The 33rd Corbishley Lecture

State, Faith and Nation – the European ConundrumProfessor Joseph Weiler

House of Commons, London, 14th September 2011

Guy WilkinsonI have very great pleasure in welcoming you to the 33 rd Corbishley Lecture of the Wyndham Place Charlemagne Trust in this Grand Committee Room of Westminster Hall, which is the oldest Parliamentary building dating back I believe to the 11th century, and where the first meeting of the English Parliament took place in 1265.

The Corbishley Lectures are named after Father Thomas Corbishley who became the Master of Campion Hall in Oxford back in 1947 and then was at the headquarters of the English Province of the Society of Jesus at Farm Street. He was the first chair of Christians in Europe, an ecumenical group dedicated to educating particularly people in the Church in the sixties and seventies about the European Community, as it was then. He was a tireless supporter of the work of the International Ecumenical Fellowship and of the Wyndham Place Trust before it amalgamated with the Charlemagne Institute some years ago. The Annual Lecture series was inaugurated after his death in 1976. Today is the 33rd in the series, and we are particularly delighted that there are seven members of the Corbishley family, of different generations, who are here tonight, thus maintaining the link with his family.

I want to offer very warm thanks to two of our patrons, Lord Williamson and Lord Tomlinson for providing the room in the House of Lords where some of us were able to meet just now for our reception,– they may have to slip out to vote in a very busy Parliamentary evening. I would also like to thank Dr John Pugh MP, a member of our Council, for enabling the Lecture to take place in this Grand Committee Room. I also wish to mention Mr Mike Dudgeon of the Mercers’ Company who have made possible this evening by their financial support and we are very grateful to them.

I turn now to our centre of attention with a special welcome to Professor Joseph Weiler, our distinguished Corbishley Lecturer. In thinking about how to introduce him, my main difficulty lay in how to keep a brief account of his distinguished record within some kind of limits.

Professor Weiler is currently a University Professor at New York University where he is also Joseph Straus Professor of Law and European Union Jean Monnet Chair; he’s also Chairman of the

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Hauser Global Law School Program and Director of the Jean Monnet Center for International and Regional Economic Law and Justice. Now if that wasn’t distinction enough he has impeccable European credentials as a Professor at the College of Europe in both Bruges and in Poland, an Honorary Professor here at University College, London, and Honorary Professor in the Department of Political Science in the University of Copenhagen; and I will just go a touch further afield as he has held visiting professorships at the University of Paris, the Hebrew University of Jerusalem, the Max Planck Institute at Heidelberg, All Souls College, Oxford; in America at Yale Law School, Stanford Law School and Chicago Law School; and without exhausting the list also he has been a visiting Professor at the University of Ljubljana. I could go on but I think that’s probably enough suitably to embarrass him and to impress us, if there was such a need!

Before I invite him to speak, I should say that last year Professor Weiler acted pro bono as attorney for the Italian and other governments in the landmark Lautsi case on the prohibition of the crucifix and other religious symbols in public schools in Italy. He was quoted, speaking just after the successful outcome of the appeal against the European Court of Human Rights’ original ruling that, “Europe is special in that it guarantees at the private level both freedom of religion and freedom from religion; but does not force its various peoples to disown in its public spaces, what for many is an important part of the history and identity of their states, a part recognised even by those who do not share the same religion or any religion at all.” I think he there states the core of the debate so strongly present in our societies in Europe at present. So I now have very great pleasure indeed in calling on Professor Weiler to deliver his Corbishley Lecture: “State Faith and Nation – the European Conundrum”.

Joseph WeilerLord Williamson, Lord Tomlinson, Dr Pugh, ladies and gentlemen. It’s an honour and a privilege to have been invited to give this Lecture. A European conundrum it is, and perhaps the best way to illustrate this is to look at the outcome of the Lautsi decision. Mrs Lautsi - of Finnish origin but a citizen of Italy - in very good faith objected to the fact that in Italy it is required - an administrative regulation, but it is a legal requirement – to display the crucifix in every classroom. She said she didn’t think it was appropriate for her children to sit in a classroom in which the crucifix was displayed in such a way, and she appealed, she took her decision into the highest jurisdictions in Italy. The Constitutional Court washed its hand of the matter saying that since it was an administrative regulation they did not have jurisdiction. It was obviously too hot a potato for them! The administrative courts upheld the right of the state to require it, but she reached the European Court of Human

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Rights, and as is always the case, it went to a Chamber composed of seven judges. And quite remarkably for a decision on a matter so controversial – at least so it appeared – the Chamber came down 7-0, holding that it was a violation of the European Convention on Human Rights for Italy to require all schools to display the crucifix in the classroom.

I remember when reading the decision of the Chamber, that I was struck by the stridency of the decision, the non-compromising position that it took. Bbut I was even more struck by the fact that it was 7-0: there was not a single dissenting voice in the Chamber. It then went to the Grand Chamber - which is composed of seventeen judges, and in matters of human rights is the highest jurisdiction of Europe, to which this country also belongs. It held by a majority of 15-2 that it did not constitute a violation of the European Convention on Human Rights. I just give these numbers to illustrate that indeed there is obviously a conundrum here: we can have the Chamber deciding 7-0 that it is a violation of the Convention and then we have a vote of 15-2 in the Grand Chamber that it is not a violation of the Convention. Perhaps a word of warning here: I am not going to provide some kind of silver bullet or golden thread so that we can all walk home and feel good that we have found a solution to this conundrum. This lecture is not the kind that presents a complicated problem and works towards a clever solution. There is here a complicated problem and by the time I end perhaps you will realise that it is even more complicated than one thought when one began! But that’s how we make progress in human affairs is it not, by understanding things more deeply.

So let me start with the first interesting facet of the decision. The Chamber and the Grand Chamber – and this is considered a truism, a legal truism – both held that under the Convention system, the Convention guarantees both freedom of religion and freedom from religion. Let me say a few words about freedom of religion and then a few words about freedom from religion. Freedom of religion is non-controversial, it is understood, it is a sub-species of freedom of conscience I suppose, but what we have to remember is that freedom of religion like all other freedoms guaranteed in our various constitutions and bills of rights, is not absolute. There is no absolute freedom, there is no absolute right. Even the right to life is not absolute. Even in a state like Britain where there is no conscription, the state reserves the right to call able-bodied people to its armed forces and to require them to die for the patria. So the patria takes precedence over the individual lives and to refuse to do that could be considered treason. And every other state in Europe has the same provision. I just give that as an illustration: it’s very difficult to come up with an absolute right that is not balanced by some other considerations.

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The same is true of freedom of religion. If someone would come to us today and say, God appeared before me and instructed me to take my son, the only son I love, and walk three days in the desert and go to a mountain and sacrifice him, we would say thank you but no thank you: not in our system, and in preventing him from doing that and maybe even putting him in prison for attempted murder, we would say that does not violate freedom of religion because freedom of religion is not absolute.

We know our countries differ. In some countries kosher and halal slaughter is prohibited because it is considered as cruel towards animals, and in those societies it is decided that the welfare of animals will take precedence over the ritual freedom of religion of Jews and Muslims. Other societies decide differently. We know that as with all rights freedom of speech is not absolute. Famously, in the United States which has the most freedom of speech, you may not shout “fire” in a crowded cinema, and then plead freedom of speech.

I must say something, more of a footnote but a real story. I was teaching as a visitor at Stanford Law School and as I don’t like to read handwriting, all my exams are take-home exams as then you can require the students to type them. And of course I require the students not to discuss the exam during the examination period with anybody else, because it would make it an unfair exam, would it not, if you could consult with somebody. And I was told I could not make that requirement because it violated freedom of speech! So the law sometimes is an ass isn’t it!

Much more interesting than freedom of religion, which we saw is limited, is freedom from religion. Now here I might surprise you a little bit. It’s not self-evident what justifies us in such an emphatic way to say there is a fundamental right to freedom from religion. I will explain to you why it is not self-evident, and especially not self-evident to specify – not just to say that people have freedom of conscience - but to specify that there must be freedom from religion. Even in our laïc states – France, Italy and other laïc states – there is no similar other protection, no freedom from other world views. So for example in a French school you certainly may not have the crucifix on the wall, and that is France’s right. But you can have a hammer and sickle: there’s no freedom from communism, there’s no freedom from socialism, there’s no freedom from vegetarianism, there’s no freedom from feminism. There’s no freedom from any other worldview. You could have their symbols on the wall. You could have them as part of the legislative programme. You could have people pay taxes for socialist causes or capitalist causes or Friedrich Hayek-type causes, different worldviews. We just say, that is democracy. If you don’t like it, if enough good citizens vote with you, you can do away with it. We

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single out freedom from religion among all worldviews. And as I say, when we stop to think about it, it is not easy to come up with a principled reason why freedom from religion should be enshrined as a fundamental right, whereas all other worldviews are just subject to the normal discipline of democracy.

Now I will try two explanations. The most compelling account of freedom from religion comes from religion itself. You recall that the late Pope John Paul II and his successor, Benedict XVI, often say that the most fundamental liberty is freedom of religion. Well, we can take this as a kind of “corporatist” thing, what else would we expect the Pope to say is the most important freedom? If he were the President of the World Trade Union Federation he might say the most important liberty is freedom to strike or freedom of association. But I think it goes deeper, because when you read John Paul II and Benedict XVI carefully, when they talk about freedom of religion they include freedom from religion, as an aspect of freedom of religion. And why do they do that? Because they say that, in order for your “yes to God” to be meaningful, you have to have the ability to say “no to God”. If your yes to God is coerced, then it is a meaningless affirmation: an invitatio dei which is coerced is not an invitatio dei at all, it is not walking in the way of God. Rather, it is walking in the way of that person who coerced you to walk in that particular way. If you go back and read the infamous or famous Regensburg lecture of the Pope, that is what he was going on about: from a religious point of view, the need to guarantee that every human being will understand that they have the ability to say “no to God”; and also to guarantee constitutionally and politically the ability to say “no to God”. As a religious person, not to have freedom from religion means you cannot have freedom of religion, because a coerced yes is no yes at all. So from a religious point of view it is perfectly clear why we would want to guarantee freedom from religion, but from a political theory secular point of view it is not at all clear.

Now I can give a historical explanation for why we accept it so naturally, why it is part of our political culture that there ought to be a guaranteed freedom from religion. The historical explanation is that in our history – and in Europe it is usually the history of the Church and the State – whenever the Church had power it used it coercively. So historically it burnt people at the stake if they did not profess and accept Jesus Christ as the divine Lord. And if we look at the French Revolution from which the secular traditional humanist view in its modern incarnation emerges, it was violently anti-clerical because they associated the Church so much with the ancien régime. And that is the reason why France historically is committed so strongly to a laïc state and defines itself in its constitution in Article I as social, republican, laïc and secular: part of the French Revolutionary movement was not only deposing the king but

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deposing the cosy relationship between the Church and the ancien régime - a relationship which many theologians say was a theological mistake because what is Caesar’s is Caesar’s and what is God’s is God’s.

But you see, ladies and gentlemen, that is an historical explanation. We are suspicious of the religious very often because when they had power they would use it coercively to force people into religious practice, and we have been told this by our history teachers. But that is not the principle explanation why we would have freedom from religion - as if the Communists, when they had powers, did not use it coercively and yet we do not find in our constitutions, even in our modern constitutions, the right to freedom from communism or socialism or capitalism. For the only other contender to explain why there should be freedom from religion, and why it should be guaranteed by the European Convention on Human Rights, we have to go back to the American political legal theorist John Rawls. He said that the condition for participation in public life is the ability to come up with reasons that are susceptible to public reason, which are not, if you want, part of the system with which one cannot argue. Well of course he had in mind religion without very often actually using the word. The idea was that religious propositions, because they are a matter of faith, because people hold them as articles of faith, are not appropriate subjects for public policy, indeed for public discourse. Now that might be more true of Judaism and Islam. You can read Maimonides from the beginning to the end and then back again, and at the end of the day the reason we don’t eat pork is because it says in scripture that you don’t eat pork: it’s not because it’s not healthy, there’s no other public reason, it’s not immoral. Indeed, Rawls would say, that’s not a proposition that should be part of public policy as it would be the private decision of an individual.

But part of the Pauline Revolution was to change the nature of law, of normativity. The law that Christianity recognises is the moral law, based on natural reason and natural law. Now one can debate what natural reason and natural law demand, and there are issues where Christian theologians disagree, but the position of Christianity when it comes to these issues is, that they are not saying to people “thou shall not kill” because it’s a revealed truth that thou shalt not kill; it is explained with the exact tools of morality and ethics and natural law and natural reason. In that there is no difference from any other worldview which legitimately is part of public discourse. So where I want to leave you at this point of my lecture is, that although we accept – and I am not challenging it in this lecture today – the proposition that freedom of religion and freedom from religion are part of our constitutional asset, there is a little question-mark as to why freedom from religion is singled out as against every other worldview which is not singled out. Why in the laïc state every

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symbol can be on the wall except a religious symbol. That has not in my view received a satisfactory answer in our political theory and in our public discourse. It is just a hangover from our history and the past association of Church and State.

So let’s now bracket freedom of religion and freedom from religion after this discussion, and turn to talk about State, Nation and Faith – or in a more old-fashioned way, State, Nation and Church. So when we have again an issue like a cross in the classroom, which Mrs Lautsi boldly and courageously raised – her civic virtue should be applauded by all! If you don’t like something, it’s worth fighting for your principles! - we usually say OK, we have to look at what model of Church and State we are talking about in which country. There’s the French model and the English model to which I will come - I say English deliberately, not British. And there is the Maltese and the German and the Spanish and I will have a word about some of these in a minute or two. But immediately when we put it in that way, we are creating part of the conceptual conundrum. Let me explain what I mean by that.

We are assuming that we have religion on the one hand, and and the Nation on the other. The reason that we do that so naturally is because we are all children of the French Revolution and that’s exactly what the French Revolution teaches us to do: to put State on the one hand and the Church, religion, on the other and we have to try and decide how we want to regulate the relationship between the two. How the United States does it with all the “God” rhetoric of presidential candidates, is that the American constitution as understood today is as separationist as the French constitution - very interesting bedfellows!

The influence of American constitutional thinking is huge on political and legal culture all over the world. This is for a whole variety of reasons: the sophistication, the fact that it’s in English, the fact that so many lawyers have gone to the United States to study and they cut their teeth in constitutionalism on the American constitution. But Americans are very parochial: they have a game called baseball, which is the national pastime, which is played in Canada and the United States, but when they have the championship, they call it the World Series! There’s a story there, is there not?! But in fact both France and the United States, in their understanding of Church and State, are the exception, they are not the rule. There’s State on the one hand, and there’s Church on the other hand and now we have to see what kind of relationship we want to have between the two. It is not the rule either in what we used to call Western liberal democracies.

If we go over the water to Ireland, the Irish constitution talks in the preamble about the divine Lord Jesus Christ, the Holy Trinity, the

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source of all truth, beauty and justice etc. But I want to go further than that. The very struggle of Ireland for its independence in the early twentieth century was tied up with their Catholicism. In other words, a sense of what it was to be Irish was inextricably linked with being Catholic, which is why we find those kinds of affirmations in their constitution. It is because part of their sense of repression was that they were repressed or oppressed (I’m not going into those type of debates!) by a protestant Anglican Britain. So to be Irish was to be Catholic, and that’s why it’s totally understandable that we find that kind of expression of their very national identity and of the Irish state in the constitution. In other words the point I’m trying to make – and I can make it with many other countries, with Greece and Orthodoxy, with Poland and Catholicism – their very sense of what it is to be Irish, is tied up with Catholicism, to be Catholic.

So does that explode the notion that on the one hand there’s the Nation, and on the other hand there’s religion? No. In that situation, to understand the Irish nation, to understand the Irish State we cannot cleanse religion out of it. And that would be true even for Irish atheists: they might say, I’m not a Catholic, I don’t go to mass, I might even dislike the Church - but if you ask me about Irish identity would I deny for one minute that Catholicism is a huge part of what it is that makes up the Irish and the Irish identity? Very few people would deny that. It’s an empirical proposition.

Let’s take a contemporary example, a very striking one. Sweden had an established Church, the Lutheran Church. They disestablished the Church by referendum recently. But they preserved one thing. The King of Sweden has to be, by the constitution, an Evangelical Lutheran. What is relevant is that this is not something gong back to 1921 where people will say it is anachronistic etc – it’s what modern Swedish people say: the King of Sweden by the constitution has to be an Evangelical Lutheran. Now if you took them to the employment tribunal, then there would be trouble, for discrimination on grounds of religion. “I’m a good Catholic, why can’t I be the king?” Ladies and Gentlemen, the Swedish were saying, “our understanding of what it is to be Swedish, part of our identity, is that our monarch is a Lutheran, an Evangelical Lutheran”. “So we’re not looking at the king as a job you’re applying for and take to the employment tribunal. We are looking at the titular head, as the embodiment of the nation and the state, and it’s part of our history, part of our culture, that he has to be a Lutheran, an Evangelical Lutheran.” I give this example because at one level it’s trivial, but at another level it’s important because it’s contemporary; it’s not 1921 when everybody went to Church, but today nobody goes to Church. This is a statement; at the moment of disestablishing this Church, this was a statement about Swedish identity.

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Now I want to conceptualise - and this is going to be one of the most important things I have to say this evening in relation to State, Faith and Nation – the European Conundrum. When we talk about freedom of religion and freedom from religion, we give that huge gravitas. Why do we give it huge gravitas? Because we use the vocabulary of fundamental human rights. Freedom of religion and freedom from religion, partake of the gravitas of fundamental human rights. For example, whenever the exercise of public power by the state contradicts any matter of fundamental rights, the state has to justify itself, the state has to give compelling reasons why it is taking a measure that would compromise fundamental human rights. It’s not every right that we have that is fundamental. There can be tenants’ rights that can be taken away from parliament to parliament: if a parliament changes landlord and tenant rights, that’s the end of the matter. But if parliament tries to tamper with fundamental human rights, it might not even be able to do so if it cannot give absolutely compelling reasons, if it cannot show that it could not be done in a different way and that the reason it is doing it is so important that it overrides protection of fundamental human rights. For example, protecting the patria, is why I’m going to conscript you to the army because otherwise we might be annihilated. It has to be compelling in that way.

We have very few fundamental collective rights because our assumption is that the State, the majority with their power, can take care of themselves, we have to protect the individual against the exercise of majoritarian rule which is why we have fundamental human rights. We don’t need to protect the majority, the collectivity, the nation, because they have all the power they need. But there is one primordial fundamental collective right which is the right to self-determination. As a nation we all legally and politically justify our existence as a nation, because we are exercising what is considered the most fundamental collective right, that is the right to self-determination – the right to govern ourselves at some very basic level, and to be who we want to be.

Why is it so important? Because it shows us that we can be who we want to be. The French had the right as they emerged from the French Revolution to say: “the collectivity that we want to be is a secular collectivity where religion is confined to a private affair. That is how we understand ourselves as the French”. But the Maltese or the Greeks or the English and Irish and others can say, the collectivity that we want to be is a collectivity which makes use, appeals to, recognises and respects religious symbols, religious identity, religious iconography etc. And why is it so important that I link that to that fundamental right of self-determination? Because it explains that when we have a conflict between freedom of religion and freedom from religion on the one hand, and the identity of the State which is expressed in the notion of self-determination on the

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other, it’s what the Americans would call a different ball-game. Because we are not just posing state power against a fundamental individual right, we are positing a fundamental collective right, the right of the nation to define its identity, against the very important and noble right of the individual to fundamental individual liberties which are protected by fundamental rights. It’s a different game.

That’s the end of Act II! Let’s resume. The first thing we sought to examine was freedom of religion and freedom from religion, and I raised some interesting questions - as I hope you thought, about how we understand freedom from religion. And the second thing was to show that the very image of Church and State or Church and Nation where we have the Nation on the one hand and the Church on the other hand, is misleading, it’s an American-French notion, because in so many other states and nations, the very definition and identity of the nation includes within it religious symbology, religious iconography etc. And it’s also important to remember that this is not a simple mere exercise of the whim of the majority exercising power, but it goes to a fundamental, one of the few fundamental collective rights which is the right to self-determination.

Let’s move to Act III. So how do we reconcile these things? Now I’m going to give you an empirical proposition. Until now it was theoretical, I introduced some concepts. But now I want to describe how things are in Europe. There is a common constitutional asset which all European States share - and I mean not only the 27 of the European Union but also the 46 of the Council of Europe and the European Convention on Human Rights. Who would have thought that I would represent Russia before the Grand Chamber of the European Convention - quite an experience! The chair very generously said that I did the case pro bono. That’s not because of my generous heart, I had to do it pro bono. You know and I know and I know that you know, that if I had charged my normal fees, there would be a million blogs around the world which would say, look at that Jew, for money he will even defend the Cross! Am I right or am I right?

What is the constitutional landscape of Europe right now? In all our countries we guarantee at the individual level freedom of religion and freedom from religion. It doesn’t mean that we protect them in exactly the same way. In France they can decide that in the interest of public order (I find it unconvincing, personally), you may not carry a cross or wear a burqa or a yamulka when you go to school. They have balanced freedom of religion against public order and have come out in that way. In other countries it goes in another direction, but we are all committed equally that individuals should be entitled to freedom of religion and when it comes to it, freedom from religion. There should not be a religious requirement (except to be the King of England and the King of Sweden) in normal life for

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holding public office or undertaking any profession and nobody should be coerced into any kind of religious practice. When we come back to Lautsi we will see that played an important part.

Now, that is our common constitutional asset. When it comes to our public sphere, we have a remarkable diversity. And if we go back to the old entente cordiale between the French and the English, it’s the best illustration. In France we have a secular state, written as I said, in its constitution in Article I. It’s not absolute and even the French State is not absolutely secular. But if you cross the Channel and come to England, we have a country where there is an established Church, an official state Church - how non-secular can you get? - where the head of state is the head of the Church; where the national anthem is a prayer, to be found in some hymn books, praying to God, mentioning the name of God, to give the monarch victory and glory; where the flag carries the cross.

There are many other Englands in Europe. I mentioned Ireland. Look at Germany. The German constitution begins with the words, “aware of our responsibility before God and man”, and the German state collects taxes for the Churches, and citizens have to opt out if they do not want a portion of their taxes to go to fund the Churches, it’s called a co-operative model. And there is Malta. And there is Greece. And there is Poland and many others. If now I limit myself to the European Union, I would estimate that of the 400 million citizens in the European Union, at least half live in states which in no way or shape could be called secular states when it comes to public symbology.

Now, I think there’s huge value in this European landscape - that individually in Europe you’re committed in all your states to freedom of religion and freedom from religion, whilst at the level of the states’ symbology etc, we have this kind of pluralism. Why do I think so? First of all I think pluralism in and of itself is important. In Europe we would like to see democracy spread wherever – not just democracy because you know that democratically, people can do awful things. When we say democracy, we mean pluralist liberal democracy, tolerant democracy. Europe does not like to lead by arms, Europe likes to lead by example. What chance do we have to persuade some countries to follow the path to a pluralist liberal democracy if we say to them the price of being democratic is you have to banish religion to the private sphere, you cannot have religion in your public sphere? Europe gives a marvellous lesson, it says to the world, here is an example in this Union and in this Council of Europe where religion and democracy can live peacefully with each other, because at an individual level we guarantee to all freedom of religion and freedom from religion. And it’s totally OK to have an established Church; it’s totally OK to have the head of state to be the head of the church; it’s totally OK when your dead soldiers

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come back from their wars that the default position would be a religious funeral unless required otherwise; it’s totally OK for the state to have in some respects, like in Denmark, like in England, like in Malta, like in Greece, a religious identity of part of the self-understanding of what is the state. And yet in all these countries both democracy and individual rights including freedom of religion and freedom from religion are respected. It’s in my view an attractive model. When I argued Lautsi – that’s the crucifix case – I said, that to follow Ms Lautsi would be the Americanisation of Europe, Americanisation in a double sense: a) one solution fits all and b) that that solution is a strict separation between Church and State, and that is simply not what Europe is about.

I want to go deeper. I think instinctively that the state that forbids the cross on the wall is a more tolerant, a more liberal state than the state which requires the cross on the wall. I want to try and convince you – not that that is wrong, but that at a minimum it requires more careful thinking. Let me try and do it in two steps. The first is to address the issue of neutrality. After all that is what the 7-0 Chamber said, it said, the state has to be neutral. If there’s a cross on the wall the state is no longer neutral, therefore the cross has to come down. So I want to give you a parable I invented. The parable of Giovanni, a little religious boy, and Leonardo, a secular boy. And there they are one week before they start school, you know, Grade I, or kindergarten or whatever it is. Leonardo visits Giovanni’s house and he sees a crucifix on the wall and he says to his friend Giovanni, what is that? He says, what do you mean, what is that, no house should be without a crucifix! You don’t have one? How can you be in a house without a crucifix? So Leonardo runs home to his mother crying and says, why don’t we have a crucifix? Giovanni said that every house should have a crucifix. His mother says to him, we respect them, they are Catholics, that’s what they believe, but we have our own set of convictions and we are equally good people and we can be good people without having a crucifix. Now let’s reverse it. Giovanni visits Leonardo’s house. And he walks into the house and says, hey, how come you don’t have a crucifix? Leonardo says to him, crucifix? That’s old wives’ tales! Who believes in that? You can’t believe in a crucifix, you can’t believe in all that nonsense, resurrection and all that, what is that? So this time Giovanni runs home and says to his mother, why do we have a crucifix? Leonardo says it’s old wives’ tales, you can’t believe in resurrection and all that, nobody comes back from the dead, when you’re dead you’re dead! Now let’s imagine that these two kids go to school. Hypothesis one. They go to school, there’s a crucifix on the wall. Leonardo runs home and he says to his mother, you see, I told you, we need a crucifix, also the school has a crucifix. Hypothesis two. They go to the school, there’s no crucifix on the wall. Giovanni runs home and says, you see – I told you it’s all old

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wives’ tales, if it’s not old wives’ tales, why doesn’t the school have a crucifix? There is no neutrality there, it’s a binary position.

There is no neutrality. In particular there is no neutrality because in the reality of the school, in the reality of the educational system it’s not a white wall, it’s not a naked wall. There’s every manner and shape of symbol when a French kid walks into a French school, on every single school, primary school, you will see above the wall “Liberté Egalité Fraternité”, the battle-cry of the French Revolution. I sort of like it! But if I were a monarchist I wouldn’t like it. And I certainly wouldn’t claim that that’s neutral! It’s a worldview. If I protested, why does there have to be “Liberté Egalité Fraternité” the answer would be, get a majority in the parliament and you can pull it down. But even if there was a solemn majority of Catholics in the Senate and the House and the Parliament of France, they would not be able to put a crucifix on the wall. The French message is that every worldview is culture if you’ll excuse me - except the religious worldview: that is not a neutral message, that is not a neutral message.

But I want to go even deeper. Let’s bracket the last ten complicated years. This country – with its Church of England, with the Queen being the head of the Church and the head of the state – was a country that attracted immigration from all types and all kinds including non-Anglicans. The same is true of Denmark with an established Lutheran Church. And one of the reasons it’s attracted people is because of its tolerance. And one of the manifestations of its tolerance is the fact that it is the message of this country in its political culture to say, although we are Anglican, although there is a Church of England, although the monarch is the head of the church, you Catholic, you Jew, you Muslim, you atheist are equally part of this country. You are the same citizen with every right and duty: you can be elected to parliament, you can elect to parliament, you can serve as prime minister. In some respect the fact that you have a religious identity and yet you are willing to accept with others who do not share that identity with you, is a greater act of tolerance and a greater education to tolerance than the wall that says religion is toxic, it cannot be part of public life precisely because of the hold that religion has on our psyche.

I want to come now to my last proposition, and to raise some practical issues. There is always going to be a tension between freedom of religion and freedom from religion, as there is a tension between freedom of speech and protecting children from pornography, or freedom of association and the security of the state. And there is going to be a tension between the identity of the state – either as a secular state or as a non-secular state - and freedom of religion in the case of a secular state and freedom from religion in the case of a non-secular state. What one needs is a

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good dose of British common sense and a spirit of accommodation. Let’s give some examples to illustrate that. Let’s take Mary - she comes from a very secular house. Now secularism, we should not just think of people who have lost their faith or who have no faith; a secular worldview can be every bit as rich as a religious worldview in a different way. So I give it the dignity that I give also to a religious worldview. So Mary comes to school and says, I’m offended because in our school they sing in assembly “God save the Queen”, and it conflicts with my philosophical soul. Not Ms Lautsi but Mrs Smith says, there should not be a singing of “God save the Queen” because that’s God and we… This is how I look at it: I would say, Mary should be allowed not to sing “God save the Queen”, and there should be no consequences that flow from her not singing “God save the Queen”, if mentioning the name of God is offensive to her worldview or the worldview of her parents.

Can I give another little personal anecdote? My mother grew up in the Belgian Congo, and there was only one school for whites, and it was a Catholic convent. So she and her aunt who were the same age – work that one out, mother and daughter in hospital giving birth at the same time – she and her aunt of the same age were sent to this Catholic convent. So they also reached accommodation: whenever they sang “Jesus”, my mother and her aunt sang “Moses”!

So what I’m saying is that Mary should be entitled if it conflicts with her religious conviction not to sing “God save the Queen”. But Mary should not be entitled to require everybody else not to sing “God save the Queen”. And one can work that kind of example through a whole range of much more challenging propositions – and I am sure these will come up in the questions and answers. Where we have to accommodate ourselves to the situation that in the society we live in today, the cleavage is not so much between Protestants and Catholics, or Christians and Jews etc, but the cleavage between people of faith and people who have a secular worldview, and that’s a much sharper cleavage. And the second cleavage is: I have no illusions that everyone who sings at a football match with gusto “God saves the Queen” is a religious person, but I am 100% sure that if we polled this country and said, would you like to change the national anthem in order to eliminate the word God, an overwhelming majority would say, you need your head examined! That’s what we’ve been singing and that’s what we’re going to continue to sing, it’s part of our national identity. So the tension persists between those states that want to keep and preserve as part of their national symbology in the public space those kind of religious symbols, and those who find them offensive because of a robust secular view. And in each of these cases there is no magic principle: it’s a case of finding an accommodation that can be

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tolerant to both worldviews and sometimes somebody has to give ground to the other.

DISCUSSION

Guy WilkinsonI couldn’t express any more than you have done in your applause just now my appreciation for the lecture that Professor Weiler has just given us. Impossible to summarise, but I think, Professor, what you have done is indeed as you said you would at the beginning, to show us something of the breadth and complexity of the issues that we are dealing with. I think too you have exposed a little bit of our historical fixation in these matters. I think you have dug away a bit at our ideas of what is “neutral”, and I think you have pushed us into thinking a bit more deeply about what really is the depth of diversity and tolerance. And all those things and many more I’ve found extremely stimulating.

Professor Weiler has very kindly said that he will respond to questions or comments or points raised, and we have a little time for that. Let’s use the time we have and I’m open to take questions now.

- As I’m sure Professor Weiler knows, Bosnia Herzogovina has a constitution which includes a reference to the figure of President in relation to three communities which are more or less religiously defined. A recent case before the European Court of Human Rights struck down this constitution at the request, as it happens, of a Jewish citizen, who said he was discriminated against because it didn’t allow him to stand for President. Presumably Jewish citizens in Sweden could make the same case before the Court. I suppose that Bosnia and Herzogovina could have claimed that it is our national identity that we are composed of these three religious national communities. Do you think that would have been a valid argument? Do you think the Court was wrong in its decision?

- I would like to thank the Professor for his lecture. He will not be surprised that I disagree with practically every word in it.  It was a clever justification of historical inherited privilege with very little examination of human rights, let alone of the European Convention.  It was a justification of the majority imposing on a minority: the Italian majority on a minority, Mrs Lautsi. This was not a case of national symbology, because it was not about banning the display of crucifixes in Italian buildings or elsewhere; rather, it was a case of upholding a law which compels crucifixes to be displayed in every classroom in every state school in the land - in a secular state that

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had failed somehow to apply its own constitution - a state where a judge has recently been sacked because he objects to sitting under a crucifix. This was a perverse judgement from a Court frightened by a concerted political campaign. The judgement – and I’d like to ask Professor Weiler whether he actually sets any value on the judgement at all except in its conclusion - the judgement was one of the most illogical, ill argued that I’ve ever seen. Rather than considering whether there was any prima facie abuse of human rights and then considering any mitigating factors, instead it invented a presumption that the margin of appreciation applied subject to a test not of whether there was any breach of human rights but of whether there was indoctrination - a test that appears nowhere in the European Convention. I don’t believe that this was a judgement worthy of the senior court of human rights in Europe.

Joseph WeilerSometimes when I suffer from insomnia in the United States I watch “Questions in Parliament” and that’s the technique used there: “would you not agree with ..?” I would not agree, sir, but I will explain in a minute!First let me address the first question. We have to watch out for the proverbial Jewish plaintiff. Would he be entitled to say, I want to remove the cross from the flag, and I want to remove the picture of the monarch from the wall, and I want to strip every type of religious symbology from the symbols and icons of the state? Where would I draw the line? If the President of Bosnia Herzogovina is a political office, then I think it is wrong to exclude an individual from running for that kind of office on the grounds of their religion or the absence of their religion, to require they belong to a religion or to exclude a religion. I do not think that in our system in Europe there should be a religious requirement for running for political office and for being part of the institutions of democracy. So if there’s any element of political office, dissolving parliament, exercising political discretion, etc, I think it should be open to all citizens of the state. To exclude somebody on the grounds of religion would be going back in time, and not be consistent with our understanding of freedom of religion and freedom from religion. But if I want to be the King of Sweden, or I want to be the King or Queen of England and I find that it’s discriminatory because here it’s required that they be Church of England or in Sweden that they be an Evangelical Lutheran, I would say no. I would say, that is like the cross on the flag, that is like the preambular language that we find in so many of our constitutions, that is an expression of the collective identity of the state and that can usually be historically determined. In Europe typically it will be a Christian flavour, but I would not object if in the new constitution of Egypt when it’s enacted, there would be some privileged status given to Islam as long as - I would hope - they would protect freedom of religion and freedom from religion. But in understanding who we are as

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Egyptian it would seem natural to me – I’m not saying that it has to be, but I wouldn’t find it objectionable - if they had that kind of thing. So that’s where I would draw the line in relation to the question you asked. I don’t think that anybody should be excluded from political office because of their religion or absence of religion, but the state can define its symbology – and titular heads can be part of that symbology – and if that’s historically how they understand themselves and how they are, that would not offend me.

When it comes to Lautsi, sir, let’s see exactly what they decided. I don’t think it’s a well-written decision but when you write at 17 it tends not to be well written! I find very few of the decisions of the Grand Chamber well written because you have to try and find consensus among 17 people, or in this case among 15 people. But it’s important to see what they decided and what they did not decide. They did not say – and maybe if you got that impression that would be wrong – that it’s always alright for the state to require you to have a cross on the wall. That is not what they held, and incidentally, it’s not what I pleaded. What they held is that you cannot simply come into court and say there is a requirement to have a cross on the wall and that is a violation of the Convention. You would have to do more. You would have to come in and say, in the circumstances of this school, or this community, or even this nation, to require to have a cross on the wall is oppressive, discriminatory, disturbing, compromises the educational function, and so on. So for example, if Ms Lautsi’s daughter went to a school where there was a large Muslim community, I would have suggested that it would be more appropriate if there was a cross, also to have a half crescent, to show respect to another significant community that belongs to that school, but it’s not for us to decide. However the Court is saying, simply to have the cross on the wall in a school is no different from saying there is a cross on the flag, or the picture of the Queen has to come down because she is the head of the Church of England. They said, what you would have to do is to show that in the circumstances of the case, to allow the state to make that kind of requirement is educationally unsound, oppressive, dictatorial, indoctrinating etc. And I think that’s a good decision. I think it’s a decision which achieves a very nice balance. On the one hand it says to the state, religious symbology can be part of the symbols of the state, and it’s OK to have the picture of the Queen hanging on the wall. The Left in Italy supported the cross on the wall; there was a general consensus in Italy to say that this is a country which is split more or less half and half between laïc and Catholic, so that is part of Italian history, and it is certainly not for Strasbourg to tell us whether we should or should not. So I think on the one hand it’s right to tell that state, it’s alright, you don’t have to wipe out your history, you don’t have to cleanse your history from every kind of religious symbology because you are who you are. Sometimes it’s a horrible history! the cross is not just an exalting

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thing, the cross is also a memory of many terrible things, and I’m not only talking about the crucifixion itself as a terrible thing. Many people were put to death on the cross. But tell the state you have to be vigilant, and if there are circumstances in that school, in that province, where having the cross will be educationally unsound, oppressive, indoctrinating, then we will hold you to task and it can be pleaded against you. I think that was a very sound decision of the European Court on Human Rights. Now I would also say: every school that requires the cross has an educational challenge to teach its children – despite the fact that there is a cross on the wall – we respect other religions, Jews, Muslims etc and we respect the many, maybe even the majority, who are not religious at all. If they fail to do that then the cross becomes a problem for me too. It’s also true for the schools who allow every other symbol except for the cross, like in France. They have to educate their children to say, even though we allow every symbol on our wall except a religious symbol, this is for this or this reason and we have to teach you we are not castigating or denigrating our citizens who happen to be religious citizens. As I said before, having one or not having one in some respects is equally not neutral and poses an equal educational challenge to counterbalance the message of the exclusion – that religiously cleansed wall on the one hand, and the crucifix on the other hand, pose an educational challenge. So you see, sir, we really do disagree with each other, and we will both be Voltarian, will we not!

- Today I had to pray during Prime Minister’s Question Time because this is the only way in which you can secure yourself a good spec and your constituents can be convinced that you are working hard throughout the week, and that’s the British way of purpose and I think that’s the rationale you gave for doing that. People who have no religious belief, you may have seen this on TV, actually sit down for the process of prayer, when we pray for the Queen, and the Church of England beforehand. But I’m a Roman Catholic and years - even centuries ago, I wouldn’t have been allowed to stand for Parliament at all. And in those days precisely the same justification would have been given, that this is all part of the British way of purpose, that Roman Catholics simply can’t be trusted because they have divided allegiances and are not the sort of people who ought to represent the wider community. I have a secular constituent of mine who writes to me in precisely that vein. What I’m wondering is whether this distinction that you’re drawing – between permitted and non-permitted religious performance of the state of one kind or another – is something that is genuinely based on a fact that in one case, rights: fundamental rights are improperly trumped by what you call the right to self-determination, and there’s a clear intellectual distinction; or whether we’re talking about something that is culturally relative and we feel comfortable about certain forms of religious performance in certain cultures precisely because

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we’re accommodated to them and we’re used to them, but not because there’s a clear intellectual difference between them and the kind of intolerance which I think you would say you were opposed to, say the intolerance which doesn’t allow a person of a certain denomination of the Christian faith to stand for Parliament, and indeed I wouldn’t have been 200 years ago and it would have been part of the British way of purpose that people like me didn’t.

- I was surprised to hear you refer in passing to the burqa as a religious icon. As far as I am aware – I have lived a lot in the Middle East – icons are forbidden in Islam, and I think a lot of Muslim women would reject the burqa as an icon. It’s not that it’s a religious icon but that it’s a symbol of male oppression, and I would have thought that this was not something that in any civilised country one should accept or promote. And I applaud the French for going to the extent to ban the burqa in the way that we banned the swastika and the wearing of Nazi uniforms.

Joseph WeilerMaybe I can answer the second question first. If I said the burqa was an icon I misspoke – but I don’t think I did. I just gave it as an example of how different countries resolve differently the issue of balancing freedom of religion and freedom from religion, and the limitations of freedom of religion. I am willing to accept what you said but this is what makes it hard for me. Let’s say they had very good reasons to ban the burqa as a) a symbol of male oppression and b) other political considerations which is what they pleaded - but then they felt that they also had to ban display of crosses, other than tiny little crosses, and display of little Jewish boys wearing a yamulka which are not as far as I know, a sign of male or female oppression, and the same is true for the cross. So the message they were sending was not that we will oppose religion when it is oppressive, but they banned all three together saying religion by itself is oppressive. And I find that problematic. So they should either be courageous and say, we’ll look at these religions and if we don’t like halal and kosher we will ban it and if we don’t like the burqa we will ban it, but they didn’t do that. They said, if we will not allow Muslim girls to wear a burqa then we will no more allow Christian girls to wear a cross and Jewish boys to wear a yamulka: what is the message? Not that we are against oppressive religion but that religion in and of itself is oppressive. That’s what I took umbrage to.

To go back to your question. If you look at the political debate about laïcite and secularism, you will find that overwhelmingly Jews favour laïc states. So most of the hate mail I got after Lautsi was from Jews. And the reason is similar to the reason you mention, because the Jews gained their emancipation through the French Revolution and the laïc state. There’s a wonderful book written by

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Robert Badinter, the President of the French constitutional Council, a Jew himself, and his wife, called “Libres et Egaux” (Free and Equal) and it’s the story of the emancipation of the Jews in France. Until the French Revolution, because they were Jewish, like you, they could not serve in Parliament and through the French Revolution they gained their emancipation and therefore they became wedded to the notion of laïcite because that guaranteed their emancipation. Now, we can’t be prisoners of the past, that’s what I say. I already mentioned, a lot of our resistance, a lot of our actions today are dictated by our historical memory of religion abusing its power when it had power, and practicing that kind of discrimination. But we live in a new constitutional landscape and that’s what I find so interesting and exciting, and breeding a very peculiar and noble type of tolerance. We are committed to the idea of fundamental human rights - in all our countries we have robust machinery to protect fundamental human rights, to prevent a Catholic being banned from running for Parliament and so on, just as we saw in the example of Bosnia Herzogovina, and therefore it enables us not to throw out the baby with the bathwater, because we can say we can actually achieve a modus vivendi which on the one hand will allow us to respect our past and respect our identity and not cleanse religion in every single state in Europe out of public space, if the population feels that it is appropriate to be part of public space: the kind of prayer for the Queen that you said here before; and on the other hand to rest relatively confident that we live in a system that guarantees fundamental rights and not just by rhetoric but with a robust judicial system. We might not like every decision that is handed down, but on the whole our courts – both our national courts and our transnational jurisdiction – are doing a reasonable job in protecting freedom of religion and freedom from religion. So the very fact that we’ve moved into the culture of individual rights in such a robust way enables us to be tolerant towards our collective identity even when it has a heritage that in some periods excluded you or people like you Catholics from serving in Parliament. And I think it’s a cause for – “celebration” would be too American, right? – quiet satisfaction!

- You mentioned different identities in European nations and the Christian heritage. I remember some years ago when the nations of Europe were trying to write a constitution in the framework of a Convention, there was a call from the Vatican to put Christian identity or the Christian heritage of Europe into the preamble of the Constitution. This did not pass. I wonder whether you’d like to comment on this.

- Looking at divisions between church and state, we have been witnessing over the last decade or so the increasing religiosity of the political process in the United States. And I was wondering how you saw the balance between that distinction and the move towards

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the right wing, towards a religious element in public policy and legislation, and how that might lead across, parallel in a sense - how one accommodates Islamic communities in Europe and the accommodation of Turkey in the European Union? Where again that sort of problem seems to be pretty apparent in the same line?

Joseph WeilerThat’s a very big question sir! Especially with the American experience, because America is sort of interesting – in some ways it’s the mirror image of Europe because it really is strictly separationist. Forget about New York where I live and move 50 miles west and you get to the hinterland of the United States, town after town and village after village are basically almost unanimously “religion”. Very fractured as protestants tend to be. Hardly anybody doesn’t belong to a church and yet, because of the strict separation, if parents want to send their kids to a school in which a prayer could be said or they would receive some religious instruction, they have to pay out of their private pocket – not tax money – and the schools are rigidly secular. I prefer the Dutch and the British models to be honest, where the state is neutral. It does not take a side between the humanists and religion and only support secular schools, but it will support in Holland a secular school and a Christian school and a Jewish school and a Muslim school. There are debates about core curriculum etc, but the state says, if the cleavage today is not only among religions but between the religious and the non-religious, if the state wants to be neutral it supports all these schools in a way that in the United States is impossible. And that explains in some ways some of the anger in a country which is as religious as the United States, because the Supreme Court strongly protects freedom of religion and freedom from religion, but there is very little outlet in the symbology of the state, so people can say, well, we are in some ways visible, there are a number of Christians here, why can’t it be visible more in the way it is for example in so many European countries. There’s no one cloth fits all. I think given the American sociology and the American political process, they probably have a system that fits well on the whole. But I think there would be less anger there if for example their school system was closer to the English or the British or the Dutch rather than to the French or the Italian.

On the constitution of Europe: it’s my best-selling book! I wrote it in Italian and it’s been translated into nine languages – except English: I’m just too lazy! There was a proposal to include in the preamble a reference to the “Christian roots of Europe”. I said in my book there should be a reference to the Christian roots of Europe, and I want to explain to you why? Because I said, first of all, there doesn’t have to be a preamble. That would be the best solution: the Italian constitution has no preamble, the Austrian constitution has no preamble, the Dutch constitution has no preamble. Why do you

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need a preamble? The preamble would have richly recognised the humanist and French Revolution roots of European civilisation, but it studiously avoided any mention just of the historical fact that European civilisation rests on these two tenets: Athens that runs then to the French Revolution and Jerusalem that runs to Rome. Both these things inform even our modern day saint, St Jürgen – St Jürgen Habermas! - who finally came round to acknowledging that our heritage of human rights owes as much to the Christian tradition as it does to the French Revolution and neo-Kantianism, you know, the notion that everybody is born equally in the image of God, etc. So I said in that book that if Europe wants to be united in its diversity, there is a constitutional diversity. The European constitution should reflect the constitutional traditions of the member states of the European Union. And if I look at the constitutional traditions of the member states, about half the population lives in constitutional traditions which make explicit reference to Christianity or to God. Why shouldn’t the European constitution reflect it? Then the answer was, that would offend the humanists and the atheists. It’s a zero sum game. I said, we can learn from the Polish constitution, in the modern Polish constitution after the fall of communism, they had the same dilemma and they solved it in a way which is much more elegant than what I am going to say now. The Polish constitution says, all of us who believe in human dignity …….. some of us as part of the patrimony of God and others for other reasons. And they say it very beautifully. So they accorded equal dignity to these two traditions which inform our belief in human dignity and justice. And the European constitution could do the same thing.

Now I had a dinner with Valery Giscard d’Estaing, and with the Dutch Prime Minister. The Dutch Prime Minister said to me at that dinner – it was public – there were 20 people so I’m not telling you some sort of state secret. He said, I totally agree with you. I said, if you agree with me why didn’t you propose this? He said, ah, my party would not allow me to do that. And Valery Giscard said to me, Professor Weiler, moi aussi j’étais d’accord avec vous, I too was in favour of having a reference to Christian roots, but I put it to the Convention and there was no consensus and you know that we operated on the principle of consensus. So I said to him, Mr President, we all know that you personally drafted the preamble. You could have put in a reference to Christian roots, and there would not have been a consensus to take it out! And that was not a lawyer’s gimmick, that is the reality. If he could have put it in, reflecting the constitutional reality of Europe, in which half the citizens live in countries which acknowledge the Christian heritage, and half in which they don’t, you could have adopted the Polish solution giving equal dignity because both are real, and then there certainly wouldn’t have been a consensus to take it out! And he looked at me and said, Monsieur le Professeur, vous êtes méchant!

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Guy WilkinsonWell on that note I’m afraid we’re going to have to draw this to a conclusion. And in drawing it to a conclusion I’m not sure that I really need to say anything more than warmest thanks and deepest appreciation for both what you’ve said, Professor, in your lecture but also for the manner in which you have responded to the questions and points raised this evening which were healthily robust and I think you’ve responded to them in like manner! So may I on behalf of the Wyndham Place Charlemagne Trust thank you most warmly on behalf of all here for giving us this 33rd Corbishley Lecture this evening.

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