Contents - Constitutional Court of Georgia

Constitutionalism and Secularism: the Need for Public Reason
I. CONSTITUTIONAL APPROACHES TO SECULARISM
At this point two intellectual strategies emerge. One strategy takes a hard look at a theory of
strong secularism. The issue in this approach is this: Is it possible to develop such a theory, or is
it futile or at least not necessary for constitutionalism? Alternatively, for a jurisprudential theory
of constitutional secularism that can be used in deciding cases, one may simply postulate the
possibility of such a theory and seek identifiable elements of secularism that will be able to resist
the pressure coming from strong religions, especially when strong religions use constitutional
arguments as Trojan horses to make constitutionally acceptable or even compulsory the good life
promised and mandated by strong religion. In the absence of the refutation of the possibility of
a theory of strong secularism, one can legitimately follow the second approach. This is the accepted
strategy of the present paper, which has jurisprudential ambitions only.
Claude Lefort has argued forcefully that secularism in the sense of absence of religion in public
life means simply that the sovereign’s place becomes hollow. 3 But such emptiness means that
there are no fixed rules and structures here, and democracy, or other forces, fill the void in a continuous
process. In a way, from a constitutionalist perspective, there is little guidance left except
a negative one: For good reasons, liberal constitutional law is at least suspicious in case one or
another religion intends to fill the void that is needed for popular sovereignty. After all, it is the
first duty of constitutionalism to react to all forms of totalitarian, i.e., all-embracing, life forms.
But perhaps this negative concept of secularism does not provide us the whole story. The resulting
secularism is negative: The secular, constitutionalized space is left open for intervention
according to the dictates of the state. This is challenged today in claims that argue that there is no
space exempt from religious considerations. In fact, the thesis of “hollowness” is hotly contested
on non-religious grounds too: The secular state is not hollow since it embodies the parallel choice
of the liberty of conscience and equality, and also that of universality which renders possible to
embrace all human beings without according privilege of any kind to a particularism. “Together
with liberty, equality and the concern (care) for the universal . . . the autonomy of judgment and
the wager of intelligence constitute the decisive values of secularism.” 4
The positive values of liberty that populate the hollow space created by its expurgation from
religion do not necessarily follow from secularism, but they are enabled by secularism and support
it. Close to this richer concept of secularism, the European Court of Human Rights quoted affirmatively
the definition of the Turkish Constitutional Court in Leyla Sahin. Here again secularism is an
opportunity that is particularly friendly towards certain fundamental values of constitutionalism:
[S]ecularism is the civil organizer of political, social and cultural life, based on national sovereignty,
democracy, freedom and science. Secularism is the principle which offers the individual
3 CLAUDE LEFORT, Permanence du Théologico-Politique?, in ESSAIS SUR LE POLITIQUE: XIX e -XX e SIECLES 251-300 (1986).
4 H. PENA-RUIZ, QU’EST-CE QUE LA LAÏCITE? 72 (2003); see also G. HAARSCHER, LA LAÏCITE (2004).
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