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Law: The Cases of Kurdistan and Catalonia

Self-Determination and Secession Under International Law: The Cases of Kurdistan and Catalonia

Issue: 1

Volume: 22

By: Milena Sterio

Date: January 05, 2018

Introduction

Kurds held an independence referendum on September 25, 2017, deciding by an overwhelming majority that they wished to separate from Iraq and form an independent state of Kurdistan.Similarly, on October 1, 2017, the Catalan voted in an independence referendum in favor of separating from Spain.The central governments of Iraq and Spain have opposed the referenda and have rejected the Kurds’ and the Catalan claims for independence.This Insight will analyze the Kurdish and the Catalan claims for independence through the lens of international law on self-determination and secession by assessing whether these minority groups can rely on international law-based “rights” in order to support their separatist claims.

Self-Determination

Under international law, minority groups that qualify as “peoples” have the right to self-determination: the ability to freely determine their political fate and form a representative government.The principle of self-determination can be traced back to the end of World War I, when the losing powers, Germany, Austria-Hungary, and the Ottoman Empire, were stripped of their colonies and when several new states were created out of the territory of these former empires.Using this newly-articulated principle, in 1920, the Swedish-speaking people of the Aaland Islands, an archipelago of about 300 small islands that had been incorporated into the recently-created state of Finland, insisted on holding a plebiscite in order to express their will as to whether they wished to separate from Finland in order to unite with Sweden. The Aalanders’ claim was ultimately resolved by a committee of jurists within the League of Nations, which determined that the Aalanders did not have a right to separate from Finland because “[t]he separation of a minority from the State of which it forms a part . . . can only be considered as an altogether exceptional solution, a last resort when the State lacks either the will or the power to enact and apply just and effective guarantees.”

The theory of self-determination, as justifying the secession of a people from its existing mother state as a matter of last resort only, in situations where the people is oppressed or where the mother state’s government does not legitimately represent the people’s interests, has remained constant throughout the 20th century development of international law. Two United Nations’ declarations, in addition to the United Nations Charter itself, have addressed the issue of self-determination—the 1960 Declaration on the Granting of Independence to Colonial Countries and the 1970 Friendly Relations Declaration.Both declarations, however, envisioned self-determination leading to secession as a matter of last resort only within the decolonization paradigm: here, both conditions for a right to self-determination were met insofar as colonized peoples were oppressed and their colonial governments did not adequately represent their interests. Both declarations also confirmed the importance of the principle of territorial integrity of existing states, and thus embraced the idea that self-determination could lead to the territorial disruption of existing states only in extreme instances of oppression or colonization.

It may be argued that international law subsequently developed to embrace the principle of self-determination in a binary form, as entailing rights to internal or external self-determination depending on the circumstances. Peoples who do not fall into the category of colonized or oppressed groups may exercise their right to self-determination through internal means, such as free association and autonomy. Peoples who are oppressed or colonized, however, have the right to external self-determination, which they may exercise through secession from their mother state.This view of self-determination was confirmed in 1998, in the Canadian Supreme Court opinion regarding the proposed secession of Quebec from Canada, where the Court held that all peoples are entitled to various modes of internal self-determination, but that only some peoples, such as those subjected to conquest, colonization, and perhaps oppression, may acquire the right to external self-determination through remedial secession.Today, it may be concluded that international law bestows on all peoples the right to self-determination, but that the right to external self-determination, exercised through remedial secession, only applies in extreme circumstances, to colonized and severely persecuted peoples.

Secession

While international law embraces the principle of self-determination, it does not contain a right of secession 

It may be argued that international law merely tolerates secession in instances of external self-determination, where a people is colonized or oppressed (like in the case of Kosovo). In addition, secession is prohibited under international law if the secessionist entity is attempting to separate by violating another fundamental norm of international law, such as the prohibition on the use of force (like in the case of Northern Cyprus).In other instances of attempted secession, where the relevant people is not oppressed, as in Quebec or Scotland, international law is neutral on secession—it does not support a right to secession nor does it prohibit secession. Instead, the secessionist dispute is left to the realm of domestic law and to political negotiations between the mother state and the secessionist entity.

Kurdistan and Catalonia

Can the Kurds and the Catalan rely on international law norms in order to assert the right to independence from Iraq and from Spain, respectively? Assuming that both Kurds and the Catalan constitute peoples, they each have the right to self-determination. The relevant question is then one of determining how these peoples ought to be able to exercise the right to self-determination. Neither of these peoples is currently colonized, and if accepting the view that international law embraces the right to external self-determination only for colonized peoples, then one would conclude that the Kurds and the Catalan have the right to internal self-determination only. If one accepts the view that international law authorizes oppressed peoples, in addition to colonized ones, to exercise external self-determination through remedial secession, then one would need to examine whether the Kurds’ and the Catalan rights to internal self-determination had been meaningfully respected by Iraq and by Spain, or whether these groups had been oppressed.

Kurds suffered years of oppression under the Saddam Hussein regime, when they had no meaningful rights to internal self-determination. Fourteen states submitted briefs to the International Court of Justice in its Advisory Opinion on Kosovo to argue in favor of Kosovar secession and independence, based on the argument that international law embraced a principle of remedial secession/external self-determination in instances of severe oppression by the mother state.While the Kurds could have relied on the Kosovo precedent during the Saddam regime, this type of external self-determination-through-remedial-secession argument is difficult to make today. Iraq is no longer ruled by Saddam Hussein, and the current Iraqi leadership has appeared willing to grant Kurdistan some form of autonomy.However, in the wake of the Kurdish independence referendum, it is unclear whether Iraq will allow the people of Kurdistan to continue to meaningfully exercise their internal self-determination rights; it is thus unclear whether Kurds may have the right to external self-determination through secession.

A secession argument rooted in international law is very difficult to craft for Catalonia. The Catalan have not been oppressed by Spain and have enjoyed meaningful internal self-determination rights; it also appears that Spain is willing to respect Catalan autonomy in the future.Thus, international law does not appear to support a right for the Catalan to secede, and the issue of proposed Catalan independence should be governed by domestic law and constitutional, democratic, and/or political processes.

Conclusion

If the governments of Iraq and Spain continue to respect the Kurdish and Catalan autonomy rights, in a manner sufficient toward these peoples’ meaningful fulfillment of internal self-determination, then these two peoples are not entitled to claim international-law based “rights” to external self-determination through secession. Without an international law “right” to secession, Kurdish and Catalan independence claims will likely remain governed by domestic law and hopefully resolved through political negotiations.

About the Author: Milena Sterio is Professor of Law and Associate Dean for Academic Enrichment at the Cleveland-Marshall College of Law, where she specializes in International Law and International Criminal Law.  She serves as an editor of the Intlawgrrls blog and is currently Co-Chair of the ASIL International Criminal Law Interest Group.  

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Why Federalism Matters

Why Federalism Matters 

Pietro S. Nivola Saturday, October 1, 2005

“What do we want from federalism?” asked the late Martin Diamond in a famous essay written thirty years ago. His answer was that federalism— a political system permitting a large measure of regional self-rule—presumably gives the rulers and the ruled a “school of their citizenship,” “a preserver of their liberties,” and “a vehicle for flexible response to their problems.” These features, broadly construed, are said to reduce conflict between diverse communities, even as a federated polity affords inter-jurisdictional competition that encourages innovations and constrains the overall growth of government.

Alas, as Professor Diamond and just about anyone else who has studied the subject would readily acknowledge, the promise and practice of federalism are frequently at odds. A federal republic does not always train citizens and their elected officials better than does a unitary democratic state. Nor are federations always better at preserving liberties, managing conflicts, innovating, or curbing “big” government.

Whatever else it is supposed to do, however, a federal system should offer government a division of labor. Perhaps the first to fully appreciate that benefit was Alexis de Tocqueville. He admired the decentralized regime of the United States because, among other virtues, it enabled its national government to focus on primary public obligations (“a small number of objects,” he stressed, “sufficiently prominent to attract its attention”), leaving what he called society’s countless “secondary affairs” to lower levels of administration. Such a system, in other words, could help the central government keep its priorities straight.

Federalism’s several supposed advantages are weighed in this first of two Brookings Policy Briefs. A subsequent one will delve more deeply into the facet of particular interest to de Tocqueville: a sound allocation of competences among levels of government. For arguably, it is this matter above all that warrants renewed emphasis today, because America’s central government with its vast global security responsibilities is overburdened. 

Policy Brief #146

Ensuring Unity

Sometimes nations face a stark choice: allow regions to federate and govern themselves, or risk national dissolution. Clear examples where federalism is the answer exist. Belgium would probably be a partitioned state now if Flanders had not been granted extensive self-government. If under Italy’s constitution, Sardinia, a large and relatively remote Italian island, had not been granted significant autonomy, it might well have harbored a violent separatist movement—like the one plaguing a neighboring island, Corsica, a rebellious province of unitary France.

Where truly profound regional linguistic, religious, or cultural differences persist, however, federating is by no means a guarantee of national harmony. Canada, Spain, and the former Yugoslavia are wellknown cases of federations that either periodically faced secessionist movements (Quebec), or have had to struggle with them continually (the Basques), or collapsed in barbarous civil wars (the Balkans). Iraq seems headed for the same fate. The Sunni minority there is resisting a draft constitution that would grant regional autonomy not only to the Kurds in the north but to Shiite sectarians in the oil-rich south. So far, proposed federalism for Iraq is proving to be a recipe for disaccord, not accommodation.

In much of America’s own history, federalism did not ease this country’s sectional tensions. On the contrary, a long sequence of compromises with the southern states in the first half of the nineteenth century failed to prevent the Civil War. Then, through the first half of the twentieth century, additional concessions to states’ rights did little to dismantle the South’s repulsive institution of racial apartheid. Southern separatism was subdued by a military defeat, not diplomatic give-and-take, and only further assertions of central power—starting with the Supreme Court’s school desegregation decision in 1954—began altering the region’s corrosive racial policies.

If we fast-forward to present day America, the thesis that federalism is what holds the country together seems no less questionable, though for a different reason. For all the hype about the country’s “culture wars,” the fact is that socially and culturally, the contemporary United States has become a remarkably integrated society, particularly when compared to other large nations such as India, Indonesia, and Nigeria, or even some smaller European states. Thanks largely to massive interregional migrations, economic dynamism, and ease of assimilation, contrasts between America’s deep South and the rest of the country seem minor today compared to, say, the continuing cultural chasm between the north and south of Italy. In America, where examples of religiously or ethnically distinct jurisdictions are mild ones, like Utah and Hawaii, it seems hard to argue that the nation’s fifty states represent keen territorial diversity, and that they are the secret to this country’s cohesion. Put more generally, the sub-national entities of an increasingly mobile and assimilative society such as ours tend to demand less independence than they once did, and how much of it they get may not make as much difference for national unity.

Laboratories of Democracy

In principle, empowering citizens to manage their own community’s affairs is supposed to enhance civic engagement in a democracy. Its “free and popular local and municipal institutions,” argued John Stuart Mill, provide “the peculiar training of a citizen, the practical part of the political education of a free people.” From this, informed deliberation and a pragmatic ability to respect both the will of the majority and the rights of minorities—in short, fundamental democratic values—are inculcated.

But in the real world of local politics, these results are often elusive. Prior to the Voting Rights Act of 1965, southern blacks got a “political education” all right, only not the kind Mill had in mind. Presently, even if it no longer perpetrates wholesale disenfranchisements, community governance can fall short in other ways: it edifies few people when few participate. Keep in mind that the average municipal election in the United States engages less than a third of the local electorate. And the smaller the community’s scale, the smaller the share of participants. At best, one in ten registered voters shows up at New England’s quaint town meetings.

If local self-government interests average citizens less than it should, maybe at least it still has much to teach their elected officials. Supplying thousands of state and local elective offices, a federal system like America’s creates a big market for professional politicians. Many of them (for example, state governors and big-city mayors) have demanding jobs. Their challenges help prepare the nation’s pool of future political leaders.

There is no question that those who attain high public office in the United States mostly rise through the ranks of the federal system’s multiple tiers, and have been schooled therein. Fifty-six senators in the current Congress were former state legislators or holders of state-wide elective offices. Four of America’s last five presidents have been governors. It is by no means clear, though, that the ex-governors who worked their way up federalism’s ladder outshine, for example, the national leaders of the United Kingdom. In the twentieth and twenty-first centuries, America elevated such former governors as Franklin D. Roosevelt, Ronald W. Reagan, and George W. Bush to the presidency. Were they better equipped than Britain’s leadership (think Winston Churchill, Margaret Thatcher, or Tony Blair)?

Not only that, but there also is some question just how relevant the lessons learned in, for example, the statehouses of relatively small states—like Georgia, Arkansas, or Vermont—are to the men and women who move from there onto the national, or international, stage. As a one-term governor of Georgia, Jimmy Carter had successfully reorganized that state’s modest bureaucracy and improved its budgetary performance. But the managerial magic he had worked in Georgia proved of limited use when, as president, Carter turned his attention to Washington’s bureaucratic behemoths, such as the Department of Health, Education and Welfare.

Or consider Bill Clinton’s presidency. Not infrequently, its cosmopolitan aspirations and impressive achievements were buried by the rest of this ex-governor’s agenda, which sometimes seemed incongruously steeped in parochial concerns. Clinton’s long speeches, we might recall, delved into the enforcement of truancy laws, the use of school uniforms, the math tests of eighth graders, the need to connect hospitalized children to the Internet, the marshaling of work-study students as reading tutors, the ability of medical insurance to cover annual mammograms, the revitalization of community waterfronts, the appropriate hospital stay for women after a mastectomy, the work of local development banks, the record of Burger King and other businesses in creating jobs for welfare recipients, and so on—in sum, preoccupations suited to governors, county supervisors, hospital administrators, or school boards. But to a world leader?

In 2004, another very good governor, Howard Dean, mounted a spirited campaign for the Democratic party’s presidential nomination. Dean pointed to his accomplishments in Vermont, a state that had (as Mark Singer observed in a January 2004 profile in The New Yorker) a population smaller than metropolitan Omaha and an annual budget of barely a billion dollars. For a time, he became the front runner, the considerable limitations of his small-state political background notwithstanding. What was some of that experience like? According to an article in The New York Times (also in January 2004) reflecting on Dean’s gubernatorial years, “The profoundly local aspect of his job was clear in 2002, when he said, ‘I can assure you, of all the things that I had to live with…the most difficult were the cascades of calls in the summer of ’93 and ’94 about how long the wait was at the Department of Motor Vehicles.'”

No matter how seasoned and capable a governor may be, travails like these are not the same as those likely to be faced by anyone who aspires to lead the country, never mind the international community. Granted, there is no job that can adequately prepare a wouldbe president. Montpelier is not Washington, nor for that matter is Sacramento or Austin. Other things equal, however, a stint as the chief executive of a large place (like California or Texas) may offer a somewhat better test. Yet, more or less indiscriminately, the process of political recruitment in the United States seems to regard states large and small as equally promising springboards.

Policy Innovation

What about the states as laboratories for other experiments—the testing of new public policies, for instance?

Yes, there have been important policy innovations that had their origins, as Justice Louis Brandeis famously said, in a few courageous states. California has long been the pacesetter in the regulation of air quality. Texas provided a model for recent federal efforts to boost the performance of public schools (the No Child Left Behind Law). Wisconsin pioneered, among other novelties, the income tax and a safety net for the unemployed years before these ideas became national law. Yet, while myopic Washington insiders often pay too little attention to initiatives occurring outside the Beltway, aficionados of state government often devote too much. The significance of experimentation at the state and local level should be neither overlooked nor overstated.

Take the now-legendary example of welfare reform. Thanks to liberal use of federal administrative waivers in the early 1990s, the states took the lead in revising the nation’s system of public assistance. They were widely credited with setting the stage for the historic national legislation of 1996—and also for securing a dramatic decline in caseloads. How much of the decline, however, could be attributed to the actions of the states, both before and after the 1996 law, is actually a matter of considerable debate. Most of the caseload reduction had less to do with inventive state policies than with a strong economy and expanded federal aid (most notably, the Earned Income Tax Credit) to low-income persons who entered the workforce. In sum, although state experiments were undoubtedly instructive and consequential, other fundamentals were more so. One suspects that what holds for the welfare story also applies to some other local inventions—for example, smart growth strategies, school reform, or the deregulation of electric utilities—the impact of which state politicians sometimes exaggerate.

Competitive Federalism

Does federalism necessarily deliver leaner, more efficient government? There is reason to think that it could. The states are constitutionally obligated to balance their budgets. To spend, these governments have to tax—and that unpleasant requirement supposedly disciplines profligate politicians. So does interstate competition. Presumably few jurisdictions will indulge in lavish social programs that are magnets for dependents from neighboring jurisdictions, and that could cause overtaxed residents and businesses to exit.

The federated political structure of the United States does indeed appear to have some restraining effect, at least when compared to the unchecked welfare states of Europe. Whereas there, the beneficiaries of unemployment compensation, for instance, often seem entitled to limitless support, the American state-run model maxes out at six months, and ordinarily replaces only a portion of a jobless person’s lost wages. Why? Part of the reason is that no state in our locallyadministered system can afford to let its benefits get too far out of line with those of competing states.

That said, contrary to the wishes of conservatives and the fears of liberals, devolution does not inexorably shrink “big government.” In fact, measured in terms of public employment, it is the state and local sector that has been swelling. With roughly three million employees, the federal payroll today is about the same as it was a half a century ago, but the number of state employees quadrupled to five million. Nor has the central government’s spending outpaced that of the states and localities. Their outlays, only some of which are strictly mandated by Washington, more or less match federal ones.

The scope of government depends not just on how many people it employs or dollars it disburses but on what it ultimately does. But even by that criterion, the states are looming large. Phenomena such as the explosion of discretionary Medicaid spending for the “medically needy,” the work of state attorneys general that yielded a weighty legal settlement with the tobacco industry in 1998, the widening assault on improprieties in corporate governance, and increasingly aggressive measures to curb air pollution (including greenhouse gases), among other bold activities emanating from the states, suggest that, like it or not, much of the locus of vigorous government in recent years has shifted to state capitals.

In fact, so active have been the statehouses in the past decade that conservatives now frequently seem of two minds about federalism. They champion decentralization (when it suits them). But because decentralized government is not smaller, only situated differently, they also dissent. Confronting the surge of state activism, Republicans increasingly have favored national preemption of state powers in areas as diverse as tort law, land use regulation, and family policy. The proposed constitutional amendment barring marriages among gays is the latest case in point. Much as Roe v. Wade nationalized in a sweeping stroke the rules for abortions, the same-sex marriage amendment would toss into the scrap heap another traditional prerogative of the states: their control of matrimonial law.

When Washington Does It All

Opinions are bound to differ on which level of government should have the last word about marriages or abortions. More puzzling is how the central government has come to meddle incessantly in matters that are ordinarily much more mundane, often meeting little or no resistance. Contemporary American federalism badly needs a realignment here. For the often indiscriminate preoccupation of national policymakers with the details of local administration is not just wasteful; it can be irresponsible.

Let us glance at a small sample of local functions now monitored by federal agencies and courts. Federal law these days is effectively in the business of determining the minimum drinking age for motorists, setting the licensing standards for bus and truck drivers, judging the fitness tests for recruits of local police or fire departments, overseeing spillages from thousands of city storm sewers, requiring asbestos inspections in classrooms, enforcing child support payments, establishing quality standards for nursing homes, removing lead paint from housing units, replacing water coolers in school buildings, ordering sidewalk ramps on streets, deciding how long some unruly students in public schools can be suspended, purifying county water supplies, arresting carjackers, mandating special education programs for preschoolers, influencing how much a community has to pay its snowplow operators or transit workers, planning athletic facilities at state universities, supplying communities with public works and reimbursements for nearly any kind of natural disaster, telling localities in some states how to deploy firefighters at burning buildings, instructing passengers where to stand when riding municipal buses, and so on.

Several of these illustrations may sound farcical, but none is apocryphal. The directives for firefighters, for example, are among the many fastidious standards formulated by the Occupational Safety and Health Administration. The pettifogging about where to stand in buses is a Department of Transportation regulation, which, believe it or not, reads as follows:

Every bus, which is designed and constructed so as to allow standees, shall be plainly marked with a line of contrasting color at least 2 inches wide or equipped with some other means so as to indicate to any person that he/she is prohibited from occupying a space forward of a perpendicular plane drawn through the rear of the driver’s seat and perpendicular to the longitudinal axis of the bus. Every bus shall have clearly posted at or near the front, a sign with letters at least one inch high stating that it is a violation of the Federal Highway Administration’s regulations for a bus to be operated with persons occupying the prohibited area.

Tangents like these are baffling. Why should a national cabinet department or regulatory bureaucracy be bothered with how “standees” ride local buses or how a town’s firefighters do their jobs? If municipal transit authorities or fire departments cannot be left to decide such particulars, what, if anything, are local governments for? Surely, most of the matters in question—putting out a fire, taking a bus ride, disciplining a troublemaker in school, removing hazards like asbestos or lead from a school or a house—rarely spill across jurisdictions and so do not justify intervention by a higher order of government.

Nor can a plausible case be made that central overseers are needed for each of these assignments because communities would otherwise “race to the bottom.” How many states and localities, if left to their own devices, would practice fire prevention so ineptly that they require tutelage from a federally approved manual? Before Congress acted to rid the Republic of asbestos, the great majority of states already had programs to find and remove the potentially hazardous substance. Long before the U.S. Environmental Protection Agency promulgated expensive new rules to curb lead poisoning, state and municipal code enforcement departments were also working to eliminate this danger to the public health.

Why the paternalists in Washington cannot resist dabbling in the quotidian tasks that need to be performed by state and local officials would require a lengthy treatise on bureaucratic behavior, congressional politics, and judicial activism. Suffice it to say that the propensity, whatever its source, poses at least two fundamental problems.

The first is that some state and local governments may become sloppier about fulfilling their basic obligations. The Hurricane Katrina debacle revealed how ill-prepared the city of New Orleans and the state of Louisiana were for a potent tropical storm that could inundate the region. There were multiple explanations for this error, but one may well have been habitual dependence of state and local officials on direction, and deliverance, by Uncle Sam. In Louisiana, a state that was receiving more federal aid than any other for Army Corps of Engineers projects, the expectation seemed to be that shoring up the local defenses against floods was chiefly the responsibility of Congress and the Corps, and that if the defenses failed, bureaucrats in the Federal Emergency Management Agency would instantly ride to the rescue. That assumption proved fatal. Relentlessly pressured to spend money on other local projects, and unable to plan centrally for every possible calamity that might occur somewhere in this huge country, the federal government botched its role in the Katrina crisis every step of the way—the flood prevention, the response, and the recovery. The local authorities in this tragedy should have known better, and taken greater precautions.

Apart from creating confusion and complacency in local communities, a second sort of disorder begot by a national government too immersed in their day-to-day minutia is that it may become less mindful of its own paramount priorities.

Consider an obvious one: the security threat presented by Islamic extremism. This should have been the U.S. government’s first concern, starting from at least the early 1990s. The prelude to September 11, 2001 was eventful and ominous. Fanatics with ties to Osama bin Laden had bombed the World Trade Center in 1993. Muslim militants had tried to hijack an airliner and crash it into the Eiffel Tower in 1994. U.S. military barracks in Dhahran, Saudi Arabia, were blown up, killing nearly a score of American servicemen in 1996. Courtesy of Al Qaeda, truck bombings at the American embassies in Tanzania and Kenya in 1998 caused thousands of casualties. Al Qaeda operatives attacked the USS Cole in 2000.

And so it went, year after year. What is remarkable was not that the jihadists successfully struck the Twin Towers again in the fall of 2001 but that the United States and its allies threw no forceful counterpunches during the preceding decade, and that practically nothing was done to prepare the American people for the epic struggle they would have to wage. Instead, the Clinton administration and both parties in Congress mostly remained engrossed in domestic issues, no matter how picayune or petty. Neither of the presidential candidates in the 2000 election seemed attentive to the fact that the country and the world were menaced by terrorism. On the day of reckoning, when word reached President George W. Bush that United Airlines flight 175 had slammed into a New York skyscraper, he was busy visiting a second-grade classroom at an elementary school in Sarasota, Florida.

The government’s missteps leading up to September 11th, in short, had to do with more than bureaucratic lapses of the kind identified in the 9/11 Commission’s detailed litany. The failure was also rooted in a kind of systemic attention deficit disorder. Diverting too much time and energy to what de Tocqueville had termed “secondary affairs,” the nation’s public servants from top to bottom grew distracted and overextended.

To be sure, the past four years have brought some notable changes. Fortifying the nation’s security and foreign policy, for instance, remains a problematic work in progress, but is at least no longer an item relegated to the hind sections of newspapers and presidential speeches. Nonetheless, distraction and overextension are old habits that the government in Washington hasn’t kicked. Controversies of the most local, indeed sub-local, sort—like the case of Terri Schiavo—still make their way to the top, transfixing Congress and even the White House.

The sensible way to disencumber the federal government and sharpen its focus is to take federalism seriously—which is to say, desist from fussing with the management of local public schools, municipal staffing practices, sanitation standards, routine criminal justice, family end-of-life disputes, and countless other chores customarily in the ambit of state and local governance. Engineering such a disengagement on a full scale, however, implies reopening a large and unsettled debate: What are the proper spheres of national and local authority?

Self-rule and shared rules.

የኢትዮጵያ ፌዴራላዊ ዲሞክራሲያዊ ሪፐብሊክ ሕገ መንግሥት በሚከተለው አንቀጾች ላይ የተመሠረተው ፍልስፍና ይህ ነው።

የራስን ዕድል በራስ የመወሰን ንድፈ ሐሳብ ትልቁ ጥቅም የሚሰጠው ግንዛቤ ነው።  ብቃት፣ ዝምድና እና ራስን በራስ ማስተዳደር ለተነሳሽነት እና አፈጻጸም ምን ያህል አስፈላጊ እንደሆኑ ከተገነዘቡ ፍላጎቶችዎ መሟላታቸውን ለማረጋገጥ እርምጃዎችን መውሰድ ይችላሉ።

 ይህ ችሎታ በስነ ልቦና ጤንነት እና ደህንነት ላይ ትልቅ ሚና ይጫወታል.  ራስን መወሰን ሰዎች በምርጫዎቻቸው እና በሕይወታቸው ላይ ቁጥጥር እንዳላቸው እንዲሰማቸው ያስችላቸዋል።  በተጨማሪም በተነሳሽነት ላይ ተፅእኖ አለው - ሰዎች የሚያደርጉት ነገር በውጤቱ ላይ ተጽእኖ እንደሚፈጥር ሲሰማቸው እርምጃ ለመውሰድ የበለጠ ተነሳሽነት ይሰማቸዋል.

የራሳቸውን ፖሊሲ ለመወሰን፣ የገንዘብ ድጋፍ እና ተግባራዊ ለማድረግ ምን ያህል ነፃ እንደሆኑ።  እርግጥ ነው፣ ራስን በራስ ማስተዳደር የተለያዩ መንገዶችን ሊወስድ ይችላል፣ ማለትም ከከፍተኛ ደረጃ ደረጃዎች ያፈነገጠ ወይም የሚቃረን የሕዝብ ፖሊሲ ​​ውሳኔዎችን የማድረግ ኃይል፣  በልዩ ቀረጥ ገቢን የማሳደግ አቅም - ወይም አይደለም, እና የክልል ተሻጋሪ የግብር ውድድርን ያቀጣጥላል;  ለተወሰኑ ፕሮጀክቶች የፌዴራል ገንዘብን የመቀበል ወይም የመከልከል ነፃነት;  ወይም ብሄራዊ ደንቦችን በክልል ዝርዝሮች መሰረት የመተግበር ችሎታ, ለምሳሌ.  ንብረትን ለመመዝገብ የበለጠ ከባድ ወይም ቀላል ያድርጉት።  በዚህ ሁሉ ግን፣ ውሳኔዎች ሁልጊዜ ከክልሉ ግዛት ጋር ብቻ ይዛመዳሉ፣ ይህም እራስን በራስ የማስተዳደር “ራስን” የሚያመለክተው ነው።  የተጋራ ህግ፣ በአንፃሩ፣ የግዛት ኃይሉን ሦስት  መገለጫዎች ሊያመለክት ይችላል፣ ይህም በትክክል ማን እንደ "ጋራ" - አካል - ልንጋራው የምንችለው ከሌላ ሰው ጋር ብቻ እንደሆነ በመወሰን፣ ይህ ሌላ የጋራ መረዳትን የሚገልጽ ነው።  

የራስን ዕድል በራስ የመወሰን ፅንሰ-ሀሳብ፣ አንድን ህዝብ ከነባሩ እናት ግዛቱ መገንጠሉን እንደ የመጨረሻ አማራጭ፣ ህዝብ በተጨቆነበት ሁኔታ ወይም የእናት ክልሉ መንግስት የህዝብን ጥቅም በህጋዊ መንገድ በማይወክልበት ሁኔታ ውስጥ ሆኖ ቆይቷል።  በ 20 ኛው ክፍለ ዘመን የዓለም አቀፍ ሕግ እድገት ሁሉ የማያቋርጥ።  ከተባበሩት መንግስታት ድርጅት ቻርተር በተጨማሪ የሁለት የተባበሩት መንግስታት መግለጫዎች የራስን እድል በራስ የመወሰንን ጉዳይ ማለትም እ.ኤ.አ.  ወደ መገንጠል የሚያደርሰው ቁርጠኝነት እንደ የመጨረሻ አማራጭ ከቅኝ ግዛት የመግዛት ሥርዓት ውስጥ ብቻ፡- እዚህ ላይ ሁለቱም ቅድመ ሁኔታዎች የተሟሉለት የራስን ዕድል በራስ የመወሰን መብት ቅኝ የተገዙ ህዝቦች እስከተጨቆኑ እና ቅኝ ገዥ መንግስቶቻቸው ጥቅማቸውን በበቂ ሁኔታ እስካልወከሉ ድረስ ነው።  ሁለቱም መግለጫዎች የነባር ግዛቶችን የግዛት አንድነት መርህ አስፈላጊነት ያረጋገጡ ሲሆን በዚህም ራስን በራስ ማስተዳደር የነባር ግዛቶችን የግዛት መፈራረስ በከፋ ጭቆና ወይም ቅኝ ግዛት ውስጥ ብቻ ነው የሚለውን ሀሳብ ተቀብለዋል።

 እንደየሁኔታው ውስጣዊም ሆነ ውጫዊ የራስን ዕድል በራስ የመወሰን መብቶችን የሚጨምር በመሆኑ፣ አለማቀፍ ህግ የራስን ዕድል በራስ የመወሰን መርህን በሁለትዮሽ መልክ ለመቀበል ተዘጋጅቷል ተብሎ ሊከራከር ይችላል።  በቅኝ ግዛት ስር ወይም በተጨቆኑ ቡድኖች ውስጥ ያልተካተቱ ህዝቦች እራሳቸውን በራሳቸው የማስተዳደር መብታቸውን በውስጥ መንገዶች ማለትም በነጻ የመደራጀት እና ራስን በራስ የማስተዳደር መብት ሊጠቀሙበት ይችላሉ።  የተጨቆኑ ወይም በቅኝ ግዛት ስር ያሉ ህዝቦች ግን ከእናት ሀገራቸው በመገንጠል የውጭ የራስን እድል በራስ የመወሰን መብት አላቸው።ይህ የራስን ዕድል በራስ የመወሰን አመለካከት በ1998 በካናዳ ጠቅላይ ፍርድ ቤት የቀረበውን የመገንጠል ሀሳብ በተመለከተ የተረጋገጠ ነው።  የኩቤክ ከካናዳ፣ ፍርድ ቤቱ ሁሉም ህዝቦች የተለያዩ የውስጥ የራስን ዕድል በራስ የመወሰን መብት እንዳላቸው፣ ነገር ግን አንዳንድ ህዝቦች ብቻ ለምሳሌ በወረራ፣ በቅኝ ግዛት ስር ያሉ እና ምናልባትም ጭቆና፣ የውጭ ራስን የማግኘት መብት ሊያገኙ እንደሚችሉ ገልጿል።  ውሳኔ በማሻሻያ መገንጠል ዛሬ፣ ዓለም አቀፍ ሕግ ለሁሉም ሕዝቦች የራስን ዕድል በራስ የመወሰን መብት ይሰጣል፣ ነገር ግን የውጭ የራስን ዕድል በራስ የመወሰን መብት፣ በመፍትሔ መገንጠል የሚሠራው በአስቸጋሪ ሁኔታዎች ውስጥ ብቻ ነው፣ በቅኝ ግዛት ሥር ለተያዙ እና ክፉኛ የሚመለከት ነው ብሎ መደምደም ይቻላል።  የሚሰደዱ ህዝቦች.

 መገንጠል

 አለም አቀፍ ህግ የራስን እድል በራስ የመወሰን መርህን ቢይዝም የመገንጠል መብት ግን አልያዘም።

 አለም አቀፍ ህግ መገንጠልን የሚታገሰው በውጫዊ የራስን ዕድል በራስ የመወሰን ሁኔታ፣ አንድ ህዝብ በቅኝ ግዛት ስር ወይም በተጨቆነ (እንደ ኮሶቮ ሁኔታ) ብቻ ነው ተብሎ መከራከር ይችላል።  በተጨማሪም ተገንጣይ አካል ሌላ መሰረታዊ የአለም አቀፍ ህግ ህግን በመጣስ ለምሳሌ የሃይል አጠቃቀምን (እንደ ሰሜናዊ ቆጵሮስ ሁኔታ) በመጣስ መለያየት በአለም አቀፍ ህግ የተከለከለ ነው።  መገንጠል፣ የሚመለከተው ህዝብ የማይጨቆንበት፣ እንደ ኩቤክ ወይም ስኮትላንድ፣ አለም አቀፍ ህግ መገንጠልን በተመለከተ ገለልተኛ ነው - የመገንጠል መብትን አይደግፍም ወይም መገንጠልን አይከለክልም።  ይልቁንም የመገንጠል ውዝግብ ለሀገር ውስጥ ህግ እና በእናት ግዛቱ እና በመገንጠል አካል መካከል ለሚደረገው ፖለቲካዊ ድርድር የተተወ ነው።

አንቀጽ 39. የብሔሮች፣ ብሔረሰቦችና ሕዝቦች መብቶች

 1. ማንኛውም የኢትዮጵያ ብሔር፣ ብሔረሰብና ሕዝብ የራስን ዕድል በራስ የመወሰን የመገንጠል መብትን ጨምሮ ያለ ምንም ቅድመ ሁኔታ መብት አለው።

 2. ማንኛውም የኢትዮጵያ ብሔር፣ ብሔረሰብ፣ ሕዝብ የራሱን ቋንቋ የመናገር፣ የመጻፍና የማሳደግ መብት አለው።  ባህሉን ለመግለጽ, ለማዳበር እና ለማስተዋወቅ;  እና ታሪኩን ለመጠበቅ.

 3. ማንኛውም የኢትዮጵያ ብሔር፣ ብሔረሰብና ሕዝብ ራሱን በራሱ የማስተዳደር ሙሉ መብት አለው ይህም በሚኖርበት ክልል ውስጥ የመንግሥት ተቋማትን የማቋቋምና በክልል እና በፌዴራል መንግስታት ውስጥ ፍትሃዊ ውክልና የማግኘት መብትን ይጨምራል።

 4. የማንኛውም ብሔር፣ ብሔረሰብና ሕዝብ የራስን ዕድል በራስ የመወሰን የመገንጠል መብት ተግባራዊ ይሆናል።

 (ሀ) የመገንጠል ጥያቄ በብሔሩ፣ ብሔረሰቦች ወይም ሕዝቦች የሕግ አውጭ ምክር ቤት አባላት በሁለት ሦስተኛ ድምፅ ተቀባይነት ሲያገኝ፣

 ለ) የሚመለከተው ምክር ቤት የመገንጠል ውሳኔ ከተቀበለበት ጊዜ አንሥቶ በሦስት ዓመት ጊዜ ውስጥ መካሄድ ያለበትን ሕዝበ ውሳኔ የፌዴራሉ መንግሥት ሲያዘጋጅ።

 (ሐ) የመገንጠል ጥያቄ በሪፈረንደም አብላጫ ድምፅ ሲደገፍ፤

 (መ) የፌዴራሉ መንግሥት ሥልጣንን ለመገንጠል ድምፅ ለሰጠው የብሔር፣ ብሔረሰብ ወይም ሕዝብ ምክር ቤት ሲያስተላልፍ፤  እና

 (ሠ) የንብረት ክፍፍል በሕግ በተደነገገው መንገድ ሲሞት.

 5. “ብሔር፣ ብሔረሰብ ወይም ሕዝብ” ለዚህ ሕገ መንግሥት ዓላማ ሰፊ የሆነ የጋራ ባህል ወይም ተመሳሳይ ልማዶች፣ የቋንቋ መግባባት፣ የጋራ ወይም ተዛማጅ ማንነቶች ያላቸው ወይም የሚጋሩ ሰዎች ስብስብ ነው።  አንድ የተለመደ የስነ-ልቦና ሜካፕ፣ እና ሊለይ በሚችል በዋናነት ተያያዥነት ባለው ክልል ውስጥ የሚኖሩ።

አንቀጽ 46. የፌዴሬሽኑ ክልሎች

 1. ፌዴራላዊ ዲሞክራሲያዊ ሪፐብሊክ ክልሎችን ያቀፈ ይሆናል።

 2. ክልሎች የሚወሰኑት በሕዝብ አሰፋፈር፣ ቋንቋ፣ ማንነት እና ፈቃድ ላይ በመመስረት ነው።

House of federation and Senate.

በኢትዮጵያ ፌዴሬሽን እንደሌሎች ፓርላሜንታሪ ዲሞክራሲ ሴኔት የለም።  የፌዴሬሽኑ ምክር ቤት በስልጣኑ እና ተግባሩ ከአሜሪካ ሴኔት የተለየ ነው።

አንቀጽ 62. 

የፌዴሬሽን ምክር ቤት ሥልጣንና ተግባር

  1. ምክር ቤቱ ሕገ መንግሥቱን የመተርጎም ሥልጣን አለው።

  2. የሕገ መንግሥት ጉዳዮች አጣሪ ጉባኤን ያደራጃል።

  3. የብሔሮች፣ ብሔረሰቦችና ሕዝቦች የራስን ዕድል በራስ የመወሰን የመገንጠል መብትን በሚመለከቱ ጉዳዮች ላይ በሕገ መንግሥቱ መሠረት ይወስናል።

  4. የኢትዮጵያ ህዝቦች በህገ መንግስቱ የተደነገጉትን እኩልነት ያጎለብታል፣ በጋራ መፈቃቀድ ላይ የተመሰረተ አንድነታቸውን ያበረታታል፣ ያጠናክራል።

  5. ለእሱ እና ለሕዝብ ተወካዮች ምክር ቤት በአደራ የተሰጡትን ሥልጣኖች በአንድ ጊዜ ይሠራል።

  6. በክልሎች መካከል ለሚፈጠሩ አለመግባባቶች ወይም አለመግባባቶች መፍትሄ ለማግኘት ጥረት ያደርጋል።

  7. ከፌዴራል እና ከክልሎች የጋራ የታክስ ምንጮች የሚገኘውን የገቢ ክፍፍል እና የፌዴራል መንግሥት ለክልሎች የሚሰጠውን ድጎማ ይወስናል።

  8. በሕዝብ ተወካዮች ምክር ቤት ሕጎች እንዲወጡ የሚጠይቁትን የፍትሐ ብሔር ጉዳዮች ይወስናል።

  9. ይህንን ሕገ መንግሥት በመጣስ የማንኛውም ክልል የፌዴራል ጣልቃ ገብነት ሕገ መንግሥታዊ ሥርዓቱን አደጋ ላይ ይጥላል።

  10. ቋሚና ጊዜያዊ ኮሚቴዎችን ያቋቁማል

  11. የምክር ቤቱን አፈ ጉባኤ እና ምክትል አፈ ጉባኤ ይመርጣል፣ የአሰራርና የውስጥ አስተዳደር ደንብ ያወጣል።

ሴኔቱ የፕሬዚዳንቱን ሹመት የማረጋገጥ፣የመምከር እና የመስጠት ስልጣን ብቻ ሲኖረው  ስምምነቶችን ለማጽደቅ ስምምነት.  ነገር ግን ከዚህ ህግ ውጪ ሁለት ሁኔታዎች አሉ፡ ምክር ቤቱ ለምክትል ፕሬዝዳንትነት ቀጠሮዎችን እና የውጭ ንግድን የሚመለከት ማንኛውንም ስምምነት ማጽደቅ አለበት።

የፌዴሬሽን ምክር ቤት ሕገ መንግሥቱን ይተረጉማል።  እንደ ዩኤስኤ ሴኔት የህግ አውጭነት ሚና እና ህግ ማውጣት።  ሆኖም የፌዴሬሽኑ ምክር ቤት ውሳኔ እንደ ሕግ ወይም የሕገ መንግሥቱ አካል ተደርጎ ይቆጠራል።

የፌዴሬሽኑ ምክር ቤት አብዛኞቹ ገጽታዎች የሪፐብሊኩን ሉዓላዊ ስልጣንን ይወክላል።  ውክልና ስለሆነ።

አንቀፅ 8. 

የህዝብ ሉዓላዊነት

  1. ሁሉም ሉዓላዊ ስልጣን የሚኖረው በኢትዮጵያ ብሄሮች፣ ብሄረሰቦችና ህዝቦች ውስጥ ነው።

  2. ይህ ሕገ መንግሥት የሉዓላዊነታቸው መግለጫ ነው።

  3. ሉዓላዊነታቸው የሚገለጸው በዚህ ሕገ መንግሥት መሠረት በተመረጡ ተወካዮቻቸው አማካይነትና በቀጥታ፣ በዴሞክራሲያዊ ተሳትፎ ነው።

ስለ አናሳ መብት ጥያቄዎ ፣ ሁሉም በእኩልነት በቤቱ ውስጥ ይወከላሉ እና የቤቱ ሚና ሁሉንም የአናሳዎች መብቶችን ስለመጠበቅ ነው።

የኢትዮጵያ ችግር በሕገ መንግሥቱ ላይ የተጻፈው አይደለም።  የሕገ መንግሥቱን መርሆች ተግባራዊ ማድረግ ያልቻሉ መሪዎች ችግር ነው።  የአቅም ማነስ፣ ድንቁርና እና እብሪተኝነት፣ በተጨማሪም የፖለቲካ ፍላጎት ማጣት።

Comments from kassim Adam. On this post. 

Michael Edwards በመጀመርያ ይህን የህገመንግስት አሰራር ሂደትና ፍልስፍና ፣ ስላካፈልከን ከልብ አመሰግናለሁ። ተመሳሳይ እይታዎችን ከ ፕሮፌሰር ህዝቅኤል ገቢሳ ጋር በተደረጉ ቃለ መጠይቆች ውስጥ መስማቴን አስታውሳለሁ። እኔ እስካሁን የነበረኝ እሳቤ ፣ የራሳቸው የፕሮፌሰሩ የግል አመለካከት እንደነበር ነው። እንደ እሳቸው አገላለፅ ፣ የኦሮሞ ክልል ፣ የራሱ ህገመንግስት ፣ የራሱ ሰራዊት ፣ የራሱ ህዝባዊ ሙዝሙር ፣ የራሱ ሃገ እና ባንዲራ አለው። አሁን የሚቀረው ይላሉ ፕሮፌሰር ፣ ኦሬሞ ነፃነቱን አውጆ ከውጭው አለም እውቅናን ማግኘት ብቻ ነው።  

        አሁን እየፃፍኩ ያለሁት ፣ ከላይ ካካፈልከን ነጥቦች ውስጥ አንቀፅ 3 ላይ በመነሳት ነው። እዚህ ላይ አንድ ነገር ላስገነዝብህ እወዳለሁ። የብሄሮች የራስን በራስ አስተዳደር ጥያቄ  በ1943 ይመስለኛል የተደረገው የተባበሩት መንግስታት ሸንጎ ያወጣው እና ያፀደቀው ረቂቅ ላይ የተመሰረተ ነው። ይህ ኮንቬንሽን ባስቀመጠው አለም አቀፍ መመሪያ መሰረት ብዙ የቅኝ ግዛት አገሮች ፣ በተለይም ከኢትዮጵያ በቀር መላው አፍሪካ ነፃ የወጣበትን እንቅስቃሴ ያቀጣጠለ ሰነድ ነው። ስለዚህም አሁን በእኛ ሁኔታ ፣ ኢትዮጵያ የምትባል አገር ቅኝ እየገዛችን ነው የሚሉ ፣ የሌላ አገር ቋንቋ ፣ ባህል እና ስርአት አባላት ካሉ ፣ የራሳቸውን አገር እና መንግስት እንዲፈጥሩ በር ይከፍታል ማለት ነው። ቀደም ሲል የኤርትራ ጥያቄ የብሄር ጥያቄ ነው ወይስ የቅኝ ግዛት ጥያቄ የሚለው ከፍተኛ ችግር የተነሳበት አይነተኛ ምክንያትም ይሄው ነው። ኤርትራውያንም ቅኝ እየተገዛን ነው ብለው ድርቅ ያሉበት ምክንያት ፣ ከኢትዮጵያ ለመገንጠል በነበራቸው ፅኑ አላማ የተነሳ ነው። 

      የዚሁ ኮንቬንሽን አንቀፅ ሁለት በሌላ በኩል ፣ ጥያቄው በአንድ Sovereign አገር ውስጥ ሲነሳ ፣ በዛ ሃገር የውስጥ ጉዳይ ላይ ማንም ጣልቃ መግባት የለበትም ሲል በግልፅ ይከለክላል። አሁን በኛ ዘመን ሶማሊ ውስጥ የተፈጠሩ የእርስ በርስ ችግሮች ፣ የተለያዩ ሪፓብሊኮችን የፈጠሩ ቢመስልም ፣ በተባበሩት መንግስታት ዘንድ እውቅናን ያላገኙበትም ምክንያት ይሄው ነው።

     የኦሮሞ ክልል level of autonomy ምን መሆን እንዳለበት መወሰን ያለበት እርልሱ የኦሮሞ ህዝብ ነው። ነገር ግን ይህን መናገር እንጅ መስራት ቀላል ነገር አይደለንም ። በጥያቄው ዙርያ ፣ ጥራት የሌለው እና ግልፅነት የተራበ ዕስትራቴጅ የሚያራምዱ አካሎች ፣ የፖለቲካ ድርጅቶች እየተራኮቱ በመሆኑ ማለቴ ነው። ኦሮሞ እና ትግራይ መሆን የሚፈልጉትን መሞገት ጥቅም የሌለው ነገር መሆኑን አሁን እየተገነዘብን ነው። ነገር ግን እነሱ የሆኑትን ሌላውም እንዲሆን አስገዳጅ ሁኔታዎች ተፈጥረዋል ብየ ነው የማምነው። ይህ ሁኔታ ደግሞ በፅሞና ካልታየ ፣ ኢትዮጵያን እንደ ሃገር ይበትናታል።

House of Federation.

Federeeshinii Itiyoophiyaa keessa akka biyyoota dimokiraasii paarlaamaa birootti senetiin hin jiru.  Manni Maree Federeeshinii Seenetii Ameerikaa irraa gama aangoo fi hojii isaatiin adda.

 Keewwata 62. 

Aangoo fi hojii Mana Maree Federeeshinii

   1. Manni Marichaa Heera Mootummaa hiikuuf aangoo qaba.

   2. Dhimmoota heera mootummaa irratti konfiraansii qorannoo ni qopheessa.

   3. Dhimmoota mirga hiree murteeffannaa saboota, sablammootaa fi ummattoota adda bahuun wal qabatan irratti bu’uura heera mootummaatiin murtee ni kenna.

   4. Walqixxummaa ummata Itiyoophiyaa heeraan tumame ni guddisa, tokkummaa isaaniis walii galtee irratti hundaa’e ni cimsa, ni cimsa.

   5. Aangoo imaanaa itti kennamee fi Mana Maree Bakka Bu’oota Uummataaf yeroo walfakkaatutti ni fayyadama.

   6. Falmii ykn waliigaltee dhabuu mootummoota gidduu jiru furuuf tattaaffii ni taasisa.

   7. Ramaddii galii maddoota taaksii waloo federaalaa fi naannolee irraa argamu fi deeggarsa mootummaan federaalaa naannoleef kennu ni murteessa.

   8. Dhimmoota siviilii seera tumachuu barbaadan Manni Maree Bakka Bu’oota Uummataa ni murteessa.

   9. Mootummaan federaalaa heera kana cabsuun gidduu seenuun isaa sirna heera mootummaa balaadhaaf saaxiluu danda’a.

   10. Koree dhaabbataa fi yeroo ni hundeessa

   11. Afyaa’ii fi Itti aanaa Afyaa’ii Mana Marichaa ni fila, akkasumas dambii ittiin bulmaataa fi bulchiinsa keessoo ni diriirsa.

 Seeneetiin aangoo muudama Pirezidaantii mirkaneessuu, yaada kennuu fi raggaasisuu qofa osoo qabuu waliigalteewwan raggaasisuu.  Garuu seera kanaan ala wantoota lamatu jira: Manni marichaa muudama itti aanaa pirezidaantii fi waliigaltee daldala alaa ilaallatu kamiyyuu raggaasisuu qaba.

 Manni Maree Federeeshinii Heera Mootummaa hiika.  Gahee seera baasuu fi seera baasuu akka Seenetii USA.  Haa ta’u malee, murtiin Mana Maree Federeeshinii akka seeraatti ykn qaama heera mootummaatti ilaalama.

 Manni Maree Federeeshinii aangoo abbaa biyyummaa rippabiliikaa keessaa harka caalu bakka bu’a.  Bakka bu'ummaa waan ta'eef.

 Keewwata 8. 

Abbaa biyyummaa ummataa

   1. Aangoon abbaa biyyummaa hundi saboota, sablammootaa fi ummattoota Itoophiyaa keessa jiraata.

   2. Heerri kun labsii abbaa biyyummaa isaaniiti.

   .

 Gaaffii keessan waa’ee mirga xiqqaa ilaalchisee, hundi mana maree keessatti walqixa bakka bu’ummaa kan qaban yoo ta’u, gaheen mana marichaa mirga saboota xiqqaa hunda eeguudha.

 Rakkoon Itoophiyaa waan heera mootummaa keessatti barreeffame miti.  Rakkoo hoggantoota qajeeltoowwan heera mootummaa hojiirra oolchuu dadhabaniiti.  Dandeettii dhabuu, wallaalummaa fi of tuulummaa, dabalataan fedhii siyaasaa dhabuu.

State and Religion

International Journal of Constitutional Law 

Aernout J. Nieuwenhuis

International Journal of Constitutional Law, Volume 10, Issue 1, January 2012, Pages 153–174,  

Abstract

Comparative law research regarding the relationship between state and religion often uses models. These models normally run from more to less separation between state and religion. In this article it will be argued that this approach is too simple. The relationship between state and religion has various dimensions. A fragmentary overview of current issues in a number of countries shows that religion’s role may differ widely in different domains.

Issue Section: Symposium: The State of Church and State 

1. Introduction

For ages, the relationship between state and religion, more particularly between state and church, has been studied. Nevertheless, thoughts about this relationship have changed. During the Middle Ages, in Europe, the Christian religion determined the position of the state as well as the position of the Church. Religion gave state authorities and state power its legitimacy, and the government was the protector of the Christian faith. Nowadays, religion is no longer that fundamental; the starting points are democracy and the rule of law.

Therefore, freedom of religion and the principle of equality play important roles, when answering questions about the meaning of religion in a state. This development shows the secularization of the state1 and constitutional theory. The position and meaning attributed to religion in several European states may differ,2 but, in general, constitutional discourse no longer has a religious basis.

The implication is not that the relationship between state and religion can do without attention. The twentieth century may have seen the idea come into being that, as a result of modernization and rationalization, religion’s role would fade away or would, at least, be limited to the private sphere. Today’s reality, however, presents another picture.3 First, the secularization of society never has been a “global” phenomenon. Outside of Europe, New Zealand and Uruguay might be the only countries with a similar development;4 within Europe, there exist huge differences as well. Second, the decrease in the number of members of religious communities need not correspond to a similar decrease in the number of believers.5 Third, religion remains an important factor in the social, cultural, and political domains. It turns out that religion cannot be reduced to a personal conviction, which has no meaning outside the private sphere, to some kind of a near hobby.

1.1. Renewed interest 

In Europe, one of the most important reasons for the renewed interest in the relationship between state and religion has been the large increase in the number of Muslims, whose religion sometimes appears to put a stamp on their entire life and whose religious communities seem to play an important social and cultural role.6 Simultaneously, there may exist a reinforced interest in the position of strict Christian groups.

Another, separate reason for this renewed interest is the emergence of religiously inspired terrorism. Even if that is not considered an overture to a clash of civilizations, the question has to be answered regarding what a government’s position should be facing radical religious groups. Other reasons for the renewed interest in the relationship between state and religion may also be mentioned such as a growing need for providing meaning to life and to society as a whole.7 In the Netherlands, in any case, there is an additional reason. The secularization and the simultaneous decline of the pillarization of society after World War II8 lead to specific questions about government’s role in connection with societal organizations with religious backgrounds.

1.2. Outline and terminology 

This article deals with the relationship between state and religion in a comparative law approach. As regards the term “religion,” the term can be defined as a coherent whole of doctrine and practice with belief in a supreme being as a central idea.

Many states are actually struggling with similar problems, although their points of departure differ widely. Comparative law studies often take for granted the existence of a spectrum of models running from an antagonistic relationship to a very close relationship between state and religion. Such a one-dimensional perspective, however, will be found to be too simple (section 2). One can distinguish at least three dimensions: religion’s role in state matters (section 3); government’s role in the religious domain (section 4); and the relationship between state and religion in several other domains, such as the formation of political opinion (section 5), the social service sector (section 6), and the field of education (section 7).

As a consequence, the term “public domain” is explicitly avoided. It is rather confusing to throw together state matters, public places, public opinion, publicly financed social services, public education, and so on.9 Religious expression in public, for that matter, falls outside the scope of this article. One remark, however, has to be made. Freedom of religion, even in a secular state such as France, not only protects religious expression in the private sphere. The French judiciary has blown the whistle on some overenthusiastic mayors who banned religious processions because of the public nature thereof.10

2. Comparative law and a spectrum of models 

The relationship between state and religion differs from country to country. Different approaches often appear in the constitutions. Article 1 of the French Constitution determines the laic nature of the French state. The establishment clause in the First Amendment of the Constitution of the United States prohibits not only the existence of an established church but has a wider meaning, as well, as will appear later. Article 140 of the German Constitution refers to some provisions of the constitution of the Weimar Republic that, on the one hand, prohibit the existence of an established church but, on the other hand, lay down that religious denominations may be recognized by the state. In England, of course, the Anglican Church is the established church.11 In the Netherlands, the separation of church and state is assumed to be an unwritten principle of constitutional law, as the Basic Law keeps silent on this issue.12

Legislation and case law elaborate the relationship between state and religion in the different countries. As a result, a very complicated picture arises. Therefore, comparative law studies often use models. Winfried Brugger, for example, uses six different models.13 In the first one, the state is completely opposed to religion. Albania, where in the seventies and eighties of the last century religion was officially banned, might have been an example. The second model is characterized by a “wall of separation” taken seriously not only in theory but in practice as well. Barring all religious signs from public education belongs here. The third model is less drastic: “separation” and “allowing for” are linked. Government may neither advance nor obstruct religion. The fourth model combines separation with some kind of cooperation. Germany, where the government, for example, takes care of the ‘church tax’ collection for recognized religious denominations, may serve as an example.14 This model can be distinguished from the fifth, which is characterized by a more formal unity of state and church in the form of an established church. State and church still have different aims, however; respectively, the citizen’s welfare and his salvation. In the last model that difference has disappeared, state and church actually converge in a theocracy.

It stands out—according to Brugger, as well—that the first and the last model do not agree with democracy and the rule of law. The fifth model causes some concern, at least, because an established church may have all kinds of advantages in comparison with other denominations.

In the literature, a similar classification is often used, a spectrum running from theocracies, where Vatican City might be one of the few examples, to states that are more or less hostile to religion.15 Another possibility is to drop, from the outset, the models that are contrary to democracy and the rule of law. Chris Soper and Stephen Monsma, for example, use only three models in their comparative law study of the situation in the United Sates, the Netherlands, Australia, Germany and the United Kingdom: a strict separation model, an established church model, and a so-called structural pluralistic model, wherein government recognizes that religion may play a part in all sorts of domains.16

2.1. More dimensions 

All these models have an ideal character. Therefore, it is not a strong argument that the real situation in a country differs from a certain model. There is, however, a more fundamental objection. The models are set out along what we may call a one-dimensional line running from more to less separation between state and religion. A number of reasons make such a conception too simplistic, as examples will show.

Apart from France, Turkey is (or was) considered a good example of a laic state, a state with a strict separation between state and religion. That holds true as far as we see for regulation regarding religious expression in the state machinery; however, we receive a different impression if we look into the government’s involvement in religious affairs. In Turkey, the government strongly influences the appointment of imams. From this point of view, it would be odd if France and Turkey were to fall under the same model. Another example: England and Greece are both countries with established churches, but they differ widely as far as the government’s position toward other denominations is concerned. The difference could be seen as greater than between England and certain states without an established church.17 The existence of an established church, in other words, does not have that much impact in this respect.

The classification becomes even more problematic if we take into account the fact that state and religion meet in social and cultural domains. Soper and Monsma’s third model regards, preeminently, the relationship in those domains.18 However, their findings—that the existence of an established church does not rule out the possibility that government might be well-disposed toward social and cultural organizations of all denominations—imply that there are different and relatively independent dimensions in the relationship between state and religion

A one-dimensional line suggests, mistakenly, that only the choice of one of the models presented may lead to a consistent set of answers to all kinds of completely different issues: civil servants’ dress regulations, financing denominational education, penalization of blasphemy, monitoring radical religious movements, and so on. This article distinguishes more dimensions in the relationship between state and religion to avoid that very suggestion.19 A distinction is made between religion’s position in state matters, government’s position in religious matters, and their relationship in other domains: political opinion formation, social services, and education.20 It is not inconceivable that one may defend a strict separation on the one point whereas, on another, a closer relationship might be acceptable. The result of a comparative law approach may be that arguments for separation or alliance will differ by dimension. To achieve a multifaceted impression, attention will be paid in particular to France, the United States, England, Germany, and the Netherlands.

3. Religion in the state domain 

Two current questions have to be answered here. The first one is: Should the government be allowed to use religious symbols and religious references? The second question is: Should civil servants be allowed to display their religious conviction at work? Before answering these questions we have to deal briefly with the legitimization of government authority and the justification of government policy.

Constitutions of democratic states often legitimize government authority by referring to the sovereignty of the people (Sweden, South Africa, Germany) or to the sovereignty of the nation (France, Belgium, Poland).21 Government authority does not have a religious or religiously inspired foundation.22 If a constitution points out the state’s purpose or highest value, these are described in rather general and abstract terms. Examples are the “common good” (United States, Poland) and “human dignity” (Germany). Such concepts may, in one way or another, be influenced by Christian culture; they are not in themselves of a religious nature.

Every citizen should be able to accept government authority and every citizen should be able to agree with the general aims of the state.23 In a pluralistic society, where a lot of people do not believe in a supreme being and all sorts of religions coexist, a religious foundation is, from the outset, out of the question.

The counterargument, that religious people cannot accept government authority if religion does not play a part in the official grounding thereof, does not hold true. This argument fails to appreciate that the individual is not completely tied to the state, and that the state has no authority in spiritual or religious matters whatsoever. From a religious point of view, linking the will of the supreme being with ever-failing government policies is not self-evident either.24

A similar argument is possible regarding the justification of specific regulations, policies, and other decisions. Church dignitaries should not ex officio have any power of political decision making,25 and government may not enforce religious rules or apply religious criteria. Even if the government takes into account the wishes of certain religious communities, the reason cannot be that the supreme being prescribes a certain measure. The reason may only be that freedom of religion has a certain importance.

3.1. Governments using religious discourse?

The question of whether government may use religious discourse raises controversies in many countries. The case law of the Supreme Court of the U.S. on this issue seems to be a rather diffuse compromise between the recognition of certain traditions, on the one hand, and stricter ideas about the separation of state and religion, based on the establishment clause, on the other. A good example of the first approach is the Supreme Court’s judgment on the practice of beginning the legislative session of the House of Representatives of Nebraska with a prayer by a publicly funded chaplain. The Supreme Court judged this tradition not to be contrary to the First Amendment.26 Actually, the Supreme Court’s own sessions begin with the formula “God save the United States and this honorable Court.” In other cases, the Supreme Court has given the separation of state and religion more impact. The Court banned the setting up of a nativity scene on public property,27 and the Court banned, as well, a picture of the Ten Commandments from a court room.28

In other countries we see similar phenomena. Shortly after the French Revolution, crucifixes disappeared from the French courtrooms.29 One hundred and fifty years later, in Germany, a conflict arose over the presence of a crucifix in a courtroom. The German Federal Constitutional Court (Bundesverfassungsgericht) judged the complaint, based on the right to freedom of religion, justified. If the crucifix is not removed, the individual concerned would be wrongfully forced to conduct an action “under the cross.”30 In the Netherlands, no crucifixes are to be found in courtrooms. Other traditional religious references do exist, however. The formula “Wij Beatrix, bij de gratie Gods” (We Beatrix, by the Grace of God) in the preamble of every act may serve as an example. Compulsory regulation and the supreme being are bound together in a manner that does not belong in a pluralistic society. If this formula was absent, there would probably not be much enthusiasm for introducing it now.

3.2. Civil servants and religious symbols 

In the old days, the relationship between government and religion gave members of nondominant denominations a smaller chance of obtaining a government job.31 As a reaction, several constitutions lay down an equal right to government office.32 Therefore, religion, as such, may not be the reason not to appoint someone. The question whether a civil servant may show his religion is a different one. In answering this question, we have to balance two interests: the importance of an appearance of government neutrality and the importance of freedom of religion. These interests turn out to be balanced very differently in different countries.33

In France, a strict state neutrality is seen as a necessary condition for freedom of religion outside the state domain. Therefore, freedom of religion has no substantial weight for a civil servant at work. Wearing religious symbols by civil servants is completely banned by law. The kind of work is not relevant; nor does it matter if a civil servant has contact with the public or not.34 The situation in England differs widely. For years, Sikhs wearing turbans have been working on the London Metropolitan Police Force. Headscarves matching the style of the uniforms have been designed, as well. That police officers should be allowed to wear a headscarf is not completely uncontroversial, however.

To a certain extent, the United States presents a similar picture. In 1986, the Supreme Court accepted a ban on a Jewish Air Force officer’s wearing a yarmulke, even though he was wearing it under his Air Force cap outside the officers’ premises. One of the arguments was the separation of church and state. Congress reacted, however, by introducing a law establishing the right to wear such religious signs.35

A ban on police officers’ wearing beards, permitting exceptions on medical grounds but not on religious grounds, was judged to be contrary to the First Amendment because government had failed to advance “compelling reasons.” Nowadays, some police forces are permitting officers to wear a headscarf. A prison guard who was told by the prison board that he was not allowed to wear his kufi anymore brought his case successfully to court.36

In my view, the importance of outward neutrality is rather small regarding civil servants working, for example, at the public gardens or civil servants who do not have contact with the public at all. In these cases, freedom of religion—even during working hours—outweighs neutrality arguments. The French general ban, therefore, is too harsh.

On the other hand, the importance of outward neutrality is considerable as regards civil servants exercising authority. In this respect, one may think, in the first place, of the judiciary, whose appearance of neutrality can even be justified by the fundamental right to a fair trial. In the second place, one may think of the police. Their uniforms are also meant to stress the impersonal and public character of their position.37 These civil servants’ interest in manifesting their religion is less important than the state’s interest in exercising authority without any appearance of religious preference. The constitutional principle of separation between state authority and religion takes precedence; otherwise, this same authority would be undermined in a partly multireligious and partly nonreligious society. Moreover, in specific cases, religious symbols may cause opposition to or mistrust of government actions. The counterargument—that government authority is reinforced when the public sees expressions of “pluriformity”38—has a rather ambiguous nature, especially if it is stressed, at the same time, that the symbols concerned can be made to harmonize with the uniform in such a way that they are no longer conspicious.

The objection that, for example, a judge wearing a religious symbol may be doing his job excellently ignores the issue that not expressing oneself religiously is an inherent part of the job. That is even truer for a civil servant who, by reason of religion, does not want to conclude civil marriages between homosexuals. He refuses to do a part of the job and, therefore, is not a likely person for his position.39

The argument to the effect that certain groups in society are being excluded from certain government jobs is not convincing. That exclusion, after all, is not motivated by pointing at religious conviction, as such, but by pointing at religiously inspired behavior.40

4. Government in the religious domain

A second dimension of the relationship between state and religion concerns the state’s tasks as far as religious matters are concerned. Attention must be paid to two interrelated issues. What part should government play regarding religion, substantively and should the government support religious communities financially?

4.1. Government and religious doctrine 

In the past, tensions between state and church were a regular phenomenon. As a result, governments were often inclined to interfere with the organization of religious communities and with religious doctrine. In England, the king as head of state, formally is still the supreme governor of the Church of England.41 The Crown has the power to appoint the bishops of the Church of England and the power to approve certain church regulations. In this connection, it should be mentioned that the Catholic bishops in the Alsace are appointed by the French president, a rather bizarre arrangement in a laical state.

In Turkey, the Diyanet, the Directorate General for Religious Matters, not only appoints imams42 but decides, as well, that respect for the state authorities and the army have to be represented as a religious duty. The power of the directorate to appoint imams is also relevant in other countries. The majority of the Dutch mosques for Muslims with a Turkish background fall under the powers of this directorate.43 Opportunistically, one might applaud this system, because the Turkish government prevents—up till now—the appointment of possibly radical imams.

Nevertheless, in a democracy under the rule of law, such forms of governmental influence should be rejected. The government should not prescribe which religious doctrine is right or true. Government has another vocation, and such entanglement often leads to advantages for certain denominations or certain currents of belief. From a religious point of view, it is also undesirable that the substance of a religion be dependent on political institutions and political decisions.

Preachers who teach that the supreme being rejects Western materialistic and degenerate societies may raise concern. The same holds true for the preaching of a rigid and archaic morality. There is no reason, however, for government intervention. Fundamental freedoms do exist for strongly dissenting convictions. For example, the opinion that heretics and apostates, after they are dead, will burn in hell, is a rather common fundamentalist starting point and does not amount to advocacy of lawless action. If preaching or teaching switches to coercion or incitement to criminal acts, of course, grounds for government intervention exist.

Up till now, in particular, government restrictions have been discussed. Governmental restraint in criminalizing dissenting opinions, however, leaves open the possibility that government itself defends and propagates liberal values.

4.2. State aid for religious communities

Another aspect of government involvement with churches and religious communities might be in backing them financially.

In a lot of countries, there exist various forms of government aid to religious communities. In France, the government is the owner of many church buildings and puts these buildings at the disposal of religious communities.44 It happens, as well, that governments back the construction of a church or a mosque.45 In Germany, the tax department collects the so-called church tax from the members of the denominations recognized under public law. Normal tax law sanctions apply. This church tax is an 8 percent surcharge above the tax on wages. This regulation results in the national religious communities in Germany being among the richest religious communities in Europe.46

In Belgium, since 1830, government not only pays the maintenance of church buildings but priests, reverends, and rabbis receive a state salary as well. This regulation pertains to only the recognized denominations. The main criteria for recognition is whether a denomination supplies a need for a segment of the population. By now, also imams receive a state salary.

Religious communities in England, including the established Church of England, do not receive direct state subsidies, nor do the religious communities in the United States.47 As far back as 1785, in Virginia, a tax plan meant to back religious communities was voted down. Jefferson was among the opponents.48 Nowadays, the establishment clause prohibits every form of state aid. The well-known Lemon test includes the strong criteria that “direct advancement of religion” is not allowed. Even the briefest of all interpretations of the establishment clause—“no coercion, no money”—makes clear that subsidies are completely out of the question.49

Arguments for state aid in European countries differ. In France, supporting.religious communities is seen against the background of the “nationalization” of church property after the French Revolution. In other countries, the supposed utility of religion is a point for attention as well.50 Sometimes, the argument seems to be that government has a part to play in guaranteeing the supply of basic spiritual needs, similar to government’s role in the health service. A counterargument could be that a lot of citizens do not really show a spiritual or religious need. Attributing such a need to every citizen is based on a unproven portrayal of mankind. An additional, tricky question is whether government should be allowed to control—as in the health service—the quality of the spiritual and religious services.

Speaking of religion’s value may mean, as well, that religion and religious communities play an important and useful role in society, providing a foundation for a common morality. However, religion’s role concerning morals is more and more controversial. In this respect, arguments against state aid are advanced as well. First, a citizen should not be forced to pay taxes for backing the preaching of convictions contrary to his own deeply felt convictions. This argument carries a certain weight in the U.S. doctrine of separation of church and state.51 In Europe, however, this argument is less forceful. The European Commission of Human Rights, for example, judged the support of religious communities with general public resources not contrary to freedom of religion, as laid down in article 9 ECHR.52

The above-mentioned U.S. doctrine may become stronger if one points to the fact that some denominations are presently teaching ideas that do not contribute to the well-being of homosexuals, unhappily married couples, or unmarried happy couples. In this respect, churches cannot be compared, for example, with museums or sports associations, which are often receive state aid. A government call to play sports more regularly, or to visit museums is not very controversial; a government call to visit churches or mosques more regularly, would be a horse of a different color.

One might put forward that only religious communities that feel very strongly about democratic values and the rule of law deserve state aid. Such an appraisal of religious doctrine, however, is neither possible nor desirable.53 Secular standards are not really proper or useful to assess the nature of spiritual and transcendental convictions. In this respect, one may point to former local Dutch government plans to bring more liberal forms of Islam into action to minimize radicalization.54 Such a policy is at odds with the principle of government neutrality, apart from the issue whether such a policy is effective at all. Such a policy might actually damage the credibility of more liberal religious communities.55

If a government financially backs certain religious communities, then the right of freedom of religion and the principle of equal treatment are rather strong arguments for possible aid to all denominations.56 If the government does not contribute financially to any denomination at all, neither freedom of religion nor the equality principle make it mandatory that a government should take care that every religious community has a similar quality building for their gatherings.57

The starting point, namely, that freedom of religion, in general, gives no grounds for facilitating religious communities, does not apply when government itself is responsible for hindering the exercise of the right to freedom of religion. Therefore, in most countries governments take care, for example, to supply the spiritual needs in the military.

5. State, religion and the forming of political opinion

In the United States, political candidates often use or have to use religious references to attract voters; in other countries, such as Germany and the Netherlands, this is less obvious, even though, at the same time, political parties with religious backgrounds do exist.

In this section, we will deal with several interrelated issues. First, the meaning and relevance of religious arguments in political debate; second, the question of whether a democracy under the rule of law should limit religiously inspired political ambitions. The answer to the question as to whether religiously inspired political parties have a special position follows naturally from this argument.

5.1. Religiously inspired political arguments58

It would be strange if diversity in a religiously pluralistic society would not show itself in the process of political opinion formation. Believers are religiously motivated, which does not always change when they enter the political arena. Moreover, religious communities may have special interests that they want to have represented in political debate. In a democracy, political rights like freedom of speech and association guarantee that everybody is entitled to participate in political discussions. In view of these fundamental rights, religiously inspired contributions have the same status as other contributions.59

All the same, we have seen that in a pluralistic society government had better not base its decisions on a religious foundation. From this point of view, religious arguments in the political debate might be considered less relevant.60 Some distinctions, however, may be useful here. Religious points of view may enrich discussions with arguments that otherwise would be without a voice.61 One may point to the idea that humans are imperfect beings. Such an idea casts doubt on all political movements wishing to build a perfect society.62 If, in this manner, political ideas are criticized by means of religious concepts, politicians, naturally, must be allowed to criticize these religious concepts for their part.

Another possibility could be that religiously inspired participants in the political debate translate their views and arguments into arguments with which anybody—believer or nonbeliever—might agree. Years ago, the main argument of a Dutch Reformed political party against the liberalization of pornography laws was that pornography should be considered a gross offense against God.63 On the other hand, a larger Christian political party wondered whether certain kinds of pornography were not contrary to human dignity.64 This latter argument may have a religious background, it still might appeal to everyone.

The assumption that religious arguments need some sort of translation is also important because compromises play a rather important part in democratic political opinion formation and decision making. A religious argument that is tantamount to an appeal to the inalterable will of the supreme being probably prevents concluding political compromises.

5.2. Limits to political opinion formation

Up till now, the argument in this section has focused mainly on the desirability of a well-functioning political debate. So far, the need for juridical norms limiting political rights has not been discussed. The situation might be different if religiously inspired political movements strive to establish a theocratic political system, wish to abolish equality between men and women, or want to classify nonbelievers as second-rate citizens.65

In countries such as the United States, a more formal concept of democracy prevails. Political freedoms are indivisible in the sense that they protect views and aspirations completely contrary to the starting points of a democracy under the rule of law. As long as political opinions are not considered incitement to imminent lawlessness, they are protected, no matter if they are, for example, of a racist or dictatorial nature. In other countries, a more substantive concept of democracy prevails. That appears clearly if a constitution—as in Germany, for example—includes unchangeable provisions, and a so-called abuse-of-fundamental-rights provision, which lays down that someone using his political freedoms to attack the liberal democratic “basic order” cannot appeal to fundamental political rights. As a result, the Constitution presents a framework for acceptable political opinion formation.

The Dutch Constitution does not explicitly lay down such a substantive framework; no abuse-of-fundamental-rights provision is included. Nevertheless, it is still possible that unwritten supraconstitutional starting points exist.66 While banning the political party CP86, the District Court argued that the activities of this party violated the generally accepted foundations of our state order, such as freedom and human dignity.67

Further research into such possible foundations falls beyond the scope of this article. Nevertheless, the position of religiously inspired political parties is clear enough. These parties have, in principle, the same position as other political parties.68 If religiously inspired parties strive for aims contrary to the starting points of a democracy under the rule of law, in Europe, they may be treated differently. Political parties which are convicted for discrimination may lose their state subsidies.69 In 2010, the Dutch Supreme Court ruled that political parties may not exclude women when drawing up lists of candidates for parliamentary elections. The party concerned is the SGP, an orthodox Christian political party, which, on the basis of biblical interpretation, assumes women to have a vocation outside the political sphere.

In certain circumstances, a political party striving for the establishment of a theocracy or the introduction of Shari’a may even be banned altogether.

6. State, religion, and social services

State and religion meet in society in the social and cultural domain. Of old, churches and religious communities have been involved in physical and mental health care and have supported the poor. Religious organizations in these fields were and still are assisted by a relatively large number of volunteers.

During the last two centuries, the part played by religious organizations in these areas has decreased, however. First, the above-mentioned services have been professionalized. As a result, the link with religion has become weaker, and the room for voluntary work has diminished. Second, the state has claimed a greater role for itself. Government’s task in this field is often affirmed by fundamental social rights provisions in constitutions or treaties, although these rights do not imply that there has to be a public sector supplying all the necessary services. So the question arises, what might be the role of private organizations with a religious background and, more particularly, whether and under what conditions government may or should subsidize such organizations?

Looking at different countries, a varied picture may be seen. In France, after the Revolution, the health care system was secularized, while, at the same time, illnesses were treated on a more medical-scientific basis. The present strong stress on laicism does not mean, however, that organizations such as the Catholic Juvenile Assistance Organization are excluded from financial support by the government. In the United Kingdom, a whole range of such organizations is backed by the government. In Germany, freedom of religion by itself obliges the government to create enough space for this kind of organizations.

Under positive Dutch law, the government has no strict obligation to give those tasks to private organizations. Policy considerations of a financial nature, for example, could point in another direction. If the government supports private organizations, however, the government may not exclude organizations just because they have a religious background. Neither may the government favor special religious denominations or “philosophy of life” movements.

In the United States, the situation is rather ambiguous. On the one hand, the idea exists that government may not further religion. On the other, organizations with a religious background, active in the child welfare, for example, or care for the elderly, do receive state support.80 This kind of funding is not, by definition, contrary to the Constitution’s establishment clause. The so called Lemon test still seems to present a rather accurate picture of the criteria, with which such public funding has to be judged.First, organizations that want to qualify for public funding should have a secular purpose. Second, the primary effect of the funding measure may not advance or obstruct religion. And third, the measure should not lead to an excessive entanglement between state and religion.

In my opinion, there are two interrelated justifications for supporting organizations with a religious or philosophy-of-life background. People might prefer the social, cultural, or health services offered by such organizations. In any case, the existence thereof increases people’s choices. At the same time these organizations can be considered a form of desirable civic “self-rule”; citizens take certain responsibilities, with the result that the government itself does not have to fulfill certain tasks.

Still, it must be stressed that those organizations are supported because and only insofar as they meet professional standards and, therefore, their activities can be considered to be in the public interest. That implies that government may and should lay down quality requirements. These requirements, however, do not regard the religious background of these organizations but their professional activities.

7. State, religion, and education

For ages, churches and religious organizations have played a central role in the field of education. In the nineteenth century, however, in a lot of Western countries a system of public education was developed with, originally, some kind of Christian character. Further developments in western countries differ widely.

In countries such as Germany—at least in certain states (Länder)85—Christian values, in some respects, have maintained a position in public education. Lessons in religion, the substance of which is decided by the churches, are a normal part of the curriculum in a lot of public schools. Pupils, however, may obtain an exemption. Case law of the Constitutional Court shows that voluntary “überkonfessionnel” (supradenominational) school prayers are allowed.86 The whole education may also be colored by Christian culture (“christlich-abendländische Kultur”). Moreover, the government, in certain circumstances, is obliged to support private schools with a religious background, if their quality is similar to the quality of public schools.

There is a world of difference between the situation in Germany and the situation in France. In France, primary and secondary schools in the public education sector are obliged to ban all religious influences. That is thought to be the only way a child is able to develop into a free citizen of the French Republic. In this approach, subsidies for private schools with a religious background are not really acceptable.89 Nevertheless, the law permits supporting private schools by paying their teachers’ wages, if the curriculum is comparable to the curriculum in the public education system, and lessons in religion are not mandatory.

In the United States, the “wall of separation doctrine” puts up a barrier for subsidies for private primary and secondary schools.90 It has to be added, however, that this wall has become lower.91 The Supreme Court accepted a system of vouchers that channels government money to private schools by way of the children’s parents. One may mention, as well, that a lot of private colleges and universities receive state aid, even if they have a religious background. Only if an institution is “pervasively religious” is state support out of the question. As far as public education is concerned, Christian influences are, from time to time, judged contrary to the establishment clause.

In the middle of the nineteenth century, the Netherlands had a system of public education imparting general Christian morals. Some stricter Protestant groups found this form of public education neither flesh nor fowl; Catholics were not satisfied, either. So these denominations started their own schools. In 1917, religious parties had achieved such influence in parliament they managed to insert a provision in the Constitution to the effect that private schools have a right to state funding on an equal level with schools in the public education sector. That is the main reason why in the Netherlands the private education sector has an enormous size. Nowadays, however, only in a small percentage of these private schools, religion plays an all-important role.

As far as public education is concerned, teaching of Christian morals as such has disappeared, to be replaced by a certain openness to different religions and philosophies of life.

7.1. Various interests

Churches and religious parents consider education at school one of the means of conveying to children valuable religious ideas.That very interest has expressed itself in the right to freedom of education. The government, as well, is not only interested in imparting knowledge and competences. It, too, wants to convey certain common values to all future citizens.

Against this background, some current questions have to be answered. The first question is: Should the government support private schools with religious backgrounds and, if so, under what conditions? The second question is: To what extent should there be room for religious expression in the public education sector?

7.2. State subsidies to private schools

Given the great national differences in Europe, it is self-evident that freedom of education, laid down in article 2 of the First Protocol of the ECHR, does not oblige states to support private schools. State subsidies, however, have certain advantages. State support leads to diversity in the supply of education. Citizens take responsibility in governing these schools. As a result, government may remain aloof. These advantages are similar to those in the social service sector. An important difference with the social service sector is that private education with a religious background really does convey “religious truths.” In my opinion, that is not, as such, an argument of overriding importance against state support, given the existence of compulsory education and the fact that educating children in schools is, in some respects, a continuation of education at home.

Still, the conditions to establish for private schools are of the utmost importance. Again, the starting point is that the government will back private schools because and only so far as the education meets quality standards and the teachers are professionals. That implies that disciplines have to be taught thoroughly. Pupils must learn about evolution theory. That does not hamper private schools from teaching, as well, that, according to the Bible, man is—in a higher sense—God’s creation.

Quality education has to prepare pupils for active citizenship,103 for participation in a democracy under the rule of law. Therefore, some knowledge of the presuppositions thereof, such as freedom of religion, freedom of speech, and equality between citizens, is mandatory. These presuppositions are rather neutral and do not push forward any particular portrayal of mankind. If the religious background of a school prevents fulfillment of these conditions, state support should be out of the question. In other words, one may expect from private schools a certain openness to democracy under the rule of law.

A counterargument might be that these conditions aim too high, given the social and cultural background of some pupils. The teaching of notions like democracy and the rule of law at schools might simply be too demanding at those schools where even keeping the everyday order in class is a quite a job.The argument, however, is not convincing if it is meant that a lot of pupils have a background where democratic values are missing altogether. That would be all the more reason to pay attention to these values at school.

Another counterargument might be that private schools may be contributing to the existence of communities that distance themselves from the rest of society. Children, living in these communities and being educated at home and at school both with the same outlook, risk missing a good preparation for active citizenship in a pluralistic society, goes the argument. On the other hand, support for private schools under certain conditions may also lead to understanding democratic values, both through the curriculum itself as well as by the fact that government supports diversity, and citizens and government together are responsible for education. In the Netherlands, there is no proof that schools with an Islamic background, as such, cannot prepare pupils for citizenship or that they contribute to the radicalization of Islamic youngsters. Nevertheless, news reports exposing abuses in this respect at some schools, may give reason for extra attention by the State School Inspection agency.

7.3. Religion in the public education sector

A different question concerns the position of religion in the public education system. The issue of wearing head scarves has received a lot of attention. However, the curriculum’s content is relevant as well. At schools, attention must be paid to freedom of religion and to the diversity of religious denominations and philosophies of life. It is self-evident that teachers may not propagate or attack certain religions. When dealing with the issue of religious expression in the public education sector, a distinction must be made between religious symbols installed by the school, religious symbols worn by teachers, and religious symbols worn by pupils.

In Germany, the Constitutional Court judged the regulation in Bavaria, which made it mandatory for schools to install a crucifix, contrary to freedom of religion. This judgment has lead to much commotion, which is to be understood against the background that in certain Länder public education is informed by Christian values. In the Netherlands, on the other hand, there seems to be a consensus that pupils at state schools should not learn “under the cross” or under any other religious sign installed by the school.

If a teacher wears a religious symbol, we have a different situation. A teacher may appeal to the right of freedom of religion. Under French law that right carries no real weight for civil servants at work. As has been pointed out, no civil servant is allowed to wear religious symbols. In other countries, such as Germany, freedom of religion carries some more weight for teachers at state schools.Nevertheless, state legislators may ban teachers from wearing religious symbols such as headscarves.

In my opinion, it is important to understand that teachers do not exercise public authority in the actual sense of this term. The fact that teachers at private schools have similar authority shows this in perfect clarity. Still, the relationship between a teacher and a pupil is longer lasting than the relationship between, for example, a police officer and a citizen. Therefore, the teacher’s open attitude is important, more important than the symbol. Yet a comment must be made. A teacher wearing a head scarf should forestall the suggestion this is the right thing to do, especially in a situation where a controversy exists in this respect. If it were established that such kinds of problems regularly occur, reconsideration would be necessary.

The question whether pupils should be allowed to wear religious symbols is also answered differently in various European countries. Tolerance reigns in Engla