Democracy, Secularism and Rule of Law, Tokyo, 15 October 2008

DEMOCRACY, SECULARISM AND RULE OF LAW 

Conference “Islam and Asia” , Tokyo,  14-16 October 2008

 

Democracy, rule of law and secularism are three concepts that remain in a vacuum if they are not considered within the framework of a society, if they are not related to human beings. For this reason I will make frequent references to the society when I mention these concepts.

These three concepts are among the main pillars, almost a sine qua non, of a modern society.

Democracy is defined briefly as the rule of majority. However we should not get entangled in the word “majority” in this definition. Like many other concepts in the social sciences, this is also a relative concept. For instance, if the majority oppresses the minority or does not observe properly their rights, it cannot be characterized as democracy. On the other hand, there are countries in the world, i.e. some Baltic countries, that have a good political culture and tradition to govern their respective country, from time to time, with a minority government in case a majority government proves to be difficult to form. It may look as a contradiction, but sometimes such minority governments may turn out to be more democratic than the majority governments. They rule the country in a more stable manner, because they have to seek consensus within the society on all major issues that interest the public. A majority government may not need to do the same counting on its majority of votes in the parliament. If democracy were to be understood as the rule of majority in the strict sense of the word, the countries that are ruled by the minority governments would not be entitled to be characterized as democratic countries.

Furthermore, the definition of democracy was made centuries ego. However its rules evolve continuously. Democracy implies also strict observation of other rules such as free and non-fraudulent elections, secret ballot and open count of votes, respect for fundamental rights and freedoms etc.

The system of “checks and balances” is another indispensable requirement of democracy. It means that the three main powers in a democratic society, namely legislative, executive and judiciary powers, check and balance each other.

Secularism is a more complicated concept. The simplest definition of secularism is the separation of the religion from the State affairs. However this definition does not clarify every nuance that it contains. This separation is carried out in different manners in different countries.

Secularism, as a concept, was introduced in France by Napoleon to curb the overwhelming influence of the church on the State affairs. La laïcité, as it is called in France, is different from the Anglo-Saxon secularism. In France any direct reference to the religion in the process of passing a law will be considered as a violation of the secular principles of the French State. Law enforcement officers are not allowed to take the religious precepts into consideration when they use the public authority. The education has to be strictly secular in the sense that scientific concepts should not be explained with reference to the religion.

During the debates in the European Convention convened to draft a Constitutional Treaty for Europe, the French representatives in the Convention opposed strongly against the incorporation in the text of the Constitutional Treaty of a reference to the Judeo-Christian roots of the European culture. This attitude is a sign that the sensitivity on the question of the separation of the State affairs from the church is still strong in French public opinion.

In the United Kingdom, the Queen is the Head of the Anglican Church and her royal attributes include the title of “defender of faith”. Despite this clear link between the religion and the highest political authorities in the country, the religion is kept in the United Kingdom separate from the State affairs. Laws are not passed according to whether they are compliant with the religious rules. Lawmakers are not guided by the religious principles when they pass laws.

In the United States, the Federal Constitution divides the State affairs from the church. However we are aware of a strong pressure that comes from the public opinion of certain States in the US to change the school curriculum and incorporate in it religiously inspired items such as creationist theory instead of evolution theory in the creation of the universe.

Turkey is a special case in this regard, because it is a country with predominantly Muslim population but with a secular constitutional regime. The secularism is protected by a Constitutional provision which provides that “no one is allowed to attempt to base the political system of Turkey on the religious foundations”.

Other provisions of the Turkish Constitution point out that the religious education of individuals has to be provided by the State. This is most probably the provision that makes Turkey’s secularism different from the secularism of other countries. In other countries the State does not interfere in the content of the religious education. It is left to the religious communities.

Despite these differences one point remains similar in the relations between the secularism on the one hand and democracy and the rule of law on the other. Since the religious precepts are regarded as divine orders, they are not subject to interpretation or eventual amendments. Therefore secularism is likely to affect to a great extent both democracy and the rule of law in a society.

Human rights, fundamental rights and freedoms and the principles of democracy evolved considerably since the revelation of monotheist religions and since the establishment of other religions. In Christianity, the Reformation that took place in 16th century was an effort to update the religious obligations to make them compatible with the requirements of the society of the 16th century. However the question still remains open whether some religious precepts of Christianity such as catholic marriage, trinity, Immaculate Conception, creationist theory of the creation of universe etc. are consistent with modern scientific knowledge or modern society’s requirements.

The impact of secularism should not be over-stretched in either direction. In other words, it will not be right to claim that a secular society is also automatically a democratic society and a society where the rule of law prevails. Soviet society under the communist regime was perhaps a perfectly secular society, but it was neither democratic nor a society with the rule of law.

The opposite of this is also right. A society that is not secular is not automatically an undemocratic society or a society where the rule of law does not prevail. United Kingdom is not a secular society, but we may neither say that it is an undemocratic society nor a society where the rule of law is missing.

The truth is perhaps somewhere in the middle. If there is no secularism, in other words, if the society will be governed by the religious rules, we cannot guarantee that democracy and rule of law will be fully implemented. There are differences between the modern values and the rules that were valid and pertinent at the time of Revelation. Seen from this perspective, the secularism has to be regarded as an essential element of democracy and the rule of law.

There is a difference between Islam and Christianity on this particular point. Unlike Christianity, Islam determines in considerable detail the daily dealings of individuals, from commercial transactions to conjugal life, from penal matters to international relations and to the law of war and peace. Therefore Christians are less exposed than Muslims to deviations from their religious obligations in their daily dealings and transactions.

Can a society that is not secular become a democratic society and a society where the rule of law prevails? There may be different answers to this questions according to whether we are in a Muslim, Christian, Judaist, Shamanistic, Conficius or Hindu society. I cannot speak on behalf of other societies, but I may share my opinion with you regarding the Muslim society or Turkish society to be more specific. Islam being a religion that regulates almost all aspects of the life of individuals, it may not be possible in a Muslim society to reconcile the divine orders with all requirements of the modern society. This is the reason why Turkey opted for a secular regime. Individuals should be allowed to practice their religion in full freedom, without any restriction, but they should not mix their religious freedom and obligations with the State affairs. Turkey is trying to do this since more than 7 decades. There are debates in Turkey and elsewhere on how good a secular country Turkey is, but in general individuals in Turkey are content with the secular regime and try to do their best to preserve it.

It would be interesting to learn from the Japanese experience to what extent secularism makes a difference in a society that is less affected by the precepts of the Abrahamic religions are less dominant.

The rule of law or the supremacy of law is more difficult to define. In theory, it means that a society should not be governed by the will of a person or a group of persons that are not bound by laws. It should be governed with laws adopted by the duly elected representatives of the people. This definition also falls short of the modern requirements. Adoption of laws by the duly elected representatives of the people is only a formalistic requirement. Observance of these formalities is not sufficient. The adopted laws should also fit certain criteria that have now become an acquis, a patrimony of the modern society.

In order to better explain this, a line has to be drawn between two different meanings of the word “law” in the English language. One of the meanings of the word “law” in English is a piece of legislation. We may also call it a code, like Penal Code, Highway Code etc. In this sense a law is a concrete text.

The other meaning of the word “law” is more abstract. It refers to the rights and freedoms of individuals whether they are protected or not by a piece of legislation. They exist even if they are not written, even if they are not transformed into a piece of legislation. In this sense, it may also be called natural law with an adjective in front of it rather than calling it law with one single word.

In light of this distinction, the rule of law or supremacy of law should not be mixed with the supremacy of codes. What is meant by the rule of law or supremacy of law is not the scrupulous implementation of a piece of legislation that does not protect sufficiently the rights and freedoms of individuals. The rule of law is the observance and protection of these rights and freedoms whether or not they are written in a piece of legislation. In other words, the rule of law is not a careful implementation of the provisions of a law. It is the protection of a set of abstract rights.

To better visualize what the rule of law is, we may take the following example: There may not be specific laws in a society to protect all fundamental rights and freedoms of individuals. However if the rights of individuals are not violated despite the absence of laws protecting their rights, such a society may also be characterised in my opinion a society of rule of law. It may look as a contradiction, but it is theoretically possible. Japanese society must be rich in examples of fundamental rights and freedoms that are not written in a piece of legislation but that are fully protected and strictly observed throughout centuries

The rule of law will be incomplete without the possibility of enjoying the fundamental rights and freedoms in a society. These rights are the first values that laws have to protect in a society. If they were not protected, the protection of other rights such as social rights, political rights etc. would not mean much. Fundamental rights have always to be the highest priority.

To conclude, democracy, secularism and the rule of law are three basic elements of the modern society that complement each other.

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