Normativity and Facticity in Protection of Religious Freedom

Abstract

The paper considers the legal and philosophical issue of the correlation between facticity and normativity in the aspect of regulation and protection of religious freedoms in the past contemporary Russian law. The paper suggests considering in this aspect the gap between the normative content and the meaning of the corresponding norms of Russian constitution and statutory law and the implementation of these norms in court and law-enforcement practice. The author argues that the liberal norms transplanted from Western legal orders into Russian law do not fit well the symbolic sphere of the post-Soviet Russia where religion itself serves as one of the cornerstones of national identity and as a major constituent element of the state ideology. In factual court practice, constitutional and statutory norms about freedom of conscience are shaped contrary to their prima facie meaning. The lack of tolerance in Russian society leads to the fact that many non-traditional religious denominations are considered as socially unacceptable, and for this reason there emerges a societal attitude against the non-traditional religious denominations. Being formally under the authority of the law, judges and other adjudicators are in fact under the influence of many factors among which one can mention different programs and declarations by the political leadership and by state officials, as well as the public opinion. In author's opinion, this leads to the integration of the religious conceptions of the «traditional» denominations into Russian legal order, which is illustrated in the recent statutory amendments concerning the protection of “religious feelings' and in the practice of enforcement of the anti-extremist legislation. From the legal and philosophical standpoint, this situation shows the ambiguity of the interrelation between the normative propositions that guarantee the freedom of conscience and the factual frameworks of application of these propositions in Russian law. In author's opinion, this example of this ambiguity of the facticity/normativity divide in what concerns the protection of religious freedoms justifies also addressing this divide and its implications in other fields of legal regulation.