Lorenzo Zucca

Montesquieu, Methodological Pluralism and Comparative Constitutional Law

This paper argues that Montesquieu is the best starting point to do meaningful comparative constitutional law (CCL). His methodological pluralism, which involves a reflective equilibrium between philosophical analysis and empirical work, is the most engaging perspective to explore the vast and wild terrain of constitutional laws. His position is extremely relevant for todays debates on the role of CCL. The present trend regards CCL as a technological tool that may help to solve local problems. Montesquieus understanding of CCL involves a Copernican revolution, which involves looking at CCL not as an end point but as a starting point for our knowledge of laws.

Evans v. UK – European Court of Human Rights

Proportionality review and, in particular, ad hoc judicial balancing of competing rights and interests are probably the most celebrated tools propagated by the European Court of Human Rights (ECtHR) and are currently dominant features of the European discourse on rights. This methodology and its discourse, in fact, have gained such widespread popularity that, although the outcome of Convention-based and other fundamental rights claims is often far from certain, the way they will be treated by judges can be predicted with some confidence.

A Genealogy of State Sovereignty

Abstract A genealogical account of state sovereignty explores the ways in which the concept has emerged, evolved, and is in decline today. Sovereignty has a theological foundation, and is deeply bound up with the idea of God, in particular a voluntarist God, presented as being capable of intervening directly in the world. Religious conflicts in the sixteenth and seventeenth centuries forced the separation between religion and politics, and opened the space for the emergence of a national state endowed with sovereignty which has dominated the world until now. Today’s rise of international and transnational obligations challenges the conventional understanding of state sovereignty, which cannot account for the normative density of the global order and the corresponding decline of state-based political authority. In order to explain that, I contrast two competing understandings of state sovereignty: a static one and a dynamic one. The static understanding regards sovereignty as absolute within the state territory. The dynamic understanding regards sovereignty as evolutionary: according to this account, the state is just one possible form that sovereignty can take. I conclude by suggesting that the dynamic understanding of state sovereignty is better suited to explaining the decline of state sovereignty.

A new legal definition of religion

Scientology is a religion: this much is clear from the UK Supreme Courts recent ruling in the high profile case of R (on the application of Hodkin and another) (Appellants) v Registrar General of Births, Deaths and Marriages (Respondent) Hodkin. The facts of the case were simple. Mrs Hodkin and her fiance wanted to get married in Church. The only problem was that the Church of Scientology was not registered as a place of worship according to the Place of Worship Registration Act 1855 (PWRA). Moreover, a 1970 precedent of the Court of Appeal, R v Registrar General, ex parte Segerdal (Segerdal), ruled that Scientology was not a religion because adherents did not believe in any God (per Lord Denning), and in any case Scientology did not worship in a manner that could be compared to any other established religion (Winn and Buckley LJJ).

A Comment on Moyn’s Christian Human Rights, Chapter 4: ‘From Communist to Muslim: Religious Freedom and Christian Legacies’

I shall begin on a point of deep agreement with Sam Moyn and deep disagreement with John Finnis: headscarf cases show the limits of secularism in France, as well as the limits of art.9 jurisprudence in Strasbourg. Moyn and I agree that Christian symbols and practices receive a better treatment than Muslim symbols and practices. Indeed, the hijab legal controversy and the burqa legislation are expressions of base populism and bias against Muslims. France’s legislation banning conspicuous religious symbols targets Muslims (and Jews), but does not affect Christians. It was presented as neutral, but indirectly discriminated between religious people. Professor Finnis argues instead that there is no unjust discrimination against people of Muslim religion. He uses as evidence of his claim two cases originating from Turkey: Leyla Sahin and Refah Partisi. Finnis would like us to believe that the rise of political Islam in Turkey, and in Europe, is an inherent and inescapable fact of Islam as a religion of domination. According to Finnis, the ‘right to be free from intimidatory pressures [... ] is the unmistakable ratio of Sahin’. Finnis also argues that the decision in Refah Partisi affirms the rightful resistance to total domination by Islam. I do not believe that Islam is more coercive or more bent on domination than any other religion. I believe instead that any political use of religion is potentially dangerous, manipulative and delusional. Moreover, I also believe that the Refah Partisi case was a very dangerous decision as it relied on an ideological fear of Islam, rather than on factual evidence of the risks correlated with Refah Partisi. It is not that I do not see the risks; rather I am complaining that the decision sanctioned Refah Partisi for its beliefs rather than for its actions (and this is incompatible with freedom of belief).

A Secular Manifesto for Europe

Charlie Hebdo’s tragedy shows the extent to which France and Europe face a double threat: on one hand fundamentalist religion, on the other negative secularism. France is a paradigm example of negative secularism, which attempts to discredit religion altogether only provoking a backlash effect. I propose instead that France and Europe should subscribe to a positive understanding of secularism that can be understood either as a political or as an ethical project. Either way, the point of positive secularism is to distance itself from religion in order to embrace diversity of all types, religious and non-religious. Political secularism relies on the hope of reaching overlapping consensus between religious and non-religious people. Ethical secularism aims instead to protect diversity by promoting the establishment of a marketplace of religions, which acknowledges a public role for religion while regulating it. The marketplace of religions promotes religious pluralism and helps to iron out the different treatments between religions. Ethical secularism aims to be a worldview of worldviews that creates the preconditions for all religious and non-religious people to live well together.

Democracy, Law and Religious Pluralism in Europe: Secularism and Post-Secularism

In all liberal democracies the neutrality of the state is at the core of the debates on religion and politics. However, in the American context, this debate is framed in terms of a broader debate on the ethics of democratic citizenship (i.e., on the question of what kinds of reasons and considerations citizens may use as a basis to justify the coercive power they exercise over one another, so that such coercion can be considered legitimate), whereas this issue is much less prominent in European debates. However, I have the impression that the debate on the ethics of democratic citizenship could actually be very helpful for addressing some of the issues that are peculiar to European debates – e.g., the debates on banning the Islamic headscarf from public places – which have no counterpart in the

Lautsi: A Commentary of the Grand Chamber Decision

This is a critical comment of the Crucifix in the Classroom case decided by the Grand Chamber of the European Court of Human Rights. The comment deals with three issues: the place of religious symbols in the public sphere, the meaning of secularism today, and the notion of respect owed to parental convictions in the educational context. Each one of these pose a big problem in relation to the place of religion in the European Constitutional landscape.

Monism and Fundamental Rights in Europe

Fundamental Rights in Europe are protected by national, supranational and international judicial bodies. Yet, the likelihood of discrepancies between the solutions reached by those bodies opens the whole practice to a number of problems and risks. Legal Pluralists claim that the risk of conflicting views should not be regarded as a problem, and should instead be regarded as an occasion to engage in a dialogue between various jurisdictions. In this article I resist the legal pluralist claim and suggests that the only way of understanding the relationship between fundamental rights and law is monist. There are two opposite monist understandings of the same relationship. On the one hand, there is a value monist approach which argues for the unity of value across law and morality. On the other hand, there is a legal monist perspective, which argues for the unity of legal norms and claims that disagreements about fundamental rights are settled by competent institutions within the monist legal framework. I defend the latter legal monist position and suggests that that is the best way of understanding law and fundamental rights at the national, supranational and international level.

Tolerance or Toleration? How to Deal with Religious Conflicts in Europe

Europe is once again beset by religious conflicts. There are several examples of unrestrained opposition against, and by, religious minorities and majorities alike. Think of the ban on minarets in Switzerland which is spreading like a wildfire in Germany, Italy and beyond. Think also of the veil saga that has occupied French politicians and their society in the last two decades. The target of opposition can be religious majorities as well; one example is the litigation on the crucifix in the classroom.1 Needless to say, opposition calls for an equal reply, and so religious minorities and majorities respond with individual actions or campaigns against secular societies and their states. Religious conflicts are not new in Europe. Religious wars in the seventeenth century were the bloodiest and most violent confrontation on the Continent. The Treaty of Westphalia of 1648 put an end to them, and organised Europe in such a way that states could rule over religiously homogenous communities.2 There were Catholic and Protestant states; religious pluralism within each state was limited as much as possible.