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

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

Author: Vincent Depaigne
Publisher: Oxford University Press
ISBN: 9780198803829
Published In: August 2017
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Contents

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This book provides an account and explanation of a fundamental dilemma facing secular states: the 'legitimacy gap' left by the withdrawal of religion as a source of legitimacy. Legitimacy represents a particular problem for the secular state. The 'secular' in all its manifestations is very much linked to the historical rise of the modern state. It should not be seen as a category that separates culture and religion from politics, but rather as one that links these different dimensions.

In the first part of the book, Depaigne explains how modern constitutional law has moved away from a 'substantive' legitimacy, based in particular on natural law, towards a 'procedural' legitimacy based on popular sovereignty and human rights. Depaigne examines three case studies of constitutional responses to legitimacy challenges which articulate the three main sources of 'procedural' legitimacy (people, rights, and culture) in different ways: the 'neutral model' (constitutions based on the 'displacement of culture'); the 'multicultural model' (constitutions based on diversity and pluralism); and the 'asymmetric model' (constitutions based on tradition). Even if secularization can be considered European in its origin, it is best seen today as a global phenomenon, which needs to be approached by taking into account the particular cultural dimension in which it is rooted.

Depaigne's detailed study shows how secularization has moved either towards 'nationalization' linked to a particular national identity (as in France and, to some extent, in India)-or towards 'de-secularization', whereby secularism is displaced by particular cultural norms, as in Malaysia.

Introduction: The Secular State and Its Legitimacy

The Secular State between Procedural and Substantive Legitimacy
1: The 'Legitimacy Gap' in the Secular State
2: Constitution and Legitimacy: Procedural or Substantive?

Models of Reconciliation between Constitutional Law and Culture
3: Locating Culture in the Secular State: Constitutional Law, Secularization, and the Status of Culture
4: The Secular Nation: France or the Limits of the 'Neutral Model'
5: 'Reformist' Secularism: Reconciling Pluralism, Equality and Unity in India
6: Malaysia: 'Asymmetric' Secularism

Conclusion: Between 'De-Secularization' and 'Nationalization'