Academic journal article Brigham Young University Law Review

Antecedents, Perspectives, and Projections of a Legal Project about Religious Liberty in Peru

Academic journal article Brigham Young University Law Review

Antecedents, Perspectives, and Projections of a Legal Project about Religious Liberty in Peru

Article excerpt

Antecedents, Perspectives, and Projections of a Legal Project About Religious Liberty in Peru*

I. INTRODUCTION

The Catholic Church is undoubtedly "an important element in the historical, cultural, and moral development of Peru...."1 This role has been recognized in the Peruvian Constitution. However, Peru is also "multicultural and multilingual" and within it a great "diversity of beliefs, rites and devotions" flow together.2 As Silva Santisteban has appreciated,

in the panorama of beliefs, rites and ceremonies, in its different levels of integration of the Catholic religion, or in the ample extent of diffusion of the native traditions, are reflected in some manner the social and economic differences which correspond to the diverse groups of humans that live together in the national territory.

All groups, including minority groups, have the right to believe in a religion that they hold to be true. Further, they have the right not to be persecuted for their convictions. This implies that a modern democratic state must have an open and tolerant attitude toward all faiths; it also requires legislative equality for all religions. This article focuses on the antecedents of religious liberty in Peru, the reach of its constitutional establishment, and the manner in which concrete norms of collaboration between the Catholic Church and other religious faiths have developed. Based on these points, this article discusses whether religious freedom referred to in the Peruvian Constitution results in real and effective equality. This article also offers a proposal to increase the liberty of religion and conscience as a fundamental right.

II. THE RIGHT TO FREEDOM

Freedom is the most important fundamental human right.4 Without it, our acts are deficient of substance and value. For these reasons, freedom is considered the essential nucleus of the political system of constitutional democracy.5 Without freedom, it is impossible to conceive a democratic system where dissent and criticism are fundamental pillars. It is only in a society organized in terms of justice that a person can realize ontological freedom.6 Therefore, it is indispensable to assure "the phenomenological unfolding of freedom. A free being claims the freedoms or human rights that tend to normatively eliminate the impediments and arbitrariness that opposes such realization."7

Defining freedom is extremely difficult. According to Montesquieu, there is no word that has more meanings and that has touched the spirits in so many different ways, as freedom.8 Freedom is the foundation of both life and mankind. We are free because we are capable of choosing and withstanding the obvious consequences of our decisions. One cannot be free in uniformity. It is only possible to conceive freedom in plurality, diversity, variety, and in the reaffirmation of our own essence through our personal choices. As Marcel affirmed, to be free is to say "I am."

Beginning with the affirmation of Sartre that freedom is a doing realized by a being,9 Espinoza correctly maintained that "there is only freedom in . . . choice."10 We are therefore authentically free when making our own decisions and resolving our problems and conflicts. On the other hand, when we allow others and circumstances to decide for us, we are slaves and prisoners of ourselves and the world around us. Freedom cannot be conceived without free will. Being free is being "responsible" for one's self and one's decisions. And the manner in which we live up to that responsibility, and how it is revealed to us, is through the anguish of choosing for oneself.11

This freedom is the characteristic that allows humans to distinguish themselves from other animals. "The human being is forced to decide freely. Or inversely; in being forced to decide, he is free."12 Additionally, we will only be able to speak of true equality among human beings by the acknowledgment and protection of the real force of the right to freedom sustained in "the inherent dignity of the human person in being free . …

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