I contributed a chapter on ‘Common Good Constitutionalism and Religious Freedom’ to the above volume, edited by Javier Martínez-Torrón & Li-ann Thio.
The abstract of my chapter reads as follows:
This chapter chooses as its starting point two books on constitutionalism that have recently been published. It will attempt to bring these two books into dialogue on their relevance for religious freedom. The books are Martin Loughlin’s Against Constitutionalism and Adrian Vermeule’s book Common Good Constitutionalism: Recovering the Classical Legal Tradition, respectively. The reason for zooming in on religious freedom is that this right is vital to constitutional democracy. I will further concentrate on the European context. The reason is that Loughlin’s critique of constitutionalism applies there in particular. It also allows me to explore the potential usefulness and relevance of the book Common Good Constitutionalism outside the United States. After setting out what common good constitutionalism holds and why Loughlin objects to constitutionalism, the chapter examines the state of current liberal religious freedom. The concern is regularly expressed that post-liberal common good constitutionalism will exert a restrictive influence on religious freedom above all else. Hence, it may make sense to examine the current state conversely.
Since the picture emerging from this section could be brighter, the next question is what the classical legal tradition can do to improve constitutionalism and religious freedom. The chapter concludes with some conclusions. Most importantly, adapting political and theological thought to modernity still needs to be completed. The prevailing view, especially regarding constitutionalism, is that this would be the case. To the credit of Vermeule’s book, he punctures this myth. That the effort to restore the classical legal tradition certainly also raises questions is inevitable. It is necessary to ‘translate’ classical notions to current times and circumstances. However, there is no escaping this for those who care about constitutional democracy. Religious freedom is an essential but complex case study in this regard.’
From the abstract of the volume as a whole:
‘As the Universal Declaration of Human Rights made clear, human dignity constitutes the foundation of human rights, among which freedom of thought, conscience, and religion occupies a prominent place. As a consequence of the inter-cultural debate that is ongoing in contemporary Western societies, which are increasingly pluralistic, the concept of human dignity faces important challenges in terms of what it requires. The five chapters included in the first part of this book discuss some of these conceptual challenges, such as the implications of common good constitutionalism for the understanding of human dignity and the role of religious freedom from the perspective of Western experiences and legal thinkers. The chapters in Part II explore particular questions involving human dignity and the relationship between freedom of religion or belief and other human rights, for example, how to build bridges between religious freedom and other fundamental freedoms when people make conflicting legitimate choices. Taken together, the book offers an insightful range of perspectives on some contemporary challenges raised by the exercise of religious freedom in societies that claim to be based on respect for human dignity and human rights.’
More (order) information on the volume is available here.
Hans-Martien ten Napel 