Separation between Religious and State Institutions (Part 2)
I begin with some observations by Nancy Rosenblum:
“One prominent model of separation is that of the secular state, sometimes called “strict separation” between church and state. In this model, the public sphere is strictly secular in nature: laws are based on secular premises, government programs and activities are strictly secular in nature, and religion is deemed to be irrelevant to determination of the citizens’ civil obligations.
This approach tends to be animated by fear of religious divisiveness, religious warfare, sectarianism, and intolerance. The hope is to domesticate religion by privatizing it. For some, disestablishmentarianism and privatization are the first steps toward reducing attachments to sectarian religion and fostering assimilation and secularization. If religion is understood as largely superstitious, propped up by the force of the state, then disestablishment of religion and the spread of enlightened reason should cause religion to wither away, without the need for coercion.
This model of religious liberty repudiated the enforced difference of the ancien régime and substituted an enforced denial of difference. Under the ancien régime, religious minorities were treated by the state as radically different and apart from the citizenry, whether they liked it or not. Under emancipation, they were admitted to membership in the citizenry – but at the price of forgoing their distinctiveness. Pg 101
The alternative to this idea of the secular state is the religiously pluralistic state. The animating purpose of this constitutional position is to enable people of all religious persuasions to be citizens of the common wealth with the least possible violence to their religious convictions. The Jew can be a Jew not just in his house but in the public square as well. So can the Muslim and the Christian. If this requires accommodation – a relaxation of the general rules of society – it is worth the price (pg 103).
No specific law or policy can be “neutral”; all are based on ideological or philosophical positions. “Neutrality,” therefore, cannot be achieved by scrutinizing each individual law. Rather, the overall constitutional framework must leave the choice among competing worldviews and perspectives to the people, privileging neither religious nor secular values. This means that religious citizens, like everyone else, are entitled to advocate laws that reflect their best judgment of what will promote the pubic good, even if their premises derive from religious teachings. The resulting system is “neutral” toward religion not because the laws are based on nonsectarian “reason,” but because all citizens are equally free to adopt or reject arguments without nay limitation arising from their metaphysical, philosophical, epistemological, or theological foundations. To tell religious citizens that their conceptions of justice or the common good must be “bracketed” is to treat them as second-class citizens (p. 104).
The real alternative to secularist liberalism, then, is not simply religious establishment – at least for the reason that secularist liberalism itself possesses the functional attributes of a comprehensive religious establishment. And the problems of comprehensive religious establishment are well known. They were undesirable in the days of the divine right of kings, and they have turned out to be almost as undesirable in the day of the divine right of individualists. The real alternative is some form of constitutionally limited religious establishment. To say the same thing differently, the real alternative is a form of mixed constitution, reminiscent of Aristotle and Polybius, in which alternative justice principles are deliberately incorporated and juxtaposed in one constitutional structure. Such a mixed system assumes the possibility of a principled middle position between strict privatization of religion on the one hand and inquisitorial religious hegemony on the other. A general principle to govern the concrete features of such a mixed constitution might go something like this: explicit constitutional preference for a nonliberal communal religious value should be constructed so as to deter the legal or political abolition of dissenting alternatives, except in the case of dissenters whose value systems exalt murder, rape, genocide, torture, theft, and slavery. After all, and aside from such cases, surely a state can favor one side of a value polarity without having to go so far as to outlaw the other. Moreover, a state can promote a given religious orientation without having to go so far as to require it; indeed, even while it makes its official preferences plain it can scrupulously remind citizens of their prerogatives of individual nonconformity ( p. 118).
It is worth noting that the mixed constitutional principle of “partial establishment” applies to the full range of identity issues whose relation to political authority is in dispute in many parts of the world – issues such as ethnicity, language, sexual orientation, and social ideology. Where there is no preexisting constitutional obstacle like the American one, the logic of mixture could be embraced in partial establishments of particular cultural affirmations of meaning. If they fit into a pervasive logic of constitutional mixture that is principled rather than ad hoc, and if they are constructed so as to deter a collapse of the polity into either its liberal or nonliberal poles, then partial establishments can remain genuinely partial (p. 119).
Such a minority vantage point illuminates a creative paradox in the notion of mixed constitution or partial establishment, for as the minority perspective implies, partial establishments of religion may actually be the necessary condition for the claims of both majority communities and those who differ with them on central affirmations of meaning. They maybe the necessary condition, especially, for the perdurance and vigor of those communities who consider the content of the partial establishment to be deeply mistaken. Why? Because a mixed constitution comprising partial establishments respects difference more powerfully than either wholesale liberalism or illiberalism can ever manage. Unlike a liberal establishment, it does not extirpate dissenters. The most potent basis of difference or dissent is an alternative truth claim; a mixed constitution of partial establishments respects dissent because it values truth-seeking publicly. Unlike liberalism, it sanctions truth-seeking as potentially significant beyond idiosyncratically private preference; it does not insist in advance that truth-seekers can never find any truth deserving public validation – because in fact it partially validates some claims to truth (in “partial establishments”). Unlike illiberalism, it systematically deflects truth-seeking fro hubris – that is, from prematurely calling a halt to the search in the name of a comprehensive possession of the truth. Its constitutional structure implies – and probably promotes – the belief that truth-seeking never secures more than a partial grasp of its object; and the belief that that partial grasp validates whatever deserves pubic validation, including the search itself.
Mixture, as its best, is a principle, not merely a compromise, although it may be institutionalized via compromise. It is a principle that, in its own moderate way, exalts the virtue of moderation over against the immoderate compulsions of both liberal and illiberal political forms. Only the mixed constitution can effectively obstruct the twin absolutisms of liberalism and its opposites. And the obstruction of absolutism is the essential function and virtue of constitutionalism itself” (p. 122).
Source: Nancy L. Rosenblum, Obligations of Citizenship and Demands of Faith. Princeton Uni. Press, 2000.
Readers should be aware that words assume different shades of meanings in different contexts. As such, one should be careful not to assume an equivalence of meaning for the word “secular” in Rosenblum’s discussion and the word “secular” as understood in the original documents that set the framework for the Federal Constitution of Malaysia.
Nevertheless, there are obvious similarities between Nancy Rosenblum’s view of “partial establishment” and the provisions for a “qualified-secular” state of the Federal Constitution of Malaysia.
It is tempting for Malay/Islamic activists to seize on the phrase “partial establishment” to support their demands for a Malaysian democracy that is “pivoted on the Malay race” and accepts the sovereignty/preeminence of Islam (Ketuanan Melayu or Ketuanan Islam). However, to make such demands is to overlook the basic premise of the discussion – the equality of all citizens (regardless of race or religion) that cannot be violated by a tyrannical majority and the non-negotiable fundamental liberties of all citizens. I think this premise is confirmed by the Clause 4 of Article 3 of the Federal Constitutional – “Nothing in this Article derogates from any other provision of this Constitution.”
To ascribe preeminence to either a majority race or religion would contradict the very meaning of the word “partial”. Above all, we should not miss the final two sentences of the discussion, “Only the mixed constitution can effectively obstruct the twin absolutisms of liberalism and its opposites. And the obstruction of absolutism is the essential function and virtue of constitutionalism itself.”