Tag Archives: religious accommodation

Ph.D. Thesis Committee Member For: Barry Bussey, ‘The Legal Revolution Against the Accommodation of Religion: The Secular Age v. The Sexular Age’, 27 June 2019

UPDATE:

‘Naar aanleiding en ter ere van zijn promotie zal Bussey op 28 juni een lezing geven over de historische en filosofische achtergrond van vrijheid van religie, en de status van deze vrijheid vandaag de dag binnen het sociale en wettelijke kader van de samenleving. Professor Iain Benson zal ook aanwezig zijn als co-spreker.’ Zie:  https://diqit.nl/2019/05/26/27-28-juni-2019-the-future-of-freedom-of-religion/

Summary

This is a study about the law’s accommodation of religious practice and the brewing revolution within the legal profession against that accommodation. The revolution is especially evident, though not exclusively so, in sexual equality claims vis-à-vis religion. Originally, the study asked, “Why has religion been given special status in the law?” and “Should that status continue?” As a result of intense, multiyear research, I have come to recognize that there is within the legal profession a strident movement to remove from the law the traditional accommodation of religion. This study likens this phenomenon to a revolution, using Thomas S. Kuhn’s theory of scientific revolutions to analyze this development. This revolution manifested itself in the Trinity Western University law school case. Legal revolutions were contrasted from scientific revolutions in their goals, methodology, and perspectives. These differences are based in the varying values and desired outcomes of each discipline.

It is concluded that the legal revolution against religious accommodation is due to the law’s inability to answer critics of religion who favour sexual equality rights. There is on display a “rights inflation” phenomenon where the demands of equality rights have come to eclipse the legal norm of religious accommodation even in the private sphere. What was once considered private, such as running religious universities, is now viewed as public because of the state’s regulation of such institutions. This is a new phenomenon which threatens every publicly regulated religious enterprise.’

See for more information:

https://www.universiteitleiden.nl/en/events/2019/06/the-legal-revolution-against-the-accommodation-of-religion-the-secular-age-v.-the-sexular-age

See also:

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.