Law & Religion
Course – Prof. dr. Jogchum Vrielink
Session 1 – Introduction, concepts, and history
General
While pronouncements of religion’s demise have been made repeatedly throughout history, the
evidence suggests otherwise. Instead of a singular narrative of decline, we see a resurgence of
diverse religious expressions challenging simplistic secularization theories. As secular
ideologies lose some steam, religious institutions and communities are adapting and evolving,
demonstrating their enduring relevance in an increasingly complex world.
Published in 1991, Gilles Kepel’s Revanche de Dieu (Revenge of God) explored the
resurgence of religious belief in the modern world, specifically focusing on movements within
Christianity, Judaism, and Islam. It challenged popular narratives of secularization and
highlighted the growing influence of religion in social and political spheres.
➢ Challenging assumptions: By highlighting the resurgence of religion, Kepel
challenged the widespread assumption that religion was fading away in the face of
modernity. This shift in understanding is crucial for Law & Religion studies, as it
necessitates reevaluating legal frameworks and approaches to accommodate diverse
religious expressions.
➢ Pluralism and potential conflict: The book emphasizes the pluralistic nature of
contemporary religion, where different “gods” coexist. This raises potential conflicts
related to competing claims and practices, requiring legal systems to navigate these
complexities while upholding freedom of religion and broader societal values.
➢ Historical context: Kepel’s analysis provides historical context for understanding the
current state of Law & Religion. He shows how legal frameworks have evolved in
response to changing religious dynamics, offering valuable insights for future
developments.
➢ Understanding diverse movements: The book explores various religious movements
within different faiths, helping legal scholars appreciate the complexity and diversity
within each religion. This is crucial for crafting just and effective legal responses that
respect the specificities of each group.
While published in 1991, the issues Kepel raised remain relevant today, as religious
communities continue to evolve and interact with legal systems in increasingly complex ways.
Understanding the historical and contemporary complexities highlighted in Revanche de Dieu
remains crucial for navigating the relationship between Law & Religion effectively.
This course delves into the intricate relationship between law and religion in this pluralistic
landscape. We recognize that the “gods” of various faiths now intermingle, potentially creating
friction. Law plays a crucial role in navigating these delicate interactions, aiming to uphold
both religious freedom and wider societal values.
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,Through this exploration, we will gain a solid foundation in several key areas:
➢ Main categories and principles: We will learn to identify and understand the diverse
range of religions, beliefs, and legal frameworks that shape their interactions with law.
➢ Rights and techniques: We will examine the legal guarantees protecting religious
expression and analyse the tools used to ensure their implementation.
➢ Historical development: By tracing the historical evolution of this relationship, we
gain context for ongoing debates and appreciate the journey to the present day.
➢ Contemporary controversies and debates: We will engage with relevant and timely
discussions surrounding issues like religious symbols in public spaces, dietary
restrictions, and freedom of conscience.
➢ Navigating legal cases: We will equip ourselves with the skills to analyse and manage
situations where religious aspects intersect with various legal disciplines, fostering
informed and nuanced understanding.
This course doesn’t simply predict the future of religion, but rather equips you to analyse its
complex and evolving relationship with law, preparing you to engage in insightful and
informed discussions on this critical topic in our diverse and interconnected world.
The exam, to which you can bring the case law reader (without sessions 7, 8, and 9), consists
of two open/essay questions. Possible exam questions could be:
- Do you agree or not with the ban of France and Belgium on the possibility to cover
your face because you’re Muslim?
- Questions as being a lawyer in a religious case or about state’s cases; “are you in favour
of?”
Historical background
The relationship between law and religion is a dynamic tapestry woven over centuries,
reflecting changing societal values, political contexts, and religious landscapes. While
freedom of religion wasn’t always codified, glimpses of its practice can be found even before
formal legal frameworks.
Pre-Codification
Prior to written laws, religious tolerance existed at times, but it was often uneven and
precarious, dependent on the whims of rulers and the prevailing power dynamics. The brutal
religious wars that ravaged Europe in the 16th century served as a grim reminder of the
dangers of intolerance, pushing states towards seeking solutions.
The Rise of Pragmatism
These pragmatic concerns propelled the concept of religious freedom into early legal
catalogues during the Enlightenment. It was seen to secure peace and stability in religiously
diverse societies. Initially, this freedom primarily protected religious institutions and their
collective practices.
Shifting Focus
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,Individual vs. Collective: The American Revolution marked a turning point, placing greater
emphasis on the individual’s right to religious freedom. However, the tension between
individual conscience and collective expression remains present to this day. Legal systems
continue to grapple with balancing the rights of individuals with the needs of religious
communities and broader societal values.
From Past to Present
Today, understanding this historical evolution is crucial for navigating the complexities of Law
& Religion. We see ongoing debates on issues like religious symbols in public spaces, dietary
restrictions, and freedom of conscience, all rooted in the historical journey of this intricate
relationship.
Reasons/justifications
Understanding the relationship between law and religion requires delving into the various
rationales and justifications for engaging with this complex field.
➢ Psychological Needs: Religion can indeed address fundamental human needs for
meaning, purpose, and belonging. However, focusing solely on this psychological
aspect fails to capture the full depth and diversity of religious life and interactions with
law.
➢ Social Function: The claim that religion fosters social stability and cohesion is
contested. While some argue that upholding religious traditions strengthens societies,
others highlight how enforcing specific religious norms can exclude and marginalize
minorities, potentially breeding instability.
➢ Religious Foundations: Arguments based solely on religious principles are inherently
subjective and controversial. While valuable within specific communities, they hold
limited weight in secular legal systems seeking broader justification for engaging with
diverse religious expressions.
➢ State Neutrality: The principle of secularism advocates for state neutrality towards
religion. This implies safeguarding religious freedom without favouring any faith or
interfering in the internal affairs of religious communities. However, navigating
neutrality in practice can be complex, often requiring striking a balance between
individual rights and broader societal concerns.
➢ Tolerance: A principled approach to equal respect emphasizes the right of individuals
to hold and practice their beliefs without discrimination. This equality-based
justification underpins many legal frameworks protecting religious freedom. However,
ensuring equal respect does not equate to treating all beliefs identically, especially when
they clash with fundamental rights or societal values.
Defining/divining religion/belief
Throughout history, humanity has sought to connect with something beyond the tangible world,
leaving behind whispers of their beliefs in monuments like Stonehenge, sculptures like the
Bamiyan Buddhas, and sacred spaces like the Almudena Cathedral. This human experience of
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, the “spiritual dimension,” whether objectively real or a yearning for meaning, is at the heart
of what we call religion and belief.
Defining these terms, however, proves remarkably difficult. Even within fields like theology,
sociology, and anthropology, no single, universally accepted definition exists. This difficulty
intensifies in the legal realm, where the core principle of religious freedom necessitates caution
in classifying any belief system. Courts and authorities tread a delicate line, seeking to uphold
both individual faith and established notions of what constitutes a “religion.”
Beyond a Simple Description
While we might think of religion as “the relationship of humans to the holy, sacred, spiritual,
or divine,” accompanied by structured practices and communities, reality is far more nuanced.
The term “belief” goes broader, encompassing even commitments that deny anything beyond
this physical world.
Challenges and Complexities
Attempting to definitively define or categorize religion and belief leads to several challenges:
➢ “Invented religions”: What separates an established faith from a newly formed belief
system? Can both be protected under the umbrella of religious freedom?
➢ Varying interpretations: Within each religion, diverse schools of thought and
individual interpretations add to the complexity.
➢ Secularism and neutrality: Navigating the separation of Church and State requires a
neutral approach, avoiding favouritism toward any specific belief system.
Embracing the Journey
Instead of seeking a rigid definition, perhaps a more fruitful approach is to embrace the
dynamic journey of how humans understand and connect with the intangible. By exploring
historical and contemporary expressions of faith and belief, we can gain a deeper appreciation
for the richness and diversity of human experience in this mysterious dimension.
Parody religions
The concept of religious belief extends beyond traditional doctrines and can encompass playful
expressions that challenge and satirize conventional systems. Here, we delve into two notable
parody religions and a thought-provoking analogy that shed light on the nature of belief itself.
Pastafarianism
A tongue-in-cheek faith worshipping the Flying Spaghetti Monster, Pastafarianism arose in
response to creationism debates. It highlights the inherent difficulty of disproving any
unfalsifiable claim, including the existence of supernatural beings. By adopting playful rituals
and attire, Pastafarians mock rigid dogma and promote critical thinking.
Invisible Pink Unicorn (IPU)
Like Pastafarianism, the IPU belief system pokes fun at the concept of blind faith. The core
tenet: an invisible pink unicorn exists but chooses to remain unseen. This seemingly absurd
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