Religion and new constitutions: recent trends of harmony and divergence

Patrick, Jeremy (2013) Religion and new constitutions: recent trends of harmony and divergence. McGeorge Law Review, 44 (4). pp. 903-921. ISSN 1520-9245

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Abstract

The explicit incorporation of Islamic principles in the constitutions of Iraq and Afghanistan has highlighted concern over the past decade that theocratic constitutionalism has become a rival to traditional liberal constitutionalism. Whereas liberal constitutionalism ascribes religion special value but places it in the sphere of the private through guarantees of religious freedom, equal protection of religion, and non-establishment, the emerging ideology of theocratic constitutionalism holds the potential to redefine all rights through the lens of a particular religion.

This Article is an empirical study of whether, and to what degree, liberal constitutionalism has been supplanted by theocratic constitutionalism. Every constitution enacted since the year 2000 has been examined, and its provisions relating to religion sorted into the following categories: Preambular, Ceremonial Deism, Established Religion, Freedom of Religion, Equal Protection of Religion, and (non-)Establishment Clause. Analysis of the prevalence of these categories in new constitutions demonstrates that most new constitutions display some evidence of both liberal and theocratic constitutionalism.


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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: © 2013 University of the Pacific, Calif. All rights reserved. Published version deposited in accordance with the copyright policy of the publisher.
Faculty / Department / School: Current - Faculty of Business, Education, Law and Arts - School of Law and Justice
Date Deposited: 09 Oct 2013 23:12
Last Modified: 15 Jul 2014 04:11
Uncontrolled Keywords: secularism; constitutionalism; religious freedom; theocracy
Fields of Research : 18 Law and Legal Studies > 1801 Law > 180108 Constitutional Law
22 Philosophy and Religious Studies > 2204 Religion and Religious Studies > 220405 Religion and Society
18 Law and Legal Studies > 1801 Law > 180106 Comparative Law
Socio-Economic Objective: C Society > 95 Cultural Understanding > 9504 Religion and Ethics > 950404 Religion and Society
Identification Number or DOI: 10.2139/ssrn.2077274
URI: http://eprints.usq.edu.au/id/eprint/24153

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