What role formal constitutions play in mitigating intense conflicts over the religious character of the state? In contrast to common views in constitutional and political scholarship, the paper demonstrates that the ideal of liberal constitutionalism is not compatible with the political reality and types of conflicts that characterize societies deeply divided over religious issues. A study of constitution drafting projects in which issues of religious law and religious identity were at the heart of the debate, such as India, Indonesia, Israel and Turkey, reveals that under conditions of deep disagreement over the state’s religious character, the drafters adopt either permissive or restrictive constitutional approach. The former implies strategies of constitutional ambiguity, ambivalence and avoidance in order to allow the political system greater flexibility in future decision-making on religion-state relations. The latter approach uses repressive constitutional constraints designed to limit the range of possibilities available to future decision makers. While permissive constitutions are more compatible with democracy, they also pose grave challenges to democratic institutions, and may lead to limitations on citizen’s freedom from religion.
Hanna Lerner is a senior lecturer in political science at Tel Aviv University. She is the author of Making Constitutions in Deeply Divided Societies (Cambridge University Press, 2011) and editor or Constitution Writing, Religion and Democracy (with Asli Bali, Cambridge University Press, forthcoming) and Global Justice and International Labour Rights (with Yossi Dahan and Faina Milman-Sivan, Cambridge University Press, forthcoming). Her articles appeared in, among others, World Politics, Michigan Journal of International Law, Theoretical Inquiries in Law, Constellations, Law and Social Inquiry, Nations and Nationalism. Dr. Lerner received her PhD in political science from Columbia University and held visiting fellowship at the Institute of International and Regional Studies, Princeton University.