Contents - Constitutional Court of Georgia

110
András Sajó
accessible to all (i.e., which do not presuppose some act of faith or belief in scripture, where the
constitutional arrangement is not an act of faith).
For those who would reject the requirement of translation, it is personal “importance” that
matters and all arguments are or might be equal, irrespective of their nature. This makes discourse
meaningless. Without secular reason-giving, privileged knowledge like divine command
that is accessible only to the believer will become acceptable and potentially mandatory. This
undermines many things dear to constitutionalism, equality in particular. It undermines popular
sovereignty as well in the sense that popular sovereignty presupposes that all members of
the community have reasoning capacity that enables them to participate in political decisionmaking.
Such equal participation is what makes popular sovereignty legitimate. The sovereignty of a
people exercising its faculty of reasoning is the essence of constitutionalism that assumes secularism.
But the relation between constitutionalism and secularism remains uncertain. Partly for
pragmatic and historical reasons, existing modern liberal constitutions are not particularly clear
on the relationship between constitutionalism and secularism: In fact, a number of constitutions
allow for a state church and allow churches to retain some privilege of public power without
necessarily undermining the liberal and democratic nature of those states. This uncertain, unprincipled
position causes inconveniences, as it does not provide sufficient protection against
the aggressive claims of strong religion. 2 On the other hand it became increasingly discriminatory,
especially in European countries with large migrant, predominantly Muslim communities.
The religion-based practices of these communities are constantly criticized and restricted in the
name of their incompatibility with secular values, while at the same time the allegedly secularist
constitutional system allows preferential treatment to religions that have a historically recognized
privileged place in the constitutional system.
The question remains open: Is secularism inherent in constitutionalism? In order to answer the
question I look first to some proxies of secularism that are used to address the role of the state in
a secularizing political community. This is followed by a discussion of the broader patrolling role
of secularist concepts and how these core concepts can resist the challenge of strong religions
and religions with a potential for reconquering the public sphere for their purposes. The last part
of the paper discusses different non-secular foundations claimed in legislation that secularist jurisprudence
has to refute in order to safeguard constitutionalism.
2 “Strong religion” refers to religions moving toward fundamentalism and challenging the secular political order. See Gabriel A. Almond,
R. Scott Appleby & Emmanuel Sivan, STRONG RELIGION: THE RISE OF FUNDAMENTALISM AROUND THE WORLD (2003). See also András
Sajó, Preliminaries to a Concept of Constitutional Secularism, 6 INT’L J. CONST. L. 605, 605-29 (2008) (discussing constitutional secularism,
which is not to be confused with atheism). Further, secularism is a normative concept for constitutionalism, which presupposes the social
phenomenon of secularization, i.e., the withdrawal of religion from public and private life as an organizational principle.