University Press, 2007), 59-83.
  • [4]
    Cf., among others, David Held, Democracy and Global Order. From the Modern State to Cosmopolitan Governance (Cambridge: Polity Press, 1996); on the governance of religion, cf. Veit Bader, Secularism or Democracy? Associational Governance of Religious Diversity (Amsterdam: Amsterdam University Press, 2007); Paul Bramadat, Matthias Koenig (eds), International Migration and the Governance of Religious Diversity (Montreal: McGill-Queen’s University Press, 2009).
  • [5]
    For a classic critical analysis of secularisation, cf., among others, José Casanova, Public Religions in the Modern World (Chicago: The University of Chicago Press, 1994); Peter Berger (ed.), The Desecularization of the World (Washington: Eerdmans, 1998); Marcel Gauchet, La religion dans la démocratie (Paris: Gallimard, 1998).
  • [6]
    The study of the relationship between religion and politics has been limited, for the most part, to two conventional approaches: analysing the religious variable in electoral sociology and comparatively analysing the socio-historical trajectories of national secularisation. To this we can add the comparative study of political parties with religious ties as well as the different trajectories taken by the state with regard to religion, such as that elaborated by Bertrand Badie in Les deux États. Pouvoirs et société en occident et en terre d’islam (Paris: Fayard, 1986). While political scientists have been a driving force for analysing the changing face of Islam, they nevertheless still seem to operate in a specialised, insulated and self-referential sub-genre that rarely engages with the wider discipline.
  • [7]
    The creation of a religion and politics section within the American Political Science Association (APSA), the Association française de science politique (AFSP - French Political Science Association) and the Deutsch Vereinigung für Politische Ökonomie (DVPW - German Political Science Association) are clear signs of renewed interest in the topic. On the state of Anglo-Saxon research in the field, cf. in particular Anthony Gill, “Religion and comparative politics”, Annual Review of Political Science, 4, 2001, 117-38; Daniel Philpott, “Has the study of global politics found religion?”, Annual Review of Political Science, 12, 2009, 183-202; Anna Grzymala-Busse, “Why comparative politics should take religion (more) seriously”, Annual Review of Political Science, 15, 2012, 421-42. For examples of the Francophone debate, cf. Jean-Marc Larouche, La religion dans les limites de la Cité. Le défi religieux des sociétés post-séculières (Montreal: Liber, 2011); Nathalie Luca (ed.), Quelle régulation pour les nouveaux mouvements religieux et les dérives sectaires dans l’Union européenne? (Aix-en-Provence: Presses Universitaires d’Aix-Marseille, 2011).
  • [8]
    Cf. analyses such as that by Pauline Côté, “Autorité publique, pluralisation et sectorisation religieuse en modernité tardive”, Archives des sciences sociales des religions, 121, January-March 2011, 19-39; or for studies conducted at the European level, see François Forêt, Xavier Itçaina (eds), Politics of Religion in Western Europe. Modernities in Conflict? (Abingdon: Routledge, 2011) (ECPR series).
  • [9]
    Claire de Galembert, “Une analyse des politiques publiques aveugle au religieux”, paper presented during the conference of the Association française de sciences sociales des religions, Paris, 6 February 2014, forthcoming in 2015 in the publication of the conference’s proceedings.
  • [10]
    Cf., for example, Gérard Gonzalez, La Convention européenne des droits de l’Homme et la liberté des religions (Paris: Economica, 1997); Malcolm Evans, Religious Liberty and International Law in Europe (Cambridge: Cambridge University Press, 1997); Christian Walter, Religionsverfassungsrecht in vergleichender und internationaler Perspektive (Tübingen: Mohr Siebeck, 2006); Ronan McRea, Religion and the Public Order of the European Union (Oxford: Oxford University Press, 2010); Francis Messner (ed.), Dictionnaire du droit des religions (Paris: CNRS Éditions, 2011); Bernadette Duarte, Manifester sa religion. Droits et limites (Paris: L’Harmattan, 2011). There are also a growing number of journals specialised in this field.
  • [11]
    We refer to Lautsi v. Italy and the debates provoked by the successive verdicts of the Strasbourg judges regarding the appeal made by Italian parents challenging the legality of the presence of crucifixes in public school classrooms. The Court first determined that this presence violated freedom of religion and the right of parents to provide their children with an education in accordance with their religious and philosophical convictions. But although the Court initially passed a first verdict in 2009 that seemed to support the aforementioned parents, in 2011 it retracted its initial judgement. Cf. in particular Jeroen Temperman (ed.), The Lautsi Papers. Multidisciplinary Reflections on Religious Symbols in the Public Classroom (Leiden: Brill, 2012). The 2004 French law on secularism and conspicuous religious symbols in public schools was likewise subject to several court appeals made by Muslims and Sikhs. Those appeals led to different results: while the Strasbourg Court ruled that the exclusions were conventional, the United Nations Human Rights Commission condemned France for the expulsion of a Sikh student from school because of his turban (Bikramjit Singh v. France). Jehovah’s Witnesses were also among the religious groups to seek legal redress from the European Court of Human Rights. In 2011, France was thus condemned in a case that pitted the state against Jehovah’s Witnesses, whose status as a religious association had been regularly challenged by French administrations. Regarding the petitions on the wearing of full-face veils in France and the construction of minarets in Switzerland, see below.
  • [12]
    Mauricio Garcia Villegas, “Efficacité symbolique et pouvoir social du droit dans les sociétés démocratiques”, Revue interdisciplinaire d’études juridiques, 34, 1994, 157-62.
  • [13]
    Pierre Bourdieu, “La force du droit. Éléments pour une sociologie du champ juridique”, Actes de la recherche en sciences sociales, 64, 1986, 3-19.
  • [14]
    Stuart A. Scheingold, The Politics of Rights. Lawyers, Public Policy, and Political Change (Ann Arbor: University of Michigan Press, 2004 [1st edn 1974]); Joseph Gusfield, La culture des problèmes publics. L’alcool au volant: la production d’un ordre symbolique (Paris: Economica, 2009 [1st American edn: The Culture of Public Problems: Drinking and Driving and the Symbolic Order (Chicago: The University of Chicago Press, 1981)]; Patricia Ewick, Susan Silbey, The Commonplace of Law. Stories from Everyday Life (Chicago: The University of Chicago Press, 1998); Jérôme Pelisse, “A-t-on conscience du droit? Autour des Legal Consciousness Studies”, Genèses, 59, 2005, 114-30.
  • [15]
    Ran Hirschl, “The judicialization of mega-politics and the rise of political courts”, Annual Review of Political Science, 11, 2008, 93-118; among the most significant contributions is that of C. Neal Tate, Torbjörn Vallinder (eds), The Global Expansion of Judicial Power (New York: New York University Press, 1995); Martin Shapiro, Alec Stone Sweet, On Law, Politics and Judicialization (Oxford: Oxford University Press, 2002).
  • [16]
    Cf. especially Jacques Commaille, Martine Kaluszynski, La fonction politique de la justice (Paris: La Découverte, 2007); Jacques Commaille, Laurence Dumoulin, “Heurs et malheurs de la légalité dans les sociétés contemporaines. Une sociologie politique de la ‘judiciarisation’”, L’Année sociologique, 59, 2009, 63-107; Laurence Dumoulin, Violaine Roussel, “La judiciarisation de l’action publique”, in Virginie Guiraudon, Olivier Borraz (eds), Politiques publiques. Vol. 2: Changer la démocratie (Paris: Presses de Sciences Po, 2010), 243-63; and Antoine Vauchez, “Le pouvoir judiciaire”, in Antonin Cohen, Bernard Lacroix, Philippe Riutort (eds), Nouveau manuel de science politique (Paris: La Découverte, 2011), 242-55.
  • [17]
    L. Dumoulin, V. Roussel, “La judiciarisation de l’action publique”, 243.
  • [18]
    Cf., among others, A. Stone Sweet, Governing with Judges.
  • [19]
    Cf. in that regard, aside from the volume edited by N. C. Tate, T. Vallinder (The Global Expansion, cited above), Jacques Chevalier, L’État de droit (Paris: Montchrestien, 2010); for an overview of the debate, Terrence C. Halliday, Pavel Osinsky, “Globalization of law”, Annual Review of Sociology, 32, 2006, 447-70.
  • [20]
    Cf. especially Ran Hirschl, Towards Juristocracy. The Origins and Consequences of the New Constitutionalism (Cambridge: Harvard University Press, 2004); in the Francophone context, L. Dumoulin, V. Roussel, “La judiciarisation de l’action publique”.
  • [21]
    Cf. in particular Charles Epp, The Rights Revolution. Lawyers, Activists and Supreme Courts in Comparative Perspective (Chicago: The University of Chicago Press, 1998).
  • [22]
    R. Hischl, Towards Juristocracy.
  • [23]
    Marc Galanter, “Why the ‘haves’ come out ahead”, Law and Society Review, 9, 1971, 95-160.
  • [24]
    Gerald N. Rosenberg, The Hollow Hope. Can Courts Bring About Social Change? (Chicago: The University of Chicago Press, 1991).
  • [25]
    Michael McCann, Rights at Work. Pay Equity Reform and the Politics of Legal Mobilization (Chicago: The University of Chicago Press, 1994), and “Law and social movements. Contemporary perspectives”, Annual Review of Law and Social Science, 2, 2006, 17-38; S. A. Scheingold, The Politics of Rights.
  • [26]
    L. Dumoulin, V. Roussel, “La judiciarisation de l’action publique”.
  • [27]
    On this topic, cf., among others, Heinz Klug, “Transnational human rights. Exploring the persistence and globalization of human rights”, Annual Review of Law and Social Changes, 1, 2005, 85-103; Matthias Koenig, “Institutional change in the world polity. International human rights and the construction of collective identities”, International Sociology, 23, 2008, 95-114; Kiyoteru Tsutsui, Claire Whitlinger, Alwyn Lim, “International human rights law and social movements. States’ resistance and civil society’s insistence”, Annual Review of Law and Social Science, 8, 2012, 367-96.Online
  • [28]
    Cf., for a recent perspective, John R. Bowen, Christophe Bertossi, Jan Willem Duyvendak, Mona Lena Krook (eds), European States and Their Muslim Citizens. The Impact of Institutions on Perceptions and Boundaries (Cambridge: Cambridge University Press, 2014).
  • [29]
    Camille Froidevaux-Metterie, Politique et religion aux États-Unis (Paris: La Découverte, 2009).
  • [30]
    Cf. Gregg Ivers, “Religious organizations as constitutional litigants”, Polity, 25, 1992, 243-66; Hans J. Hacker, The Culture of Conservative Christian Litigation (Oxford: Oxford University Press, 2005).
  • [31]
    Cf. Winifred L. Sullivan, Paying the Words Extra. Religious Discourse in the Supreme Court of the United States (Cambridge: Harvard University Press, 1994); John Wybrianiec, Roger Finke, “Religious regulation and the courts. The judiciary’s changing role in protecting minority religions from majoritarian rules”, Journal for the Scientific Study of Religion, 40(3), 2001, 427-44.
  • [32]
    Cf. Yüksel Sezgin, Mirjam Künkler, “Regulation of ‘religion’ and the ‘religious’. The politics of judicialization and bureaucratization in India and Indonesia”, Comparative Studies in History and Society, 56, 2014, 448-78. See also the ANR Just-India programme, co-ordinated by Gilles Tarabout and which hosted a conference in June 2013 on the theme “Religion and the Courts, India and Nepal”.
  • [33]
    Cf. Patricia J. Woods, Judicial Power and National Politics. Courts and Gender in the Religious-Secular Conflict in Israel (New York: State University of New York Press, 2008).
  • [34]
    Cf. Ceren Belge, “Friends of the Court. The Republican Alliance and selective activism of the Constitutional Court of Turkey”, Law and Society Review, 40, 2006, 653-92.Online
  • [35]
    Cf. James T. Richardson, “Religion, constitutional courts, and democracy in former communist countries”, Annals of the American Academy of Political and Social Science, 603, 2006, 129-38; Ran Hirschl, Constitutional Theocracy (Cambridge: Harvard University Press, 2010).
  • [36]
    Cf. Claire de Galembert, “La fabrique du droit entre le juge administratif et le législateur. La carrière juridique du foulard islamique (1989-2004)”, in J. Commaille, M. Kaluszynski, La fonction politique de la justice, 95-117, and “L’Affaire du foulard in the shadow of the Strasbourg Court. Article Nine and the public career of the veil in France”, in Ralph Grillo, Roger Ballard, Alessandro Ferrari, André J. Hoekema, Marcel Maussen, Prakash Shah (eds), Legal Practice and Cultural Diversity (Farnham: Ashgate, 2009), 237-66; David Koussens, Olivier Roy, Quand la burqa passe à l’Ouest (Rennes: Presses Universitaires de Rennes, 2013).
  • [37]
    Liora Israël, L’arme du droit (Paris: Presses de Sciences Po, 2009).
  • [38]
    Cf., in this regard, Dia Anagnostou, Evangelia Psychogiopolou (eds), The European Court of Human Rights and the Rights of Marginalised Individuals and Minorities in National Context (Leiden: Brill, 2010).
  • [39]
    On 1 July 2014, the Strasbourg Court recognised the compliance of the law prohibiting the concealing of one’s face with the European Court of Human Rights.
  • [40]
    At the time of this article’s publication, the outcome of this issue was still pending.
  • [41]
    For a general overview of this issue, cf. Émilie Hafner-Burton, “International regimes for human rights”, Annual Review of Political Science, 15, 2012, 265-86.Online
  • [42]
    Denis Salas, Un tiers pouvoir. Vers une autre justice (Paris: Hachette littératures, 1998).
  • [43]
    Robert Dahl, “Decision-making in a democracy. The Supreme Court as a national policy-maker”, Journal of Public Law, 285, 1957, 279-95.
  • [44]
    Cf. especially R. Hirschl, Towards Juristocracy.
  • [45]
    Cf. also Ran Hirschl, Ayelet Shachar, “The new wall of separation. Permitting diversity, restricting competition”, Cardozo Law Review, 30, 2009, 2535-60.
  • [46]
    Cf. Christian Joppke, Elia Marzal, “Courts, the new constitutionalism and immigrant rights. The case of the French Conseil Constitutionnel”, European Journal of Political Research, 43, 2004, 823-44.
  • [47]
    Cf. also Matthias Koenig, “Gerichte als Arenen religiöser Anerkennungskonflikte. Eine rechtssoziologische Skizze”, in Astrid Reuter, Hans G. Kippenberg (eds), Religionskontroversen im Verfassungsstaat (Göttingen: Vandenhoeck & Ruprecht, 2011), 144-64; Christian Joppke, John Torpey, Legal Integration of Islam. A Transatlantic Comparison (Cambridge: Harvard University Press, 2013).
  • [48]
    Philippe Raynaud, “De la tyrannie de la majorité à la tyrannie des minorités”, Le Débat, 69, 1992, 48-56.
  • [49]
    On that subject, cf. Ofrit Liviatan, “Religious freedom in Canada and England”, Boston College International and Comparative Law Review, 32, 2009, 1-38.

While the comparative study of secularism has become a thriving field of research, the precise political processes underlying the governance of religion is still a field to be scrutinised. Such processes cannot be understood without paying attention to the judicial arena. Building upon the burgeoning literature on the judicialisation of politics, this article highlights that practices of social movement actors and public policy-makers are embedded not only in national constitutional traditions but also in global rights discourses and international judicial frameworks. Introducing case studies on France, Quebec, Switzerland, Turkey, Israel and Malaysia, this special issue lays out an array of methodological strategies and analytical perspectives that enable the study of multi-level dynamics, complex power configurations, and ambivalent consequences of governing religion with judges.

Claire de Galembert
Claire de Galembert is a political scientist and a research fellow at the CNRS in the Institut des sciences sociales du politique (ENS Cachan-Université Paris Ouest). Focusing on the governance of religion, her research pays particular attention to the role of the law. Her most recent publications on the subject are: “L’Affaire du foulard in the shadow of the Strasbourg Court. Article Nine and the public career of the veil in France”, in Ralph Grillo, Roger Ballard, Alessandro Ferrari, André J. Hoekema, Marcel Maussen, Prakash Shah (eds), Legal Practice and Cultural Diversity (Farnham: Ashgate, 2009), 237-66; and the issue “Le voile en procès”, Droit et société, 66, 2008. She has also edited (with Olivier Rozenberg and Cécile Vigour) Faire parler le Parlement. Méthodes et enjeux de l’analyse des débats parlementaires pour les sciences sociales (Paris: LGDJ, 2013); and published (with Thierry Delpeuch and Laurence Dumoulin) Manuel de sociologie du droit et la justice (Paris: Armand Colin, 2014) (ISP, ENS Cachan, 61 avenue du Président Wilson, 94235 Cachan).
Matthias Koenig
Matthias Koenig is a professor of sociology at the University of Göttingen (Germany) and a researcher at the Max Planck Institute for the Study of Religious and Ethnic Diversity. A visiting professor at the École pratique des hautes études in Paris in 2006, he then became a research fellow at the University of Toronto (Canada) from 2010 –2011 and at the University of Michigan (Ann Arbor) in the United States in 2011. His research focuses on the sociology of religion and secularism, human rights and migration. He is the author of two books (in German) and many articles in international journals such as Acta Sociologica, Droit et Société, Ethnic and Racial Studies, The Journal of Ethnic and Migration Studies, and International Sociology. He also co-edited (with Paul de Guchteneire) Democracy and Human Rights in Multicultural Societies (London: Ashgate, 2007), and (with Paul Bramadat) International Migration and the Governance of Religious Diversity (Montreal: McGill-Queen’s University Press, 2009). His current research focuses on constitutional policies and the role of justice in governing cultural diversity.
Translated by
Sarah-Louise Raillard
Uploaded on on 19/05/2015
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