Constitutionalizing secularism, alternative secularisms or liberal-democratic constitutionalism? A critical reading of some Turkish, ECtHR and Indian Supreme Court cases on ‘secularism’
Year: 2010
Type: article
Abstract: In recent debates on the constitutional status of 'secularism' we can discern three positions. The first tries to overcome the absence of 'secularism' in most liberal-democratic constitutions by developing a more robust theory of constitutional secularism. The second develops theories of 'alternative secularisms'. The third, defended in this article, argues that we should drop secularism as a 'cacophonous' concept from our constitutional and legal language and replace it by liberal-democratic constitutionalism. I develop an analytical taxonomy of twelve different meanings of 'secularism' based on a comparative study of Turkish and Indian Supreme Court cases on secularism, and demonstrate that they are incompatible with each other and with the hard core of liberal-democratic constitutions. Next, I criticize the respective rulings in the Turkish and Indian context. Particularly in 'militant democracies', the appeal to a principle of 'secularism' turns out to be inimical to the liberal and to the democratic 'constitutional essentials'. I end with some normative recommendations on the role of constitutional review and judicial activism.
Source: Utrecht Law Review
DOI: 10.18352/ulr.138
Author: Veit Bader
Institution: University of Amsterdam
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: diamond
OpenAlex ID: W2164879188