Ten Napel, “Constitutionalism, Democracy and Religious Freedom”

Classical liberalism was supposed to resolve religious conflict within a society, principally by making religion a private matter and, in compensation, allowing religious communities, within limits, to conduct themselves as they saw fit. Today, the classical liberal model is undergoing a lot of stress, as people, particularly on the left, increasingly question what those limits should be. Hans-Martien ten Napel (Leiden University), one of the most interesting scholars in comparative law and religion today, has a new book, Constitutionalism, Democracy and Religious Freedom: To Be Fully Human (Routledge), that addresses these questions. Here’s the description from the Routledge website:

9781138647152In both Europe and North America it can be argued that the associational and institutional dimensions of the right to freedom of religion or belief are increasingly coming under pressure. This book demonstrates why a more classical understanding of the idea of a liberal democracy can allow for greater respect for the right to freedom of religion or belief.

The book examines the major direction in which liberal democracy has developed over the last fifty years and contends that this is not the most legitimate type of liberal democracy for religiously divided societies. Drawing on theoretical developments in the field of transnational constitutionalism, Hans-Martien ten Napel argues that redirecting the concept and practice of liberal democracy toward the more classical notion of limited, constitutional government, with a considerable degree of autonomy for civil society organizations would allow greater religious pluralism. The book shows how, in a postsecular and multicultural context, modern sources of constitutionalism and democracy, supplemented by premodern, transcendental legitimation, continue to provide the best means of legitimating Western constitutional and political orders.

Epstein, “The Classical Liberal Constitution”

Speaking of classical liberalism, here is a new book from the most prominent libertarian voice in the American legal academy, Richard Epstein, The Classical Liberal Constitution: the Uncertain Quest for Limited Government (Harvard). It certainly seems the case that many disputes over religious liberty today result from expanding governmental control over aspects of life the framers of the Free Exercise Clause could not have imagined — the Contraception Mandate, for example. Readers can decide whether that expansion, and the attendant conflicts over religious liberty, are the inevitable consequences of modernity or, as Epstein suggests, the result of an an unnecessary ideological project unwisely endorsed by the Supreme Court. The publisher’s description is below.

9780674975460American liberals and conservatives alike take for granted a progressive view of the Constitution that took root in the early twentieth century. Richard A. Epstein laments this complacency which, he believes, explains America’s current economic malaise and political gridlock. Steering clear of well-worn debates between defenders of originalism and proponents of a living Constitution, Epstein employs close textual reading, historical analysis, and political and economic theory to urge a return to the classical liberal theory of governance that animated the framers’ original text, and to the limited government this theory supports.

Grounded in the thought of Locke, Hume, Madison, and other Enlightenment figures, the classical liberal tradition emphasized federalism, restricted government, separation of powers, property rights, and economic liberties. The most serious challenge to this tradition, Epstein contends, has come from New Deal progressives and their intellectual defenders. Unlike Thomas Paine, who saw government as a necessary evil at best, the progressives embraced government as a force for administering social good. The Supreme Court has unwisely ratified the progressive program by sustaining an ever-lengthening list of legislative programs at odds with the classical liberal Constitution.

Epstein’s carefully considered analysis addresses both halves of the constitutional enterprise: its structural safeguards against excessive government power and its protection of individual rights. He illuminates contemporary disputes ranging from presidential prerogatives to health care legislation, while reexamining such enduring topics as the institution of judicial review, the federal government’s role in regulating economic activity, freedom of speech and religion, and equal protection.

 

Lindkvist, “Religious Freedom and the Universal Declaration of Human Rights”

In June, Cambridge University Press will release “Religious Freedom and the Universal Declaration of Human Rights,” by Linde Lindkvist (Uppsala Universitet).  The publisher’s description follows:

Article 18 of the Universal Declaration of Human Rights (1948) is widely considered to be the most influential statement on religious freedom in human history. Religious 9781107159419Freedom and the Universal Declaration of Human Rights provides a groundbreaking account of its origins and developments, examining the background, key players, and outcomes of Article 18, and setting it within the broader discourse around international religious freedom in the 1940s. Taking issue with standard accounts that see the text of the Universal Declaration as humanity’s joint response to the atrocities of World War II, it shows instead how central features of Article 18 were intimately connected to the political projects and visions of particular actors involved in the start-up of the UN Human Rights program. This will be essential reading for anyone grappling with the historical and contemporary meaning of human rights and religious freedom.

Around the Web This Week

Here is a look at some interesting news stories involving law and religion from this past week:

Ten Napel, “Constitutionalism, Democracy and Religious Freedom”

In May, Routledge will release “Constitutionalism, Democracy and Religious Freedom: To be Fully Human,” by Hans-Martien ten Napel (Leiden University).  The publisher’s description follows:

In both Europe and North America it can be argued that the associational and institutional dimensions of the right to freedom of religion or belief are increasingly 9781138647152coming under pressure. This book demonstrates why a more classical understanding of the idea of a liberal democracy can allow for greater respect for the right to freedom of religion or belief.

The book examines the major direction in which liberal democracy has developed over the last fifty years and contends that this is not the most legitimate type of liberal democracy for religiously divided societies. Drawing on theoretical developments in the field of transnational constitutionalism, Hans-Martien ten Napel argues that redirecting the concept and practice of liberal democracy toward the more classical notion of limited, constitutional government, with a considerable degree of autonomy for civil society organizations would allow greater religious pluralism. The book shows how, in a postsecular and multicultural context, modern sources of constitutionalism and democracy, supplemented by premodern, transcendental legitimation, continue to provide the best means of legitimating Western constitutional and political orders.

On the Virginia Statute for Religious Freedom

At the Library of Law and Liberty this morning, I have a post on the Virginia Statute of Religious Freedom of 1786, the anniversary of which America marked last week. Among other things, I describe how Jefferson deftly combines Enlightenment and Evangelical Christian arguments to support religious freedom. Here’s a sample:

It’s fascinating, therefore, to go back and read the statute in its entirety. Three things stand out. First is the skillful way Jefferson combines two dramatically different strands of thought to justify religious freedom—Enlightenment Liberalism and Evangelical Christianity. (As a good lawyer, Jefferson knew how to make an argument in the alternative). “Truth is great and will prevail if left to herself,” the preamble declares; “she is the proper and sufficient antagonist to error.” Through free debate, people could reason their way to truth, in religion as in other matters. No justification existed, therefore, for prohibiting people from expressing their religious opinions and trying to persuade others.

This Enlightenment defense of free inquiry was not likely to convince everyone, though, so Jefferson added an argument from Evangelical Christianity as well. Religious freedom was the plan of “the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either.” Establishments had resulted in “false religions over the greatest part of the world,” including, presumably, Catholicism and Islam. The point was clear: a good Evangelical Christian should support religious freedom, for Christianity’s sake. This combination of Evangelical and Enlightenment reasoning is a major theme in American church-state law, and it’s interesting to see how far back it goes.

That Jefferson, he was one shrewd lawyer. You can read the whole post here.

Conference on the EU, UK, and Freedom of Religion

Today, the European Union Office of The Church of Jesus Christ of Latter-day Saints hosts an event entitled European Union, United Kingdom, and Commonwealth: Cooperation in the Promotion of Freedom of Religion or Belief in the Renaissance Brussels Hotel, Belgium. The host’s description of the event follows:

religious-freedom-eventWe are proud to host an outstanding event on Article 18 UDHR from a truly international perspective.

We will be honoured to hear from our keynote speaker, Dr. Ján Figel’, Special Envoy for the promotion of freedom of religion or belief (‘FoRB’) outside the European Union. His perspective on #FoRB is informed by his rich international experience in his current role as well as by his previous experience within the #EU.

Dr. Figel’ will be joined by a panel chaired by Mr. Andrew Lewer, Member of the European Parliament and Member of the European Parliament Intergroup on FoRB & Religious Tolerance. Speakers with international perspectives from the United Kingdom and the Commonwealth will include: Mr. David Rutley,Member of the United Kingdom Parliament for Macclesfield and Member of the UK All-Party Parliamentary Group on FoRB (tbc); Mr. Simon McCrossan, barrister and Head of Policy with the United Kingdom Evangelical Alliance; Professor Neville Rochow SC, Government Relations Representative in our EU Office, a barrister from Australia with wide-ranging experience in FoRB in that country prior to joining us here in the EU; Professor Pasquale Annichino, Fellow Robert Schuman Centre for Advanced Studies, European University Institute, and Member of the Italian Council for the relationships with Muslim Communities at the Italian Ministry of Interior.

Invitations to actively participate have been extended also to representatives of the European External Action Service and Members of the European Parliament, diplomats and Brussels-based ambassadors from Commonwealth countries. Updates on the program will be posted on our event page.

Pearson, “Proportionality, Equality Laws and Religion”

In March, Routledge will release “Proportionality, Equality Laws and Religion:  Conflicts in England, Canada and the USA,” by Megan Pearson (University of Southampton).  The publisher’s description follows:

This book considers how the law should manage conflicts between the right of religious freedom and that of non-discrimination on the grounds of sexual 9781472456502orientation. These disputes are often high-profile and frequently receive a lot of media attention and public debate. Starting from the basis that both these rights are valuable and worthy of protection, but that such disputes are often characterised by animosity, it contends that a proportionality analysis provides the best method for resolving these conflicts. The work takes a comparative approach, examining the law in England and Wales, Canada and the USA and examines four main areas of law, considering how a proportionality approach could be used in each. The book will be an invaluable resource for students and researchers in the areas of Public Law, Human Rights Law, Law and Religion, Discrimination Law, and Comparative Law.

Weatherford, “Genghis Khan and the Quest for God”

I know almost nothing about Genghis Khan and the Mongol Empire. And so it’s not fair for me to criticize a book by an expert who has spent many years studying the subject. Still, I’ll go out on a limb and say I am deeply skeptical of the claim that Americans owe to the Mongols our principle of religious freedom. I expect the Framers would have been skeptical, too, though the possibility does open up new avenues for Originalist research.

That we owe our religious freedom to the Mongols is one of the claims made in this new book from Penguin Random House, Genghis Khan and the Quest for God, by anthropologist Jack Weatherford. Judge for yourselves. The publisher’s description follows (H/T: Chris Borgen):

 

 

Around the Web

Here are some news stories involving law and religion from this past week:

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