CEU eTD Collection Supervisor: Professor Renata Uitz Department ofLegal Studies University, European Central In partial Fulfillment of the Requirements for the Degree ofMasterLaws in theDegree for oftheRequirements Fulfillment In partial Religious Identities and Fading Modernity: Fading and Identities Religious The Case of “Warfor Souls” Budapest, Hungary 2008 Budapest, Hungary By Davit Zedelashvili Human Rights CEU eTD Collection Bibliography...... 102 ...... 101 Concluding Remarks 3.4. The Principle of Secularism...... 96 3.3.7. Habermas’s Conception of Public Reason...... 93 3.3.5. The Idea of Public Reason...... 89 ...... 86 of Pluralism 3.3.2. Towards the Exclusion of Substantive Truth from Socio ...... 83 – Political Realm 3.3.1. Medieval State – Revelation as the Source of Legitimacy...... 82 3.3. Political Implicationsof the Philosophical Positionsandtheir impact onReligion...... 82 3.2.4. Habermas and Post metaphysical Thought...... 81 3.2.3. Relativism, Postmodernism and Critical ...... 76 Social Theory 3.2.2. Enlightenment Rationalism and Modernity...... 73 3.2.1. Religious Fundamentalism...... 72 3.2. Philosophical Positions on the Relation of Human Being ...... 72 to the World 3.1. Introduction...... 70 2.5. Some Reasons behind the Difficulties...... 68 2.4. The Rationalization of Sensitivities?...... 61 2.3. The Paradox ...... 57 of Neutral Arbiter 2.2. TacitAcceptance of the Importance and ofReligiousIdentity itsPolitical Agenda...... 51 2.1. Introduction...... 49 ...... 48 1.5. Conclusion 1.4. The ...... 45 Source of Fear 1.3.3. Byzantine Symphonia and Constitutional State...... 34 1.3.2. Orthodox Christianity as indivisible part ...... 32 of national identity 1.3.1. Byzantine Conception of Church -State Relations...... 26 1.3. The Origins of “War for Souls”...... 26 1.2.2. The Art of Silencing...... 16 1.2.1. Theological and Sectarian Controversy...... 13 1. 2. The Features of “War for souls”...... 13 1.1. Proselytism and the Eruption of the “War ...... 10 for Souls” ...... 5 Introduction Acknowledgements...... iv iii Executive ...... Summary 3.3.4. SomePreliminary Challenges for Democracy’sthe Constitutional Answer Fact to the Table of Contents ii CEU eTD Collection address social reality. social address better to content its of redefinition inform may thesis present the of findings the that contend and secularism of principle the of shortcomings and advantages the summarize remarks Concluding solution. anormative as identified is secularism of principle the issuethe in of widerframework andphilosophy political and As constitutional theory. aresult After finding the difficulties with European Human Rights Law analysis; third chapter discusses matters. in state neutrality of religious the and Democracy of conception pluralistic court’s with the internal contradiction which create memberHuman religiousstates withCourt dominant Rightssignificantly identities, defers to isitEuropean arguedthat secondchapter, the of conclusion normativeIn solutions. to trace in of theEuropeanCourt Rights jurisprudenceHuman order of analyzes selected Chapter Second Pluralism. avoid of perceiveddangers the to the denominations religious rival suppression of the leads to in This in turn politics. areentrenched identities religious in underreview, similar countries the essentially considerations specific contextual due to that isit argued chapter, thefirst of finding major a As context. political and cultural historical, social, in wider analyzed is problem The andsouls”, inproselytizing denominations. taking religious against place Russia Greece, Georgia in relation political constitutionalof basis a state.as First chapteridentities inquires into the religious caseof study of the problem phenomenon the of with “war fordeal to aims project The Executive Summary iii CEU eTD Collection wouldfindadvance beunableto strength the ahead. to am not dedicating this work to them. Instead, it is for my My “enemies”.gratitude to all my friendsWithout who always their supported challenges me is well known forI them and therefore andcomments. discussions I interesting Lastly, but Liberty. of Religious my understanding Freedom Religion enriched of Comparative not least in class whose Scharffs G. Brett Professor born; and I was project this ideaof the class would like Speech Freedom of Comparative whose on Andras Sajo like thank Professor to I would also to thank my Uitz, for her supportfriendsand guidance andfor her thoughtprovoking andilluminating comments. Silvia express Professorof the projectRenata myspecialgratitude towards this I wish supervisor to Suteu itmuch deserve more appreciation. facilitated and Thepeopleappreciate. who to worth Orsolya The isintellectual exciting andchallenging undertaken project this throughout adventure indeed Salat for Acknowledgements iv CEU eTD Collection 6 Supreme Court by Opinionits in RELIGION AS POLITICS INTHE PUBLIC SPHERE, CHURCH-STATE SEPARATION, Perry, J. 5 4 Sivan, referring to the concept of strong religionas developed inGabriel A.Almond, R. Scott Appleby & Emmanuel battleground of battleground of competing orthodoxies. place inpublic sphere. itsideals,is claims and concisenessgetting evergrowing significance enlightenment religious in US public sphere. 3 2 discussion. heated andsubject of became notorious terrorism international to links its and fundamentalism Islamic civilizations, of clashes about apparent that claims coming from religions heat spectacular public controversies of even controversies spectacular public heat from claimsreligions that coming apparent 1 of society. secularization religion and of privatization the of aspirations awayits by modernity and gave passed It isasserted that revolution. rights power and by themselveshuman state waveof worldconstitutionalization instruck the of the social aregenerally consciousness new vigor revitalize with facts.Religious identities accepted Despite the use of terminology before. fundamentalist labeled often aspirations religious the the (re) emergencedescribe term isto religion proper Strong neutral expressions. more requires correctness often of strong religions and revival of religious Revival of conciseness the around religious world isnow generally acknowledged. Introduction In American Legal Scholarship most vigorous defender of the Claim is Michael Perry. See, for example, Michael example, for See, Perry. Michael is Claim of the defender vigorous most Scholarship Legal American In Habermas, See, Andras Sajo, Jurgen Habermas, Jurgen Ibid HunterBaker Strong Religion: The Rise ofFundamentalism Around the World LIBERAL DEMOCRACY AND RELIGIOUS MORALITY Supra , COMPETING ORTHODOXIES INTHEPUBLICSQUARE: POSTMODERNISM'S EFFECT ON note 1 Religion in Public Sphere Preliminaries to a Concept of Constitutional Secularism 5 Some authors go so far as to portray American public space as the Employment Division vs. Smith 20 J.L.& Religion 97 (2004- 2005); 4 , EuropeanJournal of Philosophy 14:1, (2005), section 1. Even in the United States, regarded as the embodiment of embodiment the as regarded States, United the in Even 6 Whether it is correct description or not for the US; it is 78 L.Cornell Rev. (1993), 747 arguing thatUnited States 5 2 The stakes involved are high involved The and are stakes political (494 U.S. 872 (1990) accepted Religionas politics , 48DePaul L.Rev.1 (1998) (2003) 3 See also,Ruti Teitel, , 6 Int’l J.Const. L. 605(2008), p.1, A CRITIQUE OF A CRITIQUE 1 The talks CEU eTD Collection 9 Preface, in 8 Sensitivities: Free Speech and Religion in Fundamentalist World 7 denyinghis being providence;by or or contumelious reproaches Savior of our Christ.' freedom of expression. Clash of fundamental rights thus becomes one broad perspective example. The claim of religion so framedrights countersterms. Protection of the religiousthe sensitivity human in competing claims as a constituenttheir assert often of religious religions human liberty revolution, is one rights human rights and claimconstitutionalization rested on Danishcontroversy demonstrates giventhat Cartoon once again waves the of newspaper international scale. Thepublication notorious of cartoons of MohammedProphet byDanish Blasphemy was not only about the offence of the God, it was indivisibly associated with Blackstone the According god.to respect towards together with defamation, commonIn law blasphemy England constituted libel of criminal offence part and formed sedition and obscenity. Unitedis Kingdom a explore jurisdiction inclassic to this respect. The object escape thisancientcrime. not freedom and religion will between speech of theconcerning clash of the crime discussion any Consequently, wasexample. picked and toavailable readily preserveis generally Blasphemy the such claims? These are common and legitimate questions. For the subsequentinquiry, the case of religion’s behalf for restrictions of the rights of others on made sincere? claims And rights whathuman is the Are the rationale analysis. behind rights human purely of frames the abandoning freedom of religionThe history of oppression which stands behind theemergence ofboth freedom of expression and is the reason analyze be revivalin religious of taken to the sphere. theconsequences public to be suspicious then it comes to restrictions and requires BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND See See , Renata Uitz, Constitutional Democracy Trapped Between Freedom of Expression and Freedom of Religion: A Religion: of Freedom and Expression of Freedom Between Trapped Democracy Constitutional Uitz, Renata , , Andras Sajo, Andras , Censorial Sensitivities: Free Speech and Religion in Fundamentalist World Jyllands Posten Countervailing Duties asApplied to Danish Cheeseand DanishCartoons is widely discussed example of this. of example discussed is widely 6 actus reus , Andras Sajo (ed), (2007) , 59 (1769). of the crime was carried out 'by 7 , Andras Sajo (ed), (2007) , in , 8 that can that Censorial 9 But CEU eTD Collection 14 (1841). 13 12 11 OFFENCES AGAINST RELIGION AND PUBLIC WORSHIP majority. controversy”. of “decencies to the by thespeaker compliance becamethe for blasphemy test applicable subversionChristianity is parcel ofthe laws of England; and therefore to reproachthe Christian religionis to speak in say, religionis a cheat, is to dissolve all those obligationsof whereby the civil societies are preserved, and that theoffence to God and religion, but acrime against the laws, State and Government,law.” and therefore punishable. ... ForAMENDMENTto - and decent” with “sober,temperate in andcontrast ridicule,” mere denial butfortruth of attacking “in Christianity a 'tone andspirit. of insult,offence, and proscribable for the not was speech rationale. The inoffensiveness rationales weretransformed and doctrinal foundations of establishedthe from church denial and sedition were modified. Such protect theological the to importance social the of rationales the middle XIX century of In the underprosecuted British Blasphemy law as Islam didfall not itsunder protection. not was prophet its and Islam offending Verses” “Satanic of author the casewhere Rushdie Church. dominant the to common were only as farthey protected were latter of the tenets The denominations. Christian different blasphemy excluded from its notprotection only from creeds distinct butChristianity also Kingdom. criminal the inChurchprovision establishedproscribing Selectiveness theof Anglican faith of majority the only protecting itwas blasphemy; of As a characteristic crucial was denial King’s of authority and amounted tosedition. 10 sedition. Post, Robert C. Post, Ibid R. v.Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury Ibid , citing Lord Coleridge, Supra 10 Anglican faith was the source of the King’s legitimacy therefore the denial of its truth note 10,p.5citing Lord Denman’s charge in , 76 Cal. L. Rev. 297 (1988) p. 4; citing: “Such kind of wicked blasphemous words were not only an 14 What wasdecent offensive wasdetermined by of Anglican standards the CULTURAL HETEROGENEITY AND LAW: PORNOGRAPHY, BLASPHEMY, AND THE FIRST Taylor’s case Taylor’s Ramsay and Foote 11 The ironic example of the application of this rule is Salman cited from cited , 15 Cox C.C. at 238 THE LAW COMMISSION, WORKING PAPER NO.79: 7 5-6(1981) Regina Hetheringtonv. [1991] 1 QB 429, DC which was tolerated. , 4St.Tr. N.S.563, 590-91 12 13 The CEU eTD Collection 17 JURISPRUDENCE: A COMPARATIVE ANALYSIS 16 in Fundamentalist World religion and speech free between clash the involves it whether orcontested is It is recognized. competing claims rights claims issue.As a internal the form resultconceptof in within Proselytism tension the competing the of from law rights human a as freedom proselytism of analysis the to devoted are works Long proselytism. of of religionAs a result, the scholarly discourseof of the controversythe of “war for souls” is centered on proselytizerthe issue Proselytism. and registrationCriminalhindrance organization stageof atthe to prohibition religious the of of the target of from country; to country from vary rangeand areof wide restrictions The faiths. proselytizing for restrictions of number a involves and denominations religious foreign of activities proselytizing and missionary to aresponse clearly is controversy The missionaries. religious for isbetweenground local, “war souls”Churches and described dominantOrthodox Foreign as on situation Christian The population. Orthodox predominantly EuropeanCountries with Eastern of clash of fundamental rights frameworkthe be fit both could perfectly controversy Havingwhich these,Iturn to the said all and rising religious consciousness. speech.hate to itamounts when speech It is religious common anti of freedom restrict may rights to personality and a number dignity human from considerations of 15 made. be can still being human for religion of value existential special from claims time same the At social and political ambitions. language.rights Thisis instructiveespecially whenit strong comes religionsto having wider The example of Blasphemy shows what kind of claims could possibly be covered under human Matthias Mahlmann, Matthias See Ibid , the discussion and references in Section 1.1 Section in references and discussion , the , p.62–69;On Hate Speech See generally, Michel Rosenfeld, Michel See generally, Speech Hate p.62–69;On , 15 In the freedom of speech vs. Freedom of Religion controversy, compelling 17 Free Speech and the Rights of Religion , Andras Sajo (ed), (2007) p. 60-61 16 Infra , 24CardozoRev. L.1523 (2003) . 8 , in , Censorial Sensitivities: Free Speech and Religion HATESPEECH IN CONSTITUTIONAL CEU eTD Collection ECtHR such approach may seem well justified in comparison with academic scholarship. 19 INTERNATIONAL LAW, Mcfarland, T. Steven PROSELYTISM AND CERTAIN OTHER FORMS OF RELIGIOUS EXPRESSION, Cumb. L.Rev.Paul M.Taylor, 619(2001); (Associate Ed)(2004),619; p. JohnWitte Jr, Belief: A Deskbook problems identified in problems chapter. firstthe may broad the thatsolution to provide tracenormative andprinciples Second Third Chapters forfuel souls”. “war that uncover hidden the andto considerations andRussia Greece, Georgia The first Chapter attempts to explore the problem of “war for souls” as a wider social problem in society. democratic in farreachingimplications having issues controversy souls” as of the “war for social wider the framing marginalizes narrow repressesand/or in involved often discussion the of problemsthe 18 European Court of Human Rightsproselytisation. (hereinafterof target the of claims rights human the under justified ECtHR) be can religions proselytizing is an example of this approach. against legislation restrictive whether question the theansweron inof search deadlock into enters perspective legal purely from analysis the dichotomies in these Caught proselytisaztion. See See , , generally Stahnke,Tad Kokkinakis v. Greece 18 , T. Lindholm, W. Cole Durham, Jr., B.G. Tahzib – Lie, (Ed); E. A. Sewell, L. Larsen, The “improper” well “proper”- proselytisation madeknown by distinction MISSIONARIES AND INDIGENOUS EVANGELISTS: THE TO RIGHT BEAR WITNESS IN 31 Cumb. L. Rev. 599(2000-2001) , ECtHR,Judgment of 25 May1993. Taking into account the jurisdiction andmandate of The RighttoEngage inReligious Persuasion A PRIMER ON THE RIGHTSAND WRONGS OF PROSELYTISM, THE QUESTIONABLE GROUNDS OF OBJECTIONS TO OF OBJECTIONS GROUNDS QUESTIONABLE THE 9 , in Facilitating Freedom of Religion or 2006 B.Y.U. L. Rev. 811(2006); 19 Such 31 CEU eTD Collection 20 manifestation of religion Proselytism as a central problem. –described Proselytism asinherent constituentof the focused ChristianCountries is often on with predominantly Orthodox the populations inEuropean Eastern religious communities against practices exclusionary the on The discourse 1.1. Proselytism and the Eruption ofthe “War for Souls” Renata Uitz , Freedom of Religion 20 isnot ahomogenous phenomenon be initselfwhich can as perceived , (2007), p. 56 Creature offear Chapter One 10 Andthegates ofhell shallnot prevail againstit. Concurringof Mr. opinion JusticeBrandeis, Andon this rock Iwill buildmychurch, And I tell you, you are Peter, Fear breeds Repression Whitney v.California 274 U.S.357 (1927) Matthew 16:17-19 CEU eTD Collection 23 22 340 U.S. 268,275 (1951) 21 problem. a religion, thought, negative andhasfreedoms effectson such fundamental circumstances significant asFreedom of conscience in proselytism specific asto emerging souls”The “Warfor is a reaction a phenomenon and expression. rivals.” religious foreign It ispolitical a metaphor leaders coinedconspire groups havewith theirlegal begunto local religious war, thisisstands. as a part, In to toadoptfundamentalist and dogmatic describemore ever into themselves gather to and statutes other each defame and the demonize to and actively begun have set communities religious rival regulationsas war, oftheological is a this part, In restricting faiths. indigenous tothe adherents and retain adherence war to anda newsocieties these souls of the constitutionalindigenous and foreign religious groups. Itis a war to reclaim the traditional cultural and moral between for of souls a newwar on something has brought revolution human the rights rights of theirthe other hand, - continues Witte- in parts of Russia, Eastern Europe, Africa, and Latin America, have On faiths byautocratic oppressors newvigor. with sprungforth driven once underground ancient rights, human and democracy to committed newly regions In globe. the around religion awakeningcatalyze has agreatof to “modern revolution helped humanrights elaborates that: world” modern the of revolution democratic liberty theproblems to with associated ironies refers as“one of proselytism of great the the religious of field in the scholar cited widely and authoritative most the of one Jr. Witte John phenomenon. particular of shapes the changing of is capable and matters often that context is the Witte, Ibid See , Stahnke, , Supra 21 The heterogeneity, in turn indicates multiple contexts of its existence. Therefore, it Therefore, existence. ofits contexts multiple indicates in turn heterogeneity, The note 18, p. 1 Supra note 18p. 619,citing concurringthe opinionof Justice Frankfurter, 23 22 thus placing them in a particular context. Witte 11 Niemotko v. Maryland , CEU eTD Collection p.1 24 proselytismproblems connectedto in1990’sRussia. In light of the foregoing analysis, it shall be contended that proselytism isnot the problem group(s). religious dominant non the of detriment the to powers repressive its employing and religion dominant of behalf on acting usually aplayer, as state involves souls” for “war the dimension legal its In denomination(s). religious foreign and traditional non against it dimension “fighting” religion “traditional” dominant andoften of existence presupposes the generally theological its In multidimensional. is souls” for “war the elsewhere, demonstrated As already contexts. similar other to applicable expression asageneric can beemployed perspective mayilluminate approaches perspective towardsthe our solution also of challenges.these understanding better legal of and constitutional it challenges entails, pursuance such of legal terms. Treatment of “war for souls” as a wider social problem promises new insights for the to overcome the difficultiestheological, political, social,related and cultural considerations. Such perspectiveto opensthe the possibility framinghistorical, all refersrelevant to Thecontext context. in broader capture problem the aims to of the problem of “war legal and simultaneously limited constitutional iscomparison to and for not analysis the However souls” in purely analysis. for comparative framework the constitute andGeorgia Russia Greece, The casesof The following sections deal with the eruption of “war for souls” as a response to proselytism. souls”. butit rather triggers various complex problems among whichis phenomenon the of “warfor John Witte Jr., Soul Wars: Theproblemand Promise ofProselytism in Russia 12 24 But it But shall be this argued that metaphor , 12 , Emory Rev. l. Int’l (1998), 1 per se per ; CEU eTD Collection obligation “toobligation battlefor people’s by meanssouls legal all “continuing available” against Russia, his Aleksey Holiness II whoattheEpiscopal gathering publicly theproclaimed all of from Patriarch the inspiration get for souls” clearly “war metaphor of the The authors activities. their against countermeasures necessity resorting of the andstress denominations proselytizing religious towards attitude hostile express directly authorities Orthodox countries, in allthree heresy, Inspiredby doctrinal the andrelatedperception differences proselytism aspreachingof of transforming doctrinal differences into full scale “war for souls” will be examined later. be examined will souls” for “war scale full into differences doctrinal transforming VS.RELIGIOUS PERSUASION AND EQUALITY,J.L. 20 &Religion149 (2004-2005), p.7;the considerations CRIMINAL OFFENSE INGREECE: PROSELYTIZATION Kyriazopoulos, N. Kyriakos See,creeds. different example ecumenical orthodox patriarchate and patriarch himself hasbeenpursuing tolerant policy the towards 28 27 Republic and the Prevailing Religion, B.Y.U.L. Rev. 815 (1996), p.7 26 Freedom of Religion inRussia: AnAmicus Brief for theDefendant,12 Emory Int’l l.Rev.1 (1998), p.314. belief, Addendum,VISIT GEORGIA, TO E/CN.4/2004/63/Add.1,December 16 2003, pp.6,8;Harold J. Berman, RELIGIOUS INTOLERANCE,Report by AbdelfattahMr. Amor, Special Rapporteuron freedom of orreligion A/51/542/Add.1, 7November1996, p.25; CIVIL AND POLITICAL RIGHTS, INCLUDING THE QUESTIONOF Religionor Belief, prepared by Mr. AbdelfattahAmor, Special Rapporteurof theCommissionon Human Rights, 25 Churches Orthodox by proselytism of perception the define differences Doctrinal schism. including ones Christian strictly defined Christian dogma. itself churches adheringOrthodoxy isandautonomous spiritual autocephalous the the of union consideration. under countries the in religion traditional and “dominant” the is Christianity A solid theologicalis foundation among the groundsdeterminative “war for souls”. Orthodox of 1.2.1. Theologicaland Sectarian Controversy 1. 2.TheFeatures of “War for souls” Ibid, p. 33-37; but doctrinal Supra note 24, pp.30-33 differences do not themselves Hellenic The lead ARTICLE: SYMPOSIUM: CHURCH-STATE INTERNATIONAL Papastathis, K. to Charalambos the outbreak of theological war for souls. For Implementationof the Declarationon the Eliminationof All Forms of Intolerance and of Discrimination Based on 27 , which from Orthodox perspective are perceived as a heresy and asa areperceived perspective from , which Orthodox 26 This dogma is ontologically different from other creeds 13 28 25 . CEU eTD Collection 34 A/51/542/Add.1, 7 November1996, p.26 Religion or Belief 33 32 Evangelism, World Council of Churches, Salvador, Bahia, Brazil, Nov. 24- Dec.3, 1996, cited 31 p.11, cited 30 ( and in CISandBaltic devil-worshipers occultists the sects of states” communities, neo-pagan advantage of the poverty and low cultural level of some of those members.” Church and take Orthodox the of members the moral integrity of hostile tothe who are morally those react against to by”theright such countermeasures justify and countermeasures As their Russian counterparts Greek Orthodox clerics also emphasize their duty to resort the divinity of Jesus Christ and the status of the Virgin and the Saints.” which contests “a sect hierarchs constitute orthodox the to who according witnesses, Jehovah’s in growth in missionaries [and]the Russia of organized protestant of activity proselytizing the continuing with “in connection concern: expressed further clarified position of the Orthodox Church. by Russian The resolution adopted Council the Protestant denominations are not “known religions”. arenot denominations Protestant that claim nevertheless but evaluations their in extreme less are authorities orthodox Greece, In Church. Orthodox against fighting commenced have from abroad missionaries Kirill observed, As Metropolitan war. of a as declaration perceived 29 nature.” of a totalitarian including those sects, activity of groups …and protestant growing tothe by someCatholicandvarious circles intensive activity Emphasis belongs toauthor The definition of “known religion” and related difficulties are examined later. MetropolitanKirill, Resolutionof Councilthe of BishopsMoscow, in Feb.18-23,1997, 7(103) Ibid Implementation of theDeclaration onthe Elimination ofAll Forms ofIntolerance andof Discrimination Based on Address of the PatriarchAddress ofthe the to Councilsofthe Moscow Parishes atthe Episcopal Gathering, December 121996 Tserkvno- Obschestvennyi Vestnik Ibid , p.15 , prepared by Mr. Abdelfattah Amor, Special Rapporteurof the Commissionon Human Rights, Gospel andCulture , Dec. 26, 1996, p.7, cited in Witte, ). The activitiesmissionary by were various denominations (unpublished speech delivered at Conference on World Missions and Missions World on Conference at delivered speech (unpublished 14 31 32 pseudo-Christian The position is sharper in case of in case sharper is position The 29 The Council of Bishops in Moscow Supra note 24, p.1 24, note Pravoslavnaya Moskva 33 and 34 Ibid pseudo-religious , p.13 . ,Mar.1997, false 30 , CEU eTD Collection Russia E/CN.4/2004/63/Add.1, 16 December2003, p.19 by AbdelfattahMr. Amor, Special Rapporteuronfreedom of orreligionbelief, Addendum, VISIT TO GEORGIA, Report INTOLERANCE, RELIGIOUS THEQUESTIONOF INCLUDING RIGHTS, ANDPOLITICAL 40 CIVIL available at: http://www.state.gov/g/drl/rls/irf/2007/90196.htm , last visited on November25, 2008. 39 InternationalReligious FreedomReleased Report 2007, Bureau by of the Democracy,HumanRights, and Labor, 38 Kyriazopoulos, Supra, note 28, p. 6 2008. 25, November on by Department of State of United States since 2001,TO availableVISIT online at: http://www.state.gov/g/drl/rls/Addendum, belief, or , last visitedGEORGIA, religion of E/CN.4/2004/63/Add.1, 16December2003; and ReportsInternational onfreedom Religious on Freedom released Rapporteur Special Amor, Abdelfattah Mr. by Report 37 See, CIVIL AND POLITICAL RIGHTS, INCLUDING THE QUESTIONOF RELIGIOUS INTOLERANCE, 36 Activities of FatherBasil Mkalavishvili’s group are described later. 3, (2002) p. 21 35 dominant orthodox religion. theological and ideological struggle againstnon traditional religious creeds on behalf of denominations Mkalavishvili,notorious due its to violence against some “non traditional” religious Basil Fatherof namely groups, that religious Extremist traditional religions. tolerate authorities Orthodox intolerance. significant encountering without belief their practicing and forin centuries havebeen Georgia present as They traditional. aretreated religions Armenian and Jewish Muslim, as“sects”. them categorizes also sometimes and “non -traditional” perceived as asect byOrthodox Church. Orthodox Clergy considers Protestant denominations as proselytizing activities by some religious denominations, especially by Jehovah’s witnesses the assesses negatively also Church Orthodox Autocephalous Apostolic Georgian The case of some right wing politicians and teachers at schools. at teachers and politicians wing right some of case and some of them have allegedly inspired orparticipated in violence.the The same in is true meetings parish on speeches their during hostile often are clergymen ranking lower but religions, usually limitthemselves with expressionthe of negative attitude towards non traditional MICHAEL OCHS, Persecution of Jehovah’s Witnesses in Georgia Today, Religion, State & Society, Vol. 30, No. 39 media institutions including broadcasting media are also widely involved in a 36 adopted similar “traditional” adopted towards attitude faiths. Highhierarchs orthodox 40 15 37 As in the case of As caseof Greece inthe 38 and 35 CEU eTD Collection requirement according to the Greek authorities serves as a safeguard to public order moralsaccording Greek authoritiesthe servesasasafeguardtopublic requirement and to order rites. or dogmas secret any have not shall and transparent be shall faith applicant and is determined by the case law and administrative practice. To be qualified as interpretation academic from an originates known known, as religion of recognition for the The criteria religion administrative agencies, it nevertheless subjects them to the state supervision and control. Although recognition does not transform religious institutions of known religions into Education and Cults. Recognition as a known religion falls under the power of the latter entity. a public- department authority of differentcults and under religions Ministry the of National by supervised andcontrolled areand religious activities market their tothe these denominations of entry The Church. Orthodox except denominations religious all fall religion known Under 42 41 for prevailing to worship the right reserves In Greecethe constitution rules. legal relevant of enter the detailed analysis the will not and practices restrictive existence of the demonstrate to intends section review. Thisdescriptive religiousThe in aresilenced/excluded communities ways disfavored the countriesunder differs 1.2.2. The Art of Silencing religiousactivitiesother of denominations. proselytizing the end an put to Authorities by Orthodox claims the entails generally hostility The attitude towards non traditional religious denominationshostile displayedopenly and by localassessment Orthodox negative the Churches. to due crucial, becomes dichotomy traditional non of population. Orthodox clergy tolerate historically majority present the by “traditional” adhered is religions. Christianity Orthodox Traditional consideration - under countries all in Generally, Kyriazopoulos, later. discussed are it to related issues The Church. Orthodox Greek is religion prevailing The Supra , note 28, p. 7-8 16 41 and known religions. known and 42 This CEU eTD Collection religions not wholly in line with public order and morals. otherwiseaccommodate transparent to requirement the twisted injurisprudence developments later andmorals cumulative publicBut the wereregardedasclosely criteria. order connected Law No. 1672/39 , cited institutionshall constitute a particularly circumstance."aggravating §4of amendedLaw Greek as No. 1363/38, philanthropic by or a establishment educational other or school a in offence an ofsuch commission The 3. or naivety. intellect low need, trust, inexperience, ofhis advantage by ortaking or means support fraudulent by or moral or assistance, inducement material ofan promise or of inducement kind any by either beliefs, those undermining attemptindirect or to intrude direct any on the religiousparticular, in beliefs meant, is of a person of By a different2. ‘proselytism’ religious offender. the persuasionconvicting (heterodox), when court the by with the aimfixed of drachmas; he shall, moreover,be subject to police supervisionfor aperiod of betweensix months and one year to be 48 47 46 45 44 43 proselytism. of prohibition constitutional the from comes requirement This proselytism. from isabstention religion rule of law. given, any determined, importunate attempt to entice disciples away from the dominant religion dominant the from away disciples entice to attempt importunate determined, any given, performed freely and without hindrance. Outside such spiritual mayteaching, which be freely of ofa worship rite is in nature the teaching spiritual because is this freewill; their own of religions original their abandon who them, from away disciples possible entices and religions spiritual doesnotamountteaching proselytism, to if the it even demonstrates errors of other “purely courts: Greek of jurisprudence to the date. Pursuant to is preserved and ruleMetaxas of all acts against religions. known to asgenerallyapplicable interpreted The Relevant penal provision itoften directed that contend applies againstreligion. prevailing only acts of the Greek legislation "1.Anyone engaging in proselytism shall be liable to imprisonment andafine of between1,000 50,000and Kyriazopoulos, Article 13(2) of the Greek Constitution Kyriazopoulos, Supra Supra notes 26 and 33, p.5 p.4 14, note 43 In initial case –law and administrative practice transparency and conformation to conformation and practice transparency case Ininitial administrative and –law Supra Supra , note 28, p.26 , note 28, p.7-8 Ibid , p. 1 17 48 was adopted at the time of dictatorial 44 The second criterion for the known for the criterion Thesecond 47 46 Although opponents 45 The is prohibition CEU eTD Collection Witnesses house-of-prayer permits be repealed. The matter is still pending in the court system. Reportedly, system. court the in pending still is matter The repealed. be permits house-of-prayer Witnesses Jehovah's the that court alocal to requests made bishops Orthodox Greek two that reported community Witnesses as mandatedresponse official an send it that recommended and Ministry the by contacted who law.2006, December in Ombudsman The Ministry senthad 11pending house-of-prayerpermit requests, some dating from Witnesses 2005.They protestsent a no lettertothe Jehovah's The response Ministry. the from further wasnothing There matter." the of peculiarity the and as seriousness of the end of the 2006 theMinistryreporting responded toone of these groups, stating that it"would delay formalits response due to the period. Ministry of EducationReligion and hadnot responded despite advice Membersfrom Ombudsman the forHumanRights. In of thepolytheistic HellenicJehovah's traditionapplied ineach of thelast fouryears forhouse-of-prayer permits. In the past, the the hardships religious communities encounterat registrationstage. “Different groups that follow the ancient excerpt from 2008the US Department of CountryState Reports on InternationalReligious freedom illustrative is of religion status are compelled to pursue their activities underthe ordinary private law association. The Following or other property takeand part in legal relations and appear before courts. Religious communities without known legal entity under public law. Without legal personality religious communities are unable to ownplaces of worship 51 Proselytism. 50 17, 49 missionary activities. pursue who nevertheless to organize itself as legal entity directions.Firstly, the recognition as known religion is denied in order to prevent the community sum To up, restrictions against proselytizing religiouscommunities two in Greecetake of crime in proselytism. listed Law" constitutes the meansthe separately actus reus isin of actand the of used perpetration themeans not description the the case law,represents had taken advantage of this. The list of activities in and oflowintellect proselytiser or were“inexperienced” activities the targets of the proselytising criminal law provision, according to the or form inducement, asa of benefits wereused material promise of of target, religious feelings prevailingthe intrudedthus belief involvedupon to andreligion references offensive religious other of teaching the where for proselytism have convicting been courts Generally, Constitution." morally by means proselytism or reprehensible constitutes areunlawful that asprohibited by the The recognition as a known religion is necessary to obtain the permit for having a place of worship and status of Kyriazopoulos, Judgment #2276/1953 of Greek SupremeAdministrative Court citedin of the crime. Any “direct or indirect attempt to impinge on religious beliefs by any of any by beliefs religious on impinge to attempt indirect or “direct Any crime. the of 49 Supra , note 28, pp.22-24, having extensive review of the case law of Greek Courts on the crime of 51 . Secondly criminal offence of proselytism is applied to those to is applied proselytism of offence criminal Secondly . 52 18 CASEOF KOKKINAKIS Supra 50 19, Para. CEU eTD Collection 56 55 Religious Organizations: An Analytical Appraisal. 54 Problem of Proselytism in Russia Volume: the to annexed is Uzzel by Lawrence translation English Associations); Religious and 53 missionary activities. See, numberof the arrest and conviction issues, legal of related missionaries proselytism significantly in officials decreased enforcement last in of law years; thoughawareness they higher and still tactic hinder this of Because 52 http://www.state.gov/g/drl/rls/irf/2008/108449.htm Freedom Report 2008 churches minority court to bring to that operate or authority build places the of worship have withoutpolice apermit. Local In practice, this worship. happensof rarely.”houses open to required are which Minority groups religious requestedhave thatthe Government abolish laws regulating house-of-prayerpermits, a reply and a constructionpermit remained pending due to bureaucratic delays end atthe of the reporting period. Jehovah's Witnesses filed four additional applications forpermits forKingdom Halls in 2007. They had not received provisions religious liberty.restricting On the other national defense. security and interests of of public andothers, rights interests legitimate health, hand, the legitimatethe grounds for its restriction,namely, protection morals,constitutional of order, law is quiteThe 1997 law reinforces general constitutional in guarantee fieldof the liberty religious and lists complex,subsequently ending the “golden age” of libertyreligious in Russia. full of ambiguous Church andachieved supporters its and success president signedthenewLawin Yeltsin 1997 Orthodox of efforts the finally But therein. enshrined rights fundamental and constitution andwith vague concepts as the amendments having1997 Law,on contentsimilar grounds incompatibility restrictive of andreligious organizations had been In tightening. 1993 PresidentYeltsin has vetoed the it, againstforeign of affiliated to activities Orthodox Church the andnationalistic groups basislegal Since “golden age” of liberty. the theof early bytheRussian religious pressure 90’s, in Law of 1990 adopted contextof the “Perestroika”. The 1990 Religious Law the is regarded as Conscience and Associations” Religious 1997law).(hereinafter of Freedom “on Law in 1997 codified are communities religious for restrictions Russia In See, Conscience of Freedom the Law on (Federal Obedineniakh” o Religioznikh i Sovesti oSvobode Zakon “Federalni Anti Proselytism Legislationforces missionaries to undertake training to steerclear of anti proselytizing laws. Supra Supra note Supra note54 p. 116 note 24; W. Cole Durham Jr., Lauren B. Homer, 53 Articles 2-3 , Released by the Bureau of Democracy, Human Rights, and Labor, available at: Ibid , 12 Emory L.Int’l Rev. 1 (1998) 56 Thefollowing paragraphs willexamine provisions the 12 Emory Int’l L. Rev. 1(1998), pp.106-116 ,visitedlast November on 25, 2008 19 Russia’s 1997Law Freedom ofConscienceon and 53 54 The1997Lawreplacedthe InternationalReligious Soul Wars: The 55 CEU eTD Collection 59 teaching the religion and religious education of the followers.” ceremonies, and rituals religious services, worship of performance creed, the goal: a to that itsresiding on territory by united joint goal the confession of and corresponding features having legally permanently persons other and Federation Russian of citizens of association “voluntary as defined “religious association” term generic lawthe introduces isThe 1997 issues necessary. examination of complexthe system governingrules of status the of religious entities and related In order to illustrate further indirect restrictions often of purely procedural nature the for its has critic of early andground concern beenthe commentators. application vagueness of the provision together with its obscurity and the risk of selective and discriminatory is hinderingprovision Theoverbreadth directly capable of and activities. theproselytizing 58 57 religious organizations and groups. religious privileges.entitlement associations 1997Law Religious to into tothe aredivided Pursuant and legal rights their and determines duties classified.further This classification status, establishments. religious of buildings of vicinity in the citizens of feelings religious law imagesholding ordissemination1997 or of the texts prohibits offending events of public the Additionally, the such areprohibited. of acts, of commission threat impairmentor of or property associated with with their relationship religion, of propaganda superiority,religious destruction coercion over the personality humanof being, intentional offense to the feelings of citizens lawThe 1997 prohibits freedom theexerciseof conscience of andworship connectedtothe in particular. denominations religious of activities proselytizing the obstruct in freedom religious to on and arecapable general character/effect having restrictive Durham and Homer, and Durham Supra Supra note 53, Article 6 , note 53, Article 3(6) Supra , note 54, pp.142-145 20 59 Religious associations are associations Religious 58 57 The CEU eTD Collection detention of places and hospitals,in chaplaincy cooperate conduct to with the allowed state inare the they voluntaryfinally And religious heritage. educationcultural in public and schools historical and obtain representing property of their maintenance and restoration the for state the from ofbenefits forms other and financial receive or movable other or land buildings of a form immovable in property made availableorganizations by other the latter and entities free municipal of charge. Religiousstate, from organizationsbenefits are entitled obtain to to creditors. Religious organizations are allowed to invite foreign nationals forprofessional activities. They are entitledexempted fromorany otherform as welltaxes as articles forreligious services. The property of religious organizationsand is usually thebut not limited to the productionworshipof religious goods; to import religious educational material in printed audiovisualplacesreligious literature and articles forworship and other religious services; to setof business undertakings up including are exemptforritual, social,charitable, educationalpurposes, for also productionthe including the exclusive to right produce from bankruptcy63 proceedings or any claim on behalf of 62 61 60 belief. “ voluntary union of citizens associatedReligious together group is the lowest and simplestwith form of religiousthe association aim and is ofdefined asconfession “the and dissemination of are granted withare granted a widerights set and privileges, enablingthem accomplishto their objectives. becomprisedleast 3 local of to its Charter organizations. at religious according shall organization religion ACentralized application. date of forregistration the years concerned and shall present the proof of their existence leastcomposedlegal 10 citizens of at habitually or permanentresidents, locality atthe residing at the territory concerned for at least 15 localfurtherinto divided and centralized religious shallorganizations. Local be organization havelegal personality andare subjecttoregistration. consequently are organizations Religious organizations Religious of Federation. Russian territory the legally on residing permanently and personsReligious other organizations hand aredefined onthe other asassociation citizensor of all rights andother religious privileges afforded tothe organizations. holdreligious property,hire benefitsare hinderedto groups personnel, corporate obtain state and legal Absentpersonality followers. their educate religion religiously the and teach ceremonies, registration. They are afforded with the rights to conduct worship, religious rituals and They are to entitled They are corporate ownership of unhindered property its the disposition,and the including exploitation Ibid Supra Ibid , pp.170-182 , Article 7 note56,p. 169 60 Religious groups do not havesubject not Religious legalpersonality consequently to groups do are not and 21 61 62 Religious organizations 63 CEU eTD Collection other acts disturbing order. illegal actions, inciting citizens to refuse the fulfillment of civictheir obligations established by law, orto perform life, health and theirproperty property, forthe use of religious association; obstructing citizen to leave religiousif associationthereby threateningobtaincompulsory to education, forcingis members and a followersdanger of the religious associationor otherpersons toto alienaterefusal of medicalof help to persons in situationsthis dangerous to life and threathealth, on religious grounds; prohibiting to of performance depravedactuallyorhypnosis, other disorderly substances, actions, inconnection psychotropic or with their religiousof narcotic use the activities; including encouraging being suicideof citizens, orthe health or morality the on carried out, or upontheby personality rights usingand freedoms of the citizen; infliction of force damage established in accordance withthe law or other64 24, pp. 20-23 state support in teaching general educational disciplines in religious educational establishments. Witte, Commentators grounds. enumerated on organization/group religious andof liquidation/banning demandthe apply court the to agenciesareempowered self andlocal organizations government of registration religious the with agenciescharged executive service, “Theof denominations. organs prosecution religious of range liberty a wide of hindering religious arealso the capableof group religious organization/ liquidation of andbanning of religious for organization the Grounds 65 hindered institutionalizing manynewreligious from denominations giving theiractivities, them requirement of 15 years newly By setting measures denominations. religious emerged targeted setof Second foreigners. existence for the registrationassociations iteffectively excluded the settingof possibility upsuch by associations the as a religiousimposinglegal the citizenshiporpermanentfor residency establishing requirement religious organization denominations.it Firstlyeffectively it prohibited religious activities of foreign religious organizations, and by fearsthe The 1997 lawrespondedconcerning to proselytizingforeign of the activities religious their relevance to the proportionality thresholds, especially under ECHR. about lawandcastdoubt human rights international under limitations objectivesof legitimate the Undermining of social security publicand order; extremist activities; forcing family disintegration; infringement Supra note 54,pp.215-221 65 point to the overbreadth of these grounds and despite the seeming relevance to relevance seeming the despite and grounds these of overbreadth the to point 64 Supra note 53, Article 14 22 Supra note CEU eTD Collection religious connotations, it significantly affected no a number with of bureaucracy religions. and corruption of result were sometimes obstacles such Although agencies. administrative by employed still was registration of denial of tool the Nevertheless, requirement. of softening of more tomeet passage 15yearsrestriction, time denominations enabled religious 70 CHURCH OF SCIENTOLOGY MOSCOW v. RUSSIA, ECtHR, Judgment of April 52007 Para.97 neglected their duty of neutrality and impartiality vis-à-vis the applicant's religious community.” CASE OF denying registration in that, to the Churchbe inferred of can it Scientologybasis, legal of no Moscow,had branch the Moscow authorities applicant of the did not act ingood faithre-registration and deny to courts Moscow the view“In ofCourt's the finding above invoked thereasons that by Moscow Justicethe Department endorsedand by the Salvation Army v. Russia, ECtHR, Judgment of 5 October 2006; 69 available online at: 68 Christian GlorificationChurch, cited in Caseof Church of Scientology Moscow ECtHR,Infra note 69 67 Freedom of Conscience and Religious Associations, 12 Emory Int’l L.Rev. 1 (1998), pp. 57-64 66 and byECtHR. of date has jurisprudence become the source remarkable to create obstacles to continues discrimination motivated religiously clear inaform of discretion into before theentry force of 1997Law. organizations registered the for the according 1997Law.Constitutional to the later decision removedyearscourt’s 15 requirement years butfailed thereregistration procedure with compliant 15 wereregistered threshold religious organizations anew,its pursuant requirements. Many to organizationsthe of non nature. moreand organized widespread Georgian religious marketplace resembled marketplace Georgian religious Orthodox Church is also problematic. Before concluding constitutional in agreement 2002, In Georgia registration and legal personality issues of religious communities other than Georgian and variousthe benefits enjoyed andpreferential from state privileged treatment. Orthodox Church as a Centralized religious organization continued to be almost sole recipient of having historically monopolistpresent natural Georgian Orthodox Church See generally Witte, Supra note 24, and Durham and Homer, Supra note 56 note Supra Homer, and Durham and 24, note Supra Witte, generally See Case of Kuznetsov and Others v. Russia, ECtHR, Reports on International Judgment Religious Freedom released by Department ofof State of United States11 sinceJanuary 2001, 2007; Case of the Decisionno. 16-P of 23NovemberMoscow 1999inthe case ofReligious Society of WitnessesJehovah's Yaroslavl in and Branch of Ibid,pp. 157-161; 221-225; T. Jeremy, Caesar’s Gunn, Sword: The 1997Law of Russian the Federation on the http://www.state.gov/g/drl/rls/ 66 The 1997 Law subjected to mandatory The Law subjectedto 1997 registration all , last visited on November 25, 2008. 25, November on visited ,last laissez faire laissez 23 , totally unregulatedbygovernment, 68 69 Abuse of administrative of Abuse In contrast the Russian 67 In addition to the to addition In 70 CEU eTD Collection http://hrw.org/english/docs/2005/01/31/georgi10098.htm 73 a Religious Organizationunder the Status of Legal Entity underPrivate Law. attacks and, at times, even participated in the attacks.” the in participated even at times, and, attacks or looted property, homes destroyed ransacked and and literature.Police religious take did not adequate measurescongregants, to stopbeat the services, religious up broke assailants The Georgia. in minorities religious other 1999 to 2003. Mkalavishvili led dozens of mob attacks against Jehovah's Witnesses, Pentacostalists, Baptists and 74 72 GEORGIA, their preaching and75 attempts to share their faith, but at the end of 1998, they say, the atmosphere changed when 71 some extremist notably groups, Orthodoxpriestdefrocked FatherBasil Mkalavishvili. Faire Laissez suitability of the status of legal entity of private law and do not wish to register. the challenge also denominations religious other Many rule. Bolshevik under taken property of Church, lawand thepublic enjoyed privileges byOrthodox especially restitution the of entity legal of status the for demand Church Armenian namely in Georgia, present traditionally law. granted permission were they 2005 Since changed. significantly was Church Orthodox than other todenominations register and acquirechanges status of non commercialbegun eradicate inequalityto the among various the religious denominations. Although the legal wereentity underAs aresult of 2003RoseRevolutionthe subsequentandfundamental of the governmentchanges private not personality entailed difficultiesmotivated to own property, organize places of worship, and etc. religious entities especiallya heaven for liberty. religious Lack oflegal andstatus has hinderedthe activities recognition of by thosepurely of theBut on the other hand the absencenewly of the legal regulation of religious marketplace has not created arrived, toegalitarian pursue their activities Lack of legal motives, the situation of religious Basil’s was by publiclyoften supported some politicians including of Members Parliament Georgia: Ex-Priest Jailed for Attacks Against Religious Minorities, Human RightsWatch See, Tsintsadze, See, FatherBasil Mkalavishvili and his group “were responsible forviolent attacks against religious minorities from “Representatives of the[Jehovah’s] Witnesses maintain that that the local population initially reacted favorably to Tsintsadze, Khatuna See 72 , Ochs, , The registration procedures are simple but some denominations especially those especially denominations some but simple are procedures Theregistration 2007 B.Y.U. L. Rev. 751(2007) p. 3-4 Supra era was also distinguishable by the outbreak of religiously motivated violence by Supra note 35, p. 5, discussing the Ruling of Georgian Supreme Court denying the Right to register as note 70 LEGAL ASPECTS OF CHURCH-STATE RELATIONS IN POST-REVOLUTIONARY lastvisited on November25 2008 24 , Feb. 1,2005, available at 73 71 74 Father 75 and CEU eTD Collection Department of State of United States since 2001, available online at: GEORGIA,E/CN.4/2004/63/Add.1, 16December2003 and Reports on International Religious Freedom released by Reportby Mr. Abdelfattah Amor,Special Rapporteur onfreedomreligion of orbelief See, http://www.state.gov/g/drl/rls/irf/2008/108447.htm 78 of 3 May 2007 Para.124 and 134 of Case applicants' religious community and enabled them to exercise freely their rights to freedom of religion.”measures necessary to the ensure take to thatduty the grouptheir in of failed Orthodox extremists authorities relevant ledthe by FatherBasil inactivity, toleratedtheir the existence through that, of considers the Court “The existed.” have may that remedies other any of effectiveness the undermining to tantamount was offences in their case. In the Court'sfaced subsequently were with total indifference applicants the that and opinion, onthe part of the relevant ill-treatment from authoritiesnumber, of their who, forsuch no validof certain reason, children refusedthe and an to apply the law concerned, attitude on the part of authorities77 under a dutyNovember25, 2008. to investigate criminal negative attitude publicly denounces any violence against the religious groups disfavored by it. Patriarchate. Metropolitan later apologized for theheroic statements. way.’ Metropolitan and Atanase’s In Generala masculine in position it does was Georgian denouncedMkalavishvili help. bywill the officialmethods Orthodox No peaceful statement war. by it of express Church to Georgian OrthodoxWe have … thoughpeacefully having Jehovah’s Witnesses, Baptists, Anglicans and Pentecostals ‘have to be shot dead …‘We do not want to conduct it 76 Ochs, congresses.” hold to Georgianparliamentarians beganspeaking out, thenand local authorities started impeding the Witnesses’ attempts Georgian Orthodoxy. His speeches led to heightenedparliamentarian pressureGuram Sharadze seizedon Witnesses onthe issue of religious purity turnedandand otherit into a rallying cry minorityto protect religions; other related to tax exemption, and permission for erecting places of worship. problems the experience still they personality legal obtain and register to communities religious Although Violence againstis religious communities longer no and reported, legislation permits quasi legal directly or legal indirectlyrepressive involvingcharacter, state’s power. or of “war for souls” overstepping the boundaries of theological/ doctrinal debate and attaining farreachingconsequences the demonstration isthesuppress clear proselytizingof activities their Basil. Father perpetrated responsible for violation the of liberty religious of victimsthe of one of notoriousthe attacks former government officials was sufficientfor European Court of Human Rights to hold Georgia by evidence approval extremistinactivity the of activities, the government, the tacit of and clergy. Orthodox some even Reports on International Religious Freedom released by Department of State of United States, “The Court notes that the police refused to intervene promptly at the scene of the incident to protect the applicants MetropolitanofOrthodox Georgian Atanase Church (Chakhvashvili) declaredTV appearance in The that also 97 membersof the Gldani Congregation of Jehovah's Witnesses and 4 Others v. Georgia CIVIL ANDPOLITICAL RIGHTS, INCLUDING THE QUESTIONOF RELIGIOUS INTOLERANCE, Supra 77 State tolerated violence against different religious creeds aiming to note35, p.6 20-21 and 76 Although Basil and his followers were brought tojustice bynew 25 http://www.state.gov/g/drl/rls/ 78 , Addendum,VISIT TO Ibid , ECtHR,Judgment , p. 21-22 , last visited on CEU eTD Collection shared and originates from Byzantine Empire. Byzantine Empire – historical predecessor of historical EmpireByzantine – predecessor from Empire.Byzantine shared and originates is under consideration relations inthecountries of –State Church souls”. pattern The historic these countries butalso provide thekey underlyingto reasonsfor waging the “war for of in arrangements thecurrent explain notonly patterns these seethat Wewill Russia. and Georgia relations inGreece, of undertake patterns historical the – State Church to is itauthorities worth Before advancing tothe discussion of current state of the Relations between Church and Political 1.3.1. ByzantineConception of Church-State Relations actual legalinto restrictions. the claim of Orthodox Churches closerto attention.take Their carefulcountermeasures scrutiny sheds light to the origins of reasons thatmake possible for against deserve considerations and cultural historical, social several entails; itand consequences the their rivals to be transformed inlaw is reflected sectarian in controversy and wayswhich Afterthe description doctrinal of the 1.3. The Origins of “War for Souls” Basil Mkalavishvili. of violencemain Father religious the perpetrator conviction of of till the period the 1999 -2004, violence Thesupported proselytizing religious against group. practice was in in pursued Georgia and tolerated State 3. and Greece; to peculiar is practice This law. criminal under Proselytism all is personality.measure consideration.to of common countries 2.Prohibition This under impediments legal and toregister categories: obtain 1.Legal/administrative broad three in beclassified can communities proselytizing against measures restrictive the conclusion In 26 CEU eTD Collection p.4-5 83 82 (1967) p. 259 81 80 79 “ are God’s. that things the the God to and are Caesar’s Caesar thethings that to relations understandingbiblical of starts from Church –State the expression the Jesus: “Give of Christian the into inquiry any Byzantium, to turning Before exception. the not is story the of part Byzantine and issue controversial is Christendom of history in the State and Church Churches. Orthodox Russian and Georgian including East the of Churches Christian Orthodox other over influence overwhelming had it Consequently, shaped. was doctrine as areligious Orthodoxy where Christianity Orthodox bastion of Greece wasthe contemporary and established Christianity as its principal ideological foundation. Under Constantine Christian Constantine Under foundation. ideological principal its as Christianity established and Empire Roman of Emperor Christian became Constantine Christianity. to Constantine Emperor superior and has “obey individual to rather than man”god is kingdom divine that clear makes Bible The realms. two the of citizens dual as Christians makespronouncement between the distinction temporal and divine kingdoms and identifies the role of persecuted faith. role of the persecuted limited powerful the to bodiesRoman Empire was Their to relationship yet.political corporate not were they unified, though centuries; first the of communities Christian the with begin To in such a way wouldlead that tothe coherentand uniform in pattern Christendom reconciled been hadnever tensions the and fluctuating wereconstantly powers two the between this. of illustrations very dramatic offers History kingdomstwoinherent neverdialectics ofthis could Christian calmthe dichotomy; of centuries See, Acts 5;29 Mark 12;13-17, Matthew 22;15-22, Luke 20;20-26 David Knowles, David James E. Wood E. James Jr., Ibid , distinguishing Eastern Orthodox,(Byzantine), Roman Catholic and Protestant conceptions. Church andStateinChristian History Christianity and the State 83 This picture was radically changed by the conversion of Roman , Journal of the AmericanAcademy of Religion, Vol. 35, No. 3, 27 , Journalof Contemporary History,2, No. Vol. 4(1967) 81 In different epochs and places the balance the places and epochs different In 80 But Biblical distinction between the 82 79 The CEU eTD Collection 86 settings though under different and shifting balance of power between them. between ofpower balance shifting and different under though settings 85 Downey, was vulnerable to Christianity backedby coherent substantive anddoctrine Emperor’s political support. Glanville conceptionof but all good also proclaimed its embracing character absoluteand truth. Consequently religionpagan conceptions of good absent in merely ceremonial pagan religions. Incontrast Christianity not only envisaged its ownphilosophy underHellenic influence. Suchstate of affairs was inevitable as ancient philosophy provided substantive Religion having merely ritual form did not dominate RomanCulture which ratherwas permeated by ancient 84 faith had dominated society and culture of Roman Empire over Church in Constantinian Justinian fashion or later describedwas byhistorians as asheresy. doctrines todeclareparticular power protectintegrity the Christian the Christianof produced doctrine.obligation Doctrine to The and priesthood sanctity of of of for preservation of dignity the Society responsibleChristian whileboth Church possessedand Emperor powers, was Emperor divine shepherdthe and ruler ecclesiastical authority Justinian.him established byEmperor was conclusively According to and political between relations the of conception This Patriarchs. the appoint and decisions appointed protector imposed total over Church.control Hecould summon Councils, their publish non organization corporate of atthatChristian Church timemandate and under of the god authority made protectorthe Emperor of Church. Constantine perfectly hierarchicalused non and authority asachosenand proclaimed Emperor representative givenThe God God. of the realms Churchof and Empire Constantine’srelationship throughout Christianthe middleHistory of ages. politicalin such remained and intermingled authorities ecclesiastical and political consequence theory clearlyConstantine’s overall political program aimed at setting the foundation of Christian Empire.As a struck tradition. secular experienced whichhadnever Byzantium its whole of successor the existence and uneven balance of power between the two In effect by eliminating dissent Emperors were protecting the integrity of the source of their own power. own of their source the of theintegrity protecting were Emperors dissent by eliminating effect In The The fusionof political and ecclesiastical powers prevailed inall Orthodox, RomanCatholic and early Protestant Pagan Culture. Roman Hellenized the from it disentangled and society from religion pagan expelled Constantine Julian and Justinian and theUnity ofFaith and Culture . Constantine took Christian conception of divine origin of all 28 86 The apparent domination of Imperial power , ChurchHistory, Vol. 28, No. 4, (1959) 84 85 . The lasteddomination throughout See , generally, Knowles, Supra note 83 note CEU eTD Collection characterized in legal and ecclesiastical documents, the harmonic relationship – relationship theharmonic documents, in legal ecclesiastical and characterized they contended that historically, throughout the tensions between two powers emerged, as ideally 90 Caesaropapism, Church History, Vol.34, No. 4. (1965), p. 385 89 in spheres.” imperial authority other an of perhaps and absence areas, certain Translating into interdependence –“a blend of by domination emperor the over the church in and patriarchs. Emperors between was shapedinconstantstruggles fully wasnever matters actual of the balance achieved and that authority power doctrinal over 87 Orthodox Church’s influence significantly increased during andafter Mongol rule. The Church significanttension. cohabitating without Bishopswere byByzantium. The were appointed Princes Christianity happenedto underclear Byzantine influence. Thefirst bishopsinRussia Russian Kievian of conversion The Russia. to alien not was tradition Byzantine the Historically, to thisthe history. regardless various attempts endthroughout religion, of content dogmatic over authority unlimited exercise to inability his time same the at organization and administration churchthe of possession and of spiritual significant but powers, the over control his realm, temporal over Emperor the of power absolute the meant Symphonia Caesaropapism. Caesaropapism. See, generally, See, Caesaropapism. states managednation to subordinateEuropean emerged Churchesnewly to then political authority reformation, and in asetting renaissance named Erastianismafter only World very Catholic similarIn to Byzantine domination. to achieve gradual independence from Imperial power. Inthe latter, rulers were fighting to escape CatholicChurch’s authorities differenthad directions in Byzantine Romanand Catholic traditions. In former the Church was struggling temporal sword by him handed to the rulers of state.” Therefore, thetensions swords two between as are fused spiritualState and and temporal “Church whichAquinas: Thomas Theologian Catholic prominent to belongs god conception this has given versionByzantine balance of favorwas powerof in Catholic Church by headed Pope. Famous pronouncement of to Christendomdominated political power. The two realms of political and ecclesiastical powerwere also fused but inContrast to biblical visionof the supremacy of ecclesiastical power. Underfor Holy Roman Empire Catholic Church fully This Controversyprotection; led to the disintegrationof ChristianChurch. Emergent Roman Catholicism reinvigorated the his god given and authority was Church only of unrestricted son intemporal the matters.was Spiritually Emperor Emperorwas guidedby Church.the divine; was both of source the Although political. the boththan greater was power ecclesiastical Gelaisus to According Society. of of Christian Shepherd and of Church theseGuardian Godappointed the however88 are given by him to Pope and the Deno J. Geanakoplos, Church and State in the Byzantine Empire: A Reconsideration of the Problem of Knowles, Thefirst majoropposition to Emperororiginated Rome. in Pope Gelasius Ichallenged status the of Emperor as Ibid Supra note 83, p. 7 87 The term became exposed to multiple attacks. Critics asserted that Imperial Ibid , and Wood, , and Supra note81 29 90 88 Rejecting Ceaseropapism Rejecting 89 More precisely, More Symphonia ; CEU eTD Collection Archbishop in the Russia of Catherine the Great and State in Russian History 91 Zoroastrism and then Islam- the religions of conquering eastern powers. Georgian Church gained tothe theChristianity valuesasopposed westernChristian influence. Orthodox represented Orthodoxy in Georgia spread from neighboring Byzantium and for centuries itswas under strong state. communist Church survived the remainingyears of Sovietrule collaborationthrough and cohabitation with the Council of Religious Affairs of the Soviet of Ministers of the USSR. Russian Orthodox legitimizing and unifying powersof church. factually Stalin subordinated Orthodox Church to StalinChristian of reappreciated TsaristOrthodox Joseph Seminary expelledthe studentthe Church.WW RussianOrthodox to the SovietLeader, changedapproach Bolsheviks duringII. Bolshevik revolution in 1917broughtmilitant disestablishment andharassment byatheist regime in process. instrument and colonization was Emperor andlegitimized Christianity sacralized Orthodoxthe Church was integral an part of autocratic political andideology.power Orthodox Empire Tsarist Russian of fall the Till authority. dogmatic unrestrained only it to leaving state, by finalized theGreat who reformsthe Peter of institutionally subordinated theChurch the to was process the relations This to model. Byzantine classic –State of approximation Church the being transformedabsolutist Empire. into surprisingly, absolutism Not path to included The self-identification as a Byzantium’s successor was far from symbolic. The Russian state was to Byzantiumthe in capacity the of sole guardian of Orthodoxy. develop already tookthis opportunity theories Russianclerics perished. to Russian of succession hadbeen of Orthodoxy guardian -the Empire Byzantine time Atthat the state. of Russian aftermath of Mongol Rule, the growinginfluence of church by was accompanied, expansionthe playedin aunifyingrole Mongol supporting Russianpeople their to oppression. resistance In See, generally the history about of RussianOrthodox and Church Sate;Firuz Kazemzadeh, 91 , 12 Emory Int’l L. Rev. 1; Gregory L. Bruess, , (1997 ) 30 Religion identityGreek and Empire: A Reflections onChurch CEU eTD Collection continued autocephalous existence during Soviet occupation. Therefore the description of description the of occupation.the Soviet Therefore existenceduring continued autocephalous Democratic by Republic RussiainNeverthelessSoviet 1921. Georgian Orthodox Church Russia in ended of occupation the collapseof gainedTsarist with Georgian 1917 the after Church. Church Georgian Orthodox regained in autocephaly 1917.Brief of period Independence Colonizers abolished autocephaly of Georgian Church and subordinated it to Russian Orthodox in Russian Russian The long XIXcentury. with Georgian of annexation kingdom ended twilight Authorities. Orthodox and Principals and Kings between cohabitation harmonic of mode the to returned relationship The rulers. the of tendencies separatist the followed Bishops aslocal fate same the shared Church Orthodox Georgian principality, and kingdom several into State Georgian following the Kings centuries, lost gradually poweroverChurch.After the disintegration of in Georgianfall after andstate Georgiansubsequent deathof the David But of Orthodoxy. of content dogmatic modification the of in slight wassuccessful even David theRestorer structures of church and state. fusedinstitutional appointing hisGrandChancellor, the Restorer David leading as Bishop control necessitatedRestorer the cleansing of from Church the impositionopposing bishopsand of over the dominated setting. XIIcentury of absolutism David the In moregrowing style Byzantine state organizationthis period gradually from developed harmonic cohabitation with tensions,accompanied tothe during power state and Church between relations The inXcentury. Kingdom Georgian united and and administrationof creation Arab conquerors escapefrom the largely preconditioned nation that Georgian for function unifying important an played Church The Byzantium. of fall the till Church influenceautocephaly inbutremained ofByzantine V Orthodox undersignificant century, of the Georgian Orthodox Church. By 31 CEU eTD Collection National Library, Narkvevebi”Istoriis (Inquiries into Georgian History) available online at webpage ofGeorgian Parliament’s 93 at Georgian Church People 92 Empire. Byzantine multicultural and multinational a in homogeneity religious required mandatorily legitimacy religious of Preservation power. his and Emperor of sacralization were Church manifold.and state important Most political behindobjective conception this was in Constantine of reflected ByzantinePolitical conception Agenda of Justinian and Emperors identity 1.3.2. Orthodox Christianity as indivisible part of national countries. Churcheschurches intheway. anddominated society andthese culture of werestate Orthodox Catholic inRoman state over domination achieved never have tradition in Byzantine Churches Orthodox least at tension; inthis prevailed state Generally the other. each over exercised Consequently,authorities two in the coexisted unity though with balanceshifting of power rested on the dialecticsState and Church of of distinctconception Christian of andvariant as at the conception sameByzantine time authority. temporal uniform nature of the Church and State. Byzantium)nor Georgia and Russiahad anymeaningful between distinction spiritual and of historic predecessor Greece(its neither for centuries relations. conclusion, In State Church – of patterns historical Russian and in Georgian influence strong its and relations –State Church of conception of Byzantine the basic characteristics the clarifies summary historic This short Church. Orthodox Georgian to applicable is equally sovietrule inXIX century andstate of under Church autocracy under Tsarist Russian Orthodox Processes inGeorgia at the verge of XXand XXI Centuries See Generally about the History of Georgian Church and State in W.E.D. Allen, See http://www.nplg.gov.ge/dlibrary/collect/0001/000007/qartuli_eklesii_bedi.pdf , generally, Wood, Knowles and Downey, : From the beginning down tothe Russian Conquest inXIX Century , Originally inRussianpublished in“Russki Stiag” (1907)Georgian translationis available online http://www.nplg.gov.ge/ , last last visited on 25November2008. Teimuraz Fanjikidze, Supra notes 81,83 and 84 32 (2003)(in Georgian) and Nikolay Durnovo, 92 , (1971); Georgian Sources: “SaqarTvelos , lastvisited November25 2008 A History ofthe Georgian The Fate of Religious 93 CEU eTD Collection 94 spheres. ThecontinuedChristianity influence of in Orthodox social and domain political cannot majority inmillennium thereligion past Russiangreatly affected spiritual political and cultural a as Orthodoxy role. important plays still identity national Russian of conception such that he admits Nevertheless Christian. be Orthodox to meant be Russian to where liberty, religious constitutionally invalidated kindthis of social basedcontract on communalthe understanding of state. Gvosdev affirmation the that argues individual inof liberty religious RussianConstitution, ethnosofRussian core the people representing Russian of and identity the the definedcontract” “social the of part formed historically Christianity Orthodox contends, relations church-state Russian of issues the on working scholar Gvosdev, Nicolas As identity. national Russian of Similarly since theadoption inof Christianity has Xcentury become Orthodoxy part an essential nationalism simplyequates being Greekwith being Orthodox Christian nationalistic ideology orthodoxy placing in center the of Greek national identity. GreekOrthodox Orthodox adopted development its throughout Republic Hellenic The identity. national from Greek the Christianity Orthodox todivorce ideaswereable liberal theenlightenment nor rule neitherTurkish of centuries Asaresult, Empire. againstOttoman resistance whole national the symbolized a way in oppressors of religion the – Islam to opposed as Christianity Orthodox Throughout the Ottoman domination, Orthodoxy unifyingserved important forfunction Greeks. Byzantine the byindependence, followed heritage Ottoman rule against of Greek people stage of struggle the of Although Greek antique tradition andliberal enlightenment ideas largely thefinal determined orthodoxy achieved desiredhomogenizing effects. as a pillar perfectly Byzantium in identity national of part a as Christianity Orthodox of Designation of national identity still played important role. Kyriazopoulos, Supra , note 28, p. 6 33 94 CEU eTD Collection 97 within "Managed Pluralism",1/1/07 JCHURST 75(2007) 96 AND CONTEMPORARY, 2001 BYULR 511, pp.4-9 95 and in unity the Churches between State consideration effectively under keep countries the 1.3.3. Byzantine and Symphonia Constitutional State date commonly and almost unanimously embraced by Georgian society. to is which identity national Georgian of pillars three the defined belief, Christian orthodox and fatherland language, Georgian maxim: His century. XIX in the Russia Tsarist against movement liberation national of leader - Chavchavadze Ilia of name the to linked isclosely identity national andmade Georgian toOrthodoxChristian.synonymous The doctrinal affirmation Georgian of in identity Georgian Christianity’s embedding to deeper creed greatly contributed Conqueror’s of Georgians by of conquerors the different involvingreligion convert compulsion intoto centuries strongly Orthodox Christianity associated Georgianto identity. Religious persecution state. Its leading function in the national resistancesingle under againstnation foreign Georgian of domination forconsolidation manythe in role decisive played Orthodoxy Historically, Russian ethnicity. and tradition cultural Christian Orthodox on based ethnocentric and monocultural essentially administration Putin power of political centralization increasing in of a course that show clearly studies Recent question. constitutional also took a be not regardedas influence can this Furthermore matter. aspractical be eliminated measures towards reinvention of Russian identity. One which is This section tries to demonstrate that the current constitutional/legal statuses of Orthodox See, Warhola, James W, Religionand Politics Underthe Putin Administration: Accommodationand Confrontation Nicolas K. Gvosdev, RELIGIOUS FREEDOM: RUSSIAN CONSTITUTIONAL PRINCIPLES--HISTORICAL Supra , note 71 96 95 34 97 CEU eTD Collection there alwaysthere considerableremain degree of unity between Church Despiteand State. thevarying is overcome not state and of church nature uniform and distinct ofthe dialectic the Asfar as political authority, as the foundation of their Relations between Orthodox Church and theand State. Ecclesiastical of nature uniform but distinct the conception– Christian of principle basic a historically prevailing as Byzantine conception to following is that argument of The unity. principle of the rejection the pattern of Church State automatically entail not does butthis isconcerned independence as its institutional and doctrinal relations, Greece Georgia asfar state from the accept theseparation to Churches for Orthodox the isit possible Therefore and Russia preserve of recognition of unique andoverlappingeachother. competences basedthe on regimes intermediate or Catholicism in Roman early regime Church Dominated to regime dominated inSymphonia from relations vary state of State arrangements – Church involved. actual Christian conception Accordingly political the amongwithin actors power dialectics is solved is dependent on variety the circumstancesof including actual distribution of in this Christian state the contradictory iscoupled with How principleconception unity. of from separation that mind in be borne to ithas But Emperor. the from independence doctrinal enjoyed Church in Symphonia Even thought. Christian for alien entirely not is state and church of of a separation sort some of distinction, principle the account into taking Therefore, state. of church nature the and distinctand for the providing contradictory unified principles least two consists of relationsat this understanding andaccordingto and State understandingChurch of Christian of version one is Symphonia time. a given at Emperor and Church the of powers political variable actual the of upon was contingent anditscontent actual was widely contested conception the epoch inmedieval aseven is impossible It Symphonia. of conception Byzantine follow strictly countries three all currently that establish to intend not does It Church. Orthodox 35 CEU eTD Collection 101 100 99 and implications, 9/30/01 J. Church &State 511 (2001), p.1 98 President. the of office the take to religion orthodox non of person a same text of the oath of the Presidentis not subject to the modification, that effectively prevents Republic the phrase: "In the name of the Holy and Consubstantial and Indivisible Trinity".with Presidentopens of the constitution the of preamble The constitution. the throughout affirmed consistently Republic. Hellenic religion nor proselytism,butdeclares Greek Orthodox Church as a prevailing religion the of prohibits proselytism. Constitution defines The neither concept the of prevailing and known samethe time freedom limits of the “prevailing”worship to “known”and religions onlyand Symphonia. it Although proclaims freedom the absolute religiousof belief and conscience butat 1975 GreekConstitution is themost explicitin reminiscent the pronouncements of Byzantinethe suppression faithsof the other than religion.dominant in result conclusion the political these that objectives leading to countries underreview; discussion hidden the of objectivespolitical behind the existence of dominantChurches in the further to prerequisite is a arrangements church-state current in conception Byzantine the of influence the showing Therefore, agenda. political havecommon relations church–state existing under informing Conception consideration; of of Church principles state the Byzantineand the degree of unity and different constitutional and legal means of its achievementin three countries before holy trinity. holy before Article 33(2) of the Greek Constitution Article 59(1) of the Greek Constitution Article 3 f the Greek Constitution, Kyriakos N. Kyriazopoulos, The "prevailing religion" in Greece: Its meaning Supra note 33, p.5 33, note 99 and Members of Parliament are required to take the religious oath that is the oath 100 98 The constitutional status of Orthodox Church as a dominant religion is religion a dominant as Church Orthodox of status constitutional The It can be modified in case of person representing different religion, but the 36 101 CEU eTD Collection 103 102 state special of means the by isachieved control The state. the to Church Orthodox the of farand in especially reachingin subordination caseof results prevailing religion institutional the Greek stateadministration of the Church to the state legislation. enjoysthe authority of these acts only to the composition of the Holybroad Synod and subordinated extended State of Greek Council law.The cannon the to according beadministered shall Church powers the acts, latter the to According law. of sources theauthoritative as Tome Actand Patriarchal in the to refers religiousConstitution Church. Orthodox Greek the of –governance self and autocephaly the and butitssignificantcovers portion. territory Republic of Hellenic ecclesiasticalwhole the to extend not does Greece of Church Orthodox autocephalous of jurisdiction The andjurisprudence of courts. the matters. of in ofstate legislation organs isChurch by status practice privileged Orthodox force, affirmed The from Apart constitution the privileged treatment; law with attendant personality public under powers Orthodox legal Church of to The status confersofficial prevailing religion state. of the religion are the theactual practice According to especially controversies, amongsignificant the legal precise its scholars around meaning In the absence of the constitutional definition of the concept of prevailing religion Church. there are Orthodox Greek the of –governance self and regime autocephalous of preservation the for and churches Orthodox other and Patriarchate Orthodox Ecumenical with Church Holy the Scriptures. of inviolability of dogma Orthodox the constitutionalizes and further even goes Constitution The 104 105 Article 3of the Greek Constitution, Papastathis Article 3(3) of the Greek Constitution Several ecclesiastical districts are still subordinated to the spiritual leadership of ecumenical patriarchate. of ecumenical leadership spiritual to the subordinated still are districts ecclesiastical Several Supra note 98, p.7 98, note 102 The Constitution provides for the spiritual unity of Greek Orthodox de facto Supra meaning of prevailingthe signifies the religion note 26, p. 4 37 105 The constitution forprovides 104 Ibid . 103 CEU eTD Collection responsibilities in religious field. in religious responsibilities Affairs hasunique Foreign GreekMinistry of abroad, Regarding Hellenic Republic. national matters with within entrusted allreligiousterritory embracing the of distinct tasks abroad and to the Administration of Mount Athos." of Mount Administration the to and abroad churches non-Christian and Christian other outside and Greece, to the Orthodox Orthodox the Divinity to for Schools Ecclesiasticaland pertaining Centers recommendation affairs outside and and Greece,study to matters the Clergy of all living supervision, the solution for the authorities, religious and agencies co-responsible other the with 109 chief rabbi, the chief rabbis and the Muslim muftis. different religions and also deals withthe appointment, the discharge, and matters of official status of the general entities, aswell as theirsupervision and office of Persons of a Different Religion, performing similartasks towards the places ofworship of non-Orthodoxthe Christians, of schools,divinity seminaries, foundations and other legal country of foreign heterodox clergy religiousand ministers, procedures the foundation forthe operation andthe of 108 foundations. and associations religious of ecclesiastical education to of those schools of ofthe otherpublic equivalence schoolsthe of Greece; and to Church their ofthe diplomas; Diaconia and affairs Apostolic the of to religious pertaining instructionmatters and of abolishment the and integration the of seat, these schools; transfer the programs the of of form, theiroperations; affairs of conversion the registration, of transferand examination operation, of the of theirstudents; suspension the office of Administrationdealing withthe foundation and the supervisionof the schools of ecclesiastical education; the schools of ecclesiastical education, of the 107 Apostolic Diaconia ofKyriazopoulos, churches. theenlarging or Church erecting of purposes the for of of land Greece, expropriation the personnel; and their and of vicarages the churches, preachers and implementation of legislation on monasteries and hermitages (excluding those of the peninsula of Mount Athos), Churches of Greece Crete, and of the aswell property as of of the the ecclesiastical management of the legal entities supervision of of public exercise the right. The latter’s taskof metropolises; is merger the and abolishment associations religious of the Dodecanese, the of metropolises the of Crete, and Greece of Churches of the administration and organization onthe legislation and constitution ofthe implementation of the supervision Crete; and Greece of Churches of the bishops of the status and recognition for responsible is former The Priests. Parish and Monasteries, and foundations,106 as well as their supervision and the sanction of theirReligious Instruction acts; the Administration of Ecclesiastical departments the namely founding, agencies, Its cults. religious state policy concerning of domain inthe authorities administrative the The Ministry Education and Cults andforeign affairs areentrusted with such supervisory powers. of National supervisory in organs fieldthe Greeklegislation of religion. Under Ministries National of Education and Cults is empowered with general supervisory and Its department of ecclesiastical affairs "is responsible, according to the existing legislationand in cooperation It includes Office of Persons of a Different Cult responsible for proselytism, of the personnel of the proceduresstatus official the and appointment the for responsible Personnel of for office the of composed Is entry into the ItConsists of Ecclesiastical Administrative Affairs Division; and the Division of Holy Churches (parishes), Holy Supra , note 28,pp. 13-15 107 , and of Persons of a Different Cult and of a Different Religion 109 Ibid Ibid Ibid 38 106 , of Ecclesiastical Education and Education , of Ecclesiastical 108 are CEU eTD Collection public authority integrated into the institutional structure of the state. GREECE, 111 110 state the with fusion institutional The Church. Orthodox the of authority dogmatic unrestrained constitutionally Church Greeksetting.guaranteed autonomy Autonomy refersonly to not docontradict tothe by thestate control institutional its total and agency administrative into Church the of assimilation and constitution the by doctrine Religious Orthodox of integrity the of protection Church, Orthodox the for religion prevailing the of Status Constitutional remuneration for its Clergy in exchange of the devolution of its property to the state. exploitation furtherChurchis by state property.only of evidenced Thechurch gets the state the by exercised control complete The Chaplains. Orthodox the by provided solely is Army obligation foundto and support ecclesiastical schools of Orthodox Religion. Religious Service in part of state fall in from exempted secularstates stateregulation Asa domain the public under and control. apparatus normally nature clerical and religious purely of issues of range wide the clause, exclusionary Orthodoxscrutiny havingonly those “spiritual and purely content”. religious Churchdefines the scope of judicial review of the acts of ecclesiasticalis bodies and excludes from judicial ableCourts Administrative of The Jurisprudence and State. of Council the courts administrative to legallyby judicial review to subject are Church legal ofthe Orthodox acts Furthermore, process. enforcemaking decision in the agents governmental of participation by the or bodies state with action its joint by either acts. authority administrative exercises Church Orthodox control. and supervision State state reaching far for rationale main the is has agency administrative of Status legislation. Greek the under is it administrativeThe authority publicChurch as discharges powers an Greek Orthodox Ibid The property issue led to the dispute that reached to the ECtHR. In ECtHR. the to reached that dispute the to led issue property The ECtHR, of Judgment DecemberGreek 91994, Government argued that Greek Orthodoxwas Church 39 CASE OF THE HOLY MONASTERIES v. 110 According to this narrow 111 CEU eTD Collection religious liberty. religious agreement Georgia’sinwhich namelyfield international obligations, of conforms the those to constitutional the by be governed shall Church Orthodox and state between relations that history of country the and affirms its independence from state.the The Constitution stipulates of Church inthe Orthodox Georgia thespecial Autocephalous Apostolic recognizes of the role 115 Agreement of Constitutional conclusion the before it achieve to conducted 114 113 112 especially and for struggle of process in the actors political all for crucial became opinion actor. societal and institution an as Church Orthodox Georgian the of influence the of recognition the as emerged agreement Constitutional consideration. international to this its can law beattributed conformity The reference to with partly precedence. of the constitution; therefore in the event of potential conflict with international treaty it takes the limitation on a sole ground of the rights to of others. issubject manifestation Their confession. and belief conscience, of liberty absolute the The 1995 Georgian moreConstitution balancedtakes approach. The Constitution forprovides ofSymphonia. conception Byzantine classic to the closest the and therefore cases Russian and Georgian to in contrast highest the is church the over control state and unity conception of the uniformity dialectic Christian to and resonates distinction Church Orthodox Greek the of between independence doctrinal and divine and temporal realms. The degree of confidence than governmental confidencecounterparts. than governmental positions and was transformed into the powerful institution enjoying significantly more public SeeOchs, Article 9 of the Georgian Constitution Article 19 of the Georgian Constitution See, generally, Tsintsadze, generally, See, Supra note 35,p. 7,describing claimsthe of Orthodox Church to privileged status and advocacy 113 Constitutional agreement has the status of constitutional law and forms part Supra note71 114 115 After totalitarian itoppression quickly regained lost This made Orthodox Church an institution whose institution an Church Orthodox made This 40 112 At the same time the Georgian Constitution CEU eTD Collection field. in educational the state Church with Orthodox of for cooperation the provided Agreement from military of service. religious educational students establishments Church concludedby recognizes themarriages State Orthodox property rule. Bolshevik under taken suffered by Orthodox Churchthe under rule communist andprovidedfor therestitution Church Church’s recognized and from In exempted possession state taxes. lossaddition material the under property the to title the Church Orthodox the to granted Agreement Constitutional such andorganizations orphanages andetc. as shelters establishments and mediainstitutions including journals, TVand Radio charitable stations, up educational property with itscorporate sets ChurchOrthodox asapublic corporation deals in capacity the legal public of necessary itscorporation enters forrelations functioning. any public function. Church enjoys institutional dogmaticand independence and atthesame time 117 116 law. oflegal public entity under Church acquiredhistorical Georgian status the Orthodox function with its Together from Church recognition special the of independence of state. the Orthodox for the maintained principle constitution the providing secular of the agreement Constitutional long history of cohabitation and collaboration of Orthodox Church and state in Georgia. maintenance These of power. political significantly considerations revival the encouraged of the framework of the Orthodox Church’s consultative functions in the sphere ofEducation. sphere the in functions consultative Church’s Orthodox of the framework detailed ofthe elaboration the for provides 5, Article under concluded Science and Education and Ministry and 121 120 119 118 See, generally Tsintsadze, generally See, Article 1 of the Constitutional Agreement Article 5 of the Constitutional Agreement, Memorandum of Understanding between Georgian Orthodox Church Orthodox Georgian between ofUnderstanding Memorandum Agreement, Constitutional 5of the Article Article 4 of the Constitutional Agreement Article 3 of the Constitutional Agreement Articles 6-8 and 11 of the Constitutional Agreement 116 121 But compared to Greek Counterpart, Georgian Orthodox Church is not entrustedGreek Counterpart,Georgian with not is Orthodox ButcomparedChurch to Constitutional Agreement granted to the orthodox clergy the admission to the prisons the to admission the clergy orthodox the to granted Agreement Constitutional Supra note 71 118 41 117 119 and exempts the clergymen and 120 Constitutional CEU eTD Collection http://www.orthodoxy.ge/samartali/komentarebi/sarchevi.htm Georgian Apostolic Autocephalous Orthodox Church :Commentaries” martlmadidebel eklesiasshoris: komentarebi” “Constitutional Agreementbetween Georgian the State and 126 125 124 123 cooperation of the the two regulates entities Agreement in the sphereSeparate of Justice, of the resocialization Ministry and Church of Orthodox convicts. Georgian between Agreement the 122 exceptions. prohibited without Georgianthe ChurchOrthodox enjoys immunity his criminal arrest or responsibility is absolutely reveal its content. notto inviolable are obliged and Clergymen feasts andGreat Orthodox publicholidays. Sunday as providemilitary and to chaplaincy. establishments Orthodox Church form the state. But it does not overcome the dialectic which also embodies the embodies also which dialectic the overcome not does it But state. the form Church Orthodox as isSeparation understood one way ruleinstitutional ensuring and doctrinal independence of the The State. and Church of separation the reject not does relations State Church of understanding Such interests. achieve in to common butcooperate power its field the uniquecompetence of has absolute power with wherepowers andoverlapping each competences, two their unique is based on earthly rules and prevails in temporal realm.” in temporal prevails and rules earthly on based is State The there… only primacy has and kingdom divine represent Church “The truth.” Christian very this enshrines Agreement Constitutional the of Preamble The in Christ. nature human and andhuman. State Church beshall unifiedatthe anddistinct same time like the divine and way: “The relation between Church and state is often compared to the dual nature of god: divine website of Georgian Orthodox Patriarchate. Commentary interprets Article 1 (1)in the following official the on is reproduced Agreement the to Commentary available only The literature. in scholarly State and Church Orthodox Georgian between Agreement the to is devoted Little Church. Davit Chikvaidze, Article 1(5) of the Constitutional Agreement Article 2 of the Constitutional Agreement Article 1 (6) of the Constitutional Agreement Article 4 of the Constitutional Agreement; Legal Arrangements related to Chaplaincy Prisonsin is regulated by “konstituciuri shetankmeba saqartvelos sakhelmtsifosa dasaqartvelos samociqulo avtokefalur 125 Most of these privileges are solely enjoyed by the Orthodox 42 last visited onNovember 25 2008 122 State undertakes the obligation to declare to theobligation undertakes State 123 The Secrecy of Confession is declared Confession of The Secrecy 126 Orthodox Church’s vision portrays vision Church’s Orthodox 124 Last, but not least, Patriarch of available online at CEU eTD Collection 130 129 128 127 is clearly privileged. DespiteChurchstatus of the provisionsaffirming constitutional theactual Orthodox secularism in understanding, andrespect tolerance of questions freedom of belief. andconscience historical heritage of Russia’s peoples.” Preamble provides for promotion the mutual of religions and creeds which along with Christianity aninseparable “constitute of the part of Russia’s spirituality and culture.” Italso referstoIslam, Buddhism, and Judaism other special contribution of orthodoxy to the history of Russia and to the foundation and development Associations” “recognizes the “on Freedom Religious and Preamble of Conscience 1997 Law of them. of in act conformity to and beliefs or other religious embrace disseminate and choose freely right to profess individually or jointly with others, any religion, or to profess no religion, to including the freedom worship, religious of freedom everyoneconscience and of guarantees to affirms equality and outlaws includingdiscrimination on religious grounds. establishment. religious andprohibits state, secular the proclaims The from 1993 RussianConstitution takes path different Georgian andGreek It Constitutions. the close cooperation with the state. Church from social The and politicalarena. inpresence social andpolitical arena presupposes exclude not the separation do and relations doctrinal the institutional below State descried principle of being unified with the state. Similarly to Russian Church’s conception of Church Article 28 of the Russian Constitution Article 19 of the Russian Constitution Article 14 of the Russian Constitution Supra 129 note53 43 127 The constitution further constitution The 128 Constitution 130 CEU eTD Collection Review, 52, 3, p.306 cited 135 Church 134 133 estimations. The substantial portion of the sum was from State funds. State from was sum of the portion substantial The estimations. 132 Soviet Leadership payingfrom approximately exempted was 40 million patriarchate USD in taxes. Zoe transactions Knox,tobacco and Only in aid. of tobacco a humanitarian as importation status the of exempt tax cases under wine controversial in involved been have officials Church company. exporting 131 public including sphere. political in Church Orthodox the of role active envisages and level institutional on only State and Church Moscow Patriarchate’scountry. the of regeneration spiritual and renewal moral own conception about rhetoric his to central faith Orthodox made and believer Orthodox the of as himself Churchidentified – State relationshim hasmedalsPutin and distinguishedother President and awarded to clergy. President supports the separationappreciated the role of Orthodox Church in Patriarch this process. has blessed him personally of President madePutin particular emphasis on reassertion the of Russian spirituality and highly treatment. preferential more deserved Church Orthodox Russian Administration Putin the Under monuments. cultural of restoration the for State the from benefits additional benefits extensiveeconomic gets and legislation Russian RussianChurch Orthodox solely affordedReligiousenjoys theprivileges to under Organizations together with former’sthe institutional and doctrinal independence. State the and Church Orthodox Russian between unity the preserve relations actual The realms. within dialectic the Christian conception on unity the of and distinction temporal and divine framed Greece are andGeorgia similarly to relations Russian – State Church current Therefore interest of people. “ in the be, that powers and Church the between cooperation and dialogue of necessity the entails Kirill of Smolensk and Kaliningrad, and of Smolensk Kirill Bishops’ Council of RussianOrthodox Church, The restoration of the Cathedral of Christ the Savior in Moscow alone cost 250-500 millions USD under different Patriarchate among other businesses runs a Bank, factory, prestigious hotel at the Danilov Monastery and oil Ibid , p. 589 – 590 , cited , ibid , Europe-Asia Studies,Vol. 55,No. 4,(2003), p.587 -589 ,p.580-582 135 ibid , 134 “The Russian Orthodox ChurchandThirdMillennium” the According to Metropolitan Kirill: “On the political plane this plane political the “On Kirill: Metropolitan to According “Bases theof Social Conception ofthe Russian Orthodox 44 The SymphonicIdeal: The Moscow Post-Patriarchate's 133 131 Ibid . Russian Orthodox Patriarchate gets Patriarchate Orthodox Russian . ,p.586- 587 132 Ecumenical CEU eTD Collection Kennedy (1996), p.15 democracy was not possible. 137 Global Perspectives, Legal Perspectives, J. Van der Vyver, John Witte Jr, ed. (1996), p. 13 136 religion. of power legitimizing of use the by followed is often legitimacy political of Lack Durham Cole by As described legitimacy. conception was mainly twofold and interwoven: to achieve Christian social homogeneity generally and andByzantine get political behind Agenda Political Church? Orthodox with unity the preserve Georgia to Russiaand inGreece, authorities thepolitical Butwhatmotivates sufficient. than more be to appear state and Church the of unity and distinction the of doctrine Christian the political to follow thereasons influence and of Churches to economic privileges.Orthodox Thus clergy of ambitions personal the to can refer we Additionally objectives. achieve these to strives its competitors has its explanations. Every church which upholds the absolute truth of its doctrine The claims of ChurchesOrthodox todominance insocial and political sphere andsuppression of The 1.4. Source ofFear under its conditions. its under is but easily achievable homogeneity needssocial necessarily not does legitimacy democratic legitimacy divine to contrast In necessitated. is homogeneity religious thus legitimacy of the coin. The divine legitimacy is valid as far as the majority adheres to the god who gives that is side only official the one pronouncement But by legitimacy. repressed of rule democratic the constitutionally is rule such Russia and Georgia Greece, of States in Constitutional that true also is It Empire. of principle foundational proclaimed officially was this and nature divine of was To the extreme, Carl Schmitt contended that Democracy required social homogeneity and without the latter real latter the without and homogeneity social required Democracy that contended Schmitt Carl extreme, the To W. Cole Durham Jr. Perspectives onReligious Liberty: A Comparative Framework, in Religious Human rights in 137 Under social homogeneity the polity is stable as it avoids factional avoids it as stable is polity the homogeneity social Under See , Carl Schmitt, The Crisis of Parliamentary Democracy, translated by Ellen 136 It is true that political legitimacy of Byzantine Emperors Byzantine of legitimacy political that is true It 45 CEU eTD Collection David Dyzenahus, 139 140 138 basis of creed.” the on cohesion state of form obsolete an serves which citizens, governed the of homogeneity religious specious the preserving of goal ultimate serves:”the clearly Proselytism of proscription effectivemanage tool to the withindangers of pluralism constitutional democracy. The criminal is constituencies their of homogeneity foster to Church Orthodox of utilization the them for forces by Greekpolitical system existing of the acceptance In Greececommon under suchlegitimacy.political constituted power democraticto the legitimacy sacral to attribution tothe andleads consequently of elements homogeneity and secure stability. political Whether officially notsuch or proclaimed policy achieve is based extreme mean national to social the on religion identity But devices. dangersby seeking homogeneity. social identity National is one among such homogenizing homogeneity. social of form acommon as homogeneity religious the eliminate to serves liberty religious by fostered Religious pluralism power. justified despotic of divinely serving coherence the homogeneity system. It disconnects political power from religious source and counters pluralism to the clashes. Liberalthoughtreplaces by homogeneity pluralism as astabilizing force of political themselves. extreme evaluationis fully not devoid of value and in is essence acknowledged among liberals rather This system. political liberal of subversivness inner in the result liberalism of critics the by liberalforce asenvisagedbyenlightenment Inherentdangers thinkers. of asdescribed pluralism For the discussion of the issue based on Liberal critics and the response of Liberal Political and legal scholars, legal and Political ofLiberal response the and critics Liberal on based issue of the discussion the For Kyriazopoulos, Ibid , 139 As a result political powers even in democracy are often tempted to address these Legality and Legitimacy Supra 138 note 98, p.9 But on But other the on hand Pluralism played hasnot suchideal stabilizing : Carl Schmitt, Hans Kelsen and Herman Heller in Weimar 46 140 indicates that indicates , (1997) CEU eTD Collection 144 Politics of Religion in Russia and the New States of Eurasia 143 117(2007) 141 demonstrating a"growing manipulate ability all to religions." enjoying as considerable popularan institution, trust for political as advantage, well as political domain andKremlin’s grown skillfulness atusingtheRussian Church- Orthodox in voice increased church’s administration, Putin and Church Orthodox Russian between “managed pluralism.” improvement This bysignificantwas accompanied of relationsthe and was by making from power policy previous state characterized of turn the authoritarian of Presidentincreasedof Recent studiesPutin’s secondterm centralization involving show that authoritarianism also witnessed the restoration imperialof identity defined bythe faith.orthodox In Russia the development from democracy after immediate aftermath of Soviet collapsePutin to 142 Christianization Shevardnadze policies.successor Eduard Gamsakhurdia’s was personally Church was “embodiment of Georgian nationhood”. was by nationalism. inspiredpursuing policies ethnic significance of first Church.Thegovernmentof the Georgian Zviad the President Gamsakhurdia affirmed political Following allGeorgian the Declaration the Presidents Independence of society. pluralistic inherently thus multicultural and multinational proclaimed in aself power political centralized of maintenance the for homogeneity social use indicatesthe national achieveof monoethnic identity clearly to church desired and religion Kremlin in process. this ChristianOrthodox rhetoricPutin’s during inRussian President second politics term and role of of admitinfluence RussianChurch onRussianpolitics rise the limited of Orthodox powerand Rafik Osman – Ogly Kurbanov and Erjan Rafik - Ogly Kurbanov, Ogly - Rafik Erjan and Kurbanov Ogly – Osman Rafik Ibid Supra See , generally, PapkovaIrina, , note 96, p. 3 142 All these together with the attempt to affirm the monocultural and Russian Orthodox Church andPoliticalParty Platforms 47 , Michael Bourdeaux (Ed) (1995), p.236 -237 143 For Gamsakhurdia Georgian Orthodox 144 As a result he openly promoted Religion and Politics in Caucasus 141 Even scholars contending for contending scholars Even , 1/1/07JCHURST , in , The CEU eTD Collection the Presidential Press Service available online at online available Service Press Presidential the 146 last visited on November 25 2008 25 November on visited last 145 with common Russia. religion to by reference justified often was policy foreign Russian pro his example For policies. his legitimize to Church employed Shevardnadze actively government. power after civil into Gamsakhurdia’s war overthrowing ShevardnadzeChurch whocame baptizedblessed endorsed Orthodox by Patriarch. and Georgian spirituality spirituality mood and of Georgia today” Patriarch Georgia’s said integrity,invincibility about victory, and depicts precisely ideology,the speech:Saakashvili’s recent “Whatour its Church toPresident Patriarch. According and Orthodox to refers often identity Georgian revived on based State Georgian new the regarding significantlygovernmentCurrenthas not thischanged PresidentSaakashvili’s pattern. rhetoric Church. Orthodox Georgian with government his of relations actual constitutionalized which government Shevardnadze under concluded was Church Orthodox Georgian with perceived dangers of pluralism offear.perceived of dangers creature pluralism – the logically leading repression.logical against souls” “Warfor also to is attack the a preventive andis alethalappreciated perceivedas social is tothe threat Thefear and political cohesion. be thatpluralism notsuccessful show ignored. Indeedcan isproselytism it adequately the technique to avoid thereligious challengeshomogeneity and consequently religiously built destroy will national which ofidentity. pluralism Religiouspluralism. religious enhance to identityis capable is activities proselytizing of means At the same time possible countries. Religious freedom namely preaching freedom by of dissemination and of religion the consequences of Therefore national identity built on Orthodox religion is the foundation of the polities in given 1.5. Conclusion The President of Georgia Mikheil Saakashvili attended a festal church service, 03 August 2008, Press Release of Ibid , p. 239 146 http://www.president.gov.ge/?l=E&m=0&sm=1&st=90&id=2681 . 48 145 The Constitutional Agreement Constitutional The , CEU eTD Collection European Convention of Human Rights. The instrument has enforcement mechanism –European mechanism enforcement has instrument The Rights. Human of Convention European parties members and tothe Council state the are Europe and Russia of of Greece, Georgia souls.” for “war challenge validity to organizations practicesthe andacademics of individuals,of affected groups, by invoked norms often Rights Human International are hand there other the on But practice. in embedded consistently or system legal and constitutional in entrenched normatively either are justifiedperfectly lightlocal of in social, the political,historical, andcultural considerations and This conclusionisfor souls” the to response of perceivedthe pluralism. dangers could “war generally More of metaphor soul wars. the labeledunder the response involved, generate well be the of actors interests the and games, economic power ofpolitics, by considerations the reinforced end of the presentfears and visions itself.subsequent apocalyptic basisthe polity shatter run can the of Such long in a that identity national built inquiry. religiously in dismantling result will reaction achain as This The restrictiveProselytism of faithdifferent is capable of destroying thereligious homogeneity polity.the of strong religious componentserves asabasis of constitutional From perspectivepolity.this practices building block of identities national the in the countries identity concerned. National having are essential is the religion Christian Orthodox that argues chapter first the of conclusion basic The 2.1. Introduction Playing around the circle? Playing aroundthe Chapter Two 49 CEU eTD Collection ties. identities and approachof the State to the issuesReligious ECtHR Church describes generally of of jurisprudence Convention.the can not selected The provide exhaustive picturebut the 10 Article under speech religious anti and Blasphemy concerning cases the by followed be will willbeanalyzed. This rights religious dimension of andcollective proselytism cases concerning with Article jurisprudence Chapter willReligion under of start ECHR relevant Freedom the 9of the Therefore be disregarded. not can constraints these time same the At issue. rights human particular toframing legal related be Therefore lessattention the will court. to paid technicalities jurisprudencethese identify The inquiry normative in answersto questions will to try the of the Church. dominant out singled with ties the of preservation and identity national built religiously is underwith wayitthe reconciled ECHR exists democracy of if such conception specifically, More democratic pluralism. the polity to of normative response envisages the consistent that democracy of conception the for a search be will ECtHR of jurisprudence the into inquiry the polity. Thereforeis that“warforThe firstfoundational demonstrated of chapter tothe souls” connected questions taking into account chapter. the findings of the firstthe choice chapter of European the basic inform These considerations bythecourt. regime interpreted as of convention the content normative the task of Humanof the Rights protectionidentify enables the researcher to Court jurisprudenceof Theextensive Rights. Court of Human as an analytical framework of this 50 CEU eTD Collection 150 OF HUMAN RIGHTS, Martínez-Torrón, 149 Religion) and ofConscience (Freedom ECHR the Challenged both his conviction and substantive compatibility of the Anti Proselytism Legislationwith Article 9 of 147 proselytism,butputmain on emphasis substantivethe incompatibility Article provision this of to provisionsproscribingof Strategically criminal the applicant the challenged application enshrined in Article 9 of ECHR. The present piece will not escape their quotation: by court examined the Kokkinakis v.Greece and its Political Agenda Tacit2.2. Acceptance Importance Identity ofthe ofReligious 148 Freedom jurisprudence.of religion Cases under Article 9 have not reached the court and were decided by by Commission. decided were and court the reached not 9have Article under Cases In Supra Supra beliefs are respected.” are beliefs thisfreedom in order toreconcile the interests of the variousgroups andensure everyone’sthat religions coexist within one and the same population, itmay necessarybe to place restrictionson religion or belief". In so doing, it recognises that in democratic societies, inwhich several first paragraphs of those Articlesthat ofArticle 9 refers only to "freedom manifestto one’s Unlike the ofArticlessecond paragraphs which11 8,10and cover therightsmentioned all inthe religion or belief", enshrined in Article 9 (art. 9), would be likely to remain a dead letter.neighbour,for example "teaching",through failing which,moreover, "freedom change to [one’s] existence of religious convictions. [It] includesin principle the right to try to convince one’s freedom to "manifest [one’s] religion". Bearing witness in words and deeds is bound up with the While religious freedom is primarily mattera of individual conscience,it also implies, inter alia, on it. depends pluralism indissociable from a democratic society, whichhas been dearly won over the centuries, itagnostics,life, aprecious isalso for unconcerned. sceptics atheists, asset but andthe The one of the most vital elements thatgo make to up theidentity of believers and their conception of foundations of a"democratic ofthe one society" within is the meaning of the Convention. religion Itis, and inits religious dimension, conscience of thought, freedom 9, Article in enshrined “As Kokkinakis note 19,Para.31 and 33 note, 19 the applicant was convicted forproselytism under the Greek Anti Proselytism Legislation. He LIMITATIONS ON RELIGIOUS FREEDOM INTHE CASE LAW OF THE EUROPEAN COURT 19 Emory L.Rev.Int'l 587 (2005) 147 150 149 is landmark decision and starting point of the analysis of ECtHR’s of analysis the of point starting and decision landmark is , the judgment contains the restatement of principles ground of the restatement the , thejudgmentcontains 148 Being thefirstcaseinvolving religious freedom ever 51 See , generally, Javier CEU eTD Collection 158 157 156 155 154 153 152 151 need.pressing social legitimate aims of protection of the public order and the rights of others and corresponded the fitted unrest social prevent of to beliefs protection thatthe accepted toThe court negative. the as such was contrary to the ECHR. 9 of Freedom of Religion as guaranteed under ECHR was answered in states and their useof vague provisions tocontrol mindsthe of people authoritarian to judgePettiti of reference by open followed of conscience inmatters role of state The vagueness of definition the of criminally proscribable proselytism question the raised the of and thus infringed applicant’sfreedom of Religion. law. did Greekcourts notsubstantiate theinvolvement of applicantthe in improper proselytism in general. referred the World Council Churches in of paid regard therefore this attention to religious views government’s distinction between “Proper” and “Improper” proselytism. applied to the enforcement by the state of such function, the margin of appreciation was narrower same militant fashion paternalistic judgeas Valticos Martens himself, affirmed the role of the state as a guardian of personal beliefs though conscience. and beliefs not in the of legitimacy asajudge the of state of the role of the unacceptability the of religion, matters in thestate of neutrality strict the to appealed philosopher enlightenment inafashion of Martens Ibid Ibid Ibid Ibid Ibid Ibid Ibid Ibid , Dissenting Opinion of Judge Valticos of Judge Opinion , Dissenting , Partly Dissenting Opinion of Judge Martens Para.15 , Partly Concurring Opinion of Judge Petitti , Para 49 , Para. 48 , Para.44 , Para. 38 154 151 What failed the proportionality analysis was the application of the facially valid facially the of application the was analysis proportionality the failed What The central legal question of the case whether criminal prohibition of proselytism 152 The proportionality analysiswas dominated by the adoption of the Greek 157 But holding fundamental the by judge of summarized case the as 52 155 158 intended. The stricter scrutiny of the court 156 153 . In . In unison Judge The court also Thecourt CEU eTD Collection 159 religion subsequent criminal proscription the dangercreates of discrimination iswhen there onedominant and its as improper conduct assessmentof religious thatstate judgeMartens The of challenge crucial questions of church state relations, namely the dominant position of Orthodox Church. involving basiclevel the atthe broader butwasmuch ofparticular case here facts the within 161 160 and personality. aim legitimate from protection the of of others beliefs underminingthe of dignity the activities it served the proof that sufficient was governments severaldemocratic by offence criminal political origins criminal of of proscription proselytism preservation butheld the that the of The analysis majorityof evaded all these considerations. Itacknowledged specifichistorical and significance and results in violationthe of religious equality and state neutrality is unacceptable. symbolic merely transcends it when Church the of status special that implies reasoning Martens’ is andtherefore discriminatory. the fosters position of church whichparticular dominant state of the neutrality of abreach the as proselytism of criminal proscription attacks Martens tolerance. the ittherefore shall strictlyremain neutral and preserveequality among different religions toensure realm. in private conscience and belief Both Martens andPettiti rested their enlightenment challenges onthe principle placing matters of the obligations of state party under the convention remained the same. ECHR in order to illustrate that despite the special status of particular religion under national law 162 protection of incontextcoulddignity even and personality religious wellbe bythe achieved 163 Supra Supra Ibid Supra Supra note157 note156 note 157, Para.16 , note 19, Para. 34 159 was by holding.unanswered majority Martensthe referredto the drafting history of 162 163 The court disregarded the claim of Judges Martens and Pettiti that the 161 State lacks “intrinsic justification” to judge religion; judge to justification” “intrinsic lacks State 53 160 CEU eTD Collection 165 in question Fundamental Church. Orthodox than other denominations by exercise religious the to obstruct calculated was practice administrative law and the that alleged forcriteria granting the permitinvolved the permission localof Bishop.ApplicantsOrthodox provideauthorization. forof The any denial byindefinitethe decision andnotto reason period the postpone to it fortheauthorities possible making authorities administrative the to discretion wide law granted authorization. The the get to wereunable Applicants worship. placeof the for unauthorizedApplicants the worship. witnesses prosecuted of wereJehovah’s exploitation of places erect the to of state the authorization of the therequirement namely souls” war for forming of homogeneity involvedChurchthe” part restraint andreligious polity.the of Case the Orthodox ChurchIn but thein exemplified legislationfurther is explicitly not albeit weight considerable such arguments to attaches court the that The fact aimed at to This issecure a demonstration of Court’s the awareness of strength the of religious identity in Greece. the dominant position of Orthodox 166 Hellenism is to some extent identified with the Orthodoxemancipation, for faith.” struggle people’s Greek the in part active an took language, Greek the and culture Greek of maintenance the symbolised occupation offoreign centuries four nearly during which 164 requirement tothe freedom of religious practice.is It notable that both applicant and government symbolic merely from far is Greece in Church Orthodox of status special the that awareness notproselytismbe was affected wouldpursued.Theof not even conclusion court the by the of offence criminal the behind objective political original that court the for assurance sufficient means of general civil and criminal law provisions. The democratic nature of Greek polity was Manoussakis Case of The paragraph in a statement of facts of the case clearly states that: “The Christian Eastern Orthodox Church, Orthodox Eastern Christian “The that: states clearly case the of of facts a statement in paragraph The Ibid, Part I, Particular Circumstances of the Case and Para. 37 Para. and Case ofthe Circumstances Particular I, Part Manoussakis and Others v. Greece case the court tacitly acknowledged not only the special status of of Greek status special only not the acknowledged tacitly court the case Manoussakis Manoussakis case , ECtHR,Judgment of August 291996 165 was the compatibilitywas the priorauthorization of the . 166 54 (Emphasis belongs to author). to belongs (Emphasis to such an extent that Ibid , Para.14 164 . CEU eTD Collection 170 169 168 government’s contentions andprovidingits ownreasoning courtaccepted the Orthodox the legitimate pursued aim without of of excellently public order, protection disagreeing requirement. authorization of prior necessity the “presupposed” that “historical additionally referred tothe considerations” The Greekgovernment 167 authorization requirement The governmentdefended prior other than religion,dominant underlying the law andimplemented in practice. authorization prior the of validity substantive the challenged mainly requirement Applicant way. inthis question the framed and policy of obstruction of the practice of religious denominations Government: Greek the to According law. authorization for the therationale indefining be sincere more not The governmentcould Greek Public order. of features specific the defines Greek Citizens of Identity Religious Orthodox the that contention government’s Greek the adopted ECtHR order safeguard pursued legitimate the aimto public authorization By holding requirement that the Ibid Ibid Ibid Ibid Author) Court had itself found to beinconformity with theConvention Jehovah's Witnesses who engaged inintensive proselytism, thereby infringing thelaw that the territory.” Greek on affected by activitiesthe dangerousof socially indispensable sects was maintain to orderpublic of intervention theThe means. State dishonest" and of "unlawful to sorts all using regulate doctrines and ideas their this area withpatriotism Greek during and periodsthe offoreignoccupation. Secondly,various a sects soughttomanifest view conscience national the alive to kept had protectingChurch Orthodox The nation. Greek of the history the in moments those important with associated closely was whosewhich faith, of the Orthodox was rightsChristian population entire the virtually and Greece In freedoms characteristics. national of account on were orderhad featureswere that common to the democratic societiesin itsEurope, substance varied order the and rights andfreedomsothers.of place,In first the although thenotion of public “According tothe Government, on imposed penalty the the servedapplicants to protect public Greece worship subject“There were essential public-order grounds to justify making the setting up of toa placeof approval by the State. The setting up of a church or a place of worship in , Para. 42 , Para. 39 , and Para.41 was, so the Government affirmed, often usedGovernment affirmed,often as a meansofproselytism, inparticular by 168 55 170 By holding Greeklaw that the in question inter alia .” 169 on grounds.publicon order (Emphasis Belongs to the 167 CEU eTD Collection For Martens the law envisaged broad discretion of authorities to assess the religious beliefs and beliefs religious assessthe to of authorities discretion broad law envisaged the Martens For religion. state official of presence the in especially intolerance”, disguise easily may arguments as“public order be delicately treated butsuch considerationsshould ingeneral authorization rule for prior considerations public order essential were there that Headmitted cases. religion field of freedom of expression, prior restraints shall be treated suspiciously in freedom of 173 172 In continue tohinder theproselytizingfaiths. and lawin in still andeffect Greece are practice discriminatory Nevertheless, was remedied. religion of freedom to right applicants’ the of violation particular the result a As claim. primary applicant’s was law the of invalidity substantive the that underlined it Although compliance. incompatibility law setting authorization non of the criminally proscribing its and requirement of freedom applicants’ of religion.regarded The court asunnecessary torule onthe substantive was theviolation authorization prior with requirement compliance non of conviction on ground 171 witnesses.” Jehovah’s in particular movements, indeedrigid or prohibitive conditions on of practice religious beliefs by non-Orthodox certain “state has tended to use the possibilities afforded by the above mentioned provisions to impose freedom” of religious exercise the with authorities andecclesiastical administrative itlaterthough law acknowledgedcontested far that by “allows –reachinginterference political, law existenceeven the of grounds the for held weregenuinepublic order there The court that denominations. religious byrival proselytism proscribe religious identity majority the of makesGreek citizensof it for essential Greekpublic order to See Ibid Ibid Manoussakis , , Para. 48 , Para. Para.45 Supra note, 51 note, itinwas JudgeMartens his who again concurring opinion claimed thatasin the 173 56 172 Nevertheless the court only held the held only court the Nevertheless 171 and that and CEU eTD Collection 175 v.MOLDOVA, OTHERS AND BESSARABIA cannot authority “ 9. of Article 2 ecclesiastical ofparagraph requirements the recognized with of a be reconciled authorization granting for procedure the in involvement authorization, of exercise the the right to “Where freedomthat: of held religionlater or of one court of the its aspectsprocedure is subject under domestic law to registration/authorization a systemthe of priorin authority ecclesiastical and controlled by the state as far as Muftis discharge several administrative functions, namely functions, as severaladministrative far asMuftis discharge and by state the controlled supervised are activities andtheir authorities State by the confirmed Muftis are and The Turkey. legal Mufti. has special underbetween Treaty Muslim of status the community Lausanne Greece 174 Serif churches. in religious affairs. state of neutrality for the pronouncements madequite strong court the cases these autonomy.In It is also religious concerning cases the is inquiry this of remarkable point Starting religion. dominant of case that most of and equality religiousof is denominations? thereanylimitOr to theCourt’s deference evenin the cases did not neutrality state of concerns apparent evades tacitly court wherethe Churches itinvolveonly dominant Is the dominantreligious goin to communities? relation state farcanthe andlibertiesrights ECHR.How under of the scope the modulate can of majority the identity religious rule whether and to government by deeply forwarded genuineness the reluctanceinquire the reasons intothe court’s of to the about is argument The impermissible. isgenerally religion of manifestation the of restriction or for religious communities, for existence state authorization of grounds the publicprior of order be essential not can not thatthere imply does section previous of argument the of The rationale The 2.3. Paradox ofNeutral Arbiter freedom. religious with involved inthis therepresentatives process religionincompatibledominant whichrendereditof CASE OF SERIF v. GREECE v. SERIF OF CASE Supra case note165, 175 concerned two leaders of the Muslim community competing for the position of Concurring Opinion ofJudge Martens, 174 , ECtHR,Judgment of 14 December1999 ECtHR, Judgment of 13 December2001, Para. 117 57 Para. 2, 6 and 7; Regarding the involvement of involvement the Regarding 7; 6 and 2, Para. CASE OF METROPOLITAN CHURCH OF CHURCH OF METROPOLITAN CASE CEU eTD Collection of the community by favoring different factions at different times. The tool of interference was interference of tool The times. different at factions different favoring by community the of affairs the within interfering been continuously had state the branch of executive Bulgaria. The in Muslim community of the factions competing two involved of case facts the complex 179 178 in developed further affirmed and Thesewere principles only communities religious ispermitted the ends. these to other.” each tolerate groups competing the ensure that to but pluralism, eliminating by tension of cause the remove to not is circumstances such “in role state butthe consequence inevitable tensions werein the that societies, conceded The pluralistic court religious communities is also allowed to control the tension for the protection of public order. of affairs inthe interference State interfere. to had reason the state the circumstances in such required byArticle same 9.Atthe timeit wasneither prohibited by convention the and arguably to givingnot religiousthe religioussuch powers that, stated was authorities. communities It 177 176 The didnot rulecourt religion. minister known of of the the forof powers theusurpation asMufti prosecuted state and was amonginheritance matters members of the community.was Applicantthe confirmednot by the aslegalfamily and andadjudication of by state is which the marriage recognized effectingthe of Metropolitan Church of Bessarabia Case, of Bessarabia Church Metropolitan Ibid Ibid CASE OF HASAN AND CHAUSH v. BULGARIA, under asingle leadership, would also constitute an infringement of the freedom of religion. community or seeking to compel the “Statecommunity or part of it to place measuresitself, against its will, favoring a particular leader or specific organs of a divided religious , Para. 53 , The Facts of the Case 176 in abstracto on the performance of public (administrative) powers by powers public (administrative) of performance the on Supra note174 ECtHR, Judgment of 26 October2000 58 177 Hasan andChaush The supervision and control of case 178 179 . The . CEU eTD Collection note 179, Para.86 foreseeability.” and ofclarity standards required the meet did not and executive the to discretion unfettered 183 184 182 181 on samegrounds on almost the with “prescribedby requirement. law” foundthe The court the law incompatible Article with 9 opportunity to deal withgovernment. such arguments. It suspiciouslytowards differentthe groups coincided with changesin political the the found a violation on Changes ofstate’s involvedwas with groups. inthesympathies negotiations competing actively the basis of non compliance governmentthe with conflictleaders During the previous the authorities. collaborated the who replace to intended community Muslim of Members Certain country. in the regime communist considerations.in The had the split Muslim community the removal after begun rightof political significant of the thepresence of casesshowed the factual circumstances The leadership.” recognized hitherto of the exclusion complete to the leadership, was to favor one faction effect Their irregularities. past or of correcting of of registration routine moreacts than “were state the Muslim community, underaunifiedgranting communitiesleadership”.Andtheactsof religious ensure that arebrought the it the status of measures to needtotake not does State the societies “in democratic that further repeated It the single official 180 leadership. Religiousthe requiring Act the registration of religiousthe communities, unified under asingle The The Religious Law in Supra Ibid Ibid Ibid religion within the meaning ofArticle 9of the Convention.” lead to the conclusion that the State interfered with the believers' freedom manifestto their Author) “Failure theauthoritiesby to remain , Para. 79 , Para. 78 , The Facts of the Case note180 180 183 The court held that: This consideration was underlined by the applicants, but court did not have the have not did court but applicants, the by underlined was consideration This Hasan and Chaush: 184 it rejected in case of the Greek law of necessity in necessity law of Greek the of incase itrejected neutral “Was arbitrary and was based on legal provisions which allowed an in theexercise of their powersin this must domain 59 181 (Emphasis belongs to the 182 Manoussakis Supra . CEU eTD Collection importance of majority’sthe religious identity resultantand statuses of churchesdominant in a of the acceptance tacit with together neutrality state and democracy of pluralistic affirmation vital for requirement functioning ‘proper the of democracy’ based on pluralism.the But is neutrality thus State homogenous. not vision is pluralistic, in court’s the society Democratic religiouscommunities” with areaof their relations particularly delicate the “in states enjoyed bythe appreciation margin of thenot wide possiblewithin even is leadership tounify obligation efforts under neutrality strict of and religiousthe communities single range of includingpowers regulatory mediation between competingthe Overstepping groups. the wide requirementneutrality of to the line Jurisprudence strict extends Under of court the this of decisions holding that: democratic reiterated ECtHR requirement”. principles society ground the of previous the on to test the same interference as complained in ascomplained sameinterference the to test on the same law on the reason thatit was notargued by the applicants. Subsequently,the court went faction itof oneheadeddid by the rule not Mr. Hasan, bylaw” of “prescribed on the challenge 187 186 of 16 December2004 185 in the Later involved. was consideration such no when convention the with incompatible What was sustainable when the interests of majority’s religious identity were at stake was CASE OF SUPREME HOLY COUNCIL OF THE MUSLIM COMMUNITY v. BULGARIA, ECtHR, Judgment Ibid Ibid problems through dialogue,country’s evenwhen a they are irksome.” resolving of offers it possibility the is which of characteristics principal is the preservation of pluralism and the functioningproper of democracy,one of the in its relations with thevarious religions, denominations andbeliefs. Whatis atstakehere the State has a dutyinterests of the variousto religions and religious groupsremain that coexist in a democratic society, neutraldemocratic and impartial society. in“The existenceautonomous of religious communitiesisindispensable for pluralismin a exercising While it may its be regulatorynecessary forpower the andState to take action to reconcile the , Para. 96 , Para.93 Supreme HolyCouncilthe MuslimCommunities of 60 Hasan andChaush 186 case against the “necessary in a 185 187 brought by the rival by the brought . CEU eTD Collection explicitly extended the protection to the sensitivities associated to beliefs. to associated sensitivities the to protection the extended explicitly religion. dominant of favour in of proselytism for thecommission occurred noprosecutions factthat sheer of the in presence the so majority only.This was religion protection of amounted of adherers the tothe beliefsof the holding this that applicant’s contention did accept not court The influence and offence. improper 190 historically and culturally been associated.” diminish to likely being the as conceived be hardly can and rolesociety in ademocratic tolerance and ofharmony a faithreligious order, public to or conducive “is a beliefs Church religious all of practice the of organizer impartial with which the populationthe court clearly of a specific demarcated country that limithas by holding that the role of the state as a neutral and 189 188 In The RationalizationofSensitivities? 2.4. In the line of cases below this is no longer tacit orimplicit but rather openly rights. counted for. convention of scope the indetermining say substantial have identities religious majority’s answeris the Whatever onaccount. into be taken not this can behind agenda political and identity majority’s question or whether islimitthere the torture to amounting violence the whether question provocative have quite it is relevant at all or not does not change the fact that In caseof How far the state can go in the interest of majority’s religious identity? endsinparadox. member Is up number states an of apparent reconcilable? contradiction this Supra Ibid Supra Kokkinakis , Para. 132 note 19,Para.29 note 77 97 membersofGldaniCongregation of Jehovah’switnesses and4others v.Georgia the court recognized court the thepowerof protect individualto state the belief from 190 Shortly after the adjudication of 189 Taking intoaccount the facts of this case, one may 61 Kokkinakis Otto Preminger case the court the case 188 CEU eTD Collection 195 194 and retarded describing between Holy devil Virgin. the sexual and relationship 193 religious sensitivities the court made reference to its judgment in under Freedom andnot Freedom Expression of for ECHR providing Article 10of under thecaseisdecided that of Religion clause. Elaborating the contours of state power as a guardian of 192 191 Institut But in a course of balancing there appears another controversial “however”: These principles apply regardless of the recognition by the court that: CASE OF OTTO-PREMINGER-INSTITUT v.AUSTRIA, ECtHR, Judgment of 20 September1994 Ibid Ibid Ibid Ibid logic of the Convention.” the of logic interpretation and application of Article 10 in the present case must bein harmony with the of democratic portrayals such and can be regarded veneration; as maliciousof religious violation of objects of the spirit portrayals of tolerance, which provocative by must also violated be been a feature religious feelings of believers asguaranteed inArticle 9 respectsociety. for the freedom of thought, conscience and religion of others. conduct, including impartingthe ofinformation and ideas, judged incompatible with the may legitimately consider it necessary to take measures aimed at repressing certain forms of The“In the Kokkinakis judgment the Court held, in contextthe of Article 9), 9 (art. that aState Convention is to be read as a whole and therefore the freedom to hold and express them.” religious beliefs can be such as to inhibit those who hold such beliefs from exercising their doctrines. Indeed, inextreme cases the effect of methodsparticular ofopposing or denying enjoymentof the rightguaranteed underArticle 9 to the holders of those beliefs and may engage the responsibility of the State, notably responsibilityits to ensure the peaceful “The manner inwhich religious beliefs and doctrines opposed are or denied is amatterwhich religious beliefs and even the propagation by others of doctrines hostile to their be to faith.” expect exempt from all criticism. They must tolerate reasonably and accept thedenial byothers of cannot their minority a or majority religious of a members as so do they “Those who choose toexercise freedom the manifest theirto irrespective religion, of whether , Para.49 , , Para.47 , The Facts of the Case case 191 involved the seizure and forfeiture of the film presenting Jesus Christ as mentally as Christ Jesus presenting film the of forfeiture and seizure the involved 193 (Emphasis belongs to the Author) the to belongs (Emphasis 195 62 can legitimately be thought to have to thought be legitimately can Kokkinakis The respect forthe : 192 It is notable is It 194 CEU eTD Collection 198 197 Para.49 1976, December majorities. The minority opinion also contested the existence of the right to the protection of protection the to right the of existence the contested also opinion minority The majorities. incompatibility tenets the to of pluralistic democracy of restraintpowers prior the afforded tothe madeandfundamental actual publicdebatebyparticular to the the expression contribution the totest government the power dangervain the the additionally to arguedinof granting about Article10. They under protection to them the publicdebateaffording the maketo to are capable three In dissentingjudgescontrast, injointabout thecontribution opinion argued artistic works under freedom artistic freedom guaranteed of expression. offence caused and Courts ordering that Austrian have the seizure of film the due paid regard the held that neither artistic value of the film nor its contribution publicto debate could outweigh the was importantly court the public.not More expression thatthe contention rejectedthe The court 196 place. taken significance of theascertainableEurope.not This imply throughout is doesnot there noconception of that the religion in the Austrian“significance of the role of religion in society”, the uniform provinceconception of which throughout is by margin is the is Butthe extentof determined strict. allegedly bythecourt appreciation of Tyrol where the complained society “certain” enjoy marginof appreciation. The supervision margin exercise of the of of acts had national in inademocratic sakeof tolerance authorities areatstake, the preserving sensitivities favorably ideas butreceived also ones “offendthat ordisturb” shock not only asenshrinedinArticleexpression ECHR protects Although freedom the 10of of Ibid Ibid Ibid Author) their religious beliefs in an unwarranted and offensive manner. religious in peace that region and to prevent thatsome people overwhelming majorityof Tyroleans “The Court cannotdisregard the fact that the CatholicRoman religion is the religion of the , Para.56 , citing famous holding of the court in the case of case the in court ofthe holding famous citing , . In seizing the film, theAustrian authorities acted to ensure Handyside v. theUnited Kingdom, 63 198 should feel theobject ofattacks on ” 197 (Emphasis belongs to the ECtHR , Judgment of 7 196 when religious CEU eTD Collection 204 203 202 Christian saint. The distribution of the video was restrained under British Blasphemy law. Blasphemy British under restrained was video the of distribution The saint. Christian 201 handitaffectdid general not the margin the remainedcourse; of wide. appreciation solution. academic previous the the criticism of to panel expressly referred religious feelingsin forArticle provided convention. 9of membersthe respect, of this In the religion,but stated that legitimate aim of protecting the rights of others included the protection of the abandoned namely the rights of others, more specifically the religious sensitivities of others. Here the court it aim protected, legitimate the affect not law could of the character discriminatory allegedly in laws againsta democratic society. necessity the Blasphemy Europe of in behind this The reason common was thelack approach ground” “sufficient Council of the society.” multidenominational a in “anomaly an was belief Christian Anglican only to law the by afforded protection sided one the legislation strike national its to down reluctance stated law. challengedthesubstantive expressly unsuccessfully validity applicantthis Thecourt of 200 199 In the court. stricter supervision mannerof subject to invery benecessary, may sensitivities a albeitrestricted religious sensitivities under Article 9of ECHR;butthe conceded thattheprotection of religious Case of Ibid Ibid Ibid Ibid Ibid Wingrove their religious convictions. What is likely to cause substantial offence to persons of a particular European conception of requirementsthe uniform of "theprotectionno of is therightsof others" in relation there to attacks on degree, greater even an to perhaps and morals, of field the in “As , Concurring Opinion of Judge Pettiti , Para.57 , Para.50 , Circumstances of the Case , JOINT DISSENTING OPINION OF JUDGES PALM, PEKKANEN OFJUDGES PALM,PEKKANEN OPINION AND MAKARCZYK , JOINTDISSENTING 199 Wingrove v. theUnited Kingdom, 200 the court was confronted with a video describing the erotic fantasies of a Otto Preminger approach of approach balancing of freedom between of expression and 202 ECtHR, Judgment of 22 October1996 64 in abstracto, even though it admitted that admitted it though even 203 204 In any event the But on the other the on But 201 The CEU eTD Collection 210 209 207 208 206 205 restraint. prior any unacceptability of held laws in and the for Blasphemy of society thea democratic questioned necessity the symbols views. and philosophical secular for the protection the same claimed He only. Anglican Christian’s of sensitivities of protecting by provided JudgePetitti law Blasphemy aim as court. rejected also the legitimate the pursuing the others, of interference the justifications and Blasphemy of of offence content the the linkbetween direct referringnational lawSuch deferenceto wascriticizedunderlined bythe Judge concurring thewho Petitti to the discriminatory by theauthorities. application arbitrary offensiveness byBritish Blasphemyrequired legislation sufficientsafeguards represented against characterneverthelessThe engagedcourt but analysisheld inakind of highdegreeproportionality that of of the law protecting the profanation of profanationMohamed prophet of wasoffensive Turkish tothe society. The dissentingjudges holding the that sustained laws. conviction under the Thedividedcourt Blasphemy Turkish in consistently applied were principles These widemargin the determining appreciation. of determined need”. “Pressingsocial final blurredconcern His was and uncertain principles propriety of the population andthe resultant religiousof feelings the actual towards offense restraint sustained by the majority together with dubious nature of the state assessment of the CASE OF Ibid Supra Ibid Ibid Ibid in an era characterized by an ever growing array of faiths and denominations.” and offaiths array growing ever an by characterized era an in religious persuasion will vary significantly from time to time and from place to place,especially , Dissenting Opinion of Judge Lohmus , Dissenting Opinion of Judge De Mayer De of Judge Opinion , Dissenting , Para. 60 and 65 , Para.58 note204 ø .A. v. TURKEY , ECtHR, Judgment of 13 September2005 207 In pursuance of this In linedissentingJudge DeMayer openly pursuance of 208 206 Dissenting JudgeLohmus washostile also prior towards 209 65 I.A . 210 case where the publisher wasprosecuted publisher the casewhere 205 CEU eTD Collection far asitdid deny not speech. was facts” historical “wellestablished protected the Finally, the as truth historical for search the Therefore offensive”. “gratuitously not was and such” as beliefs onreligious notcontain itattacks thatdoes shows in“article question that observed further in “ a interest society. indisputabledemocratic public various a behindtheextermination possible of in Jews question the reasons of Europe, critics of Papal Encyclical while havingoffensive content“contributed todiscussion of the regarding the so called sects. theso regarding defamation. affordedThe court protection the the heated forto the contributing author debate to a violation implemented Catholic Church’sideology hatredof and religious discrimination. The courtfound of freedom association latter the author the to According association. sect anti French against book the of expression for the conviction of applicant and publisher for the sensitivities whichat thesame time public tothe contributed debate. religionprotected andreligious to speech offensive line cases the court In asubsequent of principles of principles the of reconsideration for the called case lawand openly court’s the with consistent holding was unpleasant creating God” of name the associations “in prosecution the by thrilled were They measures. such of effect with theocratic society. On the other hand they admitted that majority Martínez-Torrón, 213 JUNGWIERT 211 from the famous passage againquoted once 216 215 214 Speech and Religion in Fundamentalist World 212 Supra Ibid CASE OF GINIEWSKI Ibid Paturel v. France Supra , Para. 51 note196 note 210, JOINT DISSENTING OPINION OF JUDGES COSTA, CABRAL BARRETO AND CABRAL BARRETO OF OPINION JUDGES COSTA, DISSENTING JOINT 210, note Wingrove Freedom of Expression vs.Freedom of Religion intheECHR , ECtHR,Judgment of 22 December2005, available only French,in discussedJavier in v. FRANCE and Otto Preminger 214 The same rationale was employed in employed was Thesame rationale , ECtHR, Judgment of 31 January 2006 , Andras Sajo (ed), (2007), p.245 . 212 Handyside 66 216 Evaluating the facts of the case the court the case of the facts the Evaluating case 211 andwarned chilling the against , in , Giniewski Paturel Censorial Sensitivities: Free case case 213 215 concerned where the where CEU eTD Collection 221 220 219 Supra 218 217 feelings of the victims of totalitarian regimes. The court replied that it is: symbols. underprosecuted criminal provision publicthe proscribing display andCommunistNazist of was He politician. Communist Hungarian by Star Red of display the namely speech, political the concerns case The in this direction. interesting change canleadto of case The holding the inthe court judgmentthe of appeared the development asarecent Nevertheless reluctantdisregard to them and denounce thus thestrongly religiousprevalent identities. The proclaims. it rationale “offensiveness”of society and the real significance of sensitivitiespluralistic areof clear but the court isspirit still the to bizarre laws the accept to has it result a As religion. of significance public the regarding standards uniform of absence the is authorities national to of deference reason the that admitted court the jurisprudence In Blasphemy Islam. the book was not “gratuitouslyin role significant played consideration offensive” courtor insulting towardspaid believers attention or sacred symbols of to the severity of the penalty and its chilling effects. Caseof Ibid, Ibid Ibid CASE OF VAJNAI v. HUNGARY note 213, p.250 society, since that society must remain reasonable in its judgement. To hold otherwise would otherwise hold To judgement. its in reasonable remain must society that since society, imaginary – cannot be meeting regarded as socialthe pressing needs recognised in a democratic applies restrictions onhuman rights inorder tosatisfy the dictates of public feeling – realor such emotions cannot beregarded as rational fears. Republic of Hungary provided legally,morally materiallyand to the victims of Communism, alone set the limits offreedom ofexpression. disrespectful. uneasiness amongst victims past andtheirrelatives, who may rightly find such displays that thedisplay of whichwasa symbol ubiquitous of during the reign maythose regimes create countries, including Hungary, remains aserious scar in the mind and heart of Europe. It accepts “Of course aware that the systematic terror applied to consolidate Communist rule in several , Para. 52 and 55 219 The Facts of the Case 221 Aydin Tatlav v. Turkey One of the justifications of the Hungarian government was the protection of the of protection the was government Hungarian the of justifications the of One It nevertheless considers thatsuch sentiments, however understandable,cannot , ECtHR, Judgment of 2 May 2006, available only in French discussed inTorron, , ECtHR,Judgment of 8 July 2008 Aydin Tatlav 67 Given the well-known assuranceswhich the case In the Court’s view, a legal system which 218 where the court similarly held, that Vajinai 217 The latter case 220 . CEU eTD Collection Human Rights, 225 Law Law of the European Court of Human Rights 224 issues. these rule on or touch expressly either Convention was not meant of dominantchurches formed across Europe of originalthe part of agreementECHR and the to alter it. that the recognition of diversity in respect of the strength of religious identities andcontributions the existence In foregoing analysisand shows the isconclusion, in it commonly scholarly accepted ReasonsbehindtheDifficulties 2.5. Some identities. 223 is still unclear what effect if legal protectionany and that constitutional democracy can not rest on religious identity. In any case it 222 deciding argumentscounter on specificity the feelings.at leastreligious of judge one But bench onthe The case does not concern Hungarian wouldideas state. subvert the religious communist totalitarian that danger sensitivitiespresent and clear no was there transition, the to following of majority and in stable Democracy under the consideration the that on alsothis rested court the The reasoning of case there may be Ibid Ibid See See Belongs to the Author) the to Belongs veto.” heckler’s the to subjected is opinion and of speech freedom that mean , Generally, Carolyn Evans and Christopher A. Thomas, , Para. 49 , Para. 57 generally, Lech Garlicki, Lech generally, Vajnai 2006 B.Y.U.L. Rev.699 (2006) and Torrón, 224 that states have relatively high discretion in the field of religion. It is contended It religion. of field the in discretion high relatively have states that as a constitutional scholar believes that religious sensitivities does not deserve Collective Aspects ofthe ReligiousFreedoms: Recent Developments in the Case Vajnai 223 and Torron , in a volume cited 225 judgment will have on ECtHR’s treatment of religious of treatment ECtHR’s on have will judgment Arguably this was the reason of court’s reluctance to 68 Supra Church-State Relations inthe European Courtof note149 Supra note 213, p.218 and 234 222 (Emphasis CEU eTD Collection responses of responses religiousdemocracy of identities. to 226 judges” than scholars JudgeGarlicki democracy. usthat more In arequestionsthis regard to there “addressed reminds of enforce political single philosophy to mandate of court isthe contested to this the issue faces. Related itunderline to difficulties rather thecourt, criticize about to isnot This conclusion from circle the uniform around localtothe viceversa. the and standards considerations playing resembles exercise court’s The majorities. of identities religious strong itencounters where contradiction in in is matters of Religion caught apparent state the the declaring neutrality Convention The presupposes pluralisticof with strict Court democracy that Garlicki,Supra note 224,p.232 226 as a perfect justification of academic inquiry into the normative the into inquiry of academic justification asaperfect 69 CEU eTD Collection becomes infallible and warrants the silencing of its challengers. its of silencing the warrants and infallible becomes identity national of truth The claims. rival for place no having discourse truth” “post becomes of part identity.an indivisible anduncontested that discourse of identity Asaresultnational regarded is religion majority as identity national of truth the indirectly also but religion majority problematic. Publicmanifestation non of traditional faiths notreligious contests only truth the of Here the discourse of national identity with strong religious components is especially The quo preservation requiresof status this majority dominancereligion’s inpublic discourse. stability. political and social poses latter the that are pluralism” of “dangers the to identities respond to employed religious precisely, More communities. political their and societies respective andtouches for implications thefundamental the entailscommunities broader questions religious rights and negativehavingforaffected of liberties the primary consequences The analysis of the first chapter3.1. Introduction clearly demonstrated that the problem of soul wars although Fading Modernity and the Ghost of a Disarmed Enemy theGhostofaDisarmed Fading Modernity and Chapter Three 70 CEU eTD Collection positions associated of faith, thoughts truth,such crucial epistemological concepts different and as knowledge to spirit world.to the discussion The understandings will outline by different philosophical these them. Subsequently,The following sections deal mainwith three on philosophical currents relationshipthe ofhuman in the course of the examination of democratic 227 world the facing condition human will beunavoidably examined withinin the widerphilosophical framework, light of study the of inquiry, isthepolitical theory towards crucial present democracy’struth to democratic attitude as regard this up totoday. In development their regimelatter overcome and traces aimed the to challenges the to democracies, constitutional current of foundations historical very the to leads The task toreconstruct basic features of democratic political theory’s response tothese questions perceivedactual of dangers or pluralism. to response of democracy’s question tothe answers workable totrace angle from a theoretical The subsequent step suspicious. ishighly ofquestions all to these answer the searchan is relation political for of basis a as identity normativereligious Whether truth. own its asserting them of principles is the each inreligious substantive doctrines by orother cooperation society the competing the divided examination social achieves it way the ultimately and ofincorporates it rights the individual of content truth, to problem its relation itself determines which democracy of hereisunderstanding stake is self the What at violence. tolerated state or sanctions criminal through community members disliked the of silencing of the registration or stage at the form the restraint prior of eithermeasures take The indiscourse. public participation prevention/suppressionreligious andaimedmembers at the communities theirtheirof Consequently,in the context of soul wars a wide variety of measures are taken against disfavored Ernest Gellner, Ernest Postmodernism, Reason and Religion 227 which informs the political theory’s solutions. theory’s political the informs which , (1992) p.1 71 CEU eTD Collection Aquinas in this respect, Thomas Aquinas, 229 228 theology. faith. Reason is only available tothe people having familiarity sufficient with philosophy and its guidance of truth exercise butfaith issubjectto the in may transcendent the grasping assist of faithimportance Dominance andrevelation of knowledge and the downgrades Reason reason. faith. through accessed be can and revelation in enshrined is doctrine the of truth absolute The totality. in its followed be shall and revision or compromise to subject not is final, is doctrine its of doctrine. The truth absolute byaffirmation of is characterized fundamentalism Religious 3.2.1. ReligiousFundamentalism to the World 3.2. Philosophical Positions on the Relation of Human Being problem of “war for souls” will be discussed in light of normativethese principles. Finally,the begrasped. sensibly could pluralism of actual perceived dangers or to response essencenormative defining steps,the passingthese Only after democracy’s through principles of follow dynamics of their development. in inquirythe into historic be philosophy and politicalwill theory and put contexts generally will understandings have inpolitical theory if any, be will toget inquired. In theclearerorder picture, political theory implicationsthe of differentthese philosophical and epistemological embracing; itall rightprovides answers to andhas definitequestions life. ideasof good segmentof life.societal isand individual truth Therevealed comprehensive andoverarching, all fundamentalist not religions only within dominate culturethe of society butalso every penetrate universallySodefined,denies accessible the any self evidentand of existence truth. Steven D. Smith, Gellner, 229 Supra Therefore only priests are able to access truth and guide others to it. and This access to position truth areable Therefore priests to only others guide note227, p.2-3 Recovering (from) Enlightenment Summa Theologica , 41San Diego L. Rev.12635, (2004)p. discussing Thomas 72 , I.II., Q. 94, A. 1, cited Ibid 228 CEU eTD Collection 235 234 associated to enlightenment in Smith premises will be discussed below. See the distinction about classical enlightenment philosophy politicaland thought philosophical positionof rationalism associated to it. Political thought of enlightenment and its relationto rationalist diverse"and -Roy Porter, 233 232 231 230 Enlightenmentrationalism denies substantiveandany truth inthis from way “eliminates sacred Rationalism childof repudiates- the enlightenment revelation itsand absolute truth. by reason. primacy of the fundamentalism. religious with grown societies traditional eradicate the to agesanddetermined medieval basicphilosophy. ideas underlyingits the Enlightenment andendedEnlightenment progeny the interpretations. contesting and contradictions fundamentalism religious Enlightenmentwhich – the thought ended theological dominance overphilosophy and repudiated 3.2.2. Enlightenment Rationalism and Modernity save soulsanyone everywhere. and the of to determined salvation, availability such meansof only through ecclesiastical authority and expansionism for posses themeans claim to authority, absolute Namely, andinfallible centralized counterpart. ofits Eastern characteristics basic shared the Christianity Western medieval religion. Similarly, fundamentalist of example is an chapter first in described ages middle in Christianity Byzantine sanctions. transcendent of means the by secured is truth of demands the to conduct individual of Compliance Smith, Gellner, 2 citing Smith,Supra, Roythat note229, p. historical Porter enlightenment was "necessarily amorphousrather Gellner, John Rawls, John Ibid , Supra Supra Supra Political Liberalism note 229, p. 3-4 p. 229, note note227, p.80 note 232 234 The enlightenment project commenced the new age of modernity celebrated modernity of new age the commenced project Theenlightenment 230 The Enlightenment, 235 232 has rich intellectual tradition and has not been free from internal from free been not has and tradition intellectual rich has , (1993) xiii and xvi – xvii Ibid (2001) section p.9.Ithis I referEnlightenment to describe 233 73 But nevertheless it is still possible to reconstruct to possible still is it nevertheless But 231 CEU eTD Collection 244 243 242 241 evident truths. 240 Physical World 239 238 237 236 nature”. of system in “orderly be can discovered truth revelation uniqueness but at truth the it of samethe from strips time religious transcendence. truth. the to commitment the abandon not did enlightenment classical world”.the desacralizes, “It disestablishes,disenchants everything and substantive.” Existence of any privileged source of truth is thus refuted. Truth is Truth is of definitive.source Existence uniquebutnever refuted. privilegedtruth thus any of everyone for accessible truths evident It does claim that it is true cognitiveabsolutizesmethodology rationalist of in knowledge this transcultural and transmundane form. method but it does not assertand istranscultural.Consequently disintegrated is also from reason culture. Enlightenment that it holds unique truthEnlightenmentrationalism responds this by claim affirming that knowledge exists outside culture package deals. They aspect. totheir owncognitive reduce knowledge contrast Religion, tradition and culture whether religiously dominated or not are available only as uniform but rational observer could only access itin piece meal fashion not as a package deal. In in separately and knowledge scrutinizes and allfacts connection The studies is each other. with level. equal on observers and facts all placed revolution scientific successful overwhelmingly throughout developed largely rationalism enlightenment of methodology footingunprivileged tothe equally exposed objective scrutiny Thecognitiveof reason. priests. The decline everythingputs substantivetranscendentof in truth worldon the Gellner, Gellner, Smith, Gellner, Gellner, Smith, Gellner, Ibid Ibid , p.82 and 84 , p.63, 73 and 83 Supra Supra Supra Supra Supra Supra Supra , (1970) note 229, p. 2 note 229, p. 3, referring to the Belief of American Founding Fathers in the existence of self - self of existence inthe Fathers Founding of American Belief the to referring 3, p. 229, note note227, p.75-78 note227, p.80 note232 note227, p.80-81 note 227, p. 82, citing Baron, d’ Holbach, d’ Baron, citing 82, p. 227, note 240 and the gateways to truth are no longer monopolized by monopolized longer no are truth to gateways the and 74 The System of Nature or Laws oftheMoral and 239 242 Nature holds some self 237 It does not deny the 241 This method This 238 Instead of 236 But 244 243 . CEU eTD Collection 252 251 250 249 248 247 246 will of free morality exercise and andinternal external between making thebasicdistinction after 245 liberty. individual the to constraint becomesinternal imperative and moral latter of method The cognition. rationalist absolutizes reason practical of empiricism the on constraints puts morality Individual morality. individual in born reason the by isconstituted nature of system orderly morality. inner of being’s human creature isthe Kantian reason individual.practical by external the reason to accessible scientific of existence knowledge transcendental objective deniedthe nature Kant reasonwithin the and objectiveuniversal existenceof the By refuting hasothers morality. theaccesstoknowledge and individual nature.But compared to of individuals body and partof relative alsothis the are cultures implication As an relative. therefore naturallawsandis causal and general subject to is Everythingnature nature. within of system be inthecausal found not could objective reason reason. and objective universal of existence the questioned other. the on morality and knowledge and hand one the on laws causal general, its to issubject which nature of system orderly between distinctions basic made Kant Immanuel nature. of system orderly relatively valid systems including cultures and absolutized methodof cognition one within and functional internally of both existence the accepted initially rationalism Enlightenment assert equalvalidity. not and can cultures traditions religions, Therefore equal validity allof propositions truth is precluded. Thisimplies different that Helen M. Stacy, Ibid Ibid Ibid Ibid Ibid Ibid Ibid , Gellner, , p.26 , , p. 83 , p.82 , Supra Postmodernism and Law,Jurisprudence in Fragmented World note 227, p.83 227, note 246 As a response to this tension Enlightenment’s greatest thinker tension greatest this Enlightenment’s Asa responseto 252 Individual inference of being arationalis agent possible 75 249 248 245 According to himsuch According to and unique 251 and ininner self individualof , (2001); p. 25 247 250 Kant The CEU eTD Collection 256 255 254 253 it as isinteresting Marxism scholarship. of rationalist dictates the within framed best itwas But Marxisminstill prominent ismore thislist interest scholarly deserving and because notonly fascism, examples.are Marxism and notorious educational the dictatorship, Jacobin doctrines. of politicalsuch breakdowns to related historical experiences of consequence the mainly is rationalism enlightenment by theology salvation secular valid any of Rejection 3.2.3. Relativism, Postmodernism and Critical Social Theory political its realization. and constraints from realm it ratherpolitical ejects the latter the not totally repudiate does truth comprehensive towards attitude rationalism’s Enlightenment realization. political its in collapses its for mainly it. not replace shall theology salvation secular and eradicated is totally Revelation of revelation. substitute identical the not importantin tobear mind thatrationalism’s is truth butnotunique comprehensive. Knowledge is isas a itcrucial But access this truth. qualification, andindividual capacity uniqueto the truth of existence in the believes it as optimistic, isthus rationalism Enlightenment reason. the namely but all condition individual epistemic grasp minds true the means,employingon only to of true reason. bythe dominated epistemology isits makesIn knowledge-of theory enlightenmentrationalism what absolute conclusion, culture. or religion particular within not and morality internal his/her reason from any traditionaltranscendent, cultural bonds.or is Reason born inside individual,in rational. being is imperative moral obligation of imperative.the The internal moral with in accordance Gellner, Ibid Ibid Ibid , 91-92 , p. 87-88 , 253 Supra As a consequence Kant’s liberal philosophy totally disentangles and disentangles knowledge liberal As Kant’s totally philosophy a consequence note 227, p.82 227, note 255 The islatter denied not as much becauseits non for existence but 256 254 Enlightenment rationalism believes in the equality of equality in the believes rationalism Enlightenment 76 CEU eTD Collection 259 258 257 possible by rationalist the overcoming knowledge. of from Theindividual emancipation knowledge. rationalist dialectical this was only oppression industrialized and complex society. identity Individual by was captured homogenizingthe effects thinking inindividual and tosubject him/her tothe technocracy and bureaucracy modernof the Knowledge inenlightenmentrationalist understanding wasemployed tosilence thecritical chain of reaction social anddomination oppression powerful over of groups. other groups dominationled to nature by of individual.individualthe Theof capture nature resulted into the absolutized rational methodology of cognition resultantscientificand and technological progress Enlightenment’s oppression. of instruments the became rationality scientific and knowledge and Adorno’s social critical intheory alleged modern industrialized that and complex societies, Based on Marxianthe premises of dialecticsthe of class struggle andexploitation Horkheimer’s crucial for understanding the of philosophicalthe of tradition postmodernism. influenced its students Horkheimer andAdorno todevelop critical social intheory which is turn Marxism doctrine. salvation own its of creation the to limited not influence intellectual had a political consequences Marxism notorious tremendous with rationalism.Together enlightenment of project the into intrusion sociological powerful first the was Marxism project. enlightenment in still present truth of unique transcendence challenged Marx Secondly, realization. of onearth. was comprehensive truth the Thisrational order anddemandedpolitical social truth itheld that itaffirmed directions. Firstly, least two from at rationalism enlightenment challenged See See See , , Stacy, , Gellner, Ibid , for the Summary of Horkheimer and Adorno and Horkheimer of Summary the , for Supra Supra note250,p. 28-37 note 227, p.86-87 257 77 259 258 CEU eTD Collection 265 263 264 262 261 language the Derrida focusknowledge on totally and refuted truth. Heidegger’s expanded and Derrida Heidegger Jacques following to In contrast, truth. objective criticizeddeny methodology not therationalist butdid existence the knowledge of unique 260 it. rejected also relativism to following representatives its of some but knowledge of objectivity not the only deepfurther.It criticized madestep the philosophical tradition Postmodern and transcendent truth and replaced it by immanent morality of the existential person. had language the function. pivotal InconsequenceHeidegger deniedtheexistence external of and was The truth subjectivejudgment. definedtruth by rationality communicative and therefore guided bycommunicative rationality. blurred between Heidegger distinction the objective the judgment. Kantian judgment subjective capacity sociallyhistorically waspurely andcontingent and Kantian concepts truth of filled gapbetween the Heidegger achieved bycommunication. and consensus by social it truth metaphysical replaced deniedexternal totally Heidegger Kant.in present still truth of Premised transcendence the challenged He relativism. beyond existence the asserted on the Kant’sIn direction,this Martin basic the reinterpreted Heidegger ideasKantian of andphilosophy idealHusserl. of practical by represented Battaille and trend industrialWittgenstein, society, the modern technocratic reason oppressions of awareness growing multifaceted inthe of was there Simultaneously philosophy as the product of internal morality 262 See See, See See, See Ibid It is notable that both Marxists , , Supra note 258 , , p.28 Gellner Derrida’s Critique of Language, Supra Ibid 260 , Heidegger’s turn to language note257 Supra 264 note, 227, p. 71 Stacy,Supra note 250, p.83-100 , p.25 -28 263 and early Frankfurt school social school of theory Frankfurtcritical and early 78 265 denied the possibility of deniedobjective of the possibility 261 CEU eTD Collection 273 272 271 270 269 268 267 266 living phenomena by surrounded fogof indeterminacy.the also but expositions graphical only not which are Texts texts; the to world the everything within attack. poststructuralist under Derrida’s wasplaced structuralism language –the of Rationalistunderstanding language. of treatment enlightenment rationalism’s portrayed it instrumentas an of oppression. Another French postmodern philosopher Michel Foucault impossible. is listener or reader the of subjectivity from disassociated form, objective inits latter the truth; for unique the not meaning for the search is theendless Deconstruction result of deconstructionEverything in meaningismeaning worldthe is and never The definite. are formedtruths asa of the communicationlisteners. and by readers the communication the to ascribed interpretations various among the – the search for istext notconnected exclusivelythe tothe Author’s author. intentis one of meanings competingthe covered meaningsincorrect. is writing over of speech the preference structuralism’s beyond. core of settled meaningandis capable of ideasexpressing alteration; without therefore homogenizing practices of power via the domination of discourse by the means of knowledge means of by the discourse of domination via power the of homogenizing practices contingencies. and motives irrational by driven often but rational necessarily not are truth knowledge, andin form filter this andsuppress the differences. objective of by means discourses the the dominate structures Power causal continuum. the create knowledge, him and resistance For knowledge. oppressive the oppression power, But compared FoucaultFrankfurters to believes in emancipationthe individual identity from of Ibid Ibid Ibid See Ibid Ibid Ibid Ibid , , p. 61 , p. 62-63 , p. 61 , p.84 , p.85 , p.84 Knowledge and Power; MichelFoucault , Stacy, 271 He follows early Frankfurt school respect. inschool this Frankfurt Hefollows early Supra 79 note 250, p.61-82 267 270 Derrida rejects that the text has the directly attacked knowledge and directly attacked 272 266 268 The dominating regimes of regimes dominating The His Grammatology reduces His Grammatology For him the meaning of the 269 273 The CEU eTD Collection 275 sense, which is simply false for rationalists. in cognitive also but moral in only not nihilism nihilism; to leads exercise hermeneutic after meaning definite the to ever arrive to failure postmodernist arguethat Rationalists of knowledge. in referential systems of deadlock arecaught self critics contend, herepostmodernists rationalist postmodern employ scholarnot does relativist any knowledgeAs different/superior system. beyondWhileview. dealing this equally with different this systems authentic knowledge withincounterparts its ownterms.deconstruct Postmodern scholar hasto relativist meaning the andits ownmeans of religion substantivecognition. Each viewsor culture, itself doctrine and butdistinct is equal itself cognitively Each for thought systems. absolute such thought system cultures differentFurthermore meanings andthe Therefore have arecognitively equal. religions propositions. as truth valid The meaningsareequally indeterminate. equally worldthe are Accordingall topostmodern in meanings.competing thought relativist neverdefinitethings and by exploring structures power or deconstruction the by different of contingencies determined 276 274 knowledge and epistemology. rationalist enlightenment the overcome relativism embracing Postmodernism of forms The a well known example. emancipation against the established power structures of modern societies. Feministmovement is philosophy becomes basicthe driving force of variousthe movementssocial struggling for Foucault’s identities. of premise This from suppressed different resistance tothe leads See, The critique of Relativism and Postmodernism practicing it in Gellner Ibid Ibid , p. 71. , 274 275 Objective knowledge is no longer possible; it is either it possible; longer isno knowledge Objective 276 80 Supra note 227, p. 72- 75 72- p. 227, note CEU eTD Collection 283 282 281 280 279 278 277 reason”. of “genealogy from the doctrines religious of disintegration the rejects time same the at but knowledge and faith between distinction the deny not does rationality. scientific the to knowledge the reduces not does time same the at but truth substantive the to agnostic remains counterpart enlightenment metaphysical modernity by isthought. characterized post revitalize modernity belongs tocelebrated social Jurgen theorist Habermas’s Habermas. of rationalismenlightenment –absolutized of method to prominentcognition. Themost attempt premise central the to refers challenge The ignored. be not can postmodernism and theory social from adherers, critics defenserationalism strict byits the ofenlightenment Despite the vigorous 3.2.4. HabermasandPost metaphysical Thought observations, nomological propositions and casual explanations”. fitting its everything not“controlled within whichrepresses naturalistic conception reason of evaluative judgments. evaluative conception of reason and knowledge represses not only religious but alsomoral, legal and limited to western metaphysical thought and enlightenment tradition. andenlightenment metaphysicalwestern thought limited to isnot of genealogy Habermas reason to According its genealogy. itself to according reconstructs redefined each each redefined other. of “Hellenization Christianity”inof and whichChristianity informed ancient philosophy and Habermas Ibid Ibid Ibid Ibid Ibid Ibid , p.17 , Supra note 1, p. 16 283 281 Habermas calls for the “liberation of cognitive substance from its from substance of cognitive “liberation for the calls Habermas Habermas proposes multidimensional concept of reason which 81 278 Habermas’s post metaphysical Habermas’s post thought 277 Post metaphysical Post thoughtlike its 282 280 He refers to the example the Herefers to This self objectifying 279 Habermas denies CEU eTD Collection unavoidable factand historical asa of Christianity tenets affirmed officially to dissent form of the condition in Pluralism but polity the of homogeneity religious required hadlegitimacy divine of preservation been present of obedience. ground unobjectionable legitimacy makingsuch divine and etc.) Emperor virtually from sovereign (King, of divine power source eraaffirmed the of Prevailingtheology political thepolitics. dominated originsrevelation Christian of truth substantive the Christendom Medieval In of Christian States.Legitimacy As a State 3.3.1. Medieval –Revelation astheSourceof their impact on Religion 3.3. Political Implications of the Philosophical Positions and accession. apart from andis kept “encircled” cognitive simply is gets “opaque core” cognitivethe which is The thought comprehensible. rationally content religion. mutual learning mandatory In processesinvolving metaphysical translations post of rationality the on judgment the pass not does thought metaphysical Post them. by made claims truth the to is agnostic time same the at but religion the from learns modernity Habermas’s 287 286 285 284 unleashes inspiringthe energy for that potential semantic “a have still religions the that believes Habermas religions. and cultures not only by instrumental dogmatic, butrationality also by cognitive substances of different indogmatic encapsulation melting pot of rational discourse.” Jean Hampton, Jean Ibid Ibid Ibid Political Philosophy , (1998),, p. 6- 10 all of all society.” 82 285 284 286 The knowledge can be achieved be can knowledge The 287 The CEU eTD Collection 289 288 from liberated religious domination answered question this in affirmative replaced and divine the emerges fundamental legitimatewhetherquestion authority is still possible. Political philosophy there shaken states medieval of foundations and is disestablished legitimacy Once religious – Political Realm 3.3.2. Towards the Exclusion of Substantive Truth from Socio legitimacythe ofpolitical produce power. and of deniedsubstantive truth revelation. revelation refuted Consequently,longerno the could Secondly, enlightenmentrationalist philosophy andscientific progress desacralized theworld upheld from they not obey believe could authority the powergettingthe one not god in. the did officially the from different religions of followers the impracticable; it made pluralism Religious Firstly, attack. multifarious under became state medieval the of legitimacy divine aresult As faith. mother the of character expansionist and Salvationist shared beliefs new emergent surprisingly, Not religion. catholic western uniform of disintegration and reformation by suppressconcluded therevoltXVI –XVIIcentury warsof in religious wars.Failureto religious resulted and clashes dramatic the to led Christianity within dissent of strengthening Nevertheless, homogeneity. and religious eliminate dissent preserve to powers thecoercive possessing authority is an additional forexplanation theexistence of such institution as inquisition andecclesiastical of political entanglement The tool. only wasthis power coercive state Use of possible measuretouphold religious homogeneity save thefoundationto medieval of polities. seemed hadbeen ecclesiastical response what only and political pursuing asthe authorities Habermas, See, generally on the Medieval State, Rawls, Supra note 1, p.4-5 Supra 289 note 230, xii – xvii – xii 230, note 83 288 CEU eTD Collection 292 291 290 its doctrine. principle of human society but it asserted absolute truth and demanded the political realization of asfoundational struggle class of in dialectic Marxian nothing transcendent was There theology. salvation secular of implementation of the example are another regimes Marxist/Bolshevik ideals. enlightenment substantive implementing politically intodictatorship Jacobin educational idea inFrench revolution degenerated enlightenment realize politically to attempt initial very The truth. rationalist of realization political In enlightenmentprogeny beenprohibition not unanimous philosophy has about political the of nature. and state of escape thesovereign to submit should all Therefore religions of nature. of state nightmare cause of the competing truth claimsby different religious revelationsnot subject toany validity test, were the comprehensive truth substantivethe truth of revelation ofand upheld objective, nontranscendental knowledge. As the revelationdenied epistemology, rationalist the to adhered wasHobbes governed. the of refutedconsent the by authority no religionits getting was but legitimized divinely not was Leviathan Hobbes’ should different. essentially time realize itself politically.power. Hobbesian absolutism was similar to the absolutism of medieval monarch but at the same sovereign unrestrained the – The Leviathan almighty the to rights their all ceded and pride their fear of death in anarchy. Motivated by the aim of securingvery physical survival, they overcame the to individuals submitted that horrible so was of nature authority state – community without introduced the idea of social contract as a foundation who of sovereignty. philosopher Hobbes’political the fiction was Hobbes of human Thomas counterpart. popular the by sovereignty Gellner, On Hobbes, generally, See , Schmitt,Supra note 137, p.30-31 Supra 292 note, 257 Supra 290 note 287, p.39-49 84 291 CEU eTD Collection fact that they can not guarantee stable social cooperation. stable social guarantee not can they fact that ability truth substantive defineof to society is philosophically suspicious butalso by social the -the basic premise their that reason by not only invalid the are organization of forms political policies hadand addressing homogenizing effects, the fact of pluralism by it.destroying These substantive rationalisteitherinmedieval truth state or pursuedexclusionary dictatorships society’s by largely isthe determined is way the addressed factof have the Wepluralism seen that attitudeis affirmative. answer the surprisingly towards substantive truths. We have also witnessed that affirmation of by irreconcilable comprehensive doctrinesby irreconcilable is possibleall itself comprehensive vigor.at poses utmost with fundamental question of political philosophy whether social cooperation in the society divided 296 295 294 moral be not only substantive. butalso andreligious philosophical to claiming doctrines 293 doctrines. religious clashing existence of of the fact social under started apparent state democratic constitutional modern of The project defineis social If Truth can notwhat terms andinstitutionscooperation outcome? the of then 3.3.3. LiberalAnswer: PoliticswithoutSubstantive Truth replacement. comprehensive certain forms of cooperationsocial but cannotand power political provide theirunique and Enlightenmentrationalism isfirst of all methodof the cognition mayabsolutely which deny tomerefrom andits strips uniqueness. it possibility least downgrades normative character the at but theology salvation of existence secular the not fully does repudiate failure The practical Rawls, Ibid Ibid Ibid , p. 88 Supra note 230, p. xvii p. 230, note 293 294 The social reality is even more complex and includes 85 295 296 The Not CEU eTD Collection 299 THE UNITY OF EPISTEMOLOGY, 30 San Diego L. Rev. 763(1993) CHURCH 97Colum.AND L.Rev. STATE, (1997) also Larry 2255, Alexander, LIBERALISM,RELIGION, AND 298 citizenship.” embody the whole truth inpolitics is incompatible withan idea of public reason that belongs withdemocratic Rawls, constitutional democracies generally incorporate the elements from both traditions. both from the elements incorporate generally democracies constitutional modern is that important is What here. focus my of out are development their and tradition each features of The detailed tothename Jacques Rousseau. of theory associated Republican Jean traditions. theoretical generally is It hasby modern been influenced acknowledged thattwo thought profoundly democratic revisited. briefly be shall democracies constitutional of foundations theoretical Before discussing contemporary contributions to the political philosophy and theory the Democracy’s Answer to the Fact ofPluralism 3.3.4. Some Preliminary Challenges for the Constitutional accountinto socialtaking the adequately. reality democracy isprovide able to normative sufficient framework to address factthe of pluralism demonstrate thatconstitutional following willtry Despitesections to the thesechallenges, denial of truth insubstantive andpolitics its non exclusivist and ambitions.pluralistic thebetween liberal contradiction for inner the argue Postmodern critics come attack. truth under and policies. Hereconstitutional democracy itsand liberal of premises relationthe substantive to factcooperation assumes the of pluralism. exclusionary under the Itunacceptability practices of 297 realm. political – socio from truth whole the of exclusion onthe social rests be form of cooperation stable to claims which Thus democracy constitutional Habermas, THE JUSTBOUNDS BETWEEN SETTLING IMPOSSIBLE: MISSION Fish, Stanley generally, See, See , Rawls, , THE IDEA OF PUBLIC REASON REVISITED, Supra Supra note 1, p.19 note 230,xvii p. denying that political liberalism is comprehensive doctrine. 299 One is broadly liberal theory of John Locke and the other is the 86 64 L.Rev.U.arguing Chi. “The765 (1997), zeal that: to 297 It claims to achieve stable social See also 298 , John CEU eTD Collection freedom without undue interference from state which is only warranted when other fundamental rights demand; the demand; rights fundamental other when warranted only is which state from interference undue without freedom ofreligious exercise free envisages principle libertarian first the principles; basic three to associated is separation of separationbetween religious institutions and state, between public and private. This traditional institutional doctrine 303 301 302 300 andtheocracies. sectarian wars from guarded be equally shall andauthority violence. Similarly, politics from state it of protective is rather it religion; to hostile not is Locke faith. particular his/her having of reason sole the for differently equally all skeptical towards noreligions; adherentof any singled outreligion can betreated is community political as time same the At forbidden. isstrictly authority political of interference and faith are private salvation related toconscience, and matters andequality.of The conscience fundamental liberal distinction between the public and backed private by principlesthe liberty of changenot isconviction innerpersonal which thesign faith.true of any faith but rather the fact even if that it such judgment passes it andimposes forcibly this can political authority is demanded not only by it that reason the is judge unable to the truthfulness of the of interference Non interfere. not shall power political and of person matter the is private the in politics. claims these for place is no there claims, truth substantive competing doesnotLocke, ascivil judgeAccording means to magistrate posses to any truthfulness of the its consequences for religions is outlined in and Locke’s cooperation famous social of “Letter system Concerning the within truth Toleration.” substantive the to relation liberal classical The terminology. their own employing theories contemporary highlyabstract the proceed to necessary to is response to the fact of pluralism within the stablesystem of social cooperation. Such restatement its normative up set and democracy constitutional of theory modern political heartof the go to Subsequently,in sectionthis I will thosesketch basicout liberal and republican principles which These ideas of Fish, Locke realized on US soil by founding fathers were labeled under the metaphor of wall of Cited in Cited Ibid , Supra Fish note 298, p.5 , Supra note 298 note 303 87 But Locke’s toleration has its limits; no religion no limits; its has toleration Locke’s But 302 These support arguments 301 The salvation 300 CEU eTD Collection liberal idea of idealiberal in of deliberation By Republicantradition. adopting liberalbelief in deliberation is theconsensus out worked of clashing individual claims. The consensus criterion incorporates Religion ispublic out domain and isnecessary this precondition of formationgeneral will which politics is preserved. General will is the will of sovereign people not of the sovereign god. interests, including those of religious citizens. religious of those including interests, will. general of author the in co the is public citizen capacity this samethe and the individual at time who of private obedience the demands General will vigor. new acquires distinction public/private In liberal as will thisself of self-government. of conception an exercise government democratic liberal. anti as described isoften it contract social of idea the liberalism with shares Republicanism though Furthermore, ithas effects. pluralistic anti challenges that tothe vulnerable The second foundational tradition of modern democratic thought– Republicanism is moreeven system of social cooperation. mankindby andthus religionsdifferent defines themselves, boundaryof the withintoleration the social fact by possible.cooperation of pluralism shared Thecommon under the ground all 307 305 304 Philosophyand Public Affairs towards the religious as such. Robert Audi, principle meaning thatstatebe shall and does neutral preference not make not only differenttowards religions but impositionof this outlook to those of different faithwould deny their religious liberty and third is the neutrality view. Additionally religious there is highchance preferred state that the the adopt lawsto compel will and reflect religious believer of choice outlookthe of the preferred may restrict churchpreference and Such the denomination. religious particular any towards preference making of state prevents which principle equalitarian is second can be tolerated. subversive the foundations by of mankindto society the judgmentof the and condemned whole 306 Cass R. Sunstein, Cass Cited in Fish , Michel Rosenfeld, Ibid 305 The problem is associated with the central Republican premise – obedience to general with Republican is Theproblem to central –obedience the premise associated 306 Supra Under Republicanism equated is general will not to individual sum the of 304 Beyond the Republican Revival Just Interpretations Here,wearrive first to basic principle of Liberal political making philosophy note 298, p.7 298, note , Vol. 18,No.3 (1989) p. 259-265 , (2003) p. 219 -221 Separation of Church and Sate and Obligations of Citizenship, , 97 Yale L.J. 1539 (1988) p.2 88 307 Thus the exclusion of substantive truth from truth substantive of exclusion the Thus CEU eTD Collection 310 leads to it. 313 309 308 potential to this effect. obedience toit bestthe homogenizing strategy.Indeed Republican haveprinciples enormous inclusive. become more and to beinghomogenizing of counter charges the to Republicanism tries 312 311 free and equal citizens be sufficiently justified by the reasons that all other citizens in their citizens other all that reasons the by justified sufficiently be citizens equal and free by power coercive of exercise collective that requires legitimacy Political legitimacy. political itself. society democratic democracy? According to John Rawls the idea of public reason is central to the idea of the If the whole truth can not 3.3.5. The Ideadefine of Public Reason society then what defines the political relationship of democratic citizenship. in liberal virtuecivic of virtueinformed whichis Civic citizen. makespublic by will uptheethics general fellow citizenscomplying not with general the will. Thisis themoral obligation envisagedin public his/her from public interests citizen requires todisregard and of of those own citizen and particular religious community like. and community particular religious of outsider and member between enemy, and friend between distinction fundamental the the political relation of free and equal citizens and therefore rejects the political relation based on reciprocity. of principle the on based is relationship Political democracy. Rosenfeld, See, Generally Sunsterin, Rawls, Ibid See Ibid , Schmitt,Supra note 137, p.13-15, arguing that Rousseau’s Republicanism requires social homogeneity and , , Supra 308 Supra Otherwise the general will would be the will of homogenous people and the and people homogenous of will the be would will general the Otherwise note 297, p.1 note306 309 Supra Republicanism splits the identity identity Republicanism splits the individual between self of private and 311 310 The idea of public reason properly describes political relationship in relationship political describes properly reason public of idea The note305 313 Principle of reciprocity has its own understanding of 89 312 Reciprocity defines CEU eTD Collection means that regime constitutional of acceptance The religionpolitically. life good of vision its realize to claims all gives up a hope “of changing the constitution so as to establish … [its] 318 317 316 315 resolved. is already paradox apparent this justification level public of atthe Therefore necessary. if itself doctrine comprehensive to the adjustment necessary implies regime constitutional Acceptance of public the andexclusionary. notbelieve is that Rawls restrictive reason does inengage publica discussion to reason. pursuant associations, religious organizations andmedia institutions are from exempted any duty to culture doesnotapply of background variouspublic reasontherefore where the society civil to of Restraints sphere. public hispolitical of understanding to limits correspond These reason. delimitmaterial requirement public of ofpersonaland triesthus application to the of scope the He political. of domain the to reason public of requirement the of application the Rawls limits vote for can be supported by the political values of public reason.” and advocate they policies and principles the how questions fundamental those on another one to legal democratic not a moral explain citizenship duty imposes duty civility beable to – the of to Principle of reciprocity defines the conception of democratic citizenship. “The ideal of communications. inmanagers their public public campaign and the ofcandidatesto discourse office andto legislative ofjudges discourse branch; the discourse the judges especiallyto to of Court Supreme in both executive and governmentofficials of discourse is tothe public applicable reason 314 toreasonably accept. supposed free and equal are capacity as Rawls, Rawls, Rawls, Ibid Ibid , p.2 Supra Supra Supra 318 Acceptance of constitutional regime means that comprehensive doctrine sets aside sets doctrine comprehensive means that regime of constitutional Acceptance note 230,p. 218 note 297, p. 2 note 230,p. 217 315 90 317 314 316 Therefore the requirement of CEU eTD Collection 326 325 society, basic rights and liberties and matters of basic justice. -Rawls, 324 323 322 321 320 319 same freedom ofjustice. Atthe of time liberal values political and equality conceptions of construction process of valueinthe filterscomprehensive any practical rationality Therefore, controversial.” not are they when science of conclusions and methods the and justification is to “generalthe formsrestricted beliefs and of reasoning found in common sense justice The contentpublic justification. forreasons of the public though widely on rested comprehensive, includingreligious values nevertheless had sufficient claims reasonwhose in USA, movements Rights Civil and Abolitionist to referred Rawls doctrines. is determinedpolitical conception of justice may be by well supported equivalentthe valuesin comprehensive by broadlyjustification liberal provided. any notchange doctrinereasons does areforwarded comprehensive of appeal to publicnature the In this political respect itreasons. is worth to conceptionsunderline intomay be introduced public political if by discussion are they supported sufficient public that Rawls always of doctrines comprehensive religious other and admitted that admitted Rawls criticism to asaresponse Later that free reasonable andequal citizens.” of liberties with equal other the consistent itsensure liberty fairly the of adherents way other to is no “there such regime except isthat constitutional acceptregime to reasons have sufficient influencehegemony, of ensureits andsuccess.”… obligationsqualifying soasto or Rawls, Rawls, Supra note 297, p .8 Ibid Ibid Ibid Ibid Ibid Ibid , p. 224 , p. 90 , p.9 324 321 constructed by the means of practical reason. practical byof means the constructed Supra According to Rawls faith. Accordingbein to should good met proviso this note 230, p. 223, Political conceptions of justice define the basic institutional structure of the 323 320 91 Supra 325 The form The form of reasoning usedin note230, p.11-12 322 326 If public If adequate 319 Religion CEU eTD Collection 331 towards Good.the 330 329 328 332 equal. Rawls, citizens, and not asdominated ormanipulated, orunder the pressure of an inferiorpolitical orsocial position.” – cooperation, those proposing them must also think it at least reasonable forothers to accept them, as free equaland 327 law legitimate law is legislation; reasonable and links institutional any with religious organizations, and reflection valuesof religious in establishment religious prevents It domain. political of out kept effectively is truth religious that forprovide reciprocalpolitical the Publicreasonensures conceptionrelationship. whichdoesnot of justice. Rationality guided by liberal values of freedom and equality any prevents political justifiedbe liberty asbe to inlightof constructed isblocked and equality a political conception justice of conception political one by dominated not is reason public that contends Rawls liberties. and rights fundamental certain affirming democracy in form of deliberative regime the emergesconstitutional mandatorily there terms. inRawlsian constructivism political the outcome of the determine democracy moral Liberal inwith Rawls political comparisonsuperiority who philosophers assert liberal of motivated. principles. Audi intends blockto evenjustified publicly propositions if they are religiously democratic citizenship which requires the adhesion to secular rationale and secular motivation secular comprehensive views. secular comprehensive restraint goes deeper to the cognitive level. cognitive deepertothe goes restraint Audi, Rawls, Supra note 297, p. 4 Rawls, “The criterion of reciprocity requires that when those terms are proposed as the most reasonable terms of fair See , generally, Robert Audi, See also Supra Supra Supra Supra 331 330 note 297, p. 2; therefore reasonable for Rawls is what may be acceptable by fellow citizen as free and free as citizen fellow by acceptable be may what is Rawls for reasonable therefore 2; p. 297, note , Rawls’ distinction between reasonable and rational. Rawls, note 303, p. 277 – 286 Rawls distinguishes secular reason from public reason; as public reason also filters have even stricter conceptions of public reason. Robert Audi develops the ethics of note 297, p. 3 note 295, p.5 19 Notre Dame J.L. Ethics and Pub. Pol’y 197 (2005) Moral Foundations of Liberal Democracy, Secular Reasons, andLiberal Neutrality 332 But Audi’s secular motivation principle is more intrusive as the as intrusive more is principle motivation secular Audi’s But 328 but at the same time it is clear that any value which can not can which value any that is clear it time same the at but 329 . 92 Supra note 230, p. 48 327 Therefore at the end the at Therefore CEU eTD Collection 338 337 336 335 (1991); Separation ofChurch andState: Some Questions forProfessor Audi 333 Habermas also affirms that democratic legitimacy requires that the coercive power of the state be separation is for essential the preservation liberty of religious and isnormatively justified. institutional that believes Habermas pluralism. religious to answer proper only the was hand state. and church of separation institutional warranted power political of justification of basis a as reason human legitimation. divine of loss the to followed tradition in a contractualsit developed He acknowledgesself constitutional thatmodernstate. of state constitutional the understanding normative foundationsAs step Habermas undertakes of a first defense the the of the empirical evidences. arguments into the areterms of practical rationality. Other criticspositions arguecapable formotivated the contributionsreligiously their religious translate to burden cognitive the undertake not can citizens of making religious and is artificial split epistemological That knowledge. from be dissociated not can faith in public that and contends modernity of understanding of self the heart very the to goes The objection deliberation more criticism. intense even exposed often attacks. consistent of becamesubject Rawls position resting their Habermas’s 3.3.7. Conception ofPublicReason conclusions on 334 Habermas, See, Habermas, See, Ibid Ibid Ibid See , , p. 4 See also See , among Audi’s early critics, objecting his principle of secular motivation, Paul J.Weithman, Ibid , Habermas, Supra 337 Equal religious liberty and state neutrality in religious matters on on Equal neutrality matters in other state liberty the religious and religious 335 note 1, p. 6 Supra note 1, p.8 criticizing Audi’s secular motivation principle. 334 93 333 , Philosophy and Public Affairs, Vol. 20, No. 1 Robert Audi’s secular reason was Audi’s reason secular Robert 336 Common The 338 CEU eTD Collection 343 342 341 340 the limitations of secularist thought by developing attitudes to grasp possible truth content from a citizens shall accept the possible semantic and cognitive potential of religion and try to overcome direction. this towards trend actual of sign is the consciousness religious faith in light of secular experience. Thetheir wave of modernization reconsider to attitudes of religious epistemic reflective self necessary develop shall citizens Religious of democratic deliberation. the perspective citizensin achieving translation. This involves self reflective from attitude a participant with andreligious cooperate participate also citizens wheresecular in butopen deliberations citizens religious of minds the in only happen not shall translation but applicable still is Rawls The translation of proviso count. reasons equally executive publicaccessible offices and only and parliaments in courts, spheres, public informal Beyond authority. political of exercise the of 339 terms. psychological itepistemicburdensis Habermas to For thealso burdenunequalinmental religious citizens. and place can not unequal state constitutional is acknowledged reason in of genealogy of the religion place the and defensible longer no is rationality restricted scientifically and naturalist As above. Habermas’ his position metaphysical philosophical reflects position post thought discussedof in of officers. public votes elections the or in is policy advocacy latter engaged the public when ordinary reasonrequirementcitizen to public Habermasof applicability challenges the But secular. or religious for all citizens, equally accessible reasons available publicly by justified bee decree or decision, judicial law, of form in the it Ibid, Ibid Ibid Ibid Ibid , p. p.10-12 , p.9 , p. 8 , p.5 p.13-14 341 Nevertheless this does not deny the institutional separation andneutrality denyinstitutional separation not does the Nevertheless this 342 94 339 343 At the same time secular 340 CEU eTD Collection 349 348 347 (1996) p. 1-6 346 345 344 and will formation.” levelsopinion of different are atthe that tracks along two “proceeds democracy understanding of prceduralist Habermas’ is which politics Deliberative place. takes formation opinion sphere comprisingmedia, of associations andinstitutions other where ina discussion robust informal public but also by procedures democratic regulated processes oriented decision on the theory of democracy. proceduralist Habermas’ supports rationality Communicative rationality. by communicative replacement Behind this isthe overcome of practicalthe rationality by metaphysical post andits thought significance. as not archaic butacknowledge remnantsof modernism theirpossible pre existential religious madein open contribution deliberation. public truth longerdemocracy is now truth ademocracy. Post sensitive. is truth and government” of form discerning “epistemically is democracy that warns time, Habermas same the At cognitive aresymmetrically therefore distributed. burdens attitude self reflective citizens undertake religious secular and both where processes learning complementary the requires thus sphere public informal in arguments religious of Admission formation. will robust and unregulated discussion and only after this filter can enter the political public sphere of controversialout bracket The ethical issues. opinions arounddivisive the formed issues are in Habermas, Jurgen Habermas, Jurgen Ibid Ibid Ibid Ibid , p. 309 , p.314 , p. 15 Supra 345 348 note, 1, p. 18 p. 1, note, Between Facts and Norms: Contributions to aDiscourse Theory of Law and Democracy 347 Informal Informal sphereinpublic with liberal comparison understanding doesnot 346 Proceduralist understanding of democracy only focus not 349 95 344 Secular citizens shall view religions CEU eTD Collection 350 form of legitimate law, in power reasonablyjustify inthe citizens concerningthe coercive of state to their use proposals a way that all other fellowfrom requires that ethics of citizenship for the democratic normative justification sufficient citizens may reasonably provide also fundamental principles These rational outcomes. generates deliberation that accept. Political requires legitimacy legitimacy. Democratic democratic the produces authority and political citizens the that the addressesfrom the god. The reciprocal political relationship between free and equal citizens and between not people the from emanates The sovereignty power. political of justification rational to the of the law way anormativePhilosophy repudiatedrevelation principle.gives makesthisas Philosophically identify inits Political society. realization butwarns usagainstexist and overarchingtruth substantive themselves may there that us tells condition human of study the above; said was what all of conclusion a As as the authors3.4. The Principle of Secularism of this law and possible solution. deliberation in spherein public democracy isproceduralist of capable ever embarking toits modernity between faith relation regarding the Only andreflective self the knowledge. of uncertainty epistemological the resolve to are unable theory political ofdemocratic principles normative but normatively, defended successfully be can state constitutional of foundations republican and liberal both believes Habermas modernity. the of dimension epistemological and democracy constitutional of justification normative between distinction the makes he Finally, Ibid , p. 19-20 350 96 CEU eTD Collection accept as free and equal citizens. equal and free as accept law shall be justified oflegitimate insuch means by the a manner exercise that its alland constituents power coercive of state the state of and existence the the addressesthat of principles the law secular shall reasonablyaffect fundamental not does it But deliberation. of democratic dimension epistemic in changes the require may This principles. positionimplying that it does not pass any judgment onepistemological controversy lightin of its normative 353 352 351 for all areinaccessible does religious arguments assumption that the practical but reason towards foraccessible free all as andequal levelmayon works the It havejustification. of the preference reasons the by justified be shall state the of power coercive that requirement, The equality. and constitutional settingis its exercise guidedby fundamental the and overridingvalues freedom of public reason; Whatever form of is reason employed beitscientifically limited in orbroader, the to challenge epistemological of decisiveness non the concerning argument additional an As state. constitutional of selfunderstanding in the has it status normative alone the affect can not reason of critique philosophical and epistemological The state. for constitutional secular the justification normative provided that reason predominant itwas notthe but secularprinciples, based on of state constitutional development the affected isnormative thatrepudiation level.It true byenlightenmentrevelation of greatly philosophy state power and keeping substantive truth of religion out of politics are independently justified on of desacralization the demanding principles The no. is Constitutionalism of theory of answer The justification? normative its lost also secularism of principle that imply this Does shattered. very the foundations ismodernity and epistemological of and widelycontested philosophical religions. strong of revival recent the of in light state, uncertain in an isalso society of Secularization pending. still is politics of secularization of project modernity’s that fact a is It inConstitutionalism. status normative has time same the at which Secularism for justification normative strong provides theory Sajo, Ibid The The ultimate step that can be taken by normative political or constitutional theory is to adopt Habermas’s , p. 4 and 12 Supra note 3, p. 12 351 97 353 352 Generally, CEU eTD Collection 355 354 under consciousness”. the pressureof of At “modernization the a minimum levelreligious this is reflection self religious hand other the On democracy. deliberative form the in realization its political liberty and and equality compromise not place farasit does from as takes religion be regarding itself true cognitivea symmetrical self is burdens, not reflection Learning process. in thisprocessis mutual and cognitive burdens are symmetrically However,distributed. itmay reflection self Habermas to According equality. and freedom of values liberal fundamental with reconciled be will they deliberation democratic of processes learning in complementary if count may religious arguments andadmits that further even goes Habermas On sameassumptions the necessary. in “translation” sense was necessary direct valuesthe no liberal fundamental justified under given but God equality as far freedom were perfectly slavery was contrary and to they that contented Abolitionists this. of illustration best the is example movement abolitionist The broadly liberal and reflect liberal values of freedom and equality. are which justice of conceptions political of light in What justified are they that is rationality. asreasonable counts limited scientifically or practical of terms strict in arguments their formulate sheds thislight. moreto The does translation notrequire proviso from citizensreligious to of Rawls requirement translation the of understanding correct The state. constitutional secular of justification normative in the decisive but not important are conditions The epistemological but the reasons of Calvin would not be acceptable for him as free and equal citizen. burnhim stake at the whyCalvinwantedto mayunderstood perfectly an examplethatServetus unacceptable values inlight freedom fundamental of of and equality. Rawls In this respect, cites they are reasonably rather incomprehensible; mean they are cognitively that necessarily not Rawls, Rawls, Supra Supra 355 note 230,p. 249 -251 note 297, p. 3 98 354 CEU eTD Collection 358 357 356 is power political and between them and certain religion of adherers between one defined asthe relation Political arena. in political identities religious bans politics and religion disentangle justicereason. and of senseof the powers Constitutionalism - the theory of presupposes state constitutional free individual having moral factions. warring sectarian anarchy justify lawpromisesthe or or theof religious tyranny arguments to power political religious andallowing secularism of is disregard clear, alternative The rejected. successfully modernity because favors generally one notonly defensible normatively are andself understanding secular its Constitutional State premises. modernity’s also on rest they because only state constitutional of principles normative the denounce to sufficient not is itself in uncertainty epistemological or by surrounded fogof the uncertainties as a resultof robustcritique. Nevertheless philosophical is and vigor same the have not does modernity that clear is it hand other the On contested. is itself in which question is different sustainable based still is principles tradition epistemic certain on philosophical a as modernity Whether modernity. of position epistemic on wholly Constitutional State though doesnotpart of modernity the its dependjustification normative in existence. anditit, reasons for as has pragmatic this is ensureits only the way ownliberty to andsecure its realization its political for hopes all andabandons state constitutional accepts religion means that 359 relation in constitutional state. in constitutional relation Sajo, Sajo, Ibid Ibid, , p.10- 11; Habermas, p.11 Supra Supra note 3, p. 14 note 3, p. 14 Supra 357 note 1, p.11-12 359 Constitutional principle of secularism which meant to meant which secularism of principle Constitutional 356 358 but also because their normative core has not been not has core normative their because also but Therefore, religious identity can not define not political can identity religious Therefore, 99 CEU eTD Collection 361 constitutionalism. with in accordance longer no but legitimate be may This principles. modernity – secular and constitutional state change from within by its fundamental redefining penetratetheir level but enemyinwidersocietal also old try mostthe to powerful child of 360 abandoning it. of the constitutional state is clearly secular and it can not be modified without completely state based on free individual. identity the and of equal constitutional of to collectivistidentities thus structures religionscreating double create threat consciousnessvigorously is identities inReligiousrevived inwhich the of presence corporate Religious world. of areas in certain disappeared never has but alive only is not It alive. still tobe is supposed disarmed pressureof and privatization religion, the the under secularization Modernity is fading undermultifarious attacks and its old strong enemy religious consciousness, bythem exercised collectively. power andtopolitical other each freefundamentally incompatibleequal citizens and relation towards of with political the Ibid, Ibid , p.16 p.17 100 360 Religious identities not only attack 361 Self Self understanding CEU eTD Collection provide some guidance. 362 reality,social addressing by better its actual content secularism normatively though justifiedwell vulnerable is factually andrequires redefinition of account that into Taking of perspectives. variety offering a ongoing to the discourse, contribute still can findings Butthe above limited project. case and narrow in this particular reconciled here be not could it and problem huge a is validity normative and reality social between tension The this. prevent effectively not can motivation secular Audi’s asRobert principle suchfarreaching andeven purposes repugnant cover reasonably publicreason idea of fitthe perfectly often which justifications that seen Wehavealso state. church and of of separation provision constitutional strictest even itendure can representing church the and identity religious dominant politically that seen have We reality. social the encounter they as become may principles normative the vulnerable how demonstrates clearly andfirst chapters second the of analysis the canlead.However state of constitutional foundations secular of the disregard wherethe indicate clearly for souls” “war of the The consequences community. political the of members free equal as citizens and by all cannot be terms accepted legislation astheir discriminatory attacks law,also reasonable and reason public of requirement -the Secularism of principle all dominantChurches theprivileged which status of farfromare symbolic. Foundational requires the removal of religious identity as a basis of political relation. Secularism disestablishes Normative principle of SecularismConcluding Remarks attacks the very heart of the problem of “war for souls”. It Sajo, Supra note 3 , p. 12 101 362 the findings of may projectthis possibly CEU eTD Collection ECtHR, JudgmentECtHR, of 3 May 2007 Case of members97 of Gldanithe Congregation Jehovah's Witnessesof and 4Othersv. Georgia, CASE OF CASE OF HASAN AND CHAUSH v. BULGARIA, ECtHR, Judgment of 26 October 2000 2007 CASE OFGINIEWSKI Judgment v. FRANCE, ECtHR, of 31 January 2006 CASE OF CHURCH OF SCIENTOLOGY MOSCOW v. RUSSIA, ECtHR, Judgment of April 5 Case of Aydin Tatlav v. Turkey , ECtHR, Judgment of 2 May 2006 International Cases Regina v., 4St. Hetherington Tr.N.S. 563,590-91 (1841). R. v. 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Weithman, The Separation of Church and State: Some Questions for Professor Audi, 106 CEU eTD Collection http://www.nplg.gov.ge/dlibrary/collect/0001/000007/qartuli_eklesii_bedi.pdf Stiag” (1907)Georgian istranslation available online at of Georgian Parliament’s National Library, National Parliament’s Georgian of Georgian online into IstoriiswebpageSaqarTvelos Narkvevebi” History)(Inquiries available at 2008 http://www.president.gov.ge/?l=E&m=0&sm=1&st=90&id=2681 Press Release of the Presidential Press Service available online at The Presidentof Georgia Mikheil Saakashvili attended afestal church service, 03August 2008, Nikolay Durnovo, on November 25,2008 available at: andLabor, Rights, Freedom Report2008 International Religious available at: andLabor, Rights, Freedom Report2007 International Religious Rapporteur of the Commission on Human Rights, Discrimination Based onReligion or Belief the Implementation ofDeclaration ontheElimination ofForms All ofIntolerance andof 1, 2005, available at Georgia:Ex-Priest Jailed Attacks Against for Religious Minorities, Human Rights Watch http://www.orthodoxy.ge/samartali/komentarebi/sarchevi.htm Church :Commentaries” Orthodox Agreement between theGeorgianStateandApostolic Autocephalous samociqulo avtokefalurmartlmadidebel eklesias shoris: komentarebi” “Constitutional DavitChikvaidze, belief religion or Amor,Special of Report byMr.Abdelfattah Rapporteuronfreedom INTOLERANCE, RIGHTS,CIVIL ANDPOLITICAL INCLUDINGTHEQUESTIONOF RELIGIOUS Reports andWebResources , Addendum, TOGEORGIA, VISIT 16 December E/CN.4/2004/63/Add.1, 20 “konstituciuri shetankmeba saqartvelos dasaqartvelos sakhelmtsifosa The Fateof GeorgianChurch http://hrw.org/english/docs/2005/01/31/georgi10098.htm available online at online available http://www.state.gov/g/drl/rls/irf/2008/108449.htm http://www.state.gov/g/drl/rls/irf/2007/90196.htm , prepared by Mr. Abdelfattah Amor, Special http://www.nplg.gov.ge/ , Released by the Bureau of Democracy, Human , Released by the Bureau of Democracy, Human 107 , Originally inpublished Russian in “Russki A/51/542/Add.1,7 November 1996 ,last visited on November 25 03 ,last visited , Feb. 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