Leiden Law Blog

Civil Society or Religious Society?

Civil Society or Religious Society?

Membership and participation in civil democratic society explicitly demands that citizens respect the rule of law as supreme. According to Rousseau, as citizens of a society we are all signatories to the social contract; in essence, we give up any truly absolute rights for the safety and comfort that government can provide. We agree to be subject to laws and restrictions imposed by a civil society including regulations on religion, regardless of the fact that we typically consider religious rights to be absolute.

That is not to minimize the importance, relevance or centrality of religion in the lives of untold millions. We simply must recognize that civil society is a society whose essence is civil law rather than religious law. Some people of faith—particularly those for whom religion is the essence of their temporal existence—may find this perspective objectionable. However, civil society cannot endure if religious law is found to be supreme to state law.

Civil society owes an obligation to protect its otherwise unprotected; particularly children who are its most vulnerable members. Religious belief and conduct cannot be used as justification for placing children at risk; government, law enforcement and the general public cannot allow religion to hide behind a cloak of “religious immunity.” The focus of a religious extremist is single-minded dedication and devotion to serving his God. Precisely because of the absolutism of the religious extremist, the state has no choice but to respond accordingly.

Limits must not be blindly imposed devoid of standards, criteria and review. Such an approach would reflect government action best described as arbitrary and capricious resulting in denial of due process before the law. The requirement to impose limits subject to constitutional protections must not deter policymakers from limiting the rights of those who endanger society even if the basis for that endangerment is religion.

The decision to protect harmful religious practices rather than protecting the individual endangers vulnerable members of society. It, frankly, reflects an unjustified defense of extremism by government reflecting misguided priorities largely predicated on a disturbing failure to understand the direct harm posed by extremism, whether religious or non-religious. The concept of misguided priorities suggests a protection paradigm that endangers individuals----whether belonging to a closed society or members of larger society----in the name of protecting particular rights and privileges.

That decision, however, represents a failure of the larger responsibility owed by the nation state; the ‘duty owed’ paradigm requires protecting individuals from extremists and extremism. In that sense, the danger emanating from government’s failure to minimize the potential threat of extremism is no less potent than the harm caused by extremists. Therein lies the danger of tolerating intolerance that poses dangers to individuals and society alike. 

1 Comment

Paul Cliteur
Posted by Paul Cliteur on November 29, 2013 at 11:04

Yes, indeed, the government cannot afford to adopt the role of the bystander. Who has the monopoly of power also has the obligation to interfere if harm is being done.

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