Over the course of the last three years, British Government counter-terrorism policy has shifted significantly to embrace “counter-extremism.” This is justified not only in terms of addressing the underlying causes of terrorism, but also in its own right as addressing the “harm” of extremism. These proposals raise fundamental questions about the limits of religious and other civil liberties. However, the problem of extremism is not new. The German public intellectual and constitutional lawyer Ernst-Wolfgang Böckenförde reflected extensively on the same problem in the context of German responses to left-wing radicalism in the mid-1970s. His work touched on both concrete legal problems as well as fundamental philosophical assumptions about the nature, characteristics, and limits of the liberal democratic constitutional state. In this article, I seek to retrieve his ideas and arguments for the current British context. I argue that the current discourse of extremism and fundamental British values risks being used as a vehicle for promoting a “progressive” public ideology of individual self-creation. This fails to take moral and religious diversity seriously, and its implementation betrays the foundations of the liberal democratic constitution. It provides striking confirmation of Böckenförde's thesis that the liberal state is perennially prone to a totalitarian tendency to seek to generate its own distinctive ethical community. As Böckenförde recognized, what is needed instead is the recovery of a thin common morality of civic loyalty as shown pre-eminently in obedience to law.

In recent years, the relationship between law and religion has been subject to increased scholarly interest. In part this is the result of new laws protecting religious liberty and non-discrimination, and it may be that overall levels of litigation have increased as well. In all this activity, there are signs that the relationship between law and religion is changing. While unable to address every matter of detail, this article seeks to identify the underlying themes and trends. It starts by suggesting that the constitutional settlement achieved by the end of the nineteenth century has often been overlooked, religion only appearing in the guise of inadequately theorised commitments to individual liberty and equality. The article then considers the role of multiculturalism in promoting recent legal changes. However, the new commitment to multiculturalism cannot explain a number of features of the law: the minimal impact of the Human Rights Act 1998, the uncertain effect of equality legislation, an apparent rise in litigation in established areas of law and religion, and some striking cases in which acts have been found to be unlawful in surprising ways. In contrast, the article proposes a new secularisation thesis. The law is coming to treat religions as merely recreational and trivial. This has the effect of reducing the significance of religion as a matter of conscience, as legal system and as a context for public service. As a way of managing the ever-deepening forms of religious diversity present within the United Kingdom, such a secularisation strategy is implausible.1

Modern theorists often use Immanuel Kant's work to defend the normative primacy of human rights and the necessity of institutionally autonomous forms of global governance. However, properly understood, his law of nations describes a loose and noncoercive confederation of republican states. In this way, Kant steers a course between earlier natural lawyers such as Grotius, who defended just-war theory, and visions of a global unitary or federal state. This substantively mundane claim should not obscure a more profound contribution to the science of international law. Kant demonstrates that his concept of law forms part of a logical framework by which to ascertain the necessary institutional characteristics of the international legal order. Specifically, his view is that the international legal order can only take a noncoercive confederated form as its subjects become republican states and that in these circumstances law can exist without a global state. Put another way, Kant argues that if we get state-building right, the law of nations follows.

When Theseus returned from Crete, his ship was long preserved in Athens. Over time, individual planks rotted and were replaced, until eventually all the planks had been renewed. Was the Athenian ship still the original one of Theseus? The problem that vexed Greek philosophers can be made more acute if one imagines that the rotten planks had been preserved, restored and eventually reconstructed into another ship. Which is now Theseus' ship? This was the problem facing Blackburne J in the High Court in the case of Dean v Burne. In effect, he decided that the ship of new planks is still the original one.

This article traces the recent development of gender equality law, understood broadly to embrace sex, transsexual and sexual orientation discrimination. Against this background it considers the ‘problem’ of religion from two perspectives. First, religion is seen as representing a problematic obstacle to the pursuit of a modern gender equality programme, and this results in judicial tendencies to criticise religion and constrain its significance. Second, religions and religious bodies themselves have difficulties with the new ethic underlying recent legal changes. The tension between religious ethics and the new law has resulted in a series of exceptions for religious bodies. However, these are rather narrow, and can be viewed as the minimum necessary to satisfy international and European human rights standards. The article then considers the enigma of equality and the question-begging nature of much of the law made in its name. It concludes that modern problems are better seen not as a clash between religious liberty and gender equality, but as a shift in conceptions of equality. At the same time, this shift has been accompanied by a significant juridification of what for a long time have been social spaces virtually immune from secular legal regulation. Ironically, a new establishment is being created which barely tolerates dissenters.

ARTICLES 29 and 30 of the Universal Declaration of Human Rights contain a series of limitations to human rights. Article 29(2) states:

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.