Legitimacy Gap : Secularism, Religion, and Culture in Comparative Constitutional Law

Présentation de l'éditeur : "This book provides an account and explanation of a fundamental dilemma facing secular states: the 'legitimacy gap' left by the withdrawal of religion as a source of legitimacy. Legitimacy represents a particular problem for the secular state. The 'secular' in all its manifestations is very much linked to the historical rise of the modern state. It should not be seen as a category that separates culture and religion from politics, but rather as one that links these different dimensions. In the first part of the book, Depaigne explains how modern constitutional law has moved away from a 'substantive' legitimacy, based in particular on natural law, towards a 'procedural' legitimacy based on popular sovereignty and human rights. Depaigne examines three case studies of constitutional responses to legitimacy challenges which articulate the three main sources of 'procedural' legitimacy (people, rights, and culture) in different ways: the 'neutral model' (constitutions based on the 'displacement of culture'); the 'multicultural model' (constitutions based on diversity and pluralism); and the 'asymmetric model' (constitutions based on tradition). Even if secularization can be considered European in its origin, it is best seen today as a global phenomenon, which needs to be approached by taking into account the particular cultural dimension in which it is rooted. Depaigne's detailed study shows how secularization has moved either towards 'nationalization' linked to a particular national identity (as in France and, to some extent, in India)-or towards 'de-secularization', whereby secularism is displaced by particular cultural norms, as in Malaysia." Cover 1 Legitimacy Gap 4 Copyright 5 Dedication 6 Preface 8 Acknowledgements 10 Table of Contents 12 Introduction: The Secular State and Its Legitimacy 14 1. The European ‘Legitimacy Gap’ 14 2. Secularization and Legitimacy 18 3. Models of Constitutional Legitimacy: Looking at Secularization in Asia and Europe 25 4. Plan of the Book 28 I. The Secular State Between Procedural and Substantive Legitimacy 32 1. The ‘Legitimacy Gap’ in the Secular State 34 1. Secularization, Religion, and Legitimacy 35 2. Max Weber and Legitimacy in the Secular State 42 3. The Social Contract as a Response to the ‘Legitimacy Gap’ 50 4. Conclusion: Substantive vs Procedural Legitimacy 60 2. Constitution and Legitimacy: Procedural or Substantive? 65 1. The Move towards Procedural Legitimacy: Democratic Rule and the Decline of the Legitimacy of Human Rights 66 2. Substantive Forms of Legitimacy: Locating Culture in the Secular State 77 3. The Problem of Contemporary Legitimacy: Defining ‘the People’ 89 II. Models of Reconciliation Between Constitutional Law and Culture 92 3. Locating Culture in the Secular State: Constitutional Law, Secularization, and the Status of Culture 94 1. Locating Culture in Contemporary Constitutional Law 95 2. Models of Constitutional Legitimacy: Articulating Procedure and Substance 105 4. The Secular Nation: France, or the Limits of the ‘Neutral Model’ 114 1. Defining the People: The Outer Limits of the Secular State 115 2. ‘Writing the Republic’: The Constitution, the French People, and Overseas Territories 125 3. Can Laïcité Define a Political Community? 138 4. Conclusion: A ‘Nationalization’ of Secularism? 144 5. ‘Reformist’ Secularism: Reconciling Pluralism, Equality, and Unity in India 148 1. Defining the People: The Origins of the Indian ‘Model’ of Secularism 149 2. Indian Secularism as ‘Ameliorative Secularism’ 159 3. Pluralism and Secularism: The Shah Bano Case 169 4. Conclusion: Secularism between Pluralism and ‘Hinduization’ 175 6. Malaysia: ‘Asymmetric’ Secularism 178 1. The Malaysian ‘Social Contract’: A Secular ‘Ethnic Democracy’? 179 2. The Position of Islam in Malaysia: A Secular and Islamic State? 186 3. De-​Secularization: Malaysia as a Secular and Religious State? 200 Conclusion: Between ‘De-​Secularization’ and ‘Nationalization’ 204 1. Finding the Source of Legitimacy in the Secular State: Reconsidering the Models 205 2. The Nationalization of ‘Majoritarian’ Secularism 206 3. The (De-​)Secularization of Culture 208 4. A ‘Secular Religion’? 210 5. Secularization as Universalization 211 Bibliography 214 Index 230 Présentation de l'éditeur : "This book provides an account and explanation of a fundamental dilemma facing secular states: the 'legitimacy gap' left by the withdrawal of religion as a source of legitimacy. Legitimacy represents a particular problem for the secular state. The 'secular' in all its manifestations is very much linked to the historical rise of the modern state. It should not be seen as a category that separates culture and religion from politics, but rather as one that links these different dimensions. In the first part of the book, Depaigne explains how modern constitutional law has moved away from a 'substantive' legitimacy, based in particular on natural law, towards a 'procedural' legitimacy based on popular sovereignty and human rights. Depaigne examines three case studies of constitutional responses to legitimacy challenges which articulate the three main sources of 'procedural' legitimacy (people, rights, and culture) in different ways: the 'neutral model' (constitutions based on the 'displacement of culture'); the 'multicultural model' (constitutions based on diversity and pluralism); and the 'asymmetric model' (constitutions based on tradition). Even if secularization can be considered European in its origin, it is best seen today as a global phenomenon, which needs to be approached by taking into account the particular cultural dimension in which it is rooted. Depaigne's detailed study shows how secularization has moved either towards 'nationalization' linked to a particular national identity (as in France and, to some extent, in India)-or towards 'de-secularization', whereby secularism is displaced by particular cultural norms, as in Malaysia." This book provides an account and explanation of a fundamental dilemma facing secular states: the "legitimacy gap" left by the withdrawal of religion as a source of legitimacy. Legitimacy represents a particular problem for the secular state. The "secular" in all its manifestations is very much linked to the historical rise of the modern state. It should not be seen as a category that separates culture and religion from politics, but rather as one that links these different dimensions. In the first part of the book, Depaigne explains how modern constitutional law has moved away from a "substantive" legitimacy, based in particular on natural law, towards a 'procedural' legitimacy based on popular sovereignty and human rights. Depaigne examines three case studies of constitutional responses to legitimacy challenges which articulate the three main sources of "procedural" legitimacy (people, rights, and culture) in different ways: the "neutral model" (constitutions based on the "displacement of culture"); the "multicultural model" (constitutions based on diversity and pluralism); and the "asymmetric model" (constitutions based on tradition). Even if secularization can be considered European in its origin, it is best seen today as a global phenomenon, which needs to be approached by taking into account the particular cultural dimension in which it is rooted. Depaigne's detailed study shows how secularization has moved either towards "nationalization" linked to a particular national identity (as in France and, to some extent, in India)-or towards "de-secularization", whereby secularism is displaced by particular cultural norms, as in Malaysia --Front flap of book This Book Addresses The 'legitimacy Gap' Created By The Removal Of Religion As A Source Of Legitimacy For The Foundation Of Secular States, When Many Of The World's States Are Still Profoundly Religious But Require Procedural, Rather Than Substantive, Grounds For Constitutional Arrangements.