Are religion and law incompatible?
Can religion and the law of liberal democracies accommodate one another, or do there remain unresolvable tensions between them? It is my contention that it all depends on what type of religion it is. Some are more compatible with law than others.
The ongoing debate on the place of religion in modern, liberal democracies and whether it can be reconciled with the core values of society still shows one basic fault-line along which huge controversy exists. On the one hand, there are those who considers any religion whatsoever as inimical to modern law and the democratic state. These secularists would gladly see religion banned from the public square altogether and keep it safely locked behind private doors. On the other hand, we find a wide range of more nuanced opinions , from authors who consider the role of religion for law and state more positively. In their eyes, religion can be seen as a source of civic virtue, decency and public morality, maybe even as a basis for social cohesion. Religiously inspired people tend to be good, virtuous, law-abiding citizens, or so they maintain. On exactly this point secularists are more wary. Inspiration to commit violent acts can be very religious indeed. And this is exactly why secularists wish to curb religion altogether. What should we think of this discussion? Who is right, and who is wrong here? Is there a more synthetic truth to be discovered in this field full of land mines?
What we need to do in the first place, is to look very carefully at religion itself. A popular vision is that “all religions are the same” – but nothing is less true. Religions differ profoundly and more disconcertingly than we may think. But how do they differ, and what are the consequences? Religion, that is to say what people profoundly believe in, can be placed in a scale according to exactly what constitutes ‘holiness’ or ‘sacredness’ –i.e. that what is ultimately believed in. On the one hand, this ‘holiness’ can be found in a variety of outward content, something tangible, or perceptible; for example rites, practices, ceremonies, rules of behaviour, dress codes etc. Some religions possess a whole range of sacred externalities – things to be done in order to be counted as a true believer. Technical-philosophically speaking these religions value ‘sacredness’ in immanence. Believers need to experience the divine on earth, in the here and now. Judaism, Catholicism and Islam are good examples of religions on this outward, immanent side of the scale.
On the other hand, some religions place this ‘sacredness’ in something entirely inward. The only thing holy in this life is to be found in one’s own spirit, in one’s conscience, somewhere in the depths of the soul, where ‘the ground of my ground is grounded in’. Ultimate value is attributed exclusively to the divine itself, to transcendence. Everything else is redundant superstition, and ‘profane’. What springs from the heart of the true lover of God, himself and his neighbour, is considered just and right; not what outwardly conforms to a range of sacred rules and prescriptions. Typically Protestantism is the kind of religion that can be found on the other inward, transcendent side of this scale of ‘sacredness’.
Now back to the question of the incompatibility of religion and law. It is clear that, when we keep this scale in mind, religions on the outward side are most likely to come into conflict with the law of the liberal democratic state. The more fiercely adherents cling to outward ritualistic behaviour, the more likely that problems will occur. One of the things we may hope, is that adherents of ritualistic religions will evolve in a more inner, spiritual direction. In our pluralist society the value of tolerance poses a real incentive to the inner convictions of believers to develop in this very direction. The freedom of religion that one claims for oneself, is not to be begrudged to others.