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Symposium Report–Constitutionalism, Religious Freedom and Human Rights: Constitutional Migration and Transjudicialism beyond the North Atlantic

–Mirjam Künkler (Princeton University), Shylashri Shankar (Centre for Policy Research, Delhi) and Tine Stein (University of Kiel); Co-organizers for this Symposium held at Schloss Herrenhausen, Hanover, Germany, June 3-6, 2015, funded by the Volkswagen Foundation

Creating a framework of religion-state relations that would mollify tensions between religions, within religions, and between believers and non-believers, has been the bane of many a constitution-framer’s existence. And when issues pertaining to the ambit of religious freedom show up in the docket of the court, judges have struggled with interpreting these rights in a way that would create a fair trade-off between religious freedom and other human rights.  Given these challenges, constitutional framers and judges increasingly look abroad for orientation, both to be inspired as well as to learn from negative lessons.[1] As not much attention has been paid so far to the frameworks of religion-state relations that have migrated between constitutions and between courts, this conference set out to do so.

While laying out examples of where models of religion-state relations did travel, several panelists examined if this lead to an international convergence on prevalent models.

For Manuel Góngora-Mera (Free University Berlin), most Latin American countries showed significant convergence on secular paths (usually from Catholic confessionality to religiously impartial but not assertively secular states), chiefly driven by the constitutionalization of human rights treaties and their integration into domestic constitutional jurisprudence. Similar frameworks of rules produced similar landmark judgments across the continent that backed secular rights reforms, particularly in women’s and gay rights. Tom Ginsburg (University of Chicago) asked whether international human rights agreements produced more convergence by framing the choices of constitution framers, which he ultimately affirmed. Mirjam Künkler (Princeton University) and Yüksel Sezgin (Syracuse University) were more skeptical, arguing that even if international convergence of rights catalogues in constitutions could be proven, this had apparently little effect on the rest of the legal system, especially private law, where practices and regulations could be found to be increasingly diverging at least as far as Asia, Africa and the Middle East were concerned. Ali El-Haj (Humboldt University) argued that the recently promulgated constitutions in the Arab world showed convergence in the emphasis on human rights, while Amjad Mahmood Khan (UCLA) took the opposite position for the broader Muslim world, at least as far as legal practice was concerned. Nimer Sultany (SOAS) compared the clauses on religion in US constitutionalism with the constitutions of several Arab states, to then fervently challenge ”the constitutionalization of Islam” both on grounds of the violations of the rights of religious minorities as well as the violations of value pluralism more generally. Mirjam Künkler (Princeton University) discussed the genesis of Iran’s 1906/07 and 1979 constitutions in light of the models that lay at their bases: chiefly the Belgian constitution of 1831, the Bulgarian of 1878, and the French of 1959. As the two Iranian constitutions mostly borrowed from secular, Orthodox-Christian and laic models, she asked what this could tell us about their religious content, and, drawing on other examples from the Muslim world, generally challenged the notion that constitution framers in Islamic countries looked to other Islamic constitutions for orientation.

Turning to methodological issues, Ran Hirschl (University of Toronto), Janet Coleman (LSE), Patricia Springborg (Humboldt University), and Mark Tushnet (Harvard University) addressed whether the tools proposed by Begriffsgeschichte/conceptual history could prove useful in the study of cross-constitutional and cross-judicial influences. Patricia Springborg affirmed (“because human practices are themselves subject to transmission and transportation, so are the concepts embedded in them, which is why transjudicial concepts, like so many others, are transportable”), while Ran Hirschl highlighted the importance of exploring the past in order to recognize the significance of the social and political context within which communities, jurists and policy makers engage in comparative inquiry. This was even apparent, for example, from a look at the juristic discourses of Talmudic scholars who inherently practiced a variant of comparative law by distinguishing their own legal tradition as a minority against that of the majority environment, and by developing a sophisticated matrix that allowed for selective engagement with their legal surroundings.[2]

Ute Sacksofsky (University of Frankfurt), Christopher McCrudden (University of Michigan), Robert Blitt (University of Tennessee), and David Law (University of St Louis) debated the promise and perils of transjudicialism: in particular the transferability of  concepts between courts, the appropriateness of judges as those undertaking the transfer, and the impact on outcomes. The panellists brought in their insights not only as scholars but also as legal practitioners. Regarding the normative evaluation of transjudicialism, further research should elaborate on standards of a legitimate use of foreign citations, which in some contexts is seen as imposed from abroad.

In general, how do we identify the use of foreign law if judges do not cite it (as Ejima Akiko (Meiji University) discussed regarding Japan)? Is it easier to apply foreign law to cases that do not pose a fundamental challenge to the constitutional identity (as Christa Rautenbach (North West University) asked in relation to South Africa)?  Are judges well-suited to balance religious freedom and other human rights if they act in an international embedded court (as Kristin Henrard (Erasmus University Rotterdam) inquired in the context of the ECtHR) which can hardly do justice to the specificity of local institutions, customs and traditions of the constitutive members’ legal systems?

Shylashri Shankar (CPR, India) applied the methodological tools of conceptual and intellectual history, to study the idea of justice in mid-19th century Hyderabad, which crystallized around three notions: “equal”, “Islamic”, and “influential.” These diverse notions were prevalent among political actors across different time periods, producing slippages and mis-readings in legal precedents.

In the concluding debate Christopher McCrudden (University of Michigan) and Matthias Koenig (University of Göttingen) pointed to methodological challenges in the study of constitutional convergence. McCrudden questioned quantitative analysis as a proper methodology in this endeavor: if concepts that are used in a constitution such as ‘human dignity’ or ‘right to life’ had different meanings in different legal systems, the sheer counting of words would not offer promising results. Matthias Koenig drew attention to neo-institutional theoretical frames that allow one to disentangle various causal mechanisms of legal convergence and to analyze the conditions for strong and weak coupling of (often ceremonial) constitutional commitments on the one hand and legal practice and policy-making on the other.

The program of the Symposium is available here: http://www.uni-goettingen.de/de/document/download/1cb5d13f9a88495aa067157d5c5be0ec.pdf/SymposiumProgram.pdf.

The full Symposium report is available here: https://www.researchgate.net/profile/Mirjam_Kuenkler2.

Suggested Citation: Mirjam Künkler, Shylashri Shankar and Tine Stein, Symposium Report–Constitutionalism, Religious Freedom and Human Rights: Constitutional Migration and Transjudicialism beyond the North Atlantic, Int’l. J. Const. L. Blog, Feb. 23, 2016, at: http://www.iconnectblog.com/2016/01/symposium-report-constitutionalism-religious-freedom-and-human-rights-constitutional-migration-and-transjudicialism-beyond-the-north-atlantic


[1] For an early detailed account of the phenomenon of constitutional migration in general, beyond the realm of religion-state relations, see Kim Lane Scheppele, Aspirational and aversive constitutionalism: the case for studying cross-constitutional influence through negative models. in ICON, I (2), 2003, 296-324.

[2]  See for this evaluation as well Ran Hirschl, Editorial, in International Journal of Constitutional Law 13 (2015): 1-8, p.1.

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Published on January 23, 2016
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