Law and Religion. Defining - PowerPoint Presentation

Slide1

Law and Religion.Defining a relationship from a Protestant theological-ethical perspective

Fundamental Rights, Prof. Doutor Jorge BACELAR GOUVEIA, NOVA Law School

Dipl.-

Theol

. Christine MarburgerSlide2

2Goethe University Frankfurt –

Faculty of Law – Erasmus Exchange Slide3

3How does the topic fit

into your course?An example of

an

interdisciplinary

approach

:

Talking

about

the

same topic does not necessarily mean you are talking about the same thingHow to make sure to talk about the same topic:clarify from which perspective and therefore with which intention you address the topicclarify where your questions overlap and where they do notmake sure you understand each others terminologyWhy use an interdisciplinary approach at all?There are dependencies between the disciplines concerning the topic.Understanding the other discipline‘s questions, interests, terminology helps to develop a fruitful discussion for both sides-

Law

and

ReligionSlide4

4VI A Liberdade Religiosa§ 18 O Homem, a Religião e a Sociedade

§ 19 A evolução da relação do Direito, do Estado e da Religião§ 20 O princípio da laicidade no Estado

Constitucional

§

21 As

fontes da liberdade

religiosa

no Direito da

Religião

§

22

A liberdade religiosa na sua dimensão

individual§ 23 A liberdade religiosa na sua dimensão coletiva§ 24 A liberdade religiosa na especialidadeOverview of Lecture „Fundamental Rights“ on Freedom of ReligionSlide5

5„Religion“ names a general phenomenon

within societyA general description

from

the

outside

No

specification

of

the

religion (i.e. monotheistic, polytheistic, without a concept of God) No specification of the belief systemNo evaluation of the religion A prerequisite in order to cover religion in law in constitutional democracies Terminology is a key in understanding a discipline‘s perspectiveSlide6

6Religions and „Weltanschauungen“ Article 4 paragraph

1 of the German Constitution (Grundgesetz): Freedom of Faith and

Conscience

(

1) Freedom of faith and of conscience, and freedom to profess a religious or philosophical

creed (“

weltanschauliches

Bekenntnis

”),

shall be inviolable.

(2) The undisturbed practice of religion shall be guaranteed.ChristianityJudaismIslamBuddhismHinduism..Anthroposophy…….Freedom of religion for whom? Slide7

7Theology defines a (theistic) religion

from within, therefore not using the

term

„

religion

“

Specific

belief

system

/

denomination

Embracing

a specific perspective onto the belief systemDeveloping / systematizing a belief system from within The terminology in that context could beChurch (Christian perspective)BeliefFaithHow legal and theological perspectives intersect:Believers of all faiths (or „Weltanschauungen“) make use of their right to practice their religion.Terminology is a key in understanding a discipline‘s perspectiveSlide8

8„Freedom of religion“ implies the

freedom to practice your religion

individually

Attend

services

Practice

your

faith‘s

ritesMake your faith visibleGet religious instructionCelebrate your holidaysThe freedom to practice your religion sociallyBuild instituitions or programmes that express religious values (i.e. in care, schools, kindergarten, social projects)Theology or philosophical training as a possibilty to communicate your faith to others (inside and outside the religious community) Enter the ethical discourse in a plural societyUsing freedom of religion - how?Slide9

9Freedom of religion is a fundamental

right guarantueed by the law

/

the

state

to

be

used

(

or not used) within a society.Religious communities are no self-contained entities, but also have an influence on society as a whole and therefore have an influence on ethical discussions which can influence law-making (§23). circle movement between law and religion Freedom of Religion – A frame offered by the constitutional state via law to be filled with lifeSlide10

10

Law and religion and their

impact

on

each

otherSlide11

11„Law and fundamental rights“ within

theology/ethics (and law)„

Law

“ in

the

theological

sense

the

laws

/

commandments

in the Bible/Tanakh or i.e. a term within dogmatic theology, specifically according to Luther in describing the word of God as Law and Gospel„Right“ is a term important to all three disciplines – law and theology/ethics „Justice“ is a predominant term for theology and ethics, but is not predominant in law / a law system (i.e. law conformity as the chosen mean to achieve justice). Terminology is a key in understanding a discipline‘s perspectiveSlide12

12The topic „Law and religion“ is therefore

rather typical for a legal perspective with

regard

to

the

the

question

and

the terminology.It is not a relationship that is in that terminology addressed from a theological perspective.In the legal sense above „law and religion“ would commonly be discussed in the discourse on state church law (already a mix of law and theology).Law and religion in a broader sense leads to various questions within theology that are not restricted to state church law.Law and religion – what relationship is meant?Slide13

13With a theological-ethical perspective I leave

the neutral sphere of talking about

religion

I

position

myself

in

the

realm

of

religions (as a believer)More specifically: ChristianProtestantReformed background (Calvin) Favoring a fundamental/public theologyArgueing from an ethical perspectiveGermanWhat are fundamental questions, tasks and intentions of theology and theological ethics?A theological-ethical perspectiveSlide14

14Theology is the academic

reflection on the belief system of a specific

denomination

.

Christian/Protestant

Theology

consists

of

Exegesis

Old Testament

New Testament

Church HistorySystematic TheologyDogmatic Theology (systematizing the belief system, covering topics such as „trinity“, „justification“, „anthropology“, „creation“ etc.)Ethics Practical TheologyTheology – what is its intention?Slide15

15Ethics reflects on moral concepts and

values.Compares / evaluates / differentiates

values

(

value

hierarchy

, i.e.

principle, maxime

, norm,

rule

)

Offers definitions of terminology, clarifies meaningDefines / describes the source and context of the value.Argues for or against a certain position related to values.Offers concepts on how these values are best realized (i.e. Rawls, Theory of Justice)Stops before the concrete / practical level of application. Ethics – what is its basic task?Slide16

16Philosophical ethics

Each subdivision not unified, but subject to

various

opinions

Deontological

approaches

Kant

Discourse

ethicsContractualismTeleological approachesAristotleUtilitiarianism…………Theological ethicsChristian ethicsProtestant ethicsCatholic ethicsOrthodox ethicsMuslim ethicsJewish ethicsEthics – which ethics?Slide17

17Theological ethics can have

two directionswithin the

church

(

for

church

members only

)

i

nto

society (for all citizens independent of their faith)Both are founded in the Christian faith (specific with respect to the denomination)and argue in favor of values important to it, i.e. peace, protection of the creation, lifeDepending on the intention the reasoning within the discourse differswithin the church reasoning and terminology can be purely theologicalfor a discourse that goes beyond the church a translation of concepts becomes necessary, i.e. with reception of the philosophical ethical discourseTheological ethicsSlide18

18Theological ethics does not imply

that one certain ethical evaluation

is

the

necessary

outcome.

The

starting

point may be distinct (i.e. understanding life as a gift of God), but the outcome is open (contra abortion or considering abortion an important option for mothers). ethical concept AStarting point (protestant theology) ethical concept B ethical concept CTheological-ethical concepts can coincide with philosophical ethics.Starting point (protestant theology) Starting point (philosophical ethics A) ethical concept AStartingpoint and outcomeSlide19

19„concrete“ in the sense of applying

an abstract concept to a specific situation

„fundamental-

theological

“ in

the

sense

of

:

Understanding a

theological

perspective as one among many in a religiously and philosophically plural society that is functionally differentiatedKeeping content of the christian theological tradition understandable and in attachment to such a societyIntroducing such content into current ethical discourseBased on 1 Petr. 3,15: „But give honour to Christ in your hearts as your Lord; and be ready at any time when you are questioned about the hope which is in you, to give an answer in the fear of the Lord and without pride”My theological-ethical perspective –a fundamental-theological approach and a concrete ethicSlide20

20Ethics is a science which

detects normative questions analyses

them

with

regard

to

their

presuppositions

and consequencesindentifies criteria for their evaluation and therebyoffers counsel for decision-makersUnderstanding of ethics in that perspectiveSlide21

21Theological ethics is not

restricted to „typical religious“ topics.

Public

Health

is

not per se a

theological

topic

.

Yet

the topic stirs an ethical debate that considers various anthropological aspects and is therefore also of interest for theological ethics. Theological ethics cannot therefore not be defined by its topics. Theological ethics can better be defined by the fact that the perspective on any topic is influenced by an understanding that is rooted in the Christian faith. Theological ethics offers a meta-ethical approach that can be fruitful beyond the Christian or any religious community, but for the general ethical discourse in a plural society.What is typical for theological-ethical

positions

?Slide22

22

22

Ethical

:

Theological-ethical

discourse

on

law

,

rights

and justice Legal ethics is more and different to an ethics of church lawBiblical:Laws in the Bible – in an ethical / behavioral sense Decalogue / 10 Commandments (Ex 20, Dt 5) Levitcus (sacrifice and purity) Deuteronomic Code Sermon on the MountLaws in the Tanakh 613 commandments (Mosaic Law, „the Law“, concerning i.e. food, body hygiene, clothing ,, sexual practices, temple instructions) Torah is the whole Pentateuch.Possible relations

between

„

law

and

religion

“ in a

theological

perspectiveSlide23

23Law in the Bible/Tanakh - in a legal sense

Early legal bodies (i.e. Dt. 12-16, ca. 7th century B.C) that are not

restricted

to

religious

purposes, but serve

political

ones

as well(Laws of Religious Observance)Laws concerning OfficialsCivil lawCriminal lawThe Decalogue uses terms and wording from legal texts in Mesopotamia (i.e. Hittite treaties or Mesopotamian law codes such as the Code of Hammurabi), but in contrast to Mesopotamian law which was always king law the Decalogue is rooted in the relationship to God.Biblical perspective continued: Deuteronomic Code and DecalogueSlide24

24Lost in translation

EnglishPortuguese

German

Hebrew

Law

Lei

Gesetz

Torah

(

instruction

)

RightDireitoRechtMispatJusticeJustiçaGerechtigkeitZedaqahLegal ethicRechtsethikSlide25

25

Possible relations between „law and religion

“ in a

theological

sense

Institutional

:

Law

and

religion

is more closely understood as the „law and church(es)“Church Law law the churches give themselvesState Church Law regulating the relationship between churches and stateFundamental rightsSlide26

26

Law and justice in their theological

perspectivesSlide27

27I position myself in the theological-ethical

discourse with one specific perspective

More

specifically

:

Christian

Protestant

Reformed

background

(Calvin)

Favoring

a public/fundamental theologyArgueing from an ethical perspectiveGermanOne theological-ethical perspective among manySlide28

28Relationship

of Law and Religion is not defined independently

of

its

context

Portugal

Germany

Historically

predominantly CatholicHistorically influenced by three Christian denominations: Catholic, Lutheran, ReformedLaicistic Seperation of state and church (Weimarer Reichsverfassung (Weimar Constitution 1919) and GG (German Constitution, 1949)„res mixta“: taxes, theological faculties, religious education, pastoral care in

the

military

Preamble GG:

“

Conscious of their responsibility before God and man… “

Minimizing

influence

of

the

Catholic

church

on

the

state

Different

organisation

of

the

churches

starting

with

the

Reformation

and

their

different

understanding

of

rulers

and

state

Slide29

291919 Weimar Republic Separation of state

and church 1933 NS State

theological

claims

of

NS

state to

„

aryanize

“

the church: German Christians1934 Barmen Declaration call for clear distinction between church and state: Confessing Christians1949 Grundgesetz (German Federal Republic) Separation of state and church 1990 German Unification possibilities for a further distinction between state and church were not taken GG and its reference to the Weimar Constitution were kept as they were Relationship of state and church – German history and its impact on current conceptsSlide30

30NS state instrumentalized the churches

German Democratic Republic penalized the churches

– Freedom

of

religion

in

lex

In

both

situation

the churches gave specific impulses against the oppressive system of the stateBarmen Declaration as one foundation in the resistanceThe Monday Demonstrations in Leipzig started within the church and were one major factor that lead to the downfall of the German Democratic Republic in 1989 influence on theology, ethics and the understanding of lawChurches in party dictatorships in GermanySlide31

31Monday demonstrations in LeipzigSlide32

32300.000 demonstrating on 23 October 1989 in LeipzigSlide33

33German Democratic Republic had freedom of

religion in lexIn reality members

of

the

church

were repressed

Nevertheless

,

the

churches prove to be free spaces in which various movements organized themselves (had telephones and printing presses)Womens‘ RightsEnvironment RightsPeace MovementHomosexual MovementSingular Pastors within the church, not the entire church were involved in the political movement i.e. Peace Prayers led to Monday DemonstrationsDecisive theological influence on the movement was the stress on „No violence“„We were prepared for everything, but not for prayers and candles.“, Stasi officialSlide34

34Bohley‘s sentence marks the fundamental

challenge of a legal ethic:How do

content

and

form

relate

?

German history

with

the NS regime and the constant bending of law in the SED-regime showlaw and ethics should never be seperatedlaw must not be in favor of one specific ethical-political conceptlaws need enforcementlaw conformity is not necessarily just„We were hoping for justice and got the constitutional state.“, Bärbel Bohley, 1992Slide35

35Law (in the legal sense) is seen as

a means or outcome of an understanding

of

justice

.

Justice

is

the

main topic for theological ethics in the broader context of „law and religion“. Rights are evaluated in the light of a certain understanding of justice.Theology differentiates between Justice of God Justice of / for MankindJustice is interpreted by a biblical understanding of justice.Current theological-ethical discourse on theories on justice is unthinkable without the consideration of philosophical concepts (i.e. Rawls, Sen, Nussbaum, Fraser). Law and religion – a more substantial theological-ethical point of viewSlide36

36In theology justice is

measured by the consideration of a

favored

option

for

the disadvantaged.

The

concept

of „favored option for the disadvantaged“ originates in Latinamerican Liberation Theology and is since the 1990s a main criterion for biblically based theological reasoning within the discourse on theories of justice.Example Martin Luther King: As long as there is discrimination the call for justice is necessary.This is the starting point for a theologically influenced position in which the discussion about rights becomes necessary: the poor/weak… have a right to be protected.Favored option for the disadvantagedSlide37

37…Theological ethics offers a

meta-ethical approach that can be

fruitful

beyond

the

Christian

or

any

religious

community, but for the general ethical discourse in a plural society.Making one‘s presuppositions visibleDescribing the context and genealogy of a conceptWhere do these presuppositions lead to in a „concrete“ ethic?What is typical for theological-ethical positions? Slide38

38Direito, Religião, direito à vida e aborto Direito

, Religião e tratamentos médicosDireito, Religião, direito

à vida e

eutanásia

Ensino

da Religião nas escolas públicas

Direito

,

Religião

e casamento

Direito

,

Religião e proteção penal dos sentimentos religiososFundamento e limites do financiamento público das atividades religiosasServiços públicos e símbolos religiosos: a questão dos crucifixos nos lugares públicosPossible paper topics on freedom of religionSlide39

39Legal context:Criminal

law and the Professional Code for Physicians in Germany

Assisted

suicide

is

not

penalized

,

physician-assisted

suicide isQuestions of the current debate:Should „Sterbehilfe“ organisations be prohibited?Should physician-assisted suicide be regulated restrictively or in eqivalent to Criminal law?Can killing on demand be legalized? (§216 StGB: 6 months to 5 years custodial sentence)Horizon of the debate:Regulation in the Benelux countries as direct neighbor and their much less restricted regulationEthical question:How is dying in dignity possible (in Germany)?Example of theological-ethical reasoning in the current German debate on (physician-) assisted suicideSlide40

40By describing two types

of evaulative concepts of self-determination (Selbstbestimmung)

By

asking

whether

the

constitutional

state

is allowed to favor a concept of self-determination in its legal provisions that does not equal the liberal model of negative freedom.A concept of a concrete ethic in a Protetstant perspective whose categories of interpretation are rooted in its reflexion on faith favors a concept of self-determination that is relation-oriented and inclusion-sensitive.Based on: Peter Dabrock, Selbstbestimmungsalternativen zwischen ethischer Bewertung und rechtlicher Normierung. Ein Beitrag (nicht nur) zur Sterbehilfe-Diskussion, in: Zeitschrift für Evangelische Ethik (59.2) 2015, 123-132 (published May 2015).Describing presuppositions and consequences of evaluative and normative decisionsSlide41

41Deep down one knows that

despite the wish of „dying in

dignity

“

one

can

only surrender in

the

face

of death. Death is an incidence of radical passivity and the end of all claims to possession and control.Yet, trying to keep the worst from dying, self-determination becomes a value and lateron a moral and legal norm so that others or „the“ society do not paternalize the arrangement /organisation of one‘s own dying process. Self-determination is philosophically understood in the Kantian sense of autonomy in practical reason which was recepted (and transformed) in theology since the19th century:The individual is not only the author / creator (Urheber) of his doings but can also offer rationally understandable reasons for itEvaluating self-determinationSlide42

422 programmatic sentences cover this

understanding most A „ My end is mine!“

and

B „I

want

to die as I

have

lived

!“Also A most hopefully has loved ones she/he leaves behind. Death is also the end of any possession.B.1 There is a 1:1 relationship between a person‘s lifestyle and her/his wish to die. Sovereign, autarc and relation-insensitve individual How has the person lived and is his/her wish possible within legal norms? B.2 There is no 1:1 relationship between a person‘s lifestyle and her/his wish to die - discrepancy almost everyone leaves in some constellation with friends and families and regards it as the ideal even when failing and considers it helpful in difficult situationsType 1: concept of self-determination in majority viewSlide43

43Favoring strong autarcy (self-sufficiency) despite

the fact of living in social

relations

can

be

seen as

an

exit-strategy

in extreme

casesExtreme painState of mere vegetatingFear of loss of control of your own bodyLack of experiencing relationshipsLoss of meaning of lifeThese fears have to be taken seriously, especially in a Protestant theological ethics that is not only talking interdisciplinary with philosophy and law, but also pastoral care.One could stop with describing the discrepancy as a given. But one could also argue that due to the highly valued reality of relationships it also should be valued in questions of dying and that self-determination cannot entirely be defined by the authorship of one‘s

actions

or

self-sufficient

sovereignty

of

action

.

Explaining

the

discrepancy

between

an

exit-program

and

lived

relationship-pragmatismSlide44

44Paul Ricœur‘s approach is paradigmatic

for such a phenomenological approach.The self

cannot

be

completely

defined

by

concentrating

on the capability to reflect one‘s reason to act.Having a body (Leiblichkeit) is regarded as another important influence on understanding one‘s self. Attributions of one self and others are integrated into a told identity which stays aware of its fragmentarity.To such an understanding of identity belong biological and biographical transformations. Therefore:vulnerabilitysufferingageing and sicknesspassivity and passion need constitutively be integrated into such a concept of self-determination.Type 2: Concept of self-determination – a phenomenological perspectiveSlide45

45- Relationship-orientedNever entirely understood

/ graspedis actively or

passively

engaged

in

relationships

of care

k

nows

itself bound to claims of justiceresponsive-communicative The relationship-orientation in the phenomenological approach finds its equivalent in Luther‘s understanding of „freedom of a christian“Vertical relationship to GodHorizontal relationship to man (Nächste)Anthropological fragmentarity (simul iustus et peccator)Understanding the self / individual in Type 2Slide46

46Self-determination should be realizable for

as many people as possible (not only an

elite

)

Institutional

effects

and legal (

economical

)

effects

have to be tested on their inclusion sensitivity when argueing with the concept of self-determination in the current debate on medically assisted suicide, one should consider that the interpretation of the concept is much more openNot only 2 concepts- Individualistic self-determination, interpreted by negative freedom- Restricting self-determination, interpreted by a authoritatively understood idea of prohibition Relationship-oriented and inclusion-sensitive self-determination is not against self-determination and yet not an individualistic conceptDimension of justice in the relationship-oriented conceptSlide47

47No objective interpretation of self-determination in the constitutional law.Is self-determination in the relationship-oriented concept becoming void due to the idea of inclusion?Only true when that concept would disproportionately interfere with the fundamental right of general freedom of

action.State has a wide range of possible regulations.Alternative concepts to a self-determined “dying in dignity” to medically-assisted suicide and killing “on demand”:

Limiting

medical treatment,

Palliative care

Palliative sedation

Own decision to stop eating and drinking

Can the position be legally normative?Slide48

48Due to these alternatives there can be no valid claim that the state should offer further possibilities for suicide.Normatively, there is further reason to favor the relationship-oriented concept because the autarcy

-based concept has problematic incidental legal consequences that should not be acquiesced by society:- Is a shift in the paradigm in the understanding and practice of dying to be expected?Slide49

49Concern whether allowing physician-assisted suicide leads to allowing killing on demand. One denying argument is that there is no pressure on vulnerable groups. To foster this argument it is claimed that

intellectual, financial and organizational input is immense so that the practice will not influence the poor or those without proper education. naturalistic fallacy and ethically incoherent

If one argues in ethical favor of assisted suicide there should be an interest in making it accessible for everyone:

e

litist

not realizing the moral maxim of ethical

universalizing

Active shortening of life as a shift in the paradigm of dealing with dying?Slide50

50Ex-post view is not sufficientEx-ante view has to take the Benelux countries as an example into account where killing “on demand” is allowed:Number and reasons for legalization of such action as well as groups using it continually increased

Considering thatthe difference between assisted suicide and killing on demand becomes blurry due to technical possibilitiesa majority of Germans does not want to accept that difference

a

ruling that is created in times of economical prosperity is not to be expected to be denied in less prosper times

it has to be looked at very closely whether a fundament for a shift of paradigm that will pressure vulnerable groups has been built.

Slippery-slope argument only a slippery slope?Slide51

51Age curve in the populationPersonal and financial problems in keeping up health care

Economical weakening to be expected Pressure on the sick and weak that need proportionally high amount of resources and have no “use” for societyGB and NL discuss introducing financial upper limits for reimbursement of careIf that becomes a normal option of dying it will be very difficult to reason

deontologically

against it

attributing

that expectation of dying from the outside. That expectation will

lateron

become

one that is attributed to one’s self.

When denying the ex-ante view one sees the ex-post view as the only possible option and is in coalition (with or without intention

) with those

argueing

in favor of physician-assisted suicide.Specifications of a possible shift of paradigmSlide52

52Maxims and actions of an individual may be posterior to a social order, if harm to others is detectable or a realistic threat. The measure by which these limits are set is the possibility to include the weakest.

It is debatable who the “weakest” are, yet the question needs to be put.There are alternatives to physician-assisted suicideBy allowing physician-assisted suicide and killing on demand an individualistic concept of self-determination can hardly be revised

hierarchy of inclusion

:

Primarily those are to be protected whose suffering and dying is cost-extensive for a society and who might under a social dictate be asked why they are still

there.

Secondly,

the calls for self-determination of those who call for shortening of life by doctors in difficult situations are to be

protected.

Normative consequenceSlide53

53The ethical criterion of that

moral perspective of concern is

a

n

inclusion-sensitivity

of

those

identified

as

the weakest.It is not the defending or the re-establishing of a restricitve moral concept of prohibition.Norm-logically that means:When a norm helps the weakest it needs to be protected and not its exception, also if persons will endure hardships because of it – yet one less weak.Yet, it would be right to consider these well-founded exceptionals matters of fact with all possible equity. Moral perspective of concernSlide54

54Assisted suicide contradicts the understanding of being a doctor:HealingRelief (of pain)Considering patients’ wishes with regard to the aims above

Physician-assisted suicide would be a significant cultural breach of the image of doctors. The strict prohibition of physician-assisted suicide in the Professional Code for

Physicians

in Germany

should be kept.

Without doubt that can lead some doctors in singular cases into conflicts of conscience.

Consequences for doctorsSlide55

55German Ethics Council which informs parliament and government allows decisions of conscience in contrast to the Code thereby abolishing the

norm.Understanding the conflict is one thing, abolishing the consequences a norm should have another.Doctors who had consciously decided otherwise in the last decades have not lost their license to practice medicine.

Abolishing the norm in order to offer doctors predictability of legal decisions

d

enies the functional meaning of norms

a

nd of conscientious decisions.

Reasoning of German Ethics CouncilSlide56

56The current German debate seemed to focus on the supposedly small change in the Professional Code for Physicians, but there is more at stake.It is also a question whether a process is started that will turn suicide and assisted suicide ethically and norm-logically into a normal option ormore carefully put: a more normal option of dying.

The concern that such a development might not now, but in economically more pressing times, lead to scenarios that are highly problematic and very difficult to correct cannot be marginalized as a mere slippery-slope-drama. Conclusion