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THE VIRTUES OF LAW IN THE POLITICS OF RELIGIOUS FREEDOM

  • Benjamin L. Berger (a1)
Abstract
Abstract

The moral force and capacity for inspiration of both religion and politics alike arise in part from the sense that they authentically map the world as we find it, yielding claims about how it should be. This paper asks what role we might imagine for law in this “hyper-real” world of religion and politics, arguing that law can display distinctive virtues linked to its capacity for strategic agnosticism about the real. Applying Sunstein's idea of “incompletely theorized agreements” to the politics of religious freedom, the paper examines the role of law as a tool of adhesion in two very different constitutional settings—Canada and Israel—and argues for modesty as a functional virtue in law and legal process. Viewed in this way, law draws its worth from its tolerance for ambiguity, its sub-theoretical nature, and its pragmatic proceduralism, seeking to sustain political community in the presence of normative diversity, rather than speaking truth to difference.

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Arthur Ripstein , Force and Freedom: Kant's Legal and Political Philosophy (Cambridge, MA: Harvard University Press, 2009)

Ernest J. Weinrib , “Private Law and Public Right,” University of Toronto Law Journal 61, no. 2 (2011): 191

Malcolm Thorburn , “Constitutionalism and the Limits of the Criminal Law,” in The Structures of Criminal Law, eds. R. A. Duff , Lindsay Farmer , S. E. Marshall , Massimo Renzo , and Victor Tadros (Oxford: Oxford University Press, 2011), 85105

Cass R. Sunstein , “Incompletely Theorized Agreements,” Harvard Law Review 108, no. 7 (1995): 1757

Hans-Martien Th. D. ten Napel and Florian H. K. Theissen , “The Judicial Protection of Religious Symbols in Europe's Public Educational Institutions: Thank God for Canada and South Africa,” Muslim World Journal of Human Rights 8, no. 1 (2011): 124

Mayanthi L. Fernando , “Reconfiguring Freedom: Muslim Piety and the Limits of Secular Law and Public Discourse in France,” American Ethnologist 37, no. 1 (2010): 1935

Jocelyn Maclure and Charles Taylor , Secularism and Freedom of Conscience (Cambridge, MA: Harvard University Press, 2011)

Menachem Mautner , Law and the Culture of Israel (Oxford: Oxford University Press, 2011), 121ff

Eliezer Ben-Rafael , “The Faces of Religiosity in Israel: Cleavages or Continuum?Israeli Studies 13, no. 3 (2008): 89113

Avigail I. Eisenberg , Reasons of Identity: A Normative Guide to the Political and Legal Assessment of Identity Claims (Oxford: Oxford University Press, 2009)

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Journal of Law and Religion
  • ISSN: 0748-0814
  • EISSN: 2163-3088
  • URL: /core/journals/journal-of-law-and-religion
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