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Marinović and Jerolimov on the State and Minority Religious Communities in Croatia

Ankica Marinović and Dinka Marinović Jerolimov (Institute for Social Research, Zagreb) have posted What about Our Rights? The State and Minority Religious Communities in Croatia: A Case Study. The abstract follows.

In December 2007, three registered minority religious communities in Croatia took a discrimination case against the Republic of Croatia to the European Court for Human Rights (ECHR) in Strassbourg. This paper documents the entire case, from the public announcement of the lawsuit to the final decision of the ECHR, which ruled in favour of the three religious communities. In a broader sense, this case study deals with church-state relations in Croatia and points to some important consequences of the case for religious rights, religious freedom, and governing by the rule of law in Croatia.

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Sandberg, et al. on Britain’s Religious Tribunals and “Joint Governance”

Russell Sandberg, Gillian Douglas, Norman Doe, Sophie Gilliat-Ray and Asma Khan (Cardiff U.) have posted Britain’s Religious Tribunals: ‘Joint Governance’ in Practice. The abstract follows.

In recent years, there have been a number of moral panics in Western societies about the existence of religious courts and tribunals in general and Shariah law in particular. In England and Wales, these concerns came to the fore following the 2008 lecture by the then Archbishop of Canterbury, Dr. Rowan Williams, on ‘Civil Law and Religious Law in England’. In that lecture, Williams drew upon the work of the Canadian scholar Ayelet Shachar endorsing her concept of ‘transformative accommodation’. In this article, we return to the work of Shachar in the light of our recent empirical study which examined the divorce jurisdiction of three religious tribunals in detail: a Jewish Beth Din; a matrimonial tribunal of the Roman Catholic Church; and a Muslim Shariah Council. We suggest that the focus upon Shachar’s concept of ‘transformative accommodation’ by Williams and subsequent commentators is unfortunate given that Shachar actually proposes ‘transformative accommodation’ as just one variant of what she refers to as ‘joint governance’ (albeit her preferred variant). We propose that the umbrella concept of ‘joint governance’ and its other variants can be developed in a way that could prove to be more useful than ‘transformative accommodation’.

Posted on by Marc O. DeGirolami

Rosen on the Liberal Case for Educational Accommodation of Religious Groups

Apropos of Erwin Chemerinsky’s illiberal proposal to close down all private and religious schools, here is a liberal argument for accommodation of the educational preferences of (some) religious and other “perfectionist” groups: The Educational Autonomy of Perfectionist Religious Groups in a Liberal State, by Mark Rosen.  The influence of Rawls on Rosen’s work is very substantial, but Rosen departs from Rawls in several interesting ways.  Arguments like Rosen’s are not the only way to think about issues of educational pluralism (and it seems to me that Rosen’s piece has nothing to say about the educational autonomy of non-perfectionist groups, such as one might find at your typical secular private school).  For a different approach, see this earlier post on Ashley Berner’s essay.  But, like Berner’s essay, Rosen’s is a serious and thoughtful attempt to grapple with these problems.  Here’s the abstract.

This Article draws upon, but reworks, John Rawls’ framework from Political Liberalism to determine the degree of educational autonomy that illiberal perfectionist religious groups ought to enjoy in a liberal state. I start by arguing that Rawls mistakenly concludes that political liberalism flatly cannot accommodate Perfectionists, and that his misstep is attributable to two errors: (1) Rawls utilizes an overly restrictive “political conception of the person” in determining who participates in the original position, and (2) Rawls overlooks the possibility of a “federalist” basic political structure that can afford significant political autonomy to different groups within a single country. With these insights, I argue that some, though not all, religious Perfectionists are consistent with a stable liberal polity, and explain why foundational Rawlsian premises require that Perfectionists be accommodated to the extent possible.

My ultimate conclusions are that liberal polities ought to grant significant autonomy to those illiberal groups that satisfy specified conditions, and that the autonomy of such “eligible” illiberal groups is subject to two further constraints, which I call “well-orderedness” and “opt-out.” The autonomy to which eligible Perfections are entitled includes the authority to educate their children in a way that provides a fair opportunity for the groups to perpetuate themselves. The constraint of well-orderedness, however, permits the State to impose educational requirements that facilitate peace and political stability. Accommodating eligible illiberal groups, subject to these constraints, is an instantiation of liberal commitments, not a compromise of liberal values.

Posted on by Mark Movsesian

If Only the Aztecs Had Known

Here’s something you don’t see every day, even if you follow the law reviews. On SSRN, George Mason University economist Peter Leeson has posted an abstract for a new paper that explains human sacrifice in terms of property rights (Human Sacrifice). Although economists typically dismiss the practice as irrational, he argues, human sacrifice is actually a rational social strategy that allows a group to signal to outsiders that it’s poor and therefore not worth plundering. Religious commandments are useful in creating incentives — to get people comfortable with the idea of ritual immolation — but really are only secondary. Leeson hasn’t posted his paper on SSRN, but you can find it on his website. Here’s the abstract:

This paper develops a theory of rational human sacrifice: the purchase and ritual slaughter of innocent persons to appease divinities. I argue that human sacrifice is a technology for protecting property rights. It improves property protection by destroying part of sacrificing communities’ wealth, which depresses the expected payoff of plundering them. Human sacrifice is a highly effective vehicle for destroying wealth to protect property rights because it’s an excellent public meter of wealth destruction. Human sacrifice is spectacular, publicly communicating a sacrificer’s destruction far and wide. And immolating a live person is nearly impossible to fake, verifying the amount of wealth a sacrificer has destroyed. To incentivize community members to contribute wealth for destruction, human sacrifice is presented as a religious obligation. To test my theory I investigate human sacrifice as practiced by the most significant and well-known society of ritual immolators in the modern era: the Konds of Orissa, India. Evidence from the Konds supports my theory’s predictions.

I don’t know enough about the Konds or economics to evaluate Professor Leeson’s paper, but it does suggest a strategy for religious communities that seek to influence public debate. Don’t make sectarian arguments that might be inaccessible and off-putting to non-believers. Find an economist.

Posted on by Mark Movsesian

Symposium, “Religion in the 21st Century”

The current issue of the Erasmus Law Review (Erasmus University Rotterdam) has a symposium, “Religion in the 21st Century: Debating the Post-Secular Turn.” This is from the introduction by Erasmus Professors Wooter de Been and Sanne Taekema:

For a long time there seemed to be a broad consensus in Western democracies – at least among political theorists and legal scholars – concerning the place of religion in the public sphere and the separation of church and state. However, since the end of the last century, religion has again become a highly contentious issue. With the arrival of sizable groups of immigrants for whom religion remains an integral part of their identity – not only Muslims, but also evangelical Christians – religion is back in the public square of many modern Western democracies (a place, arguably, it never really disappeared from in the United States). This reassertion of religion, Stanley Fish observed in 2005, has ‘re-alerted us to the fact […] that hundreds of millions of people in the world do not observe the distinction between the private and the public, or between belief and knowledge, and that it is no longer possible for us to regard such persons as quaintly pre-modern or as needy recipients of our saving (an ironic word) wisdom’. In the same article, Fish predicted that religion was going to be the wave of the future in academics: ‘Announce a lecture or panel on ‘religion in our time’ and you will have to hire a larger hall’. Intrigued by this resurgence of religion – and tempted by a high attendance rate – we hired a larger hall and convened a conference on ‘Religion in the 21st Century’ at the Erasmus School of Law, in September 2011. The focus of this conference was the question: Does the revival of religion confront us with a familiar phenomenon that we can describe and analyse in tried-and-tested categories, or has religious experience transformed into something altogether different, which demands a new approach, a new way of relating to religion? The articles collected in this special issue all originate from this gathering and all, in their own way, try to come to terms with its central theme.

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Gedicks on the Affordable Care Act’s Contraception Coverage Mandate

Frederick Mark Gedicks (BYU – J. Reuben Clark Law School) has posted With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate. The abstract follows.

 The “contraception mandate” of the Patient Protection and Affordable Care Act of 2010 poses a straightforward question for religious liberty jurisprudence: Must government excuse a believer from complying with a religiously burdensome law, when doing so would violate the liberty of others by imposing on them the costs and consequences of religious beliefs that they do not share? To ask this question is to answer it: One’s religious liberty does not include the right to interfere with the liberty of others, and thus religious liberty may not be used by a religious employer to force employees to pay the costs of anti-contraception beliefs that they do not share.

Read more

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Fadel on Church and State in Islam

Mohammad Fadel (University of Toronto Law) has posted Seeking an Islamic Reflective Equilibrium: A Response to Abdallahi A. An-Na’im’s Complementary, Not Competing, Claims of Law and Religion: An Islamic Perspective. The abstract follows.

Professor ‘Abdallahi Na’im argues that there can be no conflict between religion and the state because religion and politics are part of different normative orders, and thus it is not conceivable that a conflict can arise between them. I argue that Na’im’s solution to the problematic relationship of religion to state shares the same conceptual terrain as separationism in American constitutional law, a position which has grown increasingly untenable as a result of the increasing religious pluralism in the United States and the expansion of the government into areas of life in a manner that would have been inconceivable even one hundred years ago. More importantly, revealed religions such as Judaism, Christianity and Islam provide their adherents with their own conceptions of justice that sometimes do conflict with the results of secular lawmaking. I argue that instead of seeking a further separation of religion from the state, on the grounds that the former is irrelevant to the latter, it would be more useful to judge both the claims of religion and the claims of the state from the perspective of the normative concerns of justice. From this perspective, religion can serve as an important source of normative values that can criticize unjust political outcomes. At the same time, however, religion cannot claim for itself immunity from the claims of justice. Instead, a reflective equilibrium between the claims of religion and the claims of the state should be the goal. I conclude with a couple of examples from historical Islamic law illustrating both the resources that Islamic law provides in furthering a more just legal system, and interpretations of historical Islamic doctrines in a fashion that is consistent with the kind of reflective equilibrium that should be the goal of legal reflection in a politically liberal state.

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Ahmed & Norton on Religious Tribunals in the United Kingdom

Farrah Ahmed (University of Oxford, Melbourne Law School) and Jane Calderwood Norton (University of Birmingham School of Law) have posted Religious Tribunals, Religious Freedom, and Concern for Vulnerable Women.  The abstract follows.

For the most part current UK law does not interfere with the operation of religious tribunals. The role of religious tribunals in family matters in the United Kingdom is, however, fiercely debated. While many considerations are at play in these debates, two are often set up against each other. Religious freedom is often given, on the one hand, as a reason not to interfere with religious tribunals. On the other hand, however, concern for the vulnerable – especially women in religious groups – is thought to weigh in favour of greater interference. This article evaluates the current legal response to religious tribunals in the UK in the context of family matters against these two key values. It also clarifies and expands on how religious tribunals can both harm and enhance these values. It finds that contrary to the way the debate is often presented, religious tribunals can harm religious freedom while, at the same time, they can also enhance the welfare of vulnerable persons.

Posted on by Marc O. DeGirolami

Smith, “Science and the Person: A Complacent Reflection”

CLR Forum friend and guest blogger Steve Smith has posted an enjoyable and thoughtful short essay (written with his distinctive grace and humor) about the implications of the developments in neuroscience for our legal understanding of the person (including our understanding of various issues in criminal law).  With an interesting qualification, his general sense is, there are no major destabilizing implications — hence his genial complacency.  Here’s a fragment involving that qualification, on the issue of whether neuroscience will affect our views about the intrinsic worth of the human person (footnotes omitted):

A better understanding of how the brain works and how it causes or correlates with mental states does not in itself tell us anything about whether persons have intrinsic worth, so far as I can see. Neither does an account of how persons may have evolved from other organisms. But it is possible that by giving more cachet to a naturalistic approach to understanding, advances in neuroscience and evolutionary psychology might contribute to the ascendancy of a worldview– or as I sometimes put it, an “ontological inventory” — in which things like intrinsic value don’t register. In this way, it is conceivable that neuroscience might for some people undermine belief in intrinsic value in the same way that for some people science undermines belief in God– not by scientifically demonstrating that God (or intrinsic value) aren’t real, but by promoting and reenforcing a vocabulary and conceptual framework, or ontological inventory, in which these things just don’t figure.

Some people will find this loss of faith in soul and intrinsic value invigorating; they will feel that their new-found skepticism is an indication of their tough-mindedness, or of their keeping up with current knowledge. Fine. The sad thing, I think, is when someone announces this loss of faith regretfully, because the sacrifice is, so far as I can see, pretty much gratuitous.

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Domingo on the Dworkinian Approach to Religious Freedom

Rafael Domingo  (U. of Navarra) has posted Religion for Hedgehogs? An Argument against the Dworkinian Approach to Religious Freedom. The abstract follows.

According to Ronald Dworkin, the right to freedom of religion is a mere implication of a more general right of ethical independence in foundational matters. For Dworkin, just as a particular religion cannot be treated as special in politics, religion cannot be considered sui generis in the political arena. This article argues that the right of religious freedom should be regarded as sui generis. The epistemological and ethical theories that support a Dworkinian approach to religious freedom are reductive and misconceived. These theories close the door to transcendent meaning and revealed religion, to a conception of religion as a fact and a value. The Dworkinian paradigm does not sufficiently protect the principles of pluralism and self-determination that are at the heart of religious freedom. Finally, this article argues that, when properly understood, the right to religious freedom is based on ethical autonomy and the unity of the person rather than on Dworkin’s theories of ethical independence and the unity of value.