Religious Freedom In The Legal Regulation

As a fundamental human right,freedom of religion is confirmed and recognized by constitutions of many countries in the world.Meanwhile freedom of religion is subject to certain limitations as any other sorts of freedoms.It is rational,as well as scientific,to study religious freedom from the perspective of law,which also intellectually supports the protection and realization of religious freedom.Therefore this dissertation makes some researches on the legal issues about freedom of religion.As to the structure,this dissertation is divided into two parts which consist of four chapters,in which the history,theories and legal protection of religious freedom is examined and studied.Consisting of two chapters,Part One is mainly concemed with the perception of freedom of religion from the perspective of law.Chapter One presents the necessity of studying freedom of religion,its history and related theories.At first,it discusses the necessity of studying freedom of religion in China and points out that freedom of religion,being an important fundamental human right,is an indispensable part of modern constitutionalism.However,we Chinese lack systematic awareness and cognition of its history,theory and practice.What's more,some even doubt its legitimacy just because it originates from the western society.The reality highlights the value and necessity of studying religious freedom in China especially in a reasonable way,namely,in a legal analytical way.This can also be regarded as a justification for the topic. Next this dissertation makes a thorough enquiry into the history and theories of religious freedom.It chooses several major periods in western civilization, namely,the ancient Greece and ancient Rome,the Middle Age of Europe,early America and modern society,and briefly introduces the development of religious freedom in those periods.According to the results of current research, the legitimacy of religious freedom is connected with two theories:the theory of natural rights and the theory of pragmatism.Chapter Two is made up of three parts and in which the constitutional meaning of religious freedom is scrutinized. The first section probes into the relationship between the constitution and freedom of religion.Based on the background of the first written constitution in the world, namely,the Constitution of U.S.A,the dissertation holds that religious freedom justifies the constitution itself,and it defines the objective of the constitution as well;then the dissertation makes a deliberate analysis of "the relationship between church and state",whose Chinese version is "the relationship between Zheng and Jiao".It argues that in Chinese the concept actually includes four aspects:the state(the political Establishment) and the church,politics and religion,the state and religion,politics and the church.Constitutionally speaking,separation of church and state basically means the religious unit's independence from the state.Furthermore,the dissertation defines the relationship between the constitution and freedom of religion in the following two aspects:the ideology and the operation of political power respectively. With regard to the ideology,the constitution requires that the will of the state fully respects religious freedom of individuals,which is specifically embodied in the state's observing the principle of neutrality in the process of legislation; With regard to the operation of political power,modern constitutionalism mainly resorts to the principle of rule of law to govern the relationship between state and church.The second section discusses the connotation and nature of religious freedom.In essence,freedom of religion means religious freedom that is protected by constitution.Being a bestowed right,it is both intrinsic and inviolable by nature.However,in reality it is subject to some constitutional principles such as rule of law.Besides,owing to different forms of religious freedoms,they have various contents and qualities which requires to be treated specifically.The third section studies the categories of freedom of religion.Viewing from different angles,we can find that there are freedoms of religion in narrow and broad senses,in internal and external senses,in positive and negative senses,and in individual and collective senses.Part Two mainly discusses the legal issues arising from the regulation of religious freedom.There are two chapters in this part.Chapter Three analyzes the safeguards and boundary of religious freedom. Theoretically the protection modes of religious freedom can be classified into two categories:the mode of positive protection and the mode of negative protection,which are presented in three specific forms in the constitution.The boundary of religious freedom is characterized by relativity and particularity. While the limitation of religious freedom mainly comes from the government, constitutionalism requires that the state satisfy the need of legality,both formally and substantially,when it comes to limit citizen's freedom of religion. The provision of limiting religious freedom in the constitution constitutes the formal basis for the state to control citizen's freedom of religion;meanwhile, there are some substantial principles which the state should observe when it limits freedom of religion,and among which there are the principles of neutrality,proportionality and reservation of law.Chapter Four further examines different safeguards of religious freedom by way of illustration.By comparing the situations of China with that of the U.S.A,the dissertation concludes that the U.S.A represents the classic negative protection mode,while China's existing legal frame dictates that the state adopt the mode of positive protection.