The Article rethinks law’s role in present-day European debates over Islam in light of its calming effects on the once fiercely-fought abortion reforms across Western Europe. Using examples from Germany, Italy, France, Belgium, Britain, the Netherlands and Switzerland the article demonstrates that the role of the legal process in each of these culture-based debates diverged along its two social functions. Reflecting growing public anxieties, legal actions concerning Muslims typically focused on generating social and cultural change, foreclosing the likelihood of political compromises. In contrast, at the time of abortion reform legal measures acted as mechanisms of social and cultural order, contributing to the pacification of the fierce public controversies even as moral disagreements over abortion endured. Drawing on this comparison, the article suggests that Europe’s constitutional review processes present a compromise-building path to deliberate contemporary conflicts over Islam.
The Article proceeds in three parts. Part II and III analyze the legal developments in the context of Islam and abortion across Western Europe, revealing a contrasting dynamics in the roles of the legal process in each of these debates. Part IV assesses the effects of the legal process in each of the debates and rules out alternative explanations for this divergence. It argues that the factor of time or European secularization cannot account for the current intensity-difference in each of these debates. The article concludes by proposing a path to launch the currently absent constitutional conversation over Islamic-based tensions in Western Europe. Modeled on abortion reform, constitutional courts should reach beyond proportional balancing and dictate policy frameworks addressing both the roots of Muslim disadvantages and the anxieties of the European public.
This Article examines the conflict-management role conferred
upon the law within Western liberal democracies in the context of cultural
tensions involving religious minorities. The Article finds that a threatened
hegemonic Christian identity and secular illiberal sentiments disguised in
liberal narratives often motivated legislative and judicial actions curtailing
the freedom of religious minorities in leading liberal democracies. Based
on these findings, this Article challenges the shortcomings of existing liberal
scholarship to account for the potential bias presented in the liberal
preference to facilitate cultural conflicts through legal means. Yet, the Article
suggests that law’s limitations as a neutral vehicle in conflict resolution
does not necessarily counteract its ability to manage conflicts. The
continued attractiveness of law as the principal conflict-resolution device
in liberal democracies springs from its political nature, namely the recognition
that shifts in political power could translate into legal change.
Contemporary democratic reality is characterized by the growing role of courts in politics, as social activists regularly utilize the judicial process in an attempt to secure their values and interests as law. Observers of constitutional politics generally explain this phenomenon in the recent constitutional transformations worldwide, manifested primarily in the enactment of bills of rights accompanied by judicial review powers. These constitutional transformations enabled and simplified the ability of those with limited access to the majoritarian-led parliamentary process to challenge governmental policies through the courts.1 As a result, law has come to be perceived as a compelling mechanism to effectuate progressive change and facilitate authoritative resolutions to conflicts.2 In societies divided along religious lines, the appeal of litigation has been particularly strong, with secular and religious groups increasingly viewing it as a principal opportunity to mold the public sphere in accordance with their political and moral preferences.
This paper seeks to evaluate the efforts to achieve these perceived goals—of effectuating change and managing conflict—through the judicial process, by examining its effects in the context of the religion-based conflicts of India and Israel. By way of an empirical comparison the paper considers: (i) the judicial impact on the realization of fundamental rights, the rectification of existing discriminatory practices, and the advancement toward a more pluralist and egalitarian society; (ii) the judicial contribution to generating authoritative resolution to religion-based conflicts; and (iii) possible long term social and political implications stemming from judicial intervention in policy questions concerning hotly disputed religion-based conflicts.
This article examines whether the global trend of codifying
rights in entrenched bills accompanied by judicial review to broaden
rights protection is justified. By comparing the religious freedom regimes
in Canada and England, this article finds that although the Canadian
constitutional transformation in the late twentieth century contributed
to strengthening religious freedom, its overall effect has not
been broader than the protection afforded by its primordial English
statutory model. As such, the article challenges the ongoing legal debate
over judicially enforced constitutional systems of rights. Proponents
of such systems praise their extensive contribution to rights protection,
while opponents warn against their obstructive impact on the
separation of powers. This article concludes that both sides of the debate
overstate their arguments by incorrectly presupposing the actual
effects of a judicially enforced constitutional system of rights.