Daniela Bifulco (Naples/Bonn): Religion as a source of law in the secular state?

Abstract

The answer to this question is strictly bound up with our understanding of the concepts of secularization, state-church separation and state neutrality. However uncertain and rife with historical compromise, both separation and state neutrality mean that non-secular bodies shall not exercise secular power and, vice versa, secular bodies shall not exercise ecclesiastical power. From a constitutional standpoint, the “wall of separation” between law and religion, churches and state, implies that, ideally, the public sphere should be neither religious nor antireligious, but a-religious. Still, the relationship between democratic-liberal constitutions, secularism and religion remains sometimes uncertain, if not ambiguous.

I will argue that some of these ambiguities and uncertainties in contemporary constitutionalism, legal thinking – and, hence, in judicial decision making – may depend on conceptual misunderstandings related to the idea of secularization. Although this idea has proven itself to be a powerful conceptual paradigm for understanding modernity and Western societies, legal thinking has often had the tendency to use the secularization paradigm quite uncritically; hence its tendency to take for granted that “all significant concepts of the modern theory of the state are secularized theological concepts” (Schmitt), and thus to assume that sovereignty, human dignity, progress, history, even normativity, are but a secularized version of theological concepts. I intend to argue that the secular-constitutional state does not need to borrow transcendent “prerequisites” from the religious realm to legitimize itself; the state’s “prerequisites” are to be found in the self-assertion of modern reason and in a theory of a reason-based knowledge (legal knowledge, as well), which at no point makes use of a transcendent/divine point of view to enhance its own legitimacy.

Prof. Dr. Daniela Bifulco

Curriculum vitae

Legal scholar Daniela Bifulco obtained her PhD with a thesis on fundamental social rights at the University of Trento. She is Associate Professor at the Seconda Università degli Studi di Napoli, where she teaches comparative public law. Moreover, she is active as a researcher at the Institut des hautes études sur la justice in Paris. Professor Bifulco has lectured on legal interpretation, judicial ethics and the independence of the judge (inter alia at the Deutsche Richterakademie in Trier, at the Consiglio supremo della Magistratura in Rome and at the Conseil Superieur de la Magistrature in Paris), as well as on legal iconography (inter alia at the Third Biennial of the China-Europe Forum in Beijing), secularism, hate speech and Holocaust denial. She worked as a legal expert for the Council of Europe and was a visiting scholar at Yale Law School and at the Cegla Center for Interdisciplinary Research at the Faculty of Law at Tel Aviv University. Since October 2015 she is Fellow at the Käte Hamburger Center for Advanced Study in the Humanities “Law as Culture”.