New Book Explores the Dimensions of ‘Constitutional Space’ and Addresses Issues Surrounding Freedom of Religion or Belief

By Rachel Edwards

“One of the purposes of a constitution is to create space for different groups to live a thicker conception of the right, good, and true––rather than have the state impose one based upon majoritarian perspectives,” says Brett G. Scharffs, director of the International Center for Law and Religious Studies (ICLRS) and Rex E. Lee Chair and Professor of Law at BYU Law. “Creating constitutional space for freedom of religion facilitates constitutional space that goes beyond just religion––the result is a framework for living together peacefully in a pluralistic society.” 

In February 2018, the ICLRS partnered with University of Adelaide Law School and the School of Law at University of Notre Dame Australia to host a conference on the topic of constitutional space. The conference featured many leading international scholars from the area of law and religion, and constitutional theory and resulted in a book titled Freedom of Religion or Belief: Creating Constitutional Space for Fundamental Freedoms, which was published in May 2020. Edited by Scharffs and professors Paul Babie and Neville G. Roschow, of Adelaide Law School, the book addresses issues relating to the freedom of religion or belief and explores the metaphor of constitutional space.

Scharffs has written about and advocated for the concept of constitutional space for nearly a decade.  He defines it as “a notional place or space carved out by the principled exercise of legislative, executive, and judicial powers, where rights and freedoms reside in relation to one another.” As Scharffs explains it, “Constitutional space creates a framework for pluralism and provides room for people and communities to work out deeper moral and religious ways of living their lives. Freedoms that we hold dear sometimes come into conflict with each other,” he explains. “Which one should we give priority to? Which one is more important?” Part one of the book explores the dimensions of constitutional space and the content of freedom or religion or belief; part two focuses on comparative approaches to defining and protecting this freedom. 

A major aim of the book is helping the state to capture a vision of ‘secularity’ as opposed to ‘secularism.’ According to Scharffs the distinguishing feature of secularity is that it creates space for pluralism. “A very strong ideology of secularism squeezes out all other ways of thinking, but the state doesn’t have to promote a thick ideology of secularism,” he says. Scharffs explains that with a mindset of secularity, the state is neither unfriendly or too closely aligned to one religion or system of belief. “Secularity allows for a plurality of viewpoints both religious and nonreligious. It’s a mindset that seeks not for the dominance of one particular view over another, but a framework where different viewpoints can coexist peacefully.”

In addition to coediting the book, Scharrfs contributed to the introduction and authored a chapter in which he explores different visions of reasonable religious accommodation. He proposes a principled approach to accomodation, one that espouses an ethic of hospitality and recognizes accommodation as a positive good rather than an unfortunate exception. “This vision of accommodation is a place of refuge. It includes helping people to feel safe, that they belong, and giving them a place at the civic table.”

The conference and subsequent publication of the book were inspired by events associated with the 70th anniversary of the Universal Declaration of Human Rights, a historic document adopted by the United Nations for the purpose of defining the meaning of the words “fundamental freedoms” and “human rights” appearing in the United Nations Charter. “Human dignity focuses on the value and worth of each person and the right of each person to pursue their vision of the right, the good, and the true without having a vision imposed on them by the state,” notes Scharffs. “It is a concept that is very much at home with constitutional space and secularity.”

Written primarily for a global legal and academic readership, the book is also intended for anyone who is concerned about constitutional culture. “The implications are not narrowly legal,” says Scharffs. “We need voices that are articulating strategies for accommodating each other. The more important impact of the book will be the creation and maintenance of a constitutional culture that people will want to carry forward from generation to generation, that is committed to giving people elbow room to pursue their own visions, while living in peace and harmony––or at least in tolerance––with each other.”

For more information or to purchase a copy of Freedom of Religion or Belief: Creating Constitutional Space for Fundamental Freedoms, visit Edward Elgar Publishing.