Rik Torfs*
Law and religion issues are confronted with two new trends. First-ly, certain religious ideas and practices are drifting away from mainstream thinking in society. Secondly, religious freedom will be exercised in a setting hostile to religion. Both trends may lead to re-stricting freedom. Moreover, one should not forget that they emerge in a global picture, including a more moralistic approach of legal principles and an increasing inclination to use religion as a weapon in class conflicts. All these elements will influence the degree of re-ligious freedom individuals and groups enjoy.
Specific problems at stake are freedom of individuals faithful within religious structures, gender and sexuality issues creating new fields of tension between religion and State, as well as the legal place of upcoming forms of spirituality no longer controlled by tra-ditional religious groups and their leaders.
1. Introduction
My field is double. I am both a secular lawyer dealing with law and reli-gion, and a canon lawyer focusing on the internal law of the Roman Cath-olic Church. Although this contribution will concentrate on the first issue, a look at the second one facilitates a deeper insight in the upcoming dis-cussion.
2. Religion, Truth and the Perception of Religious Freedom
Thought and ideas within religious groups are increasingly disconnected from the overall discourse in society. This can be illustrated by the fol-lowing paradoxical idea: religions stick to the notion of truth, yet at the same time, they deny any scientific or even argumentative technique of falsification with regard to their viewpoints. Consequently, the truth they
* Rik Torfs is a professor of law and canon law at the Universities of Leuven and Stel-lenbosch.
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refer to is no longer a metaphysical or ontological truth, as competition with science is impossible, but a place offering certainty and stability, an alternative house to live in. The content of religion will increasingly influ-ence the way in which religious freedom is perceived. Two elements should be taken into consideration. The first one has a long tradition, while the second one is rather new.
2.1. Religious Freedom, Human Rights and Radicalism
Human rights, including religious freedom, are truly operational on an in-termediate level of unusual, but not radically deviant behaviour. They do not protect conformist behaviour, as acting the same way all others al-ready do will be riskless and does not require extra-legal support. Yet human rights are also unable to protect strongly deviant behaviour. Here, penal norms and the maintenance of public order will set limits to perva-sive claims for additional legal protection of religious freedom. Given this starting point, it cannot be excluded that many religious norms slowly move from the intermediate level to the sphere of radically deviant behav-iour. For instance, penal norms and procedures in internal Roman Catho-lic canon law traditionally are covered by protection of free internal or-ganisation that religious groups enjoy as part of religious freedom. How-ever, this freedom could be controlled or restricted as a consequence of sexual abuse cases. Inadequate inner Church action may lead to interven-tion by secular authorities and thus, to a more restricted religious freedom.
Another example comes from Islam. Wearing the burqa, and in a previous stage wearing headscarves at school, only became an issue after religious motives for doing so were partially eclipsed by political ones. To sum up, religious freedom as such will remain protected, but will lose force as a consequence of the application of a key human rights principle: unusual behaviour enjoys protection, radically deviant behaviour most of the time does not.
2.2. Religious Freedom in a Hostile Environment
Religious freedom weakens in a society hostile to religion. Religious freedom was given shape in a religious context. The basic picture used to be that a majority religion dominated the scene, while members of reli-gious minorities were persecuted or hampered in their relireli-gious practice.
The paradigm is clear: the central question concerns the place minority re-ligions occupy within the overall religious landscape. Conversely,
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gious freedom was not meant to function in a non-religious or anti-religious context. Nevertheless it did so, at least to some extent. In com-munist regimes, religion was an official enemy, that is, the enemy of the system and not of the majority of the population. In the meantime, the ex-istence of such a church hostile context is scientifically relevant: religious freedom was not guaranteed. The choice religious people were confronted with was between collaboration and resistance. Examples are the choice between the official and the patriotic Roman Catholic Church in China, or the dilemmas in the former German Democratic Republic. Perhaps, in that context, there was also a third choice, with the current president of Ger-many, Joachim Gauck (1940), being an example: churches could offer a space for relative freedom. The novelty of the coming decades may be the presence and practice of religion in a hostile atmosphere. Of course, the latter is not and will not become a world-wide phenomenon. However, in certain countries, including several Western European States, such a con-figuration is already present or is growing quickly. Although research re-mains elusive as a result of the difficulty to ask the right questions, there is a clear trend among the population of certain countries that shows a move from faith over to hesitation and indifference to scepticism and hos-tility. The idea that religion is intellectually inferior to atheism, and is just a consolation for human mortality, is gaining field among large groups of the population, not only among intellectuals. This phenomenon entails some questions, especially the following one: how do concrete human rights survive in a hostile context? Unlike religion, freedom of expression will most probably remain rather popular in the coming decades. Shall this lead to a more generous legal interpretation of free expression, and a more restrictive one of religious freedom? I suppose so, as certain indica-tions of this trend are already present today: some authors advocate nar-rowing the notion of religious freedom to its individual form, thus omit-ting deliberate collective and organisational freedom.
3. The Evolution of Law, Ethics and Guilt
Law and religion will also be affected by an upcoming trend with regard to the evolution of law in general. It is clear that a more formal approach, as characterised by the human rights catalogues, will be strongly amended by a more emotional method, which will be defined by its followers as a more ethical one. Certain longstanding legal notions, such as formal pro-cedural norms or the principle of prescription, are under pressure. This
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trend finds itself translated into very concrete points with regard to proce-dures. Many people ask the question whether crimes should remain un-punished as a result of technical mistakes during the process. All the more, as far as prescription is concerned, the idea that time takes away guilt is increasingly challenged. Prescription is seen as unjust. The cleav-age between law and ethics is no longer taken for granted. Generally speaking, I am not in favour of this trend, as a mixing up of law and ethics may lead to a celebration of feelings of revenge disturbing equilibrium in society. Yet, the evolution seems to be continuing, probably partly as a re-sult of the sober but technical human rights catalogue, which was often seen by the vox populi as a skeleton without content. In any case, the evo-lution will have consequences in the field of law and religion. This is be-cause religious groups themselves formulate ethical norms, values and guidelines, without still disposing of the moral authority to make them universally credible. The result will be that the behaviour of religious groups, their leaders, their ministers, as well as faithful claiming to be re-ligious, will be analysed along the lines of the ethical standards they for-mulate for others. In that regard, it is far from impossible that in penal cases, such as fraud or child abuse, religious people will be punished more severely than others. It is imaginable that religion will be seen as a cir-cumstance aggravating guilt.
4. Religion as the New Face of Class Conflict
Law and religion may increasingly become a field in which the class con-flicts of the past will be dealt with in the future. In the 20th century, the idea of class conflict found a translation in political thinking, as brought into practice by communist regimes in Europe and post-colonial govern-ments in other continents. After the defeat of communism, symbolised by the fall of the Berlin Wall in 1989, new battlegrounds with regard to what were formerly known as class conflicts emerged. For instance, in the Bal-kan wars resulting from the splitting up of former Yugoslavia, religion was often used as a cover up for less respectable war motives. In any case, Croatia was seen as a Catholic country, whereas Serbia boasted its Ortho-dox roots. In other words, whereas in previous times social inequality was invoked as a reason for struggle, religion partly replaced it as a catalyst of grief, enriched by a flavour of dignity. Along the same lines, Islam as un-derstood and practiced by many, especially young people, does not always mean that religious revival is nearby or taking place. It is very well
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ble to explain the success of religion from the perspective of class con-flict. Very often, and of course abstraction made of the Gulf States, Mus-lims are not among the winners in our late capitalist world. In that regard, Islam can be both a tool to organise the world differently and a consola-tion for those who are not materially successful. The first goal is more dif-ficult to achieve than the second one. Capitalism remains the overall framework people are living in. Yet the other function of religion contin-ues to be available: even poor Muslims can argue that whatever the distri-bution of wealth may be, their God is the best. It will be interesting to see how invoking religion in a more global struggle will be used. Judges will have a hard time denouncing abuse of fundamental rights. Indeed, where-as abuse of rights in a private atmosphere, for instance in a real estate con-flict between neighbours is generally accepted, qualifying certain forms of use of fundamental rights as abuse may in itself be a violation of funda-mental rights.
5. Rights of the Faithful and Freedom of Religion
Another trend will be the degree of freedom that the faithful enjoy within their religious groups. The emancipation of individuals will probably con-tinue along with higher overall education achievements in various coun-tries. This will lead to new types of questions with regard to religious freedom. What will the rights of the faithful be vis-à-vis their religious leaders? This question will be asked at two different levels, namely at a doctrinal and at a practical level.
5.1. Rights of the Faithful at the Doctrinal Level
In the field of doctrine, the question is to what extent religious leaders will still be able to disqualify faithful as heretics, apostates, and schismatics. In the case of an entanglement between religion and State, like for instance currently in Iran, traditions can be continued, because religious norms can be enforced physically. Yet in more separation oriented systems with reli-gious leaders only enjoying moral authority, the success of concepts such as heresy and apostasy is very doubtful.
5.2. Rights of the Faithful at the Practical Level
With regard to the practical level, questions will rise as to labour relation-ships including compulsory legal protection required by the State, as well
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as to the possibility of religious leaders and systems aiming at the control of the private lives of ministers and faithful. There are more binding State norms than in the past. Will religious groups be or remain exempted from some of these norms?
6. Religious Freedom and Discrimination
Conflicts between religion and the State will increase in the field of gen-der and sexuality.
6.1. Gender Discrimination
Equality between men and women is increasingly seen as a key value in a democratic society as governed by the rule of law. This is not always the case within traditional religions. One could even argue that the older reli-gious groups are, the higher the risk will be that hostility vis-à-vis women and their position will be included in their tradition. Many religions do not only refuse women as ministers, but are also opposed to their equal posi-tion within civil society. Discriminaposi-tion of women finds itself more and more included as a crime in penal norms. An important question will be whether these penal norms will also apply to religious groups. That is a matter of balancing. Which right prevails, religious freedom or non-discrimination? Although today religion remains very often excluded from non-discrimination legislation, it is very doubtful that this will re-main true in the future.
6.2. Religion, Secularism and Homosexuality
Also with regard to sexuality, the tension between religious requirements and secular standards may increase. In the Roman Catholic Church, the official teaching on sexual ethics lost its credibility among Christian faith-ful as a result of the famous encyclical Humanae Vitae issued by Pope Paul VI in 1968, in which the use of non-natural contraception was de-nounced. Yet, more fields of tension between religious and secular stand-ards exist, including the debate on homosexuality, although differences between religions remain very present in this field. In the Roman Catholic Church, the Magisterium still holds that practising homosexuality is a grave sin, although many Catholics strongly disagree with this view and accept or even foster legal State stipulation improving the situation of homosexual unions. Also, some Muslims accept homosexuality, yet here
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scepticism seems to be more widespread. More extreme Muslims put prostitution and homosexuality on the same level. The question is where the line will be drawn. My guess is that Western countries, after a short moment of hesitation, will nevertheless opt for complete equality between homosexual and heterosexual unions.
7. Spiritual Revival and Scientism
It is far from impossible that in the coming years, some ‘real’ spiritual re-vival will take place. By ‘real rere-vival’, I mean a comeback of spiritual and religious ideas as such, and not merely as a result of a search for identity or as an expression of class conflict. It seems to be hard to live in an ideo-logical and spiritual vacuum.
7.1. Institutionalised Religion and Scientism
Today, we are experiencing in certain countries a true revival of scientism in the style of Auguste Comte. The reasons for this phenomenon are hard to unravel, but most probably elements such as the decline of institution-alised religion, play a larger part than an increased credibility of science as such. If this hypothesis turns out to be true, the belief in science is more a form of belief than a scientific statement about science. Again using the same hypothesis, it is likely that this faith will also experience some form of decline and may give way at some stage to, sometimes intelligent, sometimes less intelligent, forms of faith.
7.2. Spiritual Revivalism and the Internet
Another possible cause for spiritual renewal is the information society. As a result of the Internet and the modern forms of communication linked up with it, people find themselves confronted with an almost unlimited num-ber of stimuli, open to all forms of reaction. A new selection seems to be inevitable. Already today people are choosing for less information, for cutting the sources they are confronted with. A more sober information pattern may lead to new forms of spirituality, yet not always connected to traditional, organised religions. An important question will be about the legal protection that will be given to new forms of spirituality. Will it come close to the protection of religious freedom today? Or will new legal structures be more in line with privacy protection, as spiritual life will be-come a shelter similar to the house one is living in?
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8. Conclusion
With regard to the three main questions that a law of the future approach includes, the following answers can be given:
At the policy level, politicians should refrain from regulating trends and tendencies before they clearly emerge. They should stick to the old principle that, in case there is no need to issue a law, there is a need not to issue one. Indeed, law and religion issues fit in the rather abstract funda-mental rights debate. The latter leaves enough room for allowing local ac-cents without betraying the hard core of what human rights really are.
Case law will be essential when it comes to the protection of religious freedom, which also means that international judges, especially, should understand the mind of the local legislator without complying too easily with his less noble motives.
Topics for research are numerous. They include human rights with-in religious groups; the religious status of religion without faith yet ex-pressing one’s identity; the consequences of a society hostile to religion for the content of religious freedom; the question whether religion should adapt to modern standards including human rights or, conversely, should use human rights to criticise modern standards; and the question about the role of the individual within religious traditions, having themselves the inclination to highlight the collective dimension and the power position the latter entails for its leaders.
Lawyers of the future will only be good lawyers when they are not just lawyers. They should be educated people with a broad cultural back-ground and a keen interest for underlying philosophical problems. This will help them to accept ambivalence in life without becoming relativists, because the protection of human rights can never be abandoned.