Freedom of Religion and Belief

Volume II

Rinaldo Cristofori, Silvio Ferrari

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781351935777
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

The essays and articles selected for this volume analyze what is generally understood by freedom of religion and belief in today's world. The different aspects of this fundamental right are considered from the contents of freedom of religion, to the possible limitations of this freedom; and from the freedom of, or freedom from, conundrum to the question of the collective or individual right. This volume reflects legal, philosophical and international perspectives, addresses numerous unanswered questions and offers an effective overview of the current literature and debate in this aspect of the discipline of law and religion.

Part I

Three Perspectives on Freedom of Religion and Belief

[1]

THE DEVELOPMENT OF THE IDEA OF RELIGIOUS FREEDOM IN MODERN TIMES

Christian STARCK

I. INTRODUCTION

In Article 18 of the Universal Declaration of Human Rights 1948 we read,

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 9 section 1 of the European Convention of Human Rights 1950 is identical, but a second section on the limits of this freedom is added,

Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public order, health or morals, or for the protection of the rights and freedoms of others.

The constitutional states of a West European and North American mould contain similar clauses on the protection of religious freedom,¹ and this freedom is guaranteed by independent courts.

What are the historical sources of this religious freedom, a freedom that is both individual and corporate? When one considers the development of the idea of religious freedom in modern times, it would appear in the final analysis to be a late outcome of the reaction to confessional division and to be both theoretically and practically promoted by enlightenment philosophy. In other words, we are concerned as much with historical events and their pragmatic, step for step, legal resolutions, as with philosophical reflection released, or atleast accelerated, by those events. As a rule, legal pragmatism trails behind philosophical reflection, since law must be enacted and recognised. This often demands complex processes of communication and power. But on the other hand, law stabilises and creates reliable foundations for the peaceful development of philosophical thought. The road to modern religious freedom was a rough one, with many crossroads and without obvious signposts. I want to recount the story of this road, not in a great novel, but in a mere sketch. We will start with the guarantee of confessional parity (II), moving through toleration (III) to modern religious freedom (IV) with its separation of church and state (V).

The guiding forces at the crossroads were the surfeit of war and the human desire for peace; of this there can be no doubt. But these pressures alone could not produce the structures that were to guide the political will and successfully direct developments. These structures came from earlier phases of Christian thought. And it is not only the development of religious freedom that can be traced to this source. The constitutional state itself, which respects human rights and represents the necessary precondition for the separation of the secular and the ecclesiastical, also flows from this source. I will conclude with an attempt to expose these factors (VI).

II. CONFESSIONAL PARITY IN FUNDAMENTAL LAW

During the first half of the sixteenth century, the Reformation led to confessional division. This inflicted deep wounds on the mediaeval unity of secular power and religion. One can only appreciate the effect of the Reformation if one constantly keeps in mind the close intellectual and institutional interlocking of secular authority and the Christian faith.² The Reformation, which was itself deeply divided theologically between Luther and Calvin, faced the old Church, which had gathered, regenerated and entrenched itself in the Synod of Trent (1545–63). The protestant imperial estates, which had expressed their faith by the Confessio Augustana of 1530, formed themselves into a defensive alliance against the Emperor in the federation of Schmalkalden. Charles V sought his own way of compromise that was supposed to lead to religious reunification, but this compromise went too far for the Catholics and not far enough for the Protestants.³

The Peace of Augsburg was concluded in 1555 between the imperial estates and the emperor. Under this treaty, those Protestants conforming to the Augsburg confession were granted equality with Catholics under imperial law. Calvinists, Baptists and other sects remained excluded. However the freedom to choose one’s faith was not granted to the individual Christian, but to the imperial estates. Their ius reformandi meant the right to establish a confession in law for their subjects: cuius regio eius religio. Thus the Peace of Augsburg represented the first steps to religious freedom. That meant religious autonomy for the rulers of the principalities, who were able to choose between the old Church and the Augsburg Confession. But at the level of those individual principalities, the traditional institutional interlocking of secular authority and religion continued. The goal was thus the confessional integrity of each territory. Nonetheless, the subject was granted a right to emigrate, if he could not in good conscience follow the confession of his prince. Of course, this ius emigrandi was barely realisable, given the general immobility of the population.

One hundred years later, after the thirty years war, the first movement towards religious freedom was extended by the Peace of Westfalia of 1648. The Instrumentum Pacis Osnabrugense recognised the reformed (that is, Calvinist) confession as a third religious party. Subjects not sharing the faith of their catholic, lutheran or reformed rulers in the base year of 1624 were permitted to continue exercising their own faith. For others, the right to emigrate was preserved. But if these did not emigrate, they were to be tolerated (patienter tolerentur), that is, they could conduct household worship in freedom of conscience and publicly confess their faith in neighbouring territories. The right of private worship was further extended in that it could be exercised by several families together and a cleric could be brought in from outside the territory.

Thus the religious autonomy of the territorial princes was limited under imperial law in favour of the first hints of individual freedom of religion. Significantly, this freedom is termed freedom of conscience⁴ in the Instrumentum Pacis. Religion is still understood as the Christian faith, transmitted through one of three confessions, and binding on the secular order. The regulations of the Instrumentum Pacis are understood as temporary for the establishment of peace until the unity of religion is restored. For at that time, a unified faith was still seen as the necessary precondition for secular authority. From this point of view, individual freedom of religion is not in issue; it is for the sake of peace that parity is extended to a third religious party. Nonetheless, the individual believer does feature in the Instrumentum Pacis, for the toleration that was imperially encouraged contained the first movement towards individual religious freedom, albeit only for members of the three recognised confessions and through the corporate rights of these confessions.

Thus confessional division was not the direct cause of religious freedom. Rather, in a totally pragmatic fashion, imperial confessional parity recognised the existing positions of power of the territorial princes and on a territorial level preserved and guaranteed the unity of secular authority and religion.⁵ In the existing culture of the substantial unity of secular authority and religion, Germany (as distinct from France) could only remain confessionally divided, because public authority in Germany was largely territorial authority, and became increasingly so. France, which had become a unified state and wanted to remain so, lacked these institutional preconditions.

III. ENLIGHTENMENT AND TOLERATION

Let us now look at the further development of modern religious freedom in Prussia, a German principality that became a leading European power. After 1614, the ruling family was Calvinist, and governed a largely Lutheran country with strong Catholic minorities. It thus had an interest in the peaceful co-existence of the confessions, and went further than the toleration encouraged throughout the Empire. The need for internal peace and the desire to develop the country, as well as the intellectual heritage of the Enlightenment, affected administrative practice in matters of religion. Toleration was exercised towards small Christian communities such as Mennonites and Baptists, and so on, as well as towards other sects. This administrative practice was anchored in law by the Edict on Religions of 1788, and a few years later was further developed in the Prussian General Law of 1794 (Part 2 Chapter 11). This provided that the three imperially recognised confessions had equal rights in the public exercise of religion (§ 17 ff). Progress was also made in the area of individual freedom. Each inhabitant was assured complete freedom of faith and conscience (§ 2), and none was required to accept any directive of the state as regarded his private opinion in matters of religion (§ 3). As regards civil rights, at least in administrative practice, equality was assured, although for the Jews this came later.⁶ Gerhard Anschütz recognised in the Prussian religious legislation the legal roots of later German religious freedom.⁷ In comparison with other European states and German principalities, Prussian legal practice and legislation was distinguished by a high degree of toleration.

The development in Prussia exemplifies the new conception of religious freedom of the 18th century Enlightenment. Confessional thinking and the legal guarantee of confessional parity were pushed aside, while the legal position of the individual gradually shifted to the fore. In Kant’s words (1783), mankind stepped “out of his self-inflicted minority”. That is Enlightenment. Political philosophy already understood religious freedom as an individual human right held not only against the state, but also against the church. These ideas affected and moulded the law, albeit without fully penetrating it. The development in Prussia we have just considered is an example of this. The idea of the unity of state and religion, and the concept of an established church, became gradually less convincing.

The preservation of peace between the confessions was now seen as a function of the state. Pufendorf (1632–1694) and Thomasius (1655–1728) taught—most progressively—that worldly authority had no jurisdiction over matters of faith.⁸ In social contract theory, individuals retained their natural right to freedom of religion and did not transfer it to government. And so the authorities had no right to determine the religion (ius reformandi), but rather a duty to tolerate it (officium tolerandi). Frederick the Great saw toleration—after Voltaire—⁹ as un apanage d’humanité, which would enrich all of society. He had this expressed such that in his state each could become holy after his own façon.¹⁰

These conceptions undermined the religio-legal status quo of the Peace of Westfalia and the unity of secular authority and religion. Enlightened absolutism powerfully promoted the secularisation of the state. More accurately, it was rather a matter of the deconfessionalisation of worldly authority; for the moral foundations of the state as inherited from the Christian religion were expressly recognised. Thus as stated by Frederick the Great: since as regards morality, no religion differs significantly from any other, all could be equally acceptable to government. Government required from the individual no more than that he be a good citizen. Kant expressed himself similarly in 1798: Government, which is not responsible for the future blessedness of its subjects, is only concerned that through the faith of the church it has “tractable and morally upright subjects”.¹¹ That could have come straight from the Prussian General Law, which obligated the churches “to teach their members respect towards God, obedience towards the laws, faithfulness to the state and benevolence to their fellow-citizens” (§ 13). Thus the state was still interested in the moral education of the churches, which to this extent it kept under its authority. The Prussian General Law regulated the rights and duties of the churches in over 1200 paragraphs and thus set out state religious authority. By contrast, in questions of religious dogma, an individual freedom is guaranteed that stretches far further than the corporate freedom of the confessions.

Thus the confessional division of the Reformation and the later multiplication of confessions and sects broke the unity of worldly authority and religion in a long process that played itself out differently in different states. The state, which has to ensure peace between citizens, was over time forced to administer religious toleration itself and secure it between citizens. The state maintenance of peace was simplified and at root first made possible by the Enlightenment, which was itself a philosophical product of the confessional division. The enlightened relativising of religious confession internalised the confessional split and secularised the role of the state.

The religious toleration which the state—still itself tied to religion—granted to those of other faiths already expressed an individual freedom which has its roots in Christianity; in the course of the Reformation, these roots were exposed: it is the individual who stands despite of his membership in the Christian communion in a covenant relationship with God. In spite of all ecclesiastical and confessional gloss, this is theological individualism. At the time, the idea of individual religious freedom had an anticonfessional effect, but it comes from Christianity itself and is thus not antichristian. In the worldview of the Enlightenment, the issue was no longer protecting the confessions. On the contrary, the “absolutist” state had the duty to protect the faith and conscience of the individual from the confessional churches.

As I have already mentioned, these ideas had their strongest influence on the Prussian tolerance legislation at the end of the 18th century. The edicts of Toleration in the Habsburg states¹² and in France—even just before the Revolution there—¹³ reflected rather the preference of the Catholic church. Only those confessions were tolerated which had shown themselves in other countries to be at least not harmful to the moral foundations of the state.

IV. FREEDOM OF RELIGION AS A HUMAN RIGHT

1. North America is generally regarded as the country in which religious freedom reigned from the start of the European settlement. After all, many immigrants had left their home country precisely on grounds of religion. This is of course true, but it did not lead to the immediate establishment of religious freedom. The Europeans who emigrated for religious reasons were not inclined to toleration, but still clung to the unity of worldly authority and religion.¹⁴ In most of the thirteen North Americ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Introduction
• PART I THREE PERSPECTIVES ON FREEDOM OF RELIGION AND BELIEF
• PART II CONTENTS AND PROTECTION OF THE FREEDOM OF RELIGION AND BELIEF
• PART III THE PROBLEMS OF FREEDOM OF RELIGION AND BELIEF
• PART IV FREEDOM OF RELIGION AND BELIEF AND OTHER HUMAN RIGHTS: TENSIONS
• Name Index