Secular Europe? Think twice

On 21st of Dember, Tony Blair converted to Catholicism: see here;

On the same day, Sarkozy held a speech in front of the Catholic bishops in Rome arguing that religion should play a more important role in the french public sphere: see here;

The time is high to engage in a more robust conversation on the place of religion in the european
public sphere.

A good place to start is The Immanent Frame, an SSRC blog that deals with issues of secularism, religion ant the public sphere

The Still Born God

is a great new book on religion and politics in the West.

Its author, Mark Lilla, is a fantastic scholar in the history of ideas.

The book argues that the West (Europe) was marked by a Great Separation

between political theology and political philosophy. Before Hobbes, European

politics was essentially framed in religious terms. After Hobbes, politics

becomes free from religion. Religious scholarship, as a result, is also profoundly changed.

Instead of focusing on God, it focuses on why men need religion. It is not anymore

about what exist out there, but what we need from inside us.

The book does not attempt to engage on present heated controversies on the role of religion in the public sphere and other such issues. Instead it calmly takes us through a rewarding jouney from the middle-age to the XX century illuminating the relationship between religious and political scholarship.

Highly recommended

A Secular Age

For all of you who are interested in issues of law, religion and politics in the Transatlantic world (and beyond)., I can warmly recommend Charles Taylor's new book 'A secular age.'

Taylor distinguished three possible meanings of secular, which I would classify as follows:

1-Political secularity: when religious belief is removed from the public sphere to the private sphere as a result of a political compromise

2- Social secularity: when belief fades away from our daily life and does not provide anymore a benchmark for our behaviour

3-Historico-philosophical secularity: it is interested in the evolution of the intellectual framework within which religious belief is understood.

Taylor focuses on the third meaning and explores in an open way what made us move from 1500, when believing was not an option, to 2000 when believing is but an option.

To explain such a paradigm shift, Taylor engages in a story-telling exercise which attempts to unravel the changing conditions of our own religious practices. Pivotal to his story is the emergence of 'exclusive humanism', a way of conceiving human flourishing as an end in itself. According to exclusive humanism each individual is master of his destiny and is empowered to give full meaning to his own life.

This new understanding of human flourishing replaces the Christian one that understood human flourishing as a consequence of god's love, agape. Each individual would therefore have to abandon himself in the hands of god in order to let his life flourish.

To go back to the central question then: what made the shift from 1500 to 2000 possible? the answer is in the book...

When the Church truly and definitely concern with spiritual matters

A couple of days ago, the Catholic Church beatified 498 Catholics murdered between 1934, 1936-1939 in the course of the Spanish Civil War. This event would not be so controversial if the whole amount of people beatified would not have belonged to one side, the Francoist one . It is curious. All these 498 persons have in common that they were murdered by Republican forces that at that time were the democratic and legitimated government in Spain. Franco imposed his rule against the will of the majority of the people in Spain, but the Catholic Church approved that. During the first years of the dictatorship, cardinal Isidro Goma said that the military coup launched by Franco was " una cruzada cristiana" ( (Christian crusader).
Some persons in Spain think that it is time for the Catholic Church to apologize for this horrible historical mistake. Some persons think that the role of the Catholic Church in Spain was the one of a victim and tyrant. According to the Association for the Recovery of Historical Memory, in Spain there are more than 30,000 persons buried in common graves ( and these are not precisely victims of the Republicans forces). If the beatification process of these 498 persons considered as " martyrs of the twenty century" is non-partisan and political, Why we do not have among these "beatos" any person murdered by the Francoist forces? The official posture of the Catholic Church is because nobody has started the process. Many of these persons have name and surname, their cases have been extensively reported, but some sectors of the Catholic Church remain silent. In this regard, I do not necessarily agree with Lorenzo that the Church should strictly care about spiritual matters, mainly because when they try to do it, there is most of the times a strong ideology behind.

Why the Catholic Church should mind its business

The Catholic Church tries to conquer the hearts of some people by raising its voice on social issues such as housing and employment. In Italy, this move has been greated with appreciation by the moderate and extreme left wing parties. Here's a report.

But the political position of the Church remains deeply ambiguos: "The essential point is again made by Benedict XVI: from Jesus there comes “full respect for the distinction between, and independence of, what is Caesar’s and what belongs to God”. The Church has a “mediated” task while the “immediate” one falls to the lay faithful. Thus “if on the one hand it acknowledges it is not a political actor”, on the other “it cannot avoid taking an interest in the good of the entire civil community” by “forming in the political and entrepreneurial classes a genuine spirit of truth and honesty”.

In many ways, this position is not healthy at all in a secular democracy. The Church has the luxury of taking strong positions on very controversial issues without ever having to be accountable for them. In short, this is the worst form of demagogy.

Of course, it is very nice to say permanent jobs for everyone and housing for everyone. But unfortunately there is shortage. Political institutions make hard choices between job protection and enhancement of the market. But the problem is: if the job protection is too strong, then it wil be much more difficult to create new jobs. So what looks like a nice ideal, may turn out to be a damning precept.

What is worse is that the Church can say whatever it pleases anyhow it will never have to do the job. That is the reason why, the Church should truly and definetely concern itself only with spiritual matters. It can intervene, as it does, to improve social conditions on a daily basis. But it cannot engage in sweeping policy debates as this is totally outside of its realm, and makes hard choices even more unpalatable for governments which are already facing tough enough social dilemmas.

EU and Christian Values

While the EU celebrates its 50th anniversary, the Pope admonishes it. Ratzinger is incessantly repeating that the EU needs to recognize its Christian roots.

Can we dismiss his claim or do we have to take it seriously? Secularists, who are the overwhelming majority in Europe, believe that we should not even pay attention to it.

But an increasing number of religious people feel excluded and non-represented by the European and the national institutions.

The biggest risk is the polarization of our European societies, making cohabitation even more difficult than it is now. Moreover, rejecting religion altogether may have the opposite effect of making the religious minorities more vocal and ultimately stronger.

This is a real dilemma which deserves close attention on the part of politicians, the civil society and academics.

Cardinal Martini pleads for a more articulate Church

Martini, the former Cardinal of Milan, spoke in clear terms against the stubborn repetition of the moral superiority of the Catholic Church.

Instead of doing so, the Church should promote its model as a good model. For example, the Church's understanding of family is not intresically superior to others and without reasons. The Church should articulate its reasons why it thinks that its family model may be more appealing that one put forward by competing ways of thinking.

Only speaking to the people in their own words will finally give the Church the moral leverage that it has lost, at least in Europe

Pope against Rights

The Vatican pursues its offensive line against the liberalisation of Italian society, but its message is obviously applicable to the whole world.

The battle is directed at the moment against the same sex union project of law. In Europe, Spain, France, Benelux, the UK and other States have already adopted legislation to this effect.

The Pope's turn of the screw include also some curious policies such as strengthening the use of latin during Mass. Read here.

Catholics, pain and Europe

Are Catholics in Europe moving onward or backward?

Some medieval practices that are spreading again in Italy suggests the latter:

Here's an interesting article:

Here's an excerpt:

Catholics and the Return of the Spiked Metal “Cilicio”.

The unfortunate senator and Opus Dei numerary Paola Binetti fell into the trap of admitting on television that she was familiar with the “cilicio”, a spiked metal garter, and attempted to explain why it is used: “It forces us to reflect on the fatigue of living. It is the sacrifice of a mother waking up at night because her baby is crying”.

Distant Brides and Plural Societies

A court in Italy has recognized the validity of a marriage celebrated via telephone and in conformity to Pakistani laws. The woman will now be allowed to join her husband, who is presently in Italy, thanks to the norms that facilitate family reunion in Europe.

Yet another challenge to the Catholic conception of marriage? Is Italy moving to a value pluralist understandig of Marriage? In many ways, this is certainly the case. In this particular event, however, it simply comes down to a question of private international law.

The Vatican and Same Sex Couples

Today Prodi, the Italian Prime Minister, met some of the Vatican Archibishops to talk about the new same sex partnership law proposal. It is reported that the dialogue went well.

The Church is very skeptical about such proposal, but it seems as if they want to engage in a discussion to test new ideas.

Is it a sign of conversion on the part of the Vatican? We can only hope so. But I doubt it.

Same Sex Unions and Religion

The italian project of a civil union law is provoking extreme reactions in the country, as it was sadly predictable. The Vatican is trying to insist on the inviolability of the family understood as the union between a man and a woman. The Church is unable to understand that discrimination vis-a-vis homosexuals is comparable to any other type of discrimination based on race, or religion.

For a more balanced religious view, listen to Michael J Perry, a Catholic Law Professor at Emory, in his recent book Toward a Theory of Human Rights:

"I expect that within the next generation or two -within the lifetime of our children's children-- the understanding will come to be widely shared, in the world's liberal democracies, that refusing to recognize same-sex unions, if not morally akin to outlawing interracial unions, is nonetheless bereft of any non demeaning rationale.'

Toward a Theory of Human Rights by Michael J Perry

This book does exactly what it claims: it attempts to develop a theory of human rights. Perry suggests that a theory of human rights should deal with three basic issues. First, the moral foundation of human rights. Second, the normative relationship between the morality and the law of human rights. Third, the institutional arrangements that best protect human rights.

To each of these three issues Perry offers very stimulating, and conspicuously controversial, treatment. He argues that the moral foundation of human rights can be defined in terms of the principle of dignity and inviolability of each human being. The trouble is, Perry argues, that secular people cannot offer a proper justification of dignity and inviolability. The only sound rationale is religious.

Once the foundation established, the following step is to explain in what way the morality of human rights influences the law of human rights. This is inextricably linked to the two claims of inherent dignity and inviolabililty. In legal terms, it means that those who commit to that morality will have to do all they can to enact laws that do not violate human beings, and refrain from relying on laws that do violate human beings.

Perry takes three areas to illustrate his claims. Death penalty, Abortion, and Same sex unions. Not afraid of challenging conventional understanding, he argues that his morality of human rights requires that death penalty be abolished. It requires that the pre-viability abortions be banned; and that same sex unions be recognised.

All this, however, is not as straightforward as it looks in normative terms. For, the institutional perspective nuances the general picture in many ways. The main question is to know what role should the courts play. Perry argues that the US system of judicial review coupled with judicial supremacy, gives excessive powers to courts. In other words, he disapproves of judicial ‘ultimacy,’ the fact that the US supreme court has the last word on the most controversial issues. Instead, he favours something close to the Canadian system, that he deems a system of judicial ‘penultimacy.’ The Supreme Court expresses itself on controversial issues, but the parliament can, if it wants, overrule the court’s decision thanks to the Canadian ‘notwithstanding clause.’ Perry presents this solution as an elegant compromise that conciliate judicial review with democratic participation. He says the same for the UK HRA 1998.

In the US, judicial ultimacy is not likely to be removed. To mitigate its effect, Perry suggests that court should adopt a deferential attitude along the lines proposed by James Bradley Thayer. Roughly, thayerian deference requires courts to apply the rule of the clear mistake—that is, interference only when the statute is clearly wrong. Thayerian deference is not grounded on the belief that the legislative or the executive are better equipped to take hard decisions. Thayer believes instead that a non-deferential system of judicial ultimacy would render citizens less politically and morally awake. Institutions may make mistakes and the way to redress them is to fight political battles not to devolve all the power to review those decisions to courts.

How does this affect the treatment of the relevant issues from the US point of view? Death penalty violates the constitution, but the court should so rule only if it believes that the legislator has made a clear mistake. Pre-viability Abortion violates the constitution, but the same caveat applies. Finally, the ban on same sex unions is unconstititutional, but court should be deferential along the same lines.

Perry’s book is very welcome. He is right to insist from the beginning to the conclusion that the work on theories of human rights has just begun. His contribution will no doubt advance the debate because it focuses on central issues without seeking approval. His theses are clearly exposed and highly controversial. The debate can begin.

It should begin and take place globally. And here’s my first criticism to Perry’s book. As many Anglo-American scholars, he ignores almost entirely the debates in non-english speaking countries. Most of European countries have produced fine scholarship on these issues, and a lot of this material is also available in English. One example above all is Robert Alexy’s Theory of Constitutional Rights, translated in English and published by OUP.

This leads to a second point. One may argue that Perry draws a distinction between Human Rights and Constitutional Rights. He may then claim that theories have been produced on the latter but not on the former. Indeed, at the beginning he seems to concentrate on international human rights as opposed to domestic constitutional rights. But by the end of the book it is clear, that the morality of human rights he finds in the international arena should also apply domestically, say at the level of the US Supreme Court.

I would find such a distinction helpful as it could underline another major difference between international human rights and domestic constitutional rights. The latter are nowadays well protected precisely because of judicial review, while the former are far away from being effectively protected. This may also point to the fact that Perry’s criticism to judicial review is exaggerated. One may suggest, not so foolishly, that liberal democracies came to protect constitutional rights so robustly precisely because of judicial review. If anything, the UK example shows that during Thatcher’s government rights were not respected and judges had little weapons to fight back. Moreover, parliament was incapable to stand alone for the rights of the citizens. It is such an abuse that led the labour government to entrench rights and to protect them through judicial review.

Now Perry could say that the HRA does not introduce a system of judicial ultimacy, but only an elegant compromise between parliamentary sovereignty and judicial review. Whether that is an elegant compromise, I have many doubts. Whether it will work in the long run, it is another open issue. The HRA is in the eyes of many either too much or too little. It is too much in the very eyes of those who have entrenched it and then complained that it bound excessively the executive in its war against terrorism. Its too little in the eyes of many advocates who fought for a bill of rights, Lord Lester for example, and thought that the HRA could be a first step toward a fully entrenched and fully reviewable bill of rights.

The most controversial of all issue, however, is that of the foundation of rights. Many liberal philosophers, starting from Rawls and Habermas, have amply shown that our secular democracies have borrowed a lot from religious concepts. Dignity and inviolability of human beings may well be concepts of Christian origins, but our societies have translated those concepts to our secular frameworks. This is not to deny their Christian root, to the contrary. But liberal democracies, beyond translation, also made possible the effective protection of dignity and inviolability of human beings. This was not true of the period preceding the establishment of liberal democracies, which we could deem the age of the Res Publica Christiana. During those ages, dignity and inviolability of human beings might have been already strong Christian principles, but their violation in practice also was very common. We may say, therefore, that liberal democracies brought to a totally different stage those principles, and to a certain extent the Church is catching up with the recognition of the importance of the consequences that we may want those principles to have.

Thus, liberal democracies not only translated those principles, but they also transformed them into tools for the improvement of the society. Religion can claim part of merit, but it also has to acknowledge the intrinsic merits of liberalism, as far as the redefinition and concrete protection of those principles is concerned.

To engage with Perry’s book does not detract anything to its quality. To the contrary, the quest for a proper theory of human rights should probably start there.

Same Sex Unions in Italy

Italian Government has presented today its legislative proposal for same sex unions. If you read italian, you can have a look at the proposal here.

The proposal still has to be voted in parliament (both lower and higher chambers). Amendments are likely to be presented.

That said, the text is a very big effort of Prodi's majority to find a compromise between the religious and the secular wing of the coalition. Any amendments would risk to compromise the compromise (if I may say).

One important proviso, this proposal has the main goal of recognising de facto couples, including homosexual couples. It does not allow homosexual to get married.

It is still an important step toward the recognition of rights and duties of stable, non-married, couples.

A final point: the debate is likely to be intense. The vatican has already intervened many times to discourage this possibility.

Benedict XVI does not think like Ratzinger!

I am glad to see that the Pope has expressed positive views on the entry of Turkey in the European Union. Ratzinger, the Cardinal, was extremely negative up until last year.

This is positive. Let's see how far Turkey can go now. The European Union itself seems to have some old prejudices, which will not be swept away easily.

The Pope in Turkey

Benedict XVI is visiting Turkey in these very hours. He says: 'this is not a political trip.' What is it then?

John Paul II and Benedict XVI have vehemently insisted that Turkey should not join the European Union. They believe that Europe should be a christian club. This is not
an implicit deduction, this is the point Ratzinger makes quite explicitly in his book 'Whitout Roots.'

Now, the question I would raise to the Pope is: would you have anything against the enlargement of Europe to Turkey?

I stongly believe that the only possible way forwards is by letting Turkey in. It would send a very important sign to all the Muslim Europeans who are now struggling in Europe.

It would show as well that Europe is not, and cannot only reduce itself to, a Christian club. Europe is deeply plural; its christian roots are real, but only a side of a much more complicated picture

The Vatican and the Preservative

The Vatican has gathered theologians and scientists to review its present position.
Would anything change or is it just a smoke screen to hide the unwillingness to change?

You can find an interesting report here.

Without Roots: Europe and the Pope

The Catholic Church is trying to tackle the issue of European Roots in order to provide a more attractive model of a Christian way of living. After WW2, Europe became increasingly disengaged with the model of life offered by the Church. The truth unveiled by the Church appealed fewer and fewer people. European societies showed a decreasing strength in their beliefs, and this corresponded to an increased belief in one’s own capacity to frame a good life for oneself.

Ratzinger has embarked on a crusade against relativism. He claims that the origin of the secular philosophy goes back to the French Revolution. From that moment on, Europe engaged in a project that involved the increasing role of technology and science in public life, and relegated God in the private sphere. The separation is that between the laique and the Catholichristian society. The former had a formidable success represented by technological and scientific progress. But that success came with a heavy price. The system of values on which the European polity has was founded collapsed. Ratzinger feels that Europe as it is does not have a future nor does it constitute a model for other polities. His harsher criticism comes at this point: ‘Europe’s soul comes from the material world; morality entirely depends on circumstances and must be adapted to the ends of the society.’ This is the most dangerous aspect of European relativism and this crisis needs to be tackled somehow.

What does the Pope offer instead? Interestingly, the ‘new’ foundation proposed by Ratzinger has a very old name: dignity. This is a name for a foundation of morality that must take precedence over any other political principles. Dignity is inviolable because it comes from God and as such it cannot be discussed or endangered by human actions. Dignity translates in three notable spheres for Ratzinger: Respect for life, which corresponds to a Catholic doctrine of bioethics. Second, respect for the family and its founding institution –Marriage. Third, respect for the sacred, which constitutes also a limit to freedom of opinion.

Unfortunately Ratzinger forgets to mention the poor record of the Catholic Church as far as respect for women and respect for other minorities are concerned. I have in mind some basic examples of the evils produced by its very institutions. In particular, the Catholic Church is unable to offer a model of good life that inspires because it is so out of touch with some basic issues. Think of the AIDS pandemic made easier by the lack of use of contraceptives, as demanded by the Vatican. The same Church, moreover, did very little to reconsider the place of women within the society (and within the Church). Its sexual morality in general is unfit to give positive messages to a society where sexual morality has evolved hugely.
Finally its insistence on heterosexual couples does not acknowledge a basic fact of life: We end up in a paradoxical position where both religion and liberalism claim to go back to the same ethical foundation –dignity—without really agreeing on the very definition of that foundation. From the religious viewpoint, dignity means a static interest of every individual being granted by god and as such inalienable and inviolable. In the liberal strand of thinking, dignity means something more dynamic –autonomy (which translates as freedom of choice)—although some authors identify a more static element to it which lies at the core of the definition of human being. The dynamic element is Liberty, and the static element is Equality. There is little ground for a meaningful dialogue thus far.

Rights, Religion and the Polarization of our Societies

Rights are the central notion that contributed to the success of secular liberalism. From the 60’s Supreme Courts around the world have implemented a liberal manifesto based on the idea of individual autonomy and protected by the right to decisional privacy. From a liberal viewpoint, this development could not be more welcome. Conventional sexual morality has been swept away; in its place, supreme courts have entrenched individual liberty. In the USA this started with Griswold, which invalidated statutes prohibiting the use of contraceptives. Moving on from that we encountered the famous Roe v Wade, which set out a new legal framework for abortion. This was probably the apex of the liberal manifesto, but success was followed by deep opposition from the religious camp who gathered together against the 1973 decision of the Supreme Court.

The point that I want to stress here is the highjacking of ethics by law. In the last 40 years, representative institutions around the world denied responsibility for dealing with pressing ethical issues. Most of the time, as a result, supreme courts had to take up that responsibility in high profile cases that shaped the face of ethics in western countries. By deciding on issues such as abortion, euthanasia, stem cell research, assisted procreation and others, supreme courts begun to police the boundaries of life and death; in other words, they started intervening on the definition of the meaning of life and its quality. This was such an impressive movement that some prominent scholars gave Supreme Courts the appellative of ‘Forum of Principle.’ By this they clearly meant that Supreme Courts were the place where morality in action was taking place. In the judicial forum, more than anywhere else, important deliberations and decisions on crucial ethical issues were taking place.

There is something to be said in favour of this development. The society shook off entrenched conventional belief on how to live and how to live together. While the rights revolution was taking place, many were the people supporting it. It was by any means a popular revolution and met with great enthusiasm in the more progressive part of the society. I am certainly not the one who is going to disapprove of such a progressive development. But I have to acknowledge nonetheless that this liberation of the society came with a price which is becoming to appear only now. The legalisation of ethics entailed the polarisation of the society. The two poles are roughly the religious and the liberal poles. The liberal pole favours a progressive dismantling of conventional ethical standards. In their place they favour an increase of freedom of choice and pluralism. The religious pole favours the respect for some ethical guidelines which have characterised the society for a long time.

Law polarises ethical issues for a simple reason. It deals with every issue in a binary logic. On one side, one argument. On the other, the counterargument. They exchange their views and then a winner is declared. Most of the times, in the last, 40 years the winner in the forum of principle was the liberal progressive. The loser was the conservative religious. This could not happen without a response. Thus conservative organisedc themselves to serve the religious community, in particular those religious people that felt a huge blow from the liberal court. The political world decried the tyranny of liberal progressive values and the manifesto was always an anti Roe v Wade manifesto. Presidential elections took place on very few issues and abortion often played the role of the deciding point. Many voters, generally inclined to vote for democrats, would vote for republicans to deliver on the promise of an anti-abortion law. Politics in turn became increasingly obsessed with judicial power and one of the critical domestic issues nowadays concerns the nomination of justices at the supreme court. Bush managed to nominate two of them. Alito and Roberts, two justices that promise to carry further the conservative anti-revolution.

In Europe the rights revolution was more subtle. Deliberative institutions, much as in the USA gave up their responsibility as to the decision of pressing ethical issues (they were much too concerned with economic issues). The progressive revolution took place at times through judicial intervention and at times through alternative means. For example, in Italy, liberal-progressive reforms took place through Referendum. Italy is one of the few countries in the world to have a normative referendum, that is a popular consultation that has the power to abrogate valid statutes. Thus, abortion law, divorce law, and many other issues have been decided through Referenda and the parliament simply had to bow to the popular will and enact new laws with this new orientation. In some other countries, constitutional courts played a corrective role. In France for example, the conseil constitutionnel empowered itself in 1971 to control the constitutionality of statutes against the background of a range of different bills of rights from the past. This way, the conseil constitutionnel assisted the parliament in carrying out the necessary reforms in a progressive and liberal direction. In Germany, the BVG played a robust role in enforcing the rights revolution; so much so, that the German constitutional court also required the institution of the European Community to do the same.

But the characteristic trait of Europe is probably the intervention of another supranational institution, the ECHR which sits in Strasbourg. European states gave up part of their sovereignty as far as their ethical reforms were concerned. At their place, that is instead of national parliaments and national courts, a supranational court was to intervene on very sensitive issues. The ECHR thus had a number of landmark cases on freedom of expression, right to privacy, protection against torture and inhuman treatments, right to life and many others. Nowadays, it increasingly intervene on matters of religious liberty. In particular, it has to deal with difficult issues concerning muslim scarves in turkey, and other similar problems. European ethical standards are ultimately decided in this forum. This is convenient from various viewpoints. National states do not have to bear responsibility for these difficult issues. Individuals are pleased since they have yet another judicial appeal after having exhausted national remedies.

Europe, which is sociologically a secular society, does not face as in the USA a polarisation between the liberal and the religious society. Instead, the polarisation which becomes increasingly important is between the secular Europeans and the religious others, in particular Muslim people. There seem to be an increasing inability to engage with the religious minorities; in turn, religious minorities feel increasingly misrepresented by the neutral liberal and progressive European States and Institutions.

On top of this gap, there’s a growing dissatisfaction on the part of both national states and the ECHR. The latter continuously laments the impossible workload under which its institutional apparatus is crumbling. National states, in particular Britain, want to bring rights back home as they become dissatisfied by the supranational decisions. It is within this context that the European Court of Human Rights seem to be prepared to increase the national margin of appreciation and acknowledge the role of representative institutions when they actually intervene on certain ethical issues. A good example is the case Evans v UK, decided by the fourth section of the ECHR. This case concerned an issue of in vitro fertilisation. A woman, unable to conceive naturally, sought medical advise to start that procedure. Before implantation of the embryo, however, Mrs Evans is diagnosed ovarian cancer. Doctors advice her to undergo cancerous treatment before proceding with the ferilisation. She agrees to that, which means that the embryos formed with her eggs and her husband sperm are the last opportunity to bear a child. Mrs Evans worries about her future but her husband insists that he will always be with her. Two years go by and Mrs Evans, who has had her ovaries removed, is now ready for the embryo implant. Her husband, however, has changed his mind and does not want anymore to give his consent to that process. Law is on his side as it is clearly stated that each donor is allowed to change his mind up to the moment of implantation. Mrs Evans argues that her husband has created a legitimate expectation and as a consequence he cannot withdraw his promise. In this case, the ECHR acknowledges the existence of a dilemma and a human tragedy on the part of Mrs Evans. In a highly unusual move, however, the ECHR refuses to engage in the balancing of the competing interests at stake. Instead, the European Court sticks to the ‘bright line’ drawn by the UK parliament.

It is probably early to draw conclusion from this decision. But it does seem to point to a situation in which the European Court feels unprepared to set once more European ethical standards for everyone. On the 23rd of November 2006, the ECHR will gather in its more important formation, the Assembly, to review this decision. It is possible that the ECHR will insist on its leading role as the ethical setter. This would not be surprising. To the contrary, it would probably point to the present European ethical crisis. Given these circumstances, Europe may prefer to maintain the statu quo, but how long is this possible? What kind of event is Europe waiting before rethinking its ethical foundations?
Law, in particular rights adjudication, polarises a society if it takes too many responsibility in relation to ethical dilemmas. Instead of making dialogue possible it excludes it when stretched beyond a limit. Representative institutions must be more responsible; if they avoid deciding those issues, they must explain why and how we should deal with them more adequately.

Democracy: the Gap between secular and religious views?

Habermas and Ratzinger put up a good show few years ago. They both turned their cheek to the slapping adversary and concluded cheerfully: we need to embark in an on-going conversation between liberal-secularist and religious representatives. This sounds very promising, and many have concurred with the basic conclusion. But the truth is that the dialogue has not yet begun, and it will not begin until few basic points are tackled directly.

Democracy is the first obvious obstacle to a genuine dialogue. Why? The reason is that many liberal-secularist, who agree with Rawls or Habermas, think that democracy is a market place in which we can enter only if we do a number of things. The suq of democracy requires you to accept that within the parameters of democracy various liberties are protected, but in order to get in, you have to accept that democracy itself cannot be put into question.

So, for instance, you cannot put into question the ethical foundations of democracy, as democracy is internally justified, and its legitimacy comes from the legalisation of the processes that make up democracy. In turn, those legal processes will be legitimised by the existence of a democratic framework. Thus, Law (human rights in particular) and Democracy are mutually supportive and fully sufficient to their own mutual justification.

In other words, there is no possible external justification to democracy. It is completely useless to engage in a conversation on this issue, as this issu is by definition off limits. This basic point on the justification of democracy creates an a-symmetrical relationship between different representatives willing to enter the debate. So, the liberal-secularist can boast a certain confidence and graciously grant the right to discuss to the excluded religious person. In exchange, the religious person will accept the invitation au voyage with a grin. Obviously, this is not the best position to be in, but at the end of the day religion can only improve its status within the European society where the slippery slope led them to a near to complete disappearance.

However, if you scratch the surface just a little you’ll find out, for example, that the Catholic Church understands democracy in the following way: ‘Whilst the autonomy proper to the life of a political community must be respected, it should also be borne in mind that a political community cannot be seen as independent of ethical principles.’ This is what John Paul II said few years ago, when he was still battling for a Catholic European soul. His message is clear: democracy should give to itself few substantive guidelines that must be acknowledged as objective, absolute, and inviolable. Better if these principles are of Christian inspiration. This is the gist of Ratzinger’s thought too. In fact, Ratzinger was the brain behind this assertive position, and he continues to carry on this agenda tirelessly. There is continuity between John Paul II and Benedict XVI.

Now, the problem is that either the Church accepts the democratic rules and gives up its pretension to introduce its own version of objectively entrenched Christian principles, or it sticks to that but then forgets any type of genuine dialogue. For, if the dialogue is meant to be about the scope of democracy, but one understands democracy as excluding ethical principles and the other understands democracy as including ethical principles, then the dialogue is not likely to go very far. We can fool ourselves and pretend that we can agree to disagree on that point and yet we should carry on conversation. Under these conditions, conversation can continue forever without producing the slightest result.

This issue is a real dilemma. Rawls, who is as usual extremely honest intellectually put it in the best possible way: ‘How is it possible –or is it – for those of faith, as well as the nonreligious (secular), to endorse a constitutional regime even when their comprehensive doctrines may not prosper under it, and indeed may decline?’ American experience shows that religious people are not willing to endorse a constitutional regime when their comprehensive doctrines have declined. This is the story of the American society in the last 30 years, more precisely since Roe v Wade. That famous decision of the Supreme Court of the US declared abortion to be permissible in the first two trimesters. This was perceived as a huge victory for the liberal non-religious side of the society. It was the greatest blow ever for the religious part. Since then, a portion of the religious society attempted to invert the course of this story by engaging in politics to the support of the conservative side which declares itself prepared to stir the state in a different direction from which the supreme court of Roe wanted to take it.

Today, some of the greatest supporters of Rawls believes that his strategy was flawed. So Ronald Dworkin, possibly the head priest of Rawlsian philosophy as applied to law, holds: ‘the schism over religion in America shows the limitations of Rawls’s project of political liberalism, his strategy of insulating political convictions from deeper moral, ethical, and religious conviction.’ The strategy of liberal secularist in the US must therefore be modified, they claim. Deepest convictions should not be excluded from the debate anymore; to the contrary, a genuine debate about those convictions should take place within society. Everything must be up for grab.

Here’s a lesson we can learn from America. Rawlsian political liberalism, even though couched in deeply reasonable terms, has not managed to make the American political system stable. Some hard core Christians felt deeply threatened by the enactment of a secularist-liberal agenda (notably on the part of the US Supreme Court), and responded by organizing themselves politically around a conservative right eager to please religious people in the country.

In Europe, the situation is symmetrically opposite. Liberal secularists are in a position of clear superiority and confidence, as religious is breathing its last breath. Europe is a deeply secular state, so it is religion that is claiming to be heard. Its strategy is the same as liberals in the US. Democracy, they say, must be supplemented by ethical and religious values or it becomes an empty shell for the tyranny of the majority.

Secular-liberals in Europe are not impressed with this argument. Habermas, to repeat, insists that Democracy does not need an external justification such as religion or other ethical convictions. In a discursive constitutional regime, democracy’s legitimacy is fed by legality and law’s legitimacy is in turn fed by democracy. In other words, law and democracy are mutually supportive within our constitutional regime and need no external source to be justified. Having solved the basic issue this way, Habermas goes on arguing that we should give up an imperialist understanding of secularism and engage in an on-going and open conversation with religion. Perhaps, however, the very imprerialist character of secularism is due to the unwillingness to engage in a genuine dialogue on the basics, that is on the (ethical) foundations of our democratic institutions.

In Europe, it is the Catholic Church that claims incessantly an unfavourable treatment. They desperately want to play the role of XXI century martyr. Already, some right wing parties are trying to enrol the Vatican on their side, as they see that the Church is being listened. On October 20, Cardinal Camillo Ruini, president of the Italian bishops, bemoaned that catholic politicians are not united around Christian values. He surely would love to see the rebirth of a Christian Democratic party. The situation, however, is more complicated than in the US. Europe is de facto a tolerant secular state. The Church plays a minority game in this context. Where polarisation is more evident in Europe is between liberal-secularist and Islam. This is a much more heated contest that Europe does not master that well.

For the same reason, Europeans are not able to deal with Islam and with the daily worries it raises. The shar’ia is in open contradiction with democratic values. Those who want to uphold it can only engage in a game where the enjeu is constantly raised. Today is the veil, tomorrow it will be something else. But those are not symbolic issues as we would like to think. Those are just instrumental issues to keep the pressure on democratic institutions and eventually claim that the choice is not between veil or no veil within a democratic framework. The choice is between democracy a la occidentale and other institutional framework that entrench some basic values.

The response to that cannot be: “shut up, you. We are providing a good framework where you can be happy and free.” The only solution is to show that the substantive values that make up our own democratic institutions are good and sound. With reason.

Europeans are not able to deal with Islam because they are unable to fully articulate why and how we are secularist. They are unable to give good reasons in favour of that and they retrench themselves behind the statu quo, namely the fact that all institutions in Europe have a secular faith, which is at the moment very solid.

This is further reason why the dialogue should happen and should be as open as possible. Liberal-secular must confront any type of arguments and come up with good convincing reasons why they stand on the right side. This exercise can only prove to be refreshing and there is little to lose when we finally acknowledge that we have arrived here after bloody experiences and through a work of hard refinement of our institutions. We don’t want to go back to a Res Publica Christiana, and we do not want to move to a Shar’ia led Islamic republic. Between these two, there is something. There are our own democratic institutions which are worth years of experience and fight. It is not about maintaining a statu quo. It is about bringing these institutions and our own history and philosophy to a next level. To do so, we have to start from Democracy as we know it and open up to a genuine dialogue on what are the most important feature of this institution as well as what we want to modify.