International Journal of Constitutional Law Advance Access originally published online on July 29, 2008
International Journal of Constitutional Law 2008 6(3-4):605-629; doi:10.1093/icon/mon018
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This article appears in the following International Journal of Constitutional Law issue: SYMPOSIUM: constitutionalism in an era of globalization and privatization [View the issue table of contents]
Preliminaries to a concept of constitutional secularism
* University Professor (on leave), Central European University, Budapest. Email: sajoand{at}ceu.hu
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Abstract |
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Constitutional arrangements, today, are facing the challenge of new forms of strong religion that have the apparent goal of reconquering the public space. These movements’ strategies typically involve Trojan horses designed to smuggle religion into constitutional law by arguing that a democratically achieved religious takeover of legislation, for the purposes of imposing divine command, is not constitutionally suspicious per se. Constitutionalism looks vulnerable to certain claims of strong religion when presented in terms of the free exercise of religion and pluralism. As a first step toward a more robust theory of constitutional secularism, this paper reviews some inherent difficulties of the concept. Constitutionalism relies on the use of the human faculty of reason and on popular sovereignty. The first consideration translates into the duty of public reason giving in law and denies the acceptability of divine reasons; the second precludes any source of law but the secular. A robust notion of secularism, animated by these considerations, is capable of patrolling the borders of the public square.