© Copyrighted Material © Copyrighted Material www.ashgate.com www.ashgate.com www.ashgate.com www.ashgate.com www.ashgate.com www.ashgate.com www.ashgate.com www.ashgate.com www.ashgate.com www.ashgate.com www.ashgate.com www.ashgate.com Chapter 5 Religious Freedom and the Public–Private Divide: A Broken Promise in Europe? Alessandro Ferrari Introduction: Fluctuating Paradigms The distinction between private and public spaces has always been, simultaneously, very porous, dynamic and ideological, and strongly inluenced by political contingencies. This has been so in particular since the appearance in Europe of the modern Nation State that claims the monopolistic competence of ruling the public arena and drawing the boundaries between the public and private domains. Consequently, the changes of this peculiar European institution during history represent a central place from which to observe the shift in the private–public divide. Indeed it is the modern State that has deined, in different ways according to the times, the space and role of its ‘counterpart’, the private sphere. The latter can be free – and distinct – from the State only when the State agrees and restrains itself, in this way giving spaces of freedom to individuals and groups. Thus, if it is not possible to conceive of a State without a previous private space, it is also not possible, in Europe, to conceive of a private space without a State disposed to guarantee it. This situation is evident in the classical deinition of the right to religious freedom, intended as the right that ‘grants individuals a legal space free of state interference in which they can follow a way of life corresponding to their belief’. 1 Post-Second World War constitutions have deeply transformed the relationships between State and ‘private sphere’, turning the role of the State from an ‘end’ into a ‘means’ for the effective implementation of fundamental rights. In this way the State has lost its previous monopoly and constitutional rights have become the borderlands between the State and society. Constitutional rights are therefore the ‘symbol’ that requires both halves – the public and the private – in order to function. This ‘symbolic role’ played by constitutional rights gives rise to a sort of Trinitarian model consisting of three distinct, autonomous but interconnected spheres: private, public institutional (the State) and public informal (civil society). 1 In this way the German Constitutional Court quoted by (Doe 2011: 43).