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  • Benjamin L. Berger (a1)

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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1 Geertz, Clifford, The Interpretation of Cultures (New York: Basic Books, 1973), 130.

2 Ibid., 126.

3 Much of my work has been concerned with showing this “cultural” nature of the constitutional rule of law, an understanding of law that sees it as one kind of relationship between worldview and ethics, to use Geertz's language. See Berger, Benjamin L., “Law's Religion: Rendering Culture,” Osgoode Hall Law Journal 45, no. 2 (2007): 277–14; Berger, Benjamin L., “The Cultural Limits of Legal Tolerance,” Canadian Journal of Law and Jurisprudence 21, no. 2 (2008): 245–78.

4 Sullivan, Winnifred Fallers, The Impossibility of Religious Freedom (Princeton, NJ: Princeton University Press, 2005). I draw on Sullivan as an example from a group of those who offer critiques of law and institutions of liberal secularism as they are applied to religious difference: see, e.g., Asad, Talal, Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: Stanford University Press, 2003); Mahmood, Saba, Politics of Piety: The Islamic Revival and the Feminist Subject (Princeton, NJ: Princeton University Press, 2005); Brown, Wendy, Regulating Aversion: Tolerance in the Age of Identity and Empire (Princeton, NJ: Princeton University Press, 2006). For an example drawn from the Canadian scholarship, see Beaman, Lori G., Defining Harm: Religious Freedom and the Limits of the Law (Vancouver: University of British Columbia Press, 2008).

5 See footnote 3.

6 For the conceptual foundations of such a claim, see Kahn, Paul W., The Cultural Study of Law: Reconstructing Legal Scholarship (Chicago: University of Chicago Press, 1999). On the “aesthetic” dimensions of religious freedom—those that implicate peculiar conceptions of space and time—see Berger, Benjamin L., “The Aesthetics of Religious Freedom,” in Religious Freedom and Varieties of Establishment, eds. Sullivan, Winnifred Fallers and Beaman, Lori (Ashgate, forthcoming).

7 See, e.g., Ripstein, Arthur, Force and Freedom: Kant's Legal and Political Philosophy (Cambridge, MA: Harvard University Press, 2009); Weinrib, Ernest J., “Private Law and Public Right,” University of Toronto Law Journal 61, no. 2 (2011): 191; Thorburn, Malcolm, “Constitutionalism and the Limits of the Criminal Law,” in The Structures of Criminal Law, eds. Duff, R. A., Farmer, Lindsay, Marshall, S. E., Renzo, Massimo, and Tadros, Victor (Oxford: Oxford University Press, 2011), 85105.

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

9 Rawls, John, Political Liberalism (New York: Columbia University Press, 1996).

10 Sunstein, “Incompletely Theorized Agreements.” Sunstein further explores the ideas introduced in this article in subsequent work, including Legal Reasoning and Political Conflict (New York: Oxford University Press, 1996); One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge, MA: Harvard University Press, 1999); Beyond Judicial Minimalism,” Tulsa Law Review 43, no. 4 (2008): 825–42. I am primarily working with his articulation of these ideas in “Incompletely Theorized Agreements.”

11 Sunstein, “Incompletely Theorized Agreements,” 1738.

12 Ibid.

13 The virtues of incomplete theorization are not limited to the adjudicative setting, of course. Other political institutions could well benefit from these practices of modesty and a focus on mid-level principles. My particular concern in this article, however, is the distinctive role of law, as spoken by the courts, in the politics of religious freedom.

14 Sunstein, “Incompletely Theorized Agreements,” 1734.

15 Ibid., 1740–41. In a review of Sunstein's theory in the context of an argument about the legal protection of religious symbols in public institutions, Hans-Martien ten Napel and Florian Theissen describe incompletely theorized agreements as making “constructive use of silence on foundational or fundamental issues.” ten Napel, Hans-Martien Th. D. and Theissen, Florian H. K., “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.

16 Sunstein, “Incompletely Theorized Agreements,” 1741.

17 Ibid., 1736.

18 Ibid., 1743 (emphasis in original).

19 Ibid., 1748.

20 As Sunstein puts it in reference to the losers of a given case: “They lose a decision but not the world.” Ibid., 1748.

21 Ibid., 1760.

22 Ibid., 1769.

23 R. v. N.S., [2012] 3 S.C.R. 726.

24 “Niqabs, Burkas Must Be Removed During Citizenship Ceremonies: Jason Kenney,” National Post, December 12, 2011,

25 “Kenney on Transformational Changes to Immigration Model,” Globe and Mail, April 10, 2012,

26 See Asad, Talal, “French Secularism and the ‘Islamic Veil Affair,’Hedgehog Review 8, no. 1–2 (2006): 93106; Fernando, Mayanthi L., “Reconfiguring Freedom: Muslim Piety and the Limits of Secular Law and Public Discourse in France,” American Ethnologist 37, no. 1 (2010): 1935.

27 John Bowen importantly shows that despite the political and rhetorical force of this public ideal of all citizens interacting with a French republican identity, unmediated by other associational allegiances, a rich associational life in fact subsists beneath this politics of common public identity. Bowen, John R., Can Islam Be French? Pluralism and Pragmatism in a Secular State (Princeton, NJ: Princeton University Press, 2010).

28 Fernando, “Reconfiguring Freedom.”

29 For a discussion of the unique dimensions of Quebec's experience with secularism, see Maclure, Jocelyn and Taylor, Charles, Secularism and Freedom of Conscience (Cambridge, MA: Harvard University Press, 2011), and Zubrzycki, Geneviève, “Negotiating Pluralism in Quebec: Identity, Religion, and Secularism in the Debate over ‘Reasonable Accommodation,’” in Religion on the Edge: De-centering and Re-centering the Sociology of Religion, eds. Bender, Courtney et al. (New York, NY: Oxford University Press, 2013), 215–37.

30 This dualist framing of the issue in N.S. is itself open to criticism. One wonders how a robust inclusion of gender equality interests into the casting of the issue would have inflected the analysis.

31 [2012] 3 S.C.R. 726, para. 82.

32 Ibid., para. 1.

33 Ibid.

34 Ibid., para. 31.

35 This test was created in Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, and has since been discussed and explained in a number of cases, including Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567, and S. L. v. Commission scolaire des Chênes, [2012] 1 S.C.R. 235. For a critical assessment of this test, see Berger, “Law's Religion,” and “The Cultural Limits of Legal Tolerance.”

36 [2012] 3 S.C.R. 726, para. 46.

37 Ibid., para. 59 (LeBel J., concurring).

38 Ibid., para. 61.

39 Ibid., para. 73.

40 Ibid., para. 86 (Abella J., dissenting).

41 Ibid., para. 95.

42 Ibid., paras. 90, 97ff.

43 Ibid., para. 109.

44 Ibid., para. 91 (Abella J., dissenting).

45 Most notable, in my view, is the very existence of exceptions to the rule prohibiting hearsay evidence. When a court admits hearsay because, in the given case, it is sufficiently reliable, it is accepting evidence on which the finder of fact may rely despite having no access whatsoever to the demeanor of the declarant. In such cases, the “loss” is not just of one element of the “whole demeanour package,” but the complete absence of the declarant from the witness stand.

46 Ibid., para. 61.

47 Sunstein, “Incompletely Theorized Agreements,” 1746, 1767. As ten Napel and Theissen put it, “[a]t times, fundamental questions need be asked and answered in order for legal concepts like human rights to do what they were adopted for: to protect people against assaults on their life, liberty and dignity.” ten Napel and Theissen, “The Judicial Protection of Religious Symbols,” 5. There may, indeed, be cases in which this more conclusory posture is appropriate in judicial decision making. The argument in this piece is that the scope of this class is far narrower than normally imagined and that claims that “fundamental questions need be asked and answered” should be approached with some skepticism.

48 The US Department of State provides the following summary of the religious demography of Israel, as of 2011: “According to the 2009 report of the Central Bureau of Statistics (CBS), 8 percent of the Jewish population is Haredi (also known as “ultra-Orthodox”); 12 percent identify themselves as Orthodox; 13 percent describe themselves as “traditional, religious;” 25 percent say they are “traditional, not so religious;” and 42 percent describe themselves as “nonreligious/secular” Jews, most of whom observed some Jewish traditions.” US Department of State, International Religious Freedom Report for 2011: Israel and the Occupied Territories,, accessed April 13, 2013.

49 For a helpful description of the historical origins and modern nature of the Haredim, as well as a fascinating account of Israel's “multicultural condition” more generally, see Mautner, Menachem, Law and the Culture of Israel (Oxford: Oxford University Press, 2011), 121ff.

50 For works assessing this schism within Israeli society, see ibid.; Ben-Rafael, Eliezer, “The Faces of Religiosity in Israel: Cleavages or Continuum?Israeli Studies 13, no. 3 (2008): 89113; Rebhun, Uzi and Waxman, Chaim Isaac, Jews in Israel: Contemporary Social and Cultural Patterns (Hanover, NH: Brandeis University Press, 2004); and Cohen, Asher and Susser, Bernard, Israel and the Politics of Jewish Identity: The Secular-Religious Impasse (Baltimore, MD: Johns Hopkins University Press, 2000).

51 HCJ 1067/08, Noar Kehalacha Association v. Ministry of Education (2009) IsrLR 84.

52 HCJ 6986/10, Azari v. Israel Police (2010), concerning segregation on the streets of Mea She'arim during Sukkot.

53 See, most recently, HCJ 6298/07, Resler v. Knesset (2012).

54 Although not the focus of this article, the story of the shifting role of the judicial branch in Israeli politics and culture is a lively and fascinating one from the perspective of both comparative constitutional law and political science. This still-unfolding story is expertly narrated and analyzed by Menachem Mautner in Law and the Culture of Israel. Significantly, Mautner traces the increased political and social prominence of Israel's Supreme Court and its jurisprudence in the 1980s and 1990s—what he describes as part of a “spellbinding process of cultural change” (144)—to cultural anxiety among the liberal establishment in the country, provoked in part by the political rise of the ultra-orthodox population.

55 For articles canvassing cases arising in the context of this fissure between the Haredi and other parts of Israeli society, see Margit Cohn, “Taking a Bus from Immanuel to Mea Shearim: The Role of Israel's High Court of Justice in Regulating Ethnic and Gender Discrimination in the Haredi Ultra Orthodox Sector” (working paper, Faculty of Law, Hebrew University of Jerusalem, November 15, 2012),; Liviatan, Ofrit, “Judicial Activism and Religion-Based Tensions in India and Israel,” Arizona Journal of International and Comparative Law 26, no. 3 (2009): 583621.

56 HCJ 746/07, Ragen v. Ministry of Transport (2011).

57 Ibid., para. 1 (Rubenstein J.). I am conscious that my inability to read Hebrew distances me from both the subtlety and nuance of the original language of the decision, as well as from the Hebrew scholarship on this and other related cases. The discussion that follows is based on the English translation of the decision that was available on the Court's website, (last accessed May 13, 2013).

58 See footnotes 50–55.

59 HCJ 746/07, Ragen v. Ministry of Transport (2011), para. 4 (Rubenstein J.).

60 Ibid., para 7 (Rubenstein J.) (emphasis added).

61 Ibid., para. 31.

62 Ibid., para. 42.

63 Ibid., para. 29.

64 Ibid., para. 8.

65 Ibid.

66 Ibid., para. 3 (Danziger J.).

67 See, e.g., Barak, Aharon, The Judge in a Democracy (Princeton, NJ: Princeton University Press, 2006); Barak, Proportionality: Constitutional Rights and Their Limitations (Cambridge: Cambridge University Press, 2012).

68 HCJ 746/07, Ragen v. Ministry of Transport (2011), para. 26 (Rubenstein J.).

69 Ibid., para. 7 (Joubran J.).

70 Ibid.

71 Sunstein, “Incompletely Theorized Agreements,” 1748.

72 Canadian examples might include the celebrated “Persons Case,” in which the Judicial Committee of the Privy Council held that the word “persons” in the Canadian Constitution included women, Edwards v. Canada, [1930] A.C. 124, P.C. (on appeal from Canada), or the Supreme Court of Canada's decision in United States v. Burns and Rafay, [2001] 1 S.C.R. 283, effectively declaring the death penalty unconstitutional.

73 I am put in mind of the concept of “workable truths” explored in Appleby, Joyce Oldham, Hunt, Lynn Avery, and Jacob, Margaret C., Telling the Truth about History (New York: Norton, 1994), and described by Dipesh Chakrabarty as “shared, rational understanding of historical facts and evidence.” Chakrabarty explains as follows: “For a nation to function effectively even while eschewing any claims to a superior, overarching grand narrative, these truths must be maintained in order for institutions and groups to be able to adjudicate between conflicting stories and interpretations” Chakrabarty, Dipesh, Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton, NJ: Princeton University Press, 2000), 99.

74 For a claim about the appeal of institutional “humility” for law in the realm of identity politics, see Eisenberg, Avigail I., Reasons of Identity: A Normative Guide to the Political and Legal Assessment of Identity Claims (Oxford: Oxford University Press, 2009). I have written elsewhere about humility as an “adjudicative virtue,” rather than as a principle for institutional design, as Eisenberg does in her excellent volume. See Berger, Benjamin L., “A Due Measure of Fear in Criminal Judgment,” Supreme Court Law Review 41, no. 2 (2008): 161–92.

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