This past July, the Center co-hosted a conference in Rome,“Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Angelo Rinella (LUMSA) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:
Migration flows, whether for humanitarian or economic reasons, have profoundly changed the face of today’s European societies. Groups of different ethnic, cultural, and religious origins have been added to the communities originally settled in the territories of states. These newcomers are required to observe the existing rules to ensure peaceful coexistence and to comply with the established order. At the same time, the Constitutions of liberal and democratic states guarantee that minorities and individuals who are “different”—by social, economic, religious, and political condition—do not suffer any discrimination because of their diversity. In this context, some communities with a religion extraneous to the European religious tradition, such as Islamic communities, ask to regulate some of the affairs of their personal lives according to religious rules, as an alternative to the state civil law.
This demand for recognition of their own identity persists even in the face of state inertia. It produces the de facto formation of regulatory micro-systems that have in their effectiveness their legitimation principle. Micro-systems of norms that coexist in the same territory of the state and apply to certain groups of individuals settled in the same space of the state. Individuals who choose to regulate certain aspects of their existence according to different and alternative rules with respect to the state rules. In other words, the State loses the monopoly of the production of the rules in the State territory.
Anthropologists define this phenomenon in terms of ‘legal pluralism.’ For us, legal scholars, the scenario painted poses a number of problems and questions.
My opinion is that in front of such a scenario, rejecting or denying the problem would be the most detrimental and, all in all, inconsistent with the democratic, liberal, and social spirit of European constitutions.
At Law and Liberty today, I have an essay on law in Shakespeare’s The Merchant of Venice,” in which I expand on some themes that Marc and I discussed in our recent Legal Spirits episode. Specifically, I explore the play’s lessons about the limits of law in a pluralist society:
For the people of Shakespeare’s day, Bloom writes, Venice represented the hope that society could transcend religious and cultural differences through commerce—or, rather, through commercial law. Classical liberal thinkers would call later it the doux commerce thesis: allow people to trade freely with each other and they would ignore religious and other differences, which get in the way of profit, and live together peaceably. The give-and-take of the market would train people to cooperate with one another and forego proselytizing. All that was necessary was that the state enforce people’s contracts on equal terms, neutrally and fairly, without giving one group or another the upper hand. Everything else would follow.
Venice was less serene and indifferent to religion than portrayed. But, as a symbol, the city was important. And by drawing the conflict as starkly as he does, Shakespeare means to ask whether the Venetian system can work where intercommunal divisions concern bedrock beliefs and ways of life. His answer is not hopeful. The dispute between Antonio and Shylock over charging interest reflects a deeper conflict about ultimate values that commerce and commercial law cannot resolve. “The law of Venice can force” the two men “to a temporary truce,” Bloom writes, “but in any crucial instance the conflict will re-emerge, and each will try to destroy the spirit of the law; for each has a different way of life which, if it were universalized within the city, would destroy that of the other. They have no common ground.”
Where such common ground does not exist, the law cannot create it. Law, even a neutral law of contracts, inevitably requires judgment: Which agreements should be enforced, and which should not? And judgment inevitably depends on the values people bring to the law from the wider culture. Where people share values, law does a tolerably good job resolving their disputes. One party wins and the other loses, but both can accept the legitimacy of the system. Where moral divisions run deep and the stakes are high, this is not possible. Law alone cannot persuade people to accept decisions that violate their most basic sense of right and wrong.
Here’s a fine new book from William & Mary Law professor Nate Oman (who, by the way, will be joining out Tradition Project this fall), The Dignity of Commerce: Markets and the Moral Foundations of Contract Law (University of Chicago Press). The book argues that liberal markets are a mechanism for promoting pluralism and tolerance, including religious tolerance. As Nate knows, I’m a bit skeptical about parts of his argument and will be doing a fuller review later this summer. But the book shows tremendous learning and is very thought-provoking–a major contribution to the contracts literature. Here’s the description from the publisher’s website:
Why should the law care about enforcing contracts? We tend to think of a contract as the legal embodiment of a moral obligation to keep a promise. When two parties enter into a transaction, they are obligated as moral beings to play out the transaction in the way that both parties expect. But this overlooks a broader understanding of the moral possibilities of the market. Just as Shakespeare’s Shylock can stand on his contract with Antonio not because Antonio is bound by honor but because the enforcement of contracts is seen as important to maintaining a kind of social arrangement, today’s contracts serve a fundamental role in the functioning of society.
With The Dignity of Commerce, Nathan B. Oman argues persuasively that well-functioning markets are morally desirable in and of themselves and thus a fit object of protection through contract law. Markets, Oman shows, are about more than simple economic efficiency. To do business with others, we must demonstrate understanding of and satisfy their needs. This ability to see the world from another’s point of view inculcates key virtues that support a liberal society. Markets also provide a context in which people can peacefully cooperate in the absence of political, religious, or ideological agreement. Finally, the material prosperity generated by commerce has an ameliorative effect on a host of social ills, from racial discrimination to environmental destruction.
The first book to place the moral status of the market at the center of the justification for contract law, The Dignity of Commerce is sure to elicit serious discussion about this central area of legal studies.
Ongoing litigation in Canada suggests that the legal status of religiously affiliated law schools could be in jeopardy. In Canada, regulatory authorities have sought to deny accreditation status to a religiously affiliated law school (Trinity Western University) due to its commitment to a traditional Christian understanding of marriage. According to Canadian provincial authorities, this commitment has a discriminatory effect on LGBT students. Similar events could potentially occur in the United States. It is possible that American regulatory bodies could seek either to rescind or withhold accreditation from a religiously affiliated law school because of the discriminatory effects of its policies.
This comparative Article argues that as a matter both of public policy and law, the regulatory bodies concerned with the accreditation of law schools in both Canada and the United States have ample reason to accredit religiously affiliated law schools. First, as a matter of public policy, diversity in the type of law schools is beneficial due to the pluralism it engenders. Pluralism has long been recognized as a force for social stability in liberal democracies and is continually cited as beneficial by both Canadian and American courts. Furthermore, as a matter of law, both Canada and the United States provide for a robust protection of religious freedom that encompasses religiously affiliated law schools. This Article concludes that, as a result, regulatory authorities in Canada and the United States ought to encourage the proliferation of religiously affiliated law schools.
Readers can download the article here. Keep up the good work, John!
In a thoroughly revised and expanded edition that now includes France, this essential text offers a rigorous, systematic comparison of church-state relations in six Western nations: the United States, France, England, Germany, the Netherlands, and Australia. As successful and stable political democracies, these countries share a commitment to protecting the religious rights of their citizens. The book demonstrates, however, that each has taken substantially different approaches to resolving basic church-state questions. The authors examine both the historical roots of those differences and more recent conflicts over Islam and other religious minorities, explain how contemporary church-state issues are addressed, and provide a framework for assessing the success of each of the six states in protecting the religious rights of its citizens using a framework based on the ideal of governmental neutrality and evenhandedness toward people of all faiths and of none.
Responding to the general confusion about the relationship between church and state in the West, this book offers a much-needed comparative analysis of a topic that is increasingly a source of political conflict. The authors argue that the US conception of church-state separation, with its emphasis on avoiding government establishment of religion, is unique among political democracies and discriminates against religious groups by denying religious organizations access to government services provided to other organizations. The authors persuasively conclude that the United States can learn a great deal from other Western nations in promoting religious neutrality and the free exercise of religion.
Ashley Berner, the Director of the Johns Hopkins Institute for Education Policy and a past guest blogger here at the Law and Religion Forum, has just written an important and readable book on educational pluralism, Pluralism and American Public Education: No One Way to School(Palgrave Macmillan). I highly recommend it for anyone interested in public education in America, including the place of religious and other non-state schools.
I’ll be doing an interview with Ashley later this month. For now, here’s Palgrave Macmillan’s description of the book:
This book argues that the structure of public education is a key factor in the failure of America’s public education system to fulfill the intellectual, civic, and moral aims for which it was created. The book challenges the philosophical basis for the traditional common school model and defends the educational pluralism that most liberal democracies enjoy. Berner provides a unique theoretical pathway that is neither libertarian nor state-focused and a pragmatic pathway that avoids the winner-takes-all approach of many contemporary debates about education. For the first time in nearly one hundred fifty years, changing the underlying structure of America’s public education system is both plausible and possible, and this book attempts to set out why and how.
Religious Perspectives on Religious Diversity addresses fundamental and controversial questions raised by religious diversity. What are members of religious traditions to say about outsiders, their views, and their salvific status? And what are they to say about the religions of outsiders – about, say, whether those religions are inspired or salvifically effective or worthwhile or legitimate? Discussion of some Muslim, Christian, and Jewish perspectives is combined with more methodological work. The authors of these ground-breaking and original, yet readable and accessible, essays include established scholars and younger scholars whose reputation is growing.
Contributors are: Imran Aijaz, David Basinger, Paul Eddy, Jerome Gellman, Mohammad Hassan Khalil, Eugene Korn, Daniel Madigan and Diego Sarrio Cucarella, Robert McKim, and John Sanders.
Known locally as the birthplace of American religious freedom, Flushing, Queens, in New York City is now so diverse and densely populated that it has become a microcosm of world religions. City of Gods explores the history of Flushing from the colonial period to the aftermath of September 11, 2001, spanning the origins of Vlissingen and early struggles between Quakers, Dutch authorities, Anglicans, African Americans, Catholics, and Jews to the consolidation of New York City in 1898, two World’s Fairs and postwar commemorations of Flushing’s heritage, and, finally, the Immigration Act of 1965 and the arrival of Hindus, Sikhs, Muslims, Buddhists, and Asian and Latino Christians.
A synthesis of archival sources, oral history, and ethnography, City of Gods is a thought-provoking study of religious pluralism. Using Flushing as the backdrop to examine America’s contemporary religious diversity and what it means for the future of the United States, R. Scott Hanson explores both the possibilities and Read more
How did the world’s most tolerant region become the least harmonious place on the planet?
The headlines from the Middle East these days are bad, characterized by violence, terror, and autocracy. Whatever hopes people may have for the region are being dashed over and over, in country after country. Nicolas Pelham, the veteran Middle East correspondent for The Economist, has witnessed much of the tragedy, but in Holy Lands he presents a strikingly original and startlingly optimistic argument.
The Middle East was notably more tolerant than Western Europe during the nineteenth century because the Ottoman Empire permitted a high degree of religious pluralism and self-determination within its vast borders. European powers broke up the empire and tried to turn it into a collection of secular nation-states—a spectacular failure. Rulers turned religion into a force for nationalism, and the result has been ever increasing sectarian violence. The only solution, Pelham argues, is to accept the Middle East for the deeply religious region it is, and try to revive its venerable tradition of pluralism.
Holy Lands is a work of vivid reportage—from Turkey and Iraq, Israel and Palestine, Abu Dhabi and Bahrain, Dubai and Jordan—that is animated by a big idea. It makes a region that is all too familiar from news reports feel fresh.
To hear more about this book from the author himself, click here to listen to a podcast from The Economist Radio.