Paper Presentation during Journal of Law, Religion & State International Conference on ‘The Rule of Law – Religious Perspectives’, Bar-Ilan University, Ramat-Gan, Israel, 20-22 November 2016

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For the program of the conference, see:

The call for papers for the conference can be found here:

http://www.ssrn.com/update/lsn/lsnann/ann16021.html.

The original paper proposal which I submitted, read as follows:

Christianity, Liberalism, and the Rule of Law

During the last decade or so the discipline of constitutional law has changed considerably. It has become more comparative, interdisciplinary and theoretical. What has not happened yet, however, is that constitutional lawyers have become more (openly) aware of their philosophical presuppositions. Thus, it is still commonplace for central concepts of the discipline, such as the rule of law, to be treated as if they do not at least partly have their historical roots in religions like Christianity, or as if such religions currently no longer have anything to contribute to these concepts.

This is remarkable, given that for example Michel Rosenfeld has had to concede ‘that there is no consensus on what “the rule of law” stands for, even if it is fairly clear what it stands against. An important part of the problem is that “the rule of law” is an “essentially contestable concept,” with both descriptive and prescriptive content over which there is a lack of widespread agreement.’

In light of the above, the proposed paper will depart from the idea that the concept of the rule of law is somehow intimately connected with Western liberal tradition. As Michael W. McConnell has argued, the history of liberalism in turn goes back further than the Enlightenment of the 18th century. It is probably more accurate to regard the 16th century Reformation as having given rise to liberalism, with its emphasis on the idea of individual conscience.

McConnell has also elaborated upon the similarities between some of the core doctrines of liberalism and particular Christian theological principles. Of these different connections, the one between the notion of limited government and the idea of the separation of church and state will be singled out, i.e. libertas ecclesiae or the ‘freedom of the church’. As McConnell puts it, ‘[i]n this view, religious freedom comes into being not as a result of ontological individualism but as a result of the jurisdictional separation between these two sets of authorities. (…) While theological in its origin, the two-kingdoms idea lent powerful support to a more general liberal theory of government. The separation of church from state is the most powerful possible refutation of the notion that the political sphere is omnicompetent – that it has rightful authority over all of life. If the state does not have power over the church, it follows that the power of the state is limited.’

The proposed paper will argue that this prescriptive meaning ascribed to the concept of rule of law by Christianity takes on a renewed relevance at a time when sovereignty claims by religious institutions are increasingly regarded by their critics as incompatible with the idea of state sovereignty being the only legitimate source of sovereignty. Thus, it is unfortunately presented as if a clear choice will need to be made between the jurisdictional approach to religious freedom and the modern liberal view that sees sovereignty within the liberal democratic state as essentially monistic in nature.

Upcoming Speaking Engagement, Journal of Law, Religion & State International Conference: Rule of Law – Religious Perspectives, Bar-Ilan University School of Law, Ramat-Gan, Israel

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‘The encounter of religion with the rule of law may generate tension but also mutual inspiration. The rule of law implies law’s supremacy over other normative systems and personal commitments. It also implies that law applies to everyone equally. Religion represents a normative system that may in some areas be different from – and stand in opposition to – state law. Religion may deny the supremacy of state law and pose divine law as supreme instead. It may, alternatively, seek exemptions from state law in those matters where the two conflict.

TOPICS: In this conference we seek to study this tension and discuss the following questions:
– Does religion (in general or a specific religion) accept the rule of state law?
– What are the boundaries (if any) of such acceptance?
– In what cases would religion challenge state law and in what cases would it seek exemptions?
– Can a policy of multiculturalism and of legal pluralism, which give more room to religious freedom, be reconciled with the rule of law or does it undermine it?
– What other policies should states follow in response to these tensions?

Religion may not only compete with state law but also inspire it, which leads us to investigate religion’s various understandings of the rule of law. Here is just one example. The concept of law in the context of the rule of law is ambiguous and open to different interpretations. Some (positivists) understand law as a set of rules fixed by social institutions, and others (natural law advocates) understand law as if it includes fundamental principles of justice and morality. Religions may take a position in that debate and contribute not only to the abstract understanding of law, but also to the identification of those moral principles that are part of law. We therefore also plan to explore the following:
– What is the position of religion with regard to the concept of law and the rule of law?
– Many religions developed partial or comprehensive legal systems of their own. Did religions also develop a concept of rule of law? What is its scope and meaning?
– The concept of rule of law also may be used in theological context as a metaphor to understand the boundaries of divine actions and intervention in the world. Is God constrained by law – and by what kind of law: law of nature, morality?

These and similar questions will be discussed in an international conference that will be held at Bar-Ilan University School of Law, Ramat-Gan, Israel, on November 20-22, 2016.’

Source: http://www.ssrn.com/update/lsn/lsnann/ann16021.html. More information will follow.