ABSTRACT
From a legal perspective, ‘negotiating with religion’ may refer to the constitutional arrangements that European States have negotiated with their established or majority churches. In consequence of immigration, these historical compromises are being put to the test by the presence of religious communities that were not party to the initial arrangements and judges and legislators are struggling to handle religious claims. Attempts at renegotiating constitutional compromises punctually, through case law or legislation, have produced diverging results ranging from the exclusion of religious views (recent bans on the burqa) to the accom - modation of ‘moderate’ forms of religious manifestation (reasoning in the Begum House of Lords case). While religious minority claims have prompted a review of the concepts of law, democracy and pluralism and raised the fundamental question as to the limits that law (as opposed to other norms) should impose on individual freedom in the name of social cohesion, legal responses have in turn highlighted the blurred distinction and inner tensions between the religious and the secular2
and created new subcategories between ‘moderate’ and ‘radical’ forms of religion. Focusing on recent developments relating to religious symbols in Western European state schools, this chapter will argue that re-negotiation of historical compromises is possible (and welcome) within existing national frameworks of state-religion relationships. The attention will be on the reasoning adopted at legislative and judicial level. It will be submitted that if courts and parliament more greatly engaged with religious claims, many of the current tensions and contra - dictions between secularism and religion would dissolve. But how exactly is this new form of negotiating with religion to be undertaken by legislators and judges? To explore this delicate question, the chapter will concentrate on the education sector.
