When a Constitutional Democracy Meets Islam: The Italian Case

Francesco Alicino

By Francesco Alicino — In a constitutional democracy, the right to freedom of religion implies that everyone can freely profess, practise, and propagate their faith in various forms, alone or in community with others, in public or private, in worship, teaching, and observance. With this in mind, the political-legal task is how to balance individual and collective rights, a problem which also manifests in the not always easy relationship between the principles of equality and diversity. It is true that a reasonable implementation of the former (equality) involves the accommodation of the latter (diversity). Yet it is also evident that diversity cannot supersede the protection of fundamental rights and freedoms, which must be guaranteed to all persons regardless of their religious affiliation. In a constitutional democracy the latter becomes a precondition for a practical application of the former, and vice versa. The two are inextricable from each other, even if they are often at odds.

From this point of view, Italy represents an interesting case study.

This is for two main reasons. First, Italy is experiencing a form of religious pluralism that is new to it, which has led the country to question its principle of secularism. Second, because of its geographic location and its long history of struggle against both domestic terrorism (see, for example, the so—called anni di piombo, or “years of lead” in the 1970s) and criminal organizations (mafia, ’ndrangheta, camorra), Italy has developed both a tough immigration policy and highly efficient legal tools to prevent and punish acts of terrorism. In recent years, the Italian security state’s focus has shifted to Muslims and Islamic groups, which have become known as “Italian Islam” and comprise the largest religion in Italy after Catholicism.

New Pluralism

Italy’s model of church—state relations is different from other European models. In particular, it is different from the French laicité, which is bent on keeping religion out of the public sphere, and the multi-religious communitarian model, in which state cohesion is achieved through the unification of competing sets of values. The Italian republican model is instead founded on a peculiar version of secularity, as entrenched in Articles 2, 3, 7, 8, 19, and 20 of the Constitution. Through the combination of these Article, the Italian Constitutional Court has effectively shaped what is called il principio supremo di laicità (the supreme principle of secularism), which is a conjunction between favor libertatis (Articles 2, 3, and 19) and favor religionis (Articles 7, 8 and 20): while the former emphasizes individuals’ rights to practise religious and on religious beliefs, the latter gives special attention to religious denominations and institutions starting with the Roman Catholic Church, which is considered a central component of a nation’s historical and cultural heritage.

In this way, the Constitutional Court has clarified two important aspects of Italian secularism. On the one hand, there is the need to protect religious pluralism and the related fundamental rights and freedoms. On the other hand, there is the fact that the Catholic Church, while no longer the nation’s established religion, is strictly connected to the patrimonio storico del popolo italiano (historical heritage of the Italian population). These two components also describe what the Constitutional Court has called the “genus” and the “species” of Italy’s supreme principle of secularism: the genus is cultural and religious pluralism, which is an essential part of the Italian legal system; the species is the Catholic Church’s values, which are strictly related to the cultural heritage of that system. In brief, the legal genus of the supreme principle of secularism contains several cultural—religious species, the most relevant of which is Catholicism.

“The legal genus of the supreme principle of secularism contains several cultural—religious species, the most relevant of which is Catholicism.

The coexistence of favour libertatis and favor religionis accentuates the typical dilemmas of constitutional democracies, which are perpetually torn between the principle of equality and protection of diversity. In the face of this dilemma, the Italian supreme principle of secularism responds with its own version of legal pluralism, which is organized by a de facto classification of different types of religious groups. The first category is the Catholic Church, which is protected by Article 7 of the Constitution. In the second category are confessioni religiose diverse dalla cattolica (religious denominations other than Catholicism), which are asymmetrically divided between denominations that have an understanding called intesa (Article 8.3 of the Constitution) and denominations without intesa. In turn, denominations without intesa are divided into two subcategories: those that, on the basis of the 1159/1929 law on “admitted cults” are legally recognized as cults, and those that are legally considered non—religious associations. This last category contains all Islamic organizations except for the Islamic Cultural Centre of Italy based in Rome, which has been recognised as a religious entity under the 1159/1929 law. All other Muslim groups are legally considered non—religious associations,” which have a very weak legal capacity.

This shows that, in theory, Italy’s supreme principle of secularism recognizes all people, whether religious or not, as equal before the law. In practice, however, the nature of favor religionis and the historical reasons behind its normative form lead Italy’s secularism to make distinctions among and between religions, a distinction not always consistent with favor libertatis. Thus, it is not uncommon that the combination between the two results in an unequal coexistence, which is even more evident in the legal treatment of Muslims and Islamic groups.

Now, the question that needs to be asked is: why Islam?

Until three decades ago, Italy was considered a place of transit, a stepping—stone for other destinations. Over the years the peninsula has remained a place of transit, but it has also become the final destination for many immigrants, including a growing number of Muslims. Most have come from the Middle East or North Africa which combined make up 33.2 percent of the total number of immigrants in the country today. Islam is now the largest religion in Italy after Catholicism, even though the gap between the number of Catholics and the number of Muslims is still very wide. Islam in Italy is not a monolith. While they may constitute an ethnic, linguistic, and national minority, Muslims engage in a multiplicity of systems of thought, lifestyles, and religious practices. The fact is that, as has been argued, in Italy non c’é l’Islam, ci sono “gli” Islam: there is not one single religion that can be named as Islam, there are many Islams.

At the same time, perception matters, especially in the current scenario. And the perception of Muslims in Italy remains one of the key factors in national politics, especially considering that the Italian Republic is currently governed by the most right-wing government it has ever had. In their discourse, a comprehensive ethnonational conception of “Italians” figures prominently. Prima gli italiani, la famiglia tradizionale italiana, le tradizioni culturali italiane, noi cristiani e loro islamici, and la religione del popolo italiano (Italians first, Italy’s traditional family, Italy’s cultural traditions, we Christians and they Muslims, and religion of Italian people) are the slogans frequently used by those parties, who, with some embarrassment and electoral concerns, also appeal to the left of the political spectrum, especially at local levels. In fact, while weaponizing the “Islamic question,” these strange bedfellows have been covered extensively by the media, which, in turn, has exacerbated concerns about some religious matters.

For example, the issues concerning places of Islamic worship, namely mosques and minarets, is vividly present in the public debate, urban laws, and judicial disputes, even though only a few mosques and, with the exception of the Mosque of Colle Val d’Elsa, no minarets have been built in the country to date. In some Italian regions female genital mutilation has been described as a health emergency, long before concrete evidence have been recorded and investigated by the authorities. The use of the burqa is fiercely debated, notwithstanding the fact that few women wear it in Italy. Furthermore, sixty percent of the population believes that incoming immigrants and refugees increase the likelihood of terrorism in the country, despite the fact that the peninsula has remained largely unscathed by deadly Islamist attacks so far.

New Penal Laws

To a significant extent, Italy’s influx of Muslim immigrants has indeed been represented as both a threat to national security and a menace to Italian identity. It is not a coincidence that 50 percent of the population is “very concerned about extremism in the name of Islam,” more than in the UK (43 percent), France (46 percent), and Germany (47 percent), especially considering that in the last 25 years these countries have been hit by deadly Islamist terrorist attacks while Italy has not. Italy, on the other hand, has developed effective legal tools to prevent and counter religious terrorism since 9/11, which can be seen in both the criminal code and the anti-mafia code.

Since the 20005, new penal laws have arisen after terrorist attacks on European soil. When a person endangers the basic elements of a constitutional democracy, including the security of the state, the penal sanctions may be imposed against him or her, even if his or her conduct is not directly connected with the terrorist attacks that cause injuries, deaths, and other material damages. Thus, under the strategy to impede violent and indiscriminate assaults, even the mere dissemination of messages or images glorifying terrorism may itself be considered a criminal (terrorist) activity. These penal laws thus give judicial courts and security forces considerable powers. In normal circumstances this conduct (dissemination of messages or images) is protected under both the fundamental freedoms of expression; at most it may be considered fraud or the result of negligence. But in light of the existing terrorist emergency, this same conduct may be judged as a heinous crime that can lead to the application of penal sanctions.

New Preventative Measures

Given its long and intense history of struggle against both domestic terrorism and criminal organizations, Italy has also developed a highly efficient system of preventive measures: a system that, after the Parliament approved the 2015 antiterrorism decree, has been applied to current forms of international terrorism. These measures include the mechanisms and procedures of the anti—mafia code, whose application is based on indizi di pericolosità sociale (symptoms of social dangerousness). In cases like these, judicial authorities can authorize preventive measures not only when people have committed a crime, but also when there is reasonable evidence to consider them socialmente pericolosi (socially dangerous).

More specifically, judicial authority can order dangerous people to maintain lawful conduct, and can bar them from giving cause for suspicion, associating with persons convicted of criminal offences or subject to preventive measures, owning or carrying firearms, entering bars or nightclubs, taking part in religious meetings, and using telephones and the Internet without authorization from judicial authorities. If necessary, these measures may be combined either with divieto di soggiorno (the prohibition of residence) in some cities or, in the case of persona di particolare pericolosità (particularly dangerous persons), with an order for obbligo di soggiorno in un determinato comune (compulsory residence in a specified municipality). The violation of these measures is punishable by criminal laws.

The reasoning behind these preventive measures is that the protection of the state’s fundamental interests cannot be delegated exclusively to the repressive function of the penal law. Crime prevention is an essential task that should be employed at an earlier stage than crime repression. The main difference between penal laws and preventive measures is that the former applies to behavior precisely defined as a crime by the law, while the latter applies to “potentially dangerous” behavior, which is less easily qualified. It is not by chance that preventive measures are known as ante delictum actions (before the crime is committed).

In the state’s eyes, the need to prevent people from committing or supporting heinous crimes justifies preventive ante delictum measures, even though they restrict the fundamental freedoms of suspected persons. In order to keep the prevention system from becoming a peculiar method of penal law (which cannot be applied on the basis of a mere suspicion), those measures must be legally, technically, and constitutionally suitable. However even though the criminal code does not formally regulate them, the legal sanctions of the preventive measures are not so different from those related to the penal laws.

The same strategy is adopted in prisons, where religiously-inspired terrorism is likely to proliferate. While those accused of terrorism are separated from the rest of the inmates to reduce the risk of proselytism, the “common” detainee population may also include religious extremists who have access to fragile, easily influenced inmates. The Italian Department of Prison Administration (DAP) has thus adopted a series of preventive measures based on surveillance, monitoring, and observation. The Italian Ministry of Justice’s latest report shows that the total number of inmates subject to monitoring is 478. Most of them have a low—to—medium education and come from Tunisia, Morocco, Egypt, Algeria, and Albania.

“State efforts to prevent religious terrorism often subordinate Muslims’ freedom of religion to security objectives.

In addition, Article 8 of the anti—mafia code regulating misure atipiche di prevenzione (atypical preventive measures) enables the authorities to order a person to attend a deradicalization program. This program can be undertaken in collaboration with public and private institutions and implemented under the control of the competent judicial authority, which also guarantees that individuals’ freedom of religion and the principle of secularism are respected. It is important to underscore that this kind of deradicalization cannot take the form of a religious education. Instead, the program must be based on the “reasons” of the Italian Constitution that, as such, must be kept separate from the “absolute truths” of religion. However, this does not remove the possibility that different deradicalization programmes can be implemented with the cooperation of religious communities, including Islamic ones. In any case, deradicalization programmes involving religious communities cannot be legally justified on the basis of Article 8 of the anti-mafia code.

It is important to note that while both penal laws and preventive measures may diminish the probability of terrorist attacks, these legal tools restrict fundamental rights. Concerns about terrorism also explain the debate regarding the boundaries of freedom of expression, especially when related to hate speech, which may involve Muslim groups as both perpetrators and victims. State efforts to prevent religious terrorism often subordinate Muslims’ freedom of religion to security objectives.

The Raw Legal Nerve of Constitutional Democracies

Pluralism itself is not novel to the Italian context: various religious minorities (for example, Jews, Waldensian Churches, Protestants, and Baptists) have long been part of the national scene, and have often enjoyed a level of public consideration far out of proportion to their numerical constituency. This same consideration, however, is not afforded to Islam, even though it is the largest religion in Italy after Catholicism. Italy’s model of secularism developed largely in consideration of the Roman Church and a handful of similar Judeo—Christian “confessioni diverse dalla cattolica (denominations other than Catholicism),” as Article 8 of the Constitution meaningfully calls them. This model has come to be seen in an increasingly negative light. And, once again, Islam is an illustrative example of how Italy’s model works especially for Christians. Attention has focused on the interaction between the state law and Islamic precepts, and on two types of Muslims’ legal claims: parity claims and specific claims.

Islamic groups have attempted to use “parity claims” to seek the same rights and benefits other minority religions already enjoy in the country. However the Islam exceptionalism paradigm (whereby Islam is seen as an “exception” in Italy’s religious traditional landscape) has been exacerbated by the permanent states of emergency discussed above. One result of this is that the presence of Islam in Italy has been highly politicized. The other result is that almost all Islamic organizations are not legally recognized as religions.

Thus, Muslims have tried to achieve equality through what are called “specific claims,” which are small understandings reached between some Islamic groups and specific branches of public administration at both the local and national level. One example is the understanding between the Department of Penitentiary Administration (DAP) and the Union of Islamic Communities in Italy (UCOII): the two agreed that UCOII’s imams could enter some Italian prisons. These protocolli (memorandums) were renewed on January 8, 2020, and, in October of the same year, extended to the Italian Islamic Conference. It is important to note that these understandings differ from those under Articles 7 and 8 of the Constitution; they also typically apply only to the specific Islamic groups involved in the deal.

Article 7 of the Italian Constitution establishes the mutual independence and sovereignty of both the State and the Catholic Church. This principle is also affirmed in Article 8.2 of the Constitution, which guarantees the freedom of minority religions defined as confessioni diverse dalla cattolica (denominations other than Catholicism). At the same time, Article 7.2 holds that the Lateran Pacts governs the relationships between the State and the Catholic Church. However, Article 7.2 also claims that any change to the Lateran Pacts, when accepted by both parties, does not require the procedure of Article 138 in regulating constitutional amendments. This entails that, when there is a bilateral agreement, a legislative (not constitutional) law is sufficient in order to amend the 1929 Pacts.

Both these Pacts and Article 7.2 are thus seen as legal prototypes of the bilateralism method, which is also incorporated into Article 8.3 of the Constitution. Accordingly, only ordinary legislation can regulate the relations between minority denominations and the State. However, these legislations must be based on intese (which could be roughly translated as “understandings”) between the representatives of the State and the representatives of religions other than Catholicism.

In other terms, once the Italian Government and a given religion have signed an agreement (Article 7.2 related to Catholic Church) or an intesa (Article 8.3 pertaining to denominations other than Catholicism), these two documents need to be ratified (for the agreement) or approved (for the intesa—understanding) by specific legislations of the Parliament.

On February 18, 1984, the Holy See signed what is now known as the Villa Madama agreement. In 1985, the Villa Madama agreement was ratified by the Italian Parliament with the 1985 law (no. 121), which is an atypical legislation, meaning it can be amended only on the basis of a new church—state agreement. The Italian Government also signed the first intesa with the Waldensian Church in 1985. Since then, the State authorities have engaged fourteen understandings following Article 8.3 of the Constitution, thirteen of which have been approved by the Parliament so far.

This implies that the legal status of the Catholic Church and those other denominations with intese cannot be altered without considering the voices of their representatives: both the Villa Madama agreement and the thirteen intese can be changed only via bilateral state—confessions legislations.

It should be noted that the implementation of the bilateralism method has been complicated by two factors: Parliament’s inability to approve a general legislation on religious freedom and its unwillingness to extend the benefit of bilateral legislations to “neo” religious groups such as Islamic organizations. In this manner, the implementation of the bilateralism method has created a clear differentiation not only between the Catholic Church and religions other than Catholicism, but even among and between minority religions themselves.

Muslim organisations unable to access either kinds of agreement often opt for the above- mentioned mini-agreements or memorandums, which have nothing to do with the bilateralism method. On the contrary, they are part of the unilateral law that regulates public administrative procedure, according to which associations or private committees which have a concrete interest in the matters at hand have the right to intervene during rule-making administrative proceedings.

All of this has challenged Italy’s supreme principle of secularism. The increase in the number of Muslims in Italy has touched on the raw legal nerve of the principle of equality and the rule of law that, though variably defined, remain fundamental to all functioning constitutional democracies, and the related inevitability forms of discontents. For this very reason, Italy represents an interesting case study, providing a valuable source of empirical information.

For more, see “The Legal Treatment of Muslims in Italy in the Age of Fear and Insecurity” in the Journal of Law and Religion and Constitutional Democracy and Islam. The Legal Status of Muslims in Italy, forthcoming from Routledge in 2023.

Source: Canopy Forum

Francesco Alicino, Ph.D., is Full Professor in Public Law and Religion at the University of LUM (Casamassima, Bari, Italy), where he also teaches Constitutional Law. He is a member at the Italian Council for the  Relationship with Muslim communities based at the Italian Minister of the Interior. He is the Editor of the Italian first—class review Daimon (Il Mulino). He is a member of the European Consortium for Church and State Research. He is the author of several books and articles in English, Italian and French.