T. Jeremy Gunn, Introduction

• Citation: Vol. 19 No. 2
• Publication year: 2005
• topic: Constitutional Law

INTRODUCTION

THE PERMISSIBLE SCOPE OF LEGAL LIMITATIONS ON THE FREEDOM OF RELIGION OR BELIEF: A COMPARATIVE PERSPECTIVE

T. Jeremy Gunn

Each country in the world is highly idiosyncratic in how it regulates religion. Though there may be international trends towards greater cohesion and similarity in laws regulating contracts, trade, securities, transportation, the environment, civil liability, and perhaps even the criminal law, religion is one realm where each country is likely to insist on its peculiar history and culture as a basis for preserving its unique approach to regulating religion. Because of the idiosyncrasies of the issues involving religion, comparative law studies often seem somewhat disjointed if not actually confusing. To illustrate this problem, we can imagine that a book entitled Religion and Law in the United States might well consist solely of analyses of decisions of the United States Supreme Court. A book with the comparable title Religion et droit en France would include no decision on religion by France's Conseil Constitutionnel, and it would probably include lengthy discussions of the comparative rights of various types of group to receive contributions and bequests (which would not even be mentioned in the American text). Thus an obvious problem in the field of comparative law on religion, where these two countries would be compared, is that they may have completely different notions of what the important issues are and what the role of the state should be.

The articles in this issue of the Emory International Law Review were broadly inspired by an attempt to respond to the difficulty of cross-cultural and cross-national approaches to regulating religion. As a way of partially addressing this complexity, all of the contributions focus on a single theme: governmental restrictions on freedom of religion and belief. The essays undertake country-specific analyses, while the articles examine limitations from an international-law perspective or look at issues from a thematic viewpoint.

Most written constitutions, as well as the major international human rights instruments, typically contain a clause that provides some form of protection for freedom of religion and belief. For example, Art. 18.1 of the International Covenant on Civil and Political Rights (ICCPR) provides, in part, that "Everyone shall have the right to freedom of thought, conscience and religion." In addition, most constitutions and human rights instruments contain a second clause that identifies the circumstances under which the...