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In Twenty-First Century Europe, Do Constitutional IN TWENTY-FIRST CENTURY EUROPE, DO CONSTITUTIONAL DEMOCRACIES REQUIRE CO-OPERATION OR STRICT SEPARATION BETWEEN PUBLIC AUTHORITIES AND RELIGIOUS BODIES? A thesis submitted to The University of Manchester for the degree of Doctor of Philosophy in the Faculty of Humanities 2019 MICHAEL A. HOLDSWORTH SCHOOL OF LAW [Blank page] 2 Contents Contents 3 Abstract 7 Declaration and Copyright Statement 9 Acknowledgments, Dedications and the Author 11 Introduction 13 Chapter 1 Theocracy and Erastianism - the fusion of 27 religion-state relations 1 Introduction 27 1.1 Theocracy 30 1.1.1 The Holy See and the Vatican City State 32 1.2 Erastianism 37 1.2.1 State Church Systems 39 Chapter 2 Liberal Democracy 47 2 Introduction 47 2.i Constitutionalism 48 2.1 Participation and the democratic processes 51 2.1.1 Criticisms of democracy 54 2.1.2 Modern democracies 57 2.2 The Rule of Law 63 2.2.1 Formal conceptions of the rule of law 67 2.2.2 Substantive conceptions of the rule of law 69 2.3 The Separation of Powers 74 2.3.1 United Kingdom 78 2.3.2 France 83 2.3.3 Italy 87 2.3.4 Concluding remarks 91 2.4 Human Rights 93 2.4.1 The European Convention on Human Rights 98 2.4.2 Article 9 ECHR 101 2.4.3 Religion-state relations and the Council of Europe 105 2.5 Concluding remarks 113 Chapter 3 United Kingdom 115 3 Introduction 115 3.1 Political and religious demography 117 3.1.1 Political demography 117 3.1.2 Religious demography 119 3.2 The model - Establishment 122 3.2.1 The general framework of law and religion 122 3.2.2 The Church of England 125 3.2.2.1 What does ‘establishment’ mean in legal terms? 128 3 3.2.2.2 The Monarch - Head of State and Supreme 132 Governor of the Church of England 3.2.2.3 Theologizing the Monarchy 135 3.2.2.4 Bishops in the House of Lords 138 3.2.2.4.1 Should bishops remain in the House of Lords? 142 3.2.2.5 Church of England Legislation – the Enabling Act 144 1919 3.3 Towards disestablishment – religious 147 pluralism and the de-erastianisation of the Church of England 3.3.1 Church-State restrictions on the freedom of 148 religion 3.3.2 From religious oppression to toleration and 149 religious freedom 3.3.3 Calls for the separation of Church and State 151 3.3.4 ‘A new dawn?’ 154 3.4 Law and doctrine in conflict - the Church’s 159 opposition to same-sex marriage 3.4.1 Background 159 3.4.2 The legislative process 162 3.4.3 The quadruple lock – ‘challenging Houdini!’ 164 3.4.4 A self-inflicted defeat 167 3.5 Concluding remarks 169 Chapter 4 France 173 4 Introduction 173 4.1 Political and religious demography 174 4.1.1 Political demography 174 4.1.2 Religious demography 176 4.2 The model – Laïcité 180 4.2.1 The Law of 1905 182 4.2.2 The application of laïcité in French society today 185 4.3 The evolution of laïcité – arising from the 194 tumult of the 1789 Revolution and the anticlerical conflicts leading up to the 1905 laws of separation 4.3.1 1789 Revolution – anticlericalism, the separation 196 of the Church and State and the freedom of religion 4.3.2 Towards the Third Republic and the 1905 laws of 205 separation 4.4 Contemporary France – the laws prohibiting 213 wearing (1) conspicuous religious symbols in schools and (2) face coverings in public 4.4.1 The legislative process and reasoning for banning 216 the wearing of conspicuous religious symbols in schools 4.4.2 The legislative process and reasoning for the ban 221 on whole face covering – an appropriate or 4 distorted application of laïcité? 4.4.3 The veil ban challenged in the ECtHR and the 225 extent to which the French concept of laïcité was accepted by the Court as a legitimate reason for the ban 4.4.3.1 The Applicant’s arguments 226 4.4.3.2 The Government’s view 227 4.4.3.3 The judgement of the ECtHR 228 4.5 Concluding remarks 232 4.5.1 How ‘strict’ is French secularism? 234 Chapter 5 Italy 241 5 Introduction 241 5.1 Political and religious demography 243 5.1.1 Political demography 243 5.1.2 Religious demography - Catholicism in 244 contemporary Italy 5.2 The model – Co-operation 248 5.2.1 Contractual co-operation 251 5.2.2 State financial support for religion 254 5.2.3 Education 255 5.3 Italy’s long transition: from state church to 258 ‘secular’ state? 5.4 Contemporary Italy – ‘secularism’ contested 268 5.4.1 Lautsi v. Italy 268 5.4.2 Background and context 269 5.4.3 Conflicting judgments at the ECtHR 271 5.5 Concluding remarks 275 Chapter 6 Towards a new model of religion-state 277 relations 6 Introduction 277 6.1 Religion and liberal democracy - the historical 279 legacy 6.2 A new model - critical engagement from a 282 position of mutual separation 6.2.1 Participation and the democratic processes 283 6.2.1.1 Participation and identity – was it necessary for 284 France to ban the veil? 6.2.1.2 Dialogue and deliberation – participation without 290 domination 6.2.1.3 Critical engagement as deliberation 294 6.2.2 The Rule of Law 296 6.2.2.1 Conflicting visions: the theo-political context in 299 Italy prior to the Lautsi case 6.2.2.2 Lautsi and the judgments of Italy’s domestic 303 courts: sacred and secular symbolism – blurring 5 the distinction or shared values? 6.2.2.2.1 The judgement of the Administrative Court 305 6.2.2.2.2 The judgment of the Consiglio di Stato 307 6.2.2.3 The foundational basis of the rule of law under the 308 new model 6.2.3 The Separation of Religious and Political 313 Power 6.2.3.1 Institutional separation 313 6.2.3.2 Critical engagement and the possibility of limited 319 co-operation 6.2.4 Human Rights 322 6.2.4.1 Human rights and the separation of religion and 322 the state 6.2.4.2 Human rights and diversity 325 6.2.4.3 Liberal democracy and illiberal minorities 332 Chapter 7 Conclusion 337 Bibliography 341 Word count: 87,994 6 Abstract The study is a comparative investigation into the religion-state relations in three Western European countries: the United Kingdom, France and Italy. Each country represents one of the three classical models of religion-state relations. Within the wider framework of law and religion in the United Kingdom, the Church of England’s constitutional links with the State represent the most important aspect of the established church model. France seeks to separate religion from the State under its constitutional principle of laïcité. Italy represents one of a number of countries that co- operates with religious bodies by entering into agreements with them. The analysis of each country contains a section on political and religious demography which provides empirical context. The model of religion-state relations and exceptions to it are then discussed. A historical section focuses on aspects of the encounter between religion and emerging liberal democracy. Finally, a case study examines some of the contemporary legal issues arising from the state’s interaction with religion. The study considers which aspects of the three models are more in-line with democratic credentials. In doing so, it explores the key pillars of liberal democracy: participation and the democratic processes; the rule of law; the separation of powers; and human rights. 7 In response to the findings of the research, the study presents the outline of a new model of religion-state relations based on a critique of the three classical models. The new model is one of critical engagement between religion and the state from a position of mutual separation. The model takes seriously the historical legacy of the encounter between religion and liberal democracy and attempts to integrate the inevitable tensions within its structure. 8 DECLARATION No portion of the work referred to in the thesis has been submitted in support of an application for another degree or qualification of this or any other university or other institute of learning. COPYRIGHT STATEMENT i. The author of this thesis (including any appendices and/or schedules to this thesis) owns certain copyright or related rights in it (the “Copyright”) and he has given The University of Manchester certain rights to use such Copyright, including for administrative purposes. ii. Copies of this thesis, either in full or in extracts and whether in hard or electronic copy, may be made only in accordance with the Copyright, Designs and Patents Act 1988 (as amended) and regulations issued under it or, where appropriate, in accordance with licensing agreements which the University has from time to time. This page must form part of any such copies made. iii. The ownership of certain Copyright, patents, designs, trademarks and other intellectual property (the “Intellectual Property”) and any reproductions of copyright works in the thesis, for example graphs and tables (“Reproductions”), which may be described in this thesis, may not be owned by the author and may be owned by third parties. Such Intellectual Property and Reproductions cannot and must not be made available for use without the prior written permission of the owner(s) of the relevant Intellectual Property and/or Reproductions.
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