Hans-Martien ten Napel is Associate Professor of Constitutional and Administrative Law at Leiden University, the Netherlands, and a 2014-2015 Resident Fellow at CTI. His project is entitled “‘To Be Fully Human’: Constitutionalism, Democracy and Religious Freedom.”
Joshua Mauldin: We are now into the second semester of our project on Law and Religious Freedom here at CTI. How has your project developed during these months? Have you changed your mind in significant ways?
Hans-Martien ten Napel: I understand why you would want to hear about change. CTI aims to be a place for ‘fresh thinking’, and obviously the papers discussed during our weekly colloquia and the numerous conversations that followed have not remained without impact. Some of these new ideas and insights I will try to put to use while developing my research agenda for the coming years. Still, change can hardly be a goal in itself. Neither do I necessarily expect others to have profoundly changed their minds during the first half of our project here.
In my case, what I suppose has surprised me most is the degree to which the right to freedom of religion or belief is coming under pressure now in the United States as well. Some of the criticisms no longer only concern the application of the right in a particular case, such as Hobby Lobby [Burwell v. Hobby Lobby Stores, Inc., decided by the United States Supreme Court on June 30, 2014], but the very justification of the right in the form it has historically received. As this historic form is intimately tied up with our Western liberal democratic orders as a whole, I have felt the need to broaden the scope of my project. It is no longer concerned with religious freedom per se, but also – and even primarily – with its relationship to constitutionalism and democracy.
The often diverging opinions among the fellows have, moreover, made it necessary to further elaborate and articulate my own position in the debate on religious freedom. It is simply not possible to write, e.g., a coherent book proposal when one is constantly torn between fundamentally different views on the relevant issues. Thus, a central tenet of my project has become one in which the questions surrounding constitutionalism and democracy generally as well as those surrounding the right to freedom of religion or belief in particular can best be addressed by (re)adopting a classical liberal approach.
JM: You have argued that religious freedom “creates room for all to be fully human.” Can you say more about that, as well as about your project in general?
HMN: “To be fully human” is a quote from Professor Emeritus in Christian Ethics at the North-West University (Potchefstroomcampus) Koos Vorster. The full quote reads as follows: “The attitude of the Christian towards other religions can be served best where room is created for all to be fully human in the public and private spheres. To be fully human means to cradle the spirituality of one’s religion and to build one’s life on the foundation that the religion offers.” I thought this was an appropriate title for my project, because it focuses on the associational and institutional dimensions of the right to freedom of religion or belief.
In the classical conception of liberalism religion almost becomes a political institution in its own right, in that this type of liberalism presupposes not just a state and individuals, but also a flourishing civil society (cf. De Tocqueville). Since the cultural revolution of the 1960s, however, Europe in particular has witnessed the resurgence of a different type of liberalism, sometimes called “Enlightenment liberalism.” Instead of helping to create the conditions under which the increasing religious diversity in society can be successfully managed, Enlightenment liberalism runs the risk of actually oppressing such diversity in the name of its own, mostly ahistoric conception of (positive) freedom.
JM: I’m interested in intellectual biographies. How did you come to be interested in law and religious freedom?
HMN: In a sense, this project has been a long time in the making. While teaching in a Department of Political Science, I already specialized in Religion and Politics, among other things. Since my transfer to the Law Faculty, in 2000, Law and Religion has been one of my fields of expertise. In 2007 I participated for the first time in two inspiring international gatherings on this topic: The Atlantic Conversation on Religion and Public Life, organized by St. George’s House, Windsor Castle, in association with the Center for Theological Inquiry and “From Silver to Gold: The Next 25 Years of Law and Religion,” the Silver Jubilee Conference of Emory University’s Center for the Study of Law and Religion.
My research interests in the field of Law and Religion acquired their current focus largely as a result of a stimulating conference on “Religion and Civil Society; The Changing Faces of ‘Religion’ and ‘Secularity’” held at Harvard Law School in 2012. The paper on “State, Civil Society and Religious Freedom“, that I presented on that occasion, was published in the Oxford Journal of Law and Religion in October 2013. It also formed the basis of my own contribution to a research proposal, co-authored with Dutch-American historian James Kennedy as principal applicant, that was granted a major subsidy by the Dutch Association for Scientific Research (NWO) in 2013. With the subsidy for this project, entitled “Religion Renegotiated: Faith-Based Organizations and the State in the Netherlands Since the 1960s“, both a Ph.D. fellow and a Postdoctoral Researcher have been appointed.
Throughout my professional career my passion has been the question of how constitutional democracies can be designed in order to meet the demands of religiously and otherwise divided societies. My PhD thesis already dealt with the origins of the Dutch Christian Democratic party, whose predecessors were major architects of the pluriform democracy which has characterized the Netherlands during most of the 20th century. The project on Law and Religious Freedom at CTI fits well into this research line, in that my own contribution addresses the globally pressing question of how to safeguard the position of minorities in increasingly majoritarian contexts.
JM: The scholarly conversation at CTI is enriched by the presence of voices from many countries outside the United States. I would be interested to hear more about your perception of the state of religious freedom in the Netherlands.
HMN: For the better part of the twentieth century Dutch politics and society have been characterized by a relatively large degree of “associational autonomy” ceded to private organizations in general, and religious ones in particular. Since the 1960s, however, the shift from a “Christian” society to a more (post-)secular one has arguably led to changes in both legislation and jurisprudence. For example, on 9 April 2010 the Dutch Supreme Court ruled that the state was obliged to take effective measures to put an end to the Political Reformed Party’s (Staatkundig Gereformeerde Partij; SGP) refusal to grant women passive suffrage on biblical grounds. Two years later, an initiative bill by a Member of Parliament nearly brought to an end the prerogative of Jewish and Islamic communities in the Netherlands to engage in traditional ritual slaughter.
As in neighboring countries, in particular the non-discrimination principle, with which the Dutch Constitution has opened since 1983, is increasingly perceived as being in direct conflict with the traditional freedom to exercise the associational and institutional dimensions of religious freedom. In addition, the influx of approximately two million immigrants in recent decades, many from Muslim backgrounds, has raised the question whether at least organized expressions of Islam should be accommodated in the same way as the religions traditionally represented in Dutch society.
JM: What do you see as the future of academic conversation between law and theology?
HMN: My project applies an interdisciplinary method, by combining insights from comparative constitutional law on the one hand with elements of other disciplines, notably political science, history and theology, on the other hand. This fits in well with what leading scholars in the field of comparative constitutional law, such as Von Bogdandy and Hirschl, have recently been pleading for, although they have largely restricted themselves to pointing out the relevance to law of history and the (other) social sciences.
Constitutionalism and democracy in the West have historically at least in part been informed and inspired by Christian theological notions such as original sin, the separation of church and state, primacy of conscience, and the priesthood of all believers. To be sure, Christianity as such is neither a liberal nor a democratic religion and can relate to a range of legal and political orders. This makes it all the more interesting that in our (post)-secular age questions about such deeper foundations of the political order are inevitably coming back to the fore, for example with a view to its legitimacy and effectiveness.
More specifically, the infusion of theological insights can contribute to a further gaining ground of so-called neo-institutionalism within the legal discipline as well. This legal neo-institutionalism might subsequently inspire the legislature and the courts to do away with any current “institutional blindness” (Horwitz), so as to achieve a just balance between the individual and the institutional dimensions of religious freedom and indeed between religious freedom and other fundamental rights.