This essay on law and religion appears in the second edition of the Blackwell Companion to Philosophy of Law and Legal Theory, edited by Dennis Patterson. It is a revision of a similar entry in the book’s first edition. The essay opens by broadly discussing the complex relationships between law and religion writ large as movements in human history – social, cultural, intellectual, and institutional phenomena with distinct but often overlapping logics and concerns. It then hones in on (...) the efforts of secular law to make sense of religion and determine its place in the civil state. The essay argues that, while the questions raised by the American Bill of Rights’ religion clauses connect in some important respects to broader constitutional principles such as free expression and equality, the most interesting and theoretically excruciating conundrums involving religion need to be approached on their own unique terms. Two useful rubrics for such understanding are “separation” and “deference.” Any honest account must also admit, however, that there is an “intractable residue,” questions in the relation of religion and law to which there simply is no determinate or completely satisfactory answer. Finally, the essay emphasizes that the full texture of the legal imagination’s effort to grapple with religion only becomes apparent in the wider range of subconstitutional and nonconstitutional contexts beyond the standard litany of constitutional discourse. (shrink)

The First Amendment’s Free Exercise and Establishment Clauses were meant to guarantee freedom of religion for all persons living in the United States. This was to be done by ensuring that government could not establish a state religion nor interfere with individual practices and beliefs so long as they did not violate public morals. The idea was to have the two clauses operate together to ensure state separation in matters of religion. However, recent caselaw (...) involving government accommodations to religious organizations has emphasized the Free Exercise Clause with little or no attention afforded the Establishment Clause. As a result, intermediate factors like entanglement, endorsement, general applicability, and neutrality, that previously were used to assist the separation of church and state, are now called into question. This Article attempts to rekindle these factors by attaching a public/private distinction to the way the two clauses are understood, to ensure a more certain and clearer basis for the separation of church and state. (shrink)

The article deals with the criteria upon which the powers of the Seimas (the Parliament of the Republic of Lithuania) and the Government are delimited in the constitutional jurisprudence of Lithuania. It analyses how the Constitutional Court construes the principle of separation of powers as entrenched in the Constitution and evaluates the meaning of the provision of the Constitution that corresponding ‘relations are regulated by law’. If the Constitution provides that certain relations are regulated by means of a (...) law, such relations may be regulated only by means of a legal act, which takes the form of a law, and it is, therefore, not permissible to regulate such relations by Government resolutions or other acts of the executive. The most important elements of legal relations must be regulated (established) by means of a law, whereas Government resolutions might establish the procedure for the implementation of such laws. Rulings of the Constitutional Court reveal that once the powers of a specific branch of state power have been directly established in the Constitution, an institution of state power may not assume the said powers fr om another state institution. It may not transfer or waive them; and such powers may not be amended or limited by means of a law. The question remains, whether the provision of the Law on the Diplomatic Service wh ereby the candidacy of a diplomatic representative must be reviewed by the Seimas Committee on Foreign Affairs in advance is not in conflict with the Constitution. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:102 HISTORY OF PHILOSOPHY and removal of the social self, through the devaluation of values and de-culturation, to the objectivizatlonof the ego, the state of oneness and unity with all. The remaining sections of the book give an analysis of Rumi, the universal man of the Eas~, and an analysis of Goethe, the universal man of the West. The Rumi chapter contains impressive translations of RumPs poems and the (...) Goethe study offers a very pertinent critique of K. R. Eissler's psychoanalytic interpretation of the great man. Added is a case history of a young man who lived in two cultures, and after many errors and meanderings obtained full integration. The final section offers an application of the transcultural state to health, social change and leadership. A most rewarding and challenging work, marred only by an incredible number of typographical errors and a sometimes uneven English due to misunderstandings of the Dutch printers. Hg~RY WALTESBRANN Washington, D. C. Natural Law and Modern Society. Essays by John Cogley, Robert M. Hutchins, John Courtney Murray, SJ., Scott Buchanan, Philip Selznick, Harvey Wheeler, and Robert Gordis. (Cleveland and New York: The World Publishing Company, 1966. Pp. 285. Meridian Books. $1.75.) This group of essays has been discussed from time to time at the Center for the Study of Democratic Institutions in Santa Barbara, California. The essays provide an excellent survey of the various contexts in which the idea of natural law is functioning today: in jurisprudence, political theory, sciences, religions, and philosophies of culture. Though the emphasis is on "modem society," there is a large amount of history in this collection, going back to the ancients, and one of the most valuable features of the analysis is the evidence here offered that "natural law" has meant and still means many different things, and that this flexibility of meaning gives the idea an enduring vitality and relevance. This is the particular theme of Scott Buchanan's "Natural Law and Teleology", which chapter reviews almost the whole history of philosophy to show how the content of natural law has varied for teleological reasons. Since it is impossible to review this whole story, it seems simplest and least distorting to quote a series of passages from the essays so that the reader can estimate the range of subject-matter and the kind of observations in the volume : The natural lawyer who lacks a sense of history, a factual sense, is as seriously deficient as the one who has been victimmed by the historical setting of his own time. Social scientists are concerned with digging up and evaluating exactly the kind of factual material the conscientious natural lawyer needs (Cogley, pp. 24, 26). We are free, with the deference that is due previous laborers in the vineyard, to work out the ~pplication of the principles of natural law to the conditions of our own time. The ends of uman life are heldto be unchanging; the search for the best way of achieving them is continuous and adapted to changing conditions and new knowledge. The search for a revival of natural law--not necessarily, or even principally pitched in Thomistic terms but projected more generally on a ~us gent~um, pluralistic basis--may well be the dominant theme of American legal philosophy over the second half of the century (Hutchins, pp. 34, 37, 46). Plato saw an epitome of the legal and political crisis of the city-state in the trial and death of Socrates.... The sophists are operators in opinion and power.... Plato sets out to find the truth in science and the good of the state.... There is no doctrinal answer to the quest.... The Dialogues practice what they preach, a relentless dialectical exposure of ideas masquerading in dogmas and opinions.... The endless mutual persuasions in any community could result in good laws if the formal processes of government provided insights for the citizens and magistrates alike.... Neither Plato nor Aristotle commonly uses the phrase 'natural law'.... For the Stoics what Plato had described as the "community of ideas," which was only the notion of the interpenetration of BOOK REVIEWS 103 mutual implication of ideas, became the Logos, the perhaps infinite total of... (shrink)

Contemporary Islam presents Europe in particular with a political and moral challenge: Moderate-progressive Muslims and radical fundamentalist Muslims present differing visions of the relation of politics and religion and, consequently, differing interpretations of freedom of expression. There is evident public concern about Western “political correctness,” when law or policy accommodates censorship of speech allegedly violating religious sensibilities. Referring to the thought of philosopher Baruch Spinoza, and accounting for the Universal Declaration of Human Rights, the Universal Islamic Declaration of Human (...) Rights, and various empirical studies on the religious convictions of Muslims, it is argued here that: (1) sovereign European state powers should be especially cautious of legal censorship of speech allegedly violating Muslim religious sensibilities; and (2) instead of legal moves to censorship, European states should defer to the principle of separation of religion and state (political authority). Further, a reasonable interpretation of Islamic jurisprudence allows that matters of religious difference may be engaged and resolved by appeal to private conscience and ethical judgment, rather than by appeal to public law per se. In so far as they are 1 representative of contemporary scholarship, the interpretative positions of Ziad Elmarsafy, Jacques Derrida, and Nasr Abū Zayd are presented in illustration of this latter point. (shrink)

Chapter 1: An Introduction: The ‘Semantic Sting’ Argument Describes Dworkin’s theory as concerning the conditions of legal validity. “A legal system is a system of norms. Validity is a logical property of norms in a way akin to that in which truth is a logical property of propositions. A statement about the law is true if and only if the norm it purports to describe is a valid legal norm…It follows that there must be certain conditions which render certain norms, (...) but not others, legally valid. Hence it also follows that there can be two types of disagreement over the truth or falsehood of propositions about the law. People can disagree over the question ‘What are the conditions of legal validity?’, in which case their disagreement is a theoretical one. Or they can agree on the conditions of validity, and disagree as to whether or not those conditions actually obtain in a given case or not.” Argues that the best way to interpret Dworkin’s ‘semantic-sting argument’ is as a general argument against conventionalism in legal positivism. Summarizes the outcome of Dworkin’s argument as follows: “[I]f Dworkin is right about the legal reasoning of lawyers and judges, conventionalism would be self-defeating: if lawyers and judges recognize as legally binding not only those norms which are uncontroversially identifiable under the Rule of Recognition, that is, if what they recognize as binding is not only source-based law, then conventionalism turns out to be false on its own terms. In other words, either law is not what lawyers and judges think that it is, in which case law is not a matter of conventions, or – if it is what lawyers and judges think – conventionalism is false, as they do not see the law as purely a matter of conventions.” Dworkin’s theory, then, is a new conception of jurisprudence aiming to present itself as a rival to conventionalism. The book will be concerned with re-examining positivism in light of the interpretative challenge. Chapter 2: Meaning and Interpretation “[R]oughly, interpretation can be defined as an understanding or explanation of the meaning of an object.” Interpretation in this narrow sense is distinct from a less formal and broader use of interpretation that makes it equivalent to explanation. “Hence also, only those objects which are capable of bearing some meaning qualify as objects of interpretation.” [Why shouldn’t we think of interpretation as object-identification? This seems to be closer to what Dworkin has in mind.] Thus, a consideration of the philosophical work on meaning is appropriate. First, a consideration of Davidson on interpretation. The thesis is that Davidson’s “radical interpretation” can only account for sentence meaning and not for linguistic interpretation in general. Davidson cannot account for the non-rule-governed aspects of communication. “Semantics, as opposed to interpretation, concerns those aspects of communication which are rule or convention governed…but such rules are normally unavailable as reasons or justifications for an interpretation. On the contrary, interpretation is usually required because the issue is not determined by rules or conventions.” Interpretation, rather, is parasitic with understanding the meaning of an expression and not equivalent with it. As Dummett notes, any reflection on the meanings of words assumes prior knowledge of ordinary meanings. “This leads to the conclusion that understanding or explaining the meaning of an expression and interpreting it, are two conceptually separate things. It also indicates that seman ics can only be employed, if at all, to elucidate the concept of interpretation by way of contrast: interpretation concerns those aspects of communication which are under-determined by semantic rules or conventions.” Pragmatics, the study of problems posed by discrepancies between utterer’s meaning and sentence meaning, would seem to be closer to inquiry into interpretation. Both are concerned with understanding how meaning is possible where conventional rules leave off. Contemporary pragmatics, moreover, recognizes the logically indeterminate character of communicative inferences beyond conventional meaning and that the contextual conditions that account for the possibility cannot be realized in the semantic structure of the sentence. However, different criteria of success may be at work in pragmatics than interpretation. Pragmatics is concerned with how communication is achieved and thus the criteria of success would be grasping a speaker’s intentions. Many think, however, that communication is unimportant in certain spheres of communication, e.g. artistic interpretation, and that in these cases the aim of interpretation is not to uncover the actual artist’s intentions. What kind of meaning is interpretation aimed at then? It cannot be the meaning the object has for the interpreter. “Interpretation purports to be a statement about the object interpreted, not about the subject who offers the interpretation…it is crucial to remember that not everything we say about a work of art, or any other text, amounts to an interpretation of it. Only those aspects of a text which can shed light on its meaning form part of the text’s interpretation. What the text means for someone rarely entails anything about what the text means.” [This is puzzling to some extent for it remains somewhat ambiguous what it means to talk of subject-independent meaning.] Interpretive meaning attribution is, rather, counterfactual. “In general, I will suggest that the answer to this question consists in the fact that meaning is assigned by a counterfactual statement. Given that x is the meaning attributed to, for instance a text T, and x is not the literal meaning of T, nor is it the meaning of T intended by its author, then the attribution of meaning x to T can only be understood as the contention that on the basis of certain assumptions a certain fictitious or stipulated speaker would have meant x by expressing T.” Thus, on this account, interpretation, when it does not concern an actual speaker, turns out to be a kind of counterfactual intention attribution. Twofold point: “First, that interpretation is essentially a matter of attributing intentions, that is, in the pragmatics sense of ‘meaning’, namely, meaning that such-and-such by an act or expression. At the same time, interpretations need not be based on the intentions of actual authors; the meaning of an act or expression is understandable in terms of counterfactual intentions.” [Are we really restricted to understanding the coherence and integrity of meaning in such a way? Presumably the author is a kind of device for organizing meaning, much like Dworkin’s integrity, but need it take that format?] The logic of interpretation is typically reducible to intention attribution. [What role does the counterfactual author play in structuring meaning?] The criteria of interpretive success will depend upon the object, whether it is the real author or the counterfactual author. If the former, success will depend upon the retrieval of the author’s actual intentions. “Likewise, if the author is characterized in terms of some ideal representative of a certain genre, for instance, the presumptions which are taken to determine this c aracterization would provide the criteria of success for the particular interpretation offered.” [The criteria of success would seem, then, to be the principles, ideals, etc. that we attribute to the counterfactual author. These attributed qualities would be doing all the work – is the attribution of intention to the hypothetical author, then, really necessary at all?] [Does this account presuppose a weird dichotomy between what an object is and what it means? This dichotomy is different, if present at all, in Dworkin.] Chapter 3: Dworkin’s Theory of Interpretation and the Nature of Jurisprudence Three main insights of Dworkin’s theory of interpretation: “First, that interpretation strives to present its object in its best possible light. Second, that interpretation is essentially genre-dependent. And third, that there are certain constraints that determine the limits of possible interpretations of a given object.” Why the best light? Dworkin doesn’t really address this question in depth but claims that otherwise we are left with no way of justifying and choosing an interpretation or we are left with the author’s intention model, which we should reject. [Marmor doesn’t seem clear on what precisely it means to present something in its best light – seems to conflate it with most appealing light which, I take it, is different than what Dworkin has in mind.] “Dworkin is quite right to maintain that without having some views about the values inherent in the genre to which the text is taken to belong, no interpretation can take off the ground. The values we associate with the genre partly, but crucially, determine what would make sense to say about the text, what are the kinds of meaning we could ascribe to it.” There is no necessity for an interpretation to present an object in its best light with regards to the genre it is taken to be part of. Interpretations “could simply strive to present it in a certain light, perhaps better than some, worse than others, but in a way which highlights an aspect of the meaning of the text which may be worth paying attention to for some reason or another.” [What kind of reasons would count in choosing to present it in one light rather than another?] There is simply zero grounds for Dworkin’s assertion that we have no reason to pay attention to an interpretation that does not present it in its best light. Take a psychoanalytic interpretation of Hamlet, for example – not the best light, but a legitimate one. [This seems related to the next criticism – clearly Dworkin would have to loosen his insistence on the best, though not to detriment.] Moreover, especially with regards to art, it doesn’t appear possible to make an all things considered judgment about the best interpretation given the incommensurability of different values that are taken to inhere in a given genre. [Dworkin can respond here that we may have different available interpretations that could be justified with respect to the relevant value. Moreover, a lack of common denominator does not prevent any comparison whatsoever.] Constructive interpretation concerns social practices constituted by norms – it imposes a purpose or value rendering intelligible the normative character of the practice. There is a separate aspect of constructive interpretation that maintains that elements of the practice are sensitive to the point of the practice. It is important to note that different social practices will institutionalize themselves in different ways – thus, different practices will establish varying conditions on how the practice can be altered. The position of the positivists is that evaluative judgments concerning what the law should be are insufficient for determining what the law is given the nature of law’s institutionalization.&nb p; [This would seem to reside on a certain conception of law, i.e. an interpretation about where the value of law lies.] “[T]his being one of the main points of dispute between Dworkin and his positivist opponents, Dworkin cannot at this initial state presume law to be sensitive to its value in the manner that other, non-institutional practices might be, without incurring the charge of having assumed the very point at issue.” The upshot for Dworkin is that any explanation of a social practice such as law requires the same kind of reasoning as participation in that practice. This will be called the hermeneutic thesis. We can try to reconstruct a justification for this view based on the necessity of shared background assumptions – but this will not do since Dworkin’s claim is stronger: it contends that participants’ and theorists’ must “adopt one and the same normative point of view.” [The sense of normative here is unclear. It is true, though, that shared background assumptions do not imply viewing the law as valuable in any particular way, or at least it does not imply this in any strong sense.] Dworkin makes two distinct points with the hermeneutic thesis: “First, that the explanation of a social practice, like law or the arts, is essentially interpretative, and as such, necessarily value laden. Second, that the interpretation of such social practices, which Dworkin calls ‘argumentative’, is unique in the sense that the practice itself is an evaluative enterprise, and that therefore the interpreter of such a practice must form an evaluative judgment of her own about those values which are inherent in the practice that she purports to interpret.” [As stated, the first thesis is terribly ambiguous – for Dworkin, it clear implies a commitment to constructive interpretation. For Marmor, who accepts it, it is totally unclear what commitment he intends to make. He seems to mean simply that we have criteria for success concerning what counts as a successful explanation.] Mamor denies the second thesis. “What Dworkin seems to ignore here is that there is a crucial difference between forming a view about the values which are manifest in a social practice, like law, and actually having evaluative judgments about them.” [The problem, however, it that it is a contentious matter what values are part of the law – a theorist’s account of what values are constitutive of a particular legal system must rely on the kind of arguments which participants rely on. Of course, a theorist might simply note a debate about values and attempt to remain agnostic, but this will fail to be a full theoretical account of what law is!] Dworkin’s thesis seems to depend exclusively on his account of constructive interpretation. [This seems exactly right.] Chapter 4: Coherence, Holism, and Interpretation: The Epistemic Foundation of Dworkin’s Legal Theory Begins with discussion of Rawls’ reflective equilibrium. Sums up dual criticism as follows: “[T]he assumption that intuitions are independently true and the converse one, that their truth depends on fitting a coherent scheme, both seem to yield paradoxical results.” Dworkin, in his article “The Original Position”, claims that Rawls cannot commit himself to ethical realism. “[T]he natural model presupposes some form of ethical realism, while the constructive model does not. One important difficulty arising from an attempt to apply the natural model to Rawls is, that under the natural model, any theory which dopes not account for an intuition, at least for one which is held firmly, cannot be wholly satisfactory, just as scientific theory which does not account for certain observational data it is supposed to cover, would not be satisfactory in a familiar way.” Rawls, rather, is committed to a constructivist view of morality. Moreover, the reason we value coherence epistemically in moral theory is that it itself is a value of political morality – fairness requires consistency and publicity in the application of moral standards. Marmor notes the following problem with such a view: “[I]f coherence is justified, as it is here, with reference to certain moral values, that is, a specific conception of fairness, then we face the following problem: the presupposed values of fairness must themselves be based upon intuitive convictions, in which case the question of their truth cannot be ignored. If they are taken to be true…we are driven back to the perplexities of the natural model.” Discusses, helpfully, the Fish/Dworkin debate. The upshot is that Dworkin’s interpretive model is best off if it commits itself to a Quineian holism. However, this undermines his distinction between internal and external skepticism since holism must deny that moral judgments constitute a closed system. [This analysis seems exactly right.] Endorses Simmonds view that Dworkin’s theory does not meet the requirements of complexity he identifies as necessary to avoid vicious circularity in interpretive judgments of fit and identity. Coherence is doing the work through and through and therefore the interpretive theory of law is circular. [Will require further investigation, though it is unclear how coherence is doing any work in the pre-interpretive stage. At this stage, the judgments, if interpretive, seem to be derived from different sources. In any case, using coherence as a value seems to be highly suspect.] Why doesn’t Dworkin just reject Fish’s assumptions: because of his jurisprudence. “If legal texts can have a meaning that is not entirely dependent on a process of interpretation, then it is at least sometimes the case that the law can simply be understood, and applied, without the mediation of interpretation. And if that is the case, then the argument from interpretation against legal positivism collapses. It is no longer the case that every conclusion about what the law is, depends on evaluative considerations about what it ought to be.” Chapter 5: Semantics, Realism, and Natural Law Assessment of Michael Moore’s legal realism and its implications. [The final criticisms of Moore are not decisive.] Chapter 6: Constructive Identification and Razian Authority A consideration of Dworkin’s denial that the communication model of interpretation is appropriate for legal interpretation. Marmor argues that intentions do play a crucial role in the identification of legal norms in a way that is incompatible with Dworkin’s “coherence thesis”. Marmor takes Dworkin to be committed to the constructive identification thesis: that the identification of something as part of the legal, artistic, etc. genre can be done sufficiently by evaluative considerations. “Here, one must maintain that evaluative considerations are sufficient to determine whether something is a legal norm or a work of art”. [Fit, however, constrains possible evaluative considerations – thus evaluative considerations are not sufficient in themselves.] “Now the crucial point here is this: if you maintain the possibility of constructive identification in art, you must assume that works of art can be identified as such on the basis of certain features they happen to possess, features which contain no reference to any particular intention to create a work of art…unless we take intentions into account, how can we discriminate between the concept of an aesthetic artifact and the con ept of a work of art?” [It is unclear, and I think false, that constructive interpretation of anything requires identifying something irrespective of an artificers intentions. Those intentions may be relevant, dependent upon the genre under which we are trying to classify the object. Nothing, seemingly, about constructive interpretation in general excludes this possibility.] Marmor’s point is that it turns out to be impossible to identify art as art without reference to an artist’s intentions – especially given the state of contemporary art. [It is notable that Marmor’s response to counterexample implicitly depends upon a fully developed theory of aesthetics. His cursory comments on the matter of identifying art seem insufficient to say the least.] The rest of the chapter considers the incompatibility of Raz’s account of authority with constructive interpretation. The incompatibilities mentioned do not move beyond what Raz identifies in his article “Authority, Law and Morality”, but a defense of this notion of authority is defended in several [inconclusive] respects. [Raz and Marmor want to separate identification from content. This is not clearly a defensible separation.] Chapter 7: No Easy Cases? Chapter defends notion that there is a distinction between easy and hard cases in the positivist sense. Takes a Hartian approach and ultimately defends the distinction by associating it Wittgenstein’s conception of rule following. The point is that one need to look the purpose of rule in order to understand what the rule requires. Chapter 8: Legislative Intent and the Authority of Law Examines the following doctrine concerning the role of legislative intent in adjudication: “[F]irst, it would hold that laws, at least in certain cases, are enacted with relatively specific intentions, and that this is a matter of fact which is discernible through an ordinary fact-finding procedure. Second, that in certain cases the presence of such a fact, namely, that the law was enacted with a certain intention, provides judges with a reason to decide the legal dispute in accordance with the relevant legislative intent.” [It is important that for Marmor, interpretive strategies are only appropriate in hard cases. However, we should wonder what grounds positivism can offer for deciding a hard case in any manner which is not the morally best manner according to the judgment of the judge. There are no legal grounds, by definition, in hard cases and so what justificatory strategy would endorse any judicial decision except for the morally best one?] We can ascribe intentions to a legislative body, when this is possible at all, by taking the shared intentions of the majority, rather than some group intention, to be the significant intentions. Moreover, we should expect a good deal of consensus about intentions for otherwise it is hard to explain how legislative bodies are able to produce so much legislation. Discussion of kinds of intentions concludes as follows: “I have distinguished between three main types of intention that are potentially relevant from the legal point of view. Apart from the intentions that are manifest in the language of the law itself, legislators typically have further intentions in enacting a given law, and sometimes they would have certain intentions bearing on its proper application. I have also suggested that some of these further intentions may be essentially non-avowable, in which case they are rendered initially irrelevant. Finally, I have pointed out that considerations of consistency require that the legislator’s application intentions be taken into account only if, and to the extent that, they are in accord with his further intentions.” The manner in which intentionalism is to be justif ed relies on the distinction, Marmor maintains, between expert and mere collective action authority. “The point I wanted to make is strictly conditional: if, and only if, a certain law is justified on the basis of the expertise branch of the normal justification thesis, would it make sense to defer to the legislature’s intentions in the interpretation of the law, that is, to the extent that there is, in fact,; such an intention and it can clarify something that needs clarification.” Insofar as a legislature can be considered an expert on the matter requiring adjudication and interpretation should the body’s intention be taken into account. Chapter 9: Constitutional Interpretation Begins by laying out general necessary features of a constitution. Then Marmor moves on to consider general questions of constitutional legitimacy. First, he considers what grounds might be offered for the legitimacy of a constitution at all. He notes that the central question is what permits a single generation to bind future generations. He then examines four arguments to avoid this problem. The first is based on the moral legitimacy of the constitution; Marmor rejects this solution for the [truly dubious] reason that the constitution would make no practical difference because it would not supply reasons in addition to those provided by morality [but, presumably, the point is that these legally valid rules would be institutionally enshrined]. The second is based on the moral authority of the framers and Marmor rightly rejects this on the basis of the idealization of the framers it requires and less rightly on the basis that there cannot be moral authorities. Third is the “argument from interpretation” which claims that “as long as the particular content of the constitution is determined by its interpretation, and the authoritative interpretation at any time correctly instantiates the values which ought to be upheld in the community, the constitution would be morally legitimate”. The fourth is Raz’s which argues that a constitution is valid so long as its constraints are morally permissible because conventions of this type might aid the continuity of the legal system, i.e. it is important to have a convention of this type and the constitution is a kind of this type. Marmor appears to endorse these two approaches and concludes: “The conditions for the legitimacy of a constitution must comprise the following conditions. First, the values and principles enshrined in it must be morally permissible…Second, when certain choices are made in particular cases, they would be legitimate if they are either morally underdetermined, or else, morally correct…It follows from this that both arguments must assume that at least in those areas in which the constitution would make a moral difference, it can be interpreted to make the difference that it should, that is, according to the true moral principles that should apply to the particular case...the moral legitimacy of constitutions very much dependent on the practices of their interpretation. In other words, a great deal of the burden of moral legitimacy is shifted by these arguments to the application of the constitution, thus assuming that the constitution is legitimate only if the courts are likely to apply the constitution in a morally desirable way.” [This implies that the only significant value constitutions have is in providing a conventional practice where some such practice is required.] Moves on to argue that courts typically rely, and rightly so, on moral considerations when deciding constitutional issues because typically, in cases of the kind that reach the supreme or constitutional court, there is no law on the case. Much of this relies on his earlier discussion about the nature of interpretation in the law – that legal interpretation is always a matter of cha ging the law. (shrink)

Some clerics (ulama) in the Islamic world are of the view that practical politics is closely related to Islam, which regulates how an order of state is run. This view historically departs from Islamic constitutional jurisprudence texts that justify political Islam. Likewise, some Islamic boarding schools’ (pesantren) clerics, better known as kyai in Indonesia, are of the view that practical politics is not only a world affair but also an activity based on the application of Islamic legal principles (...) in achieving public welfare. This study aims to determine the academic basis of pesantren ulama in making decisions to be active in practical politics in Indonesia. Using a qualitative approach through interviews, the results of this study indicate that the political decisions of pesantren ulama are strictly based on the perspective of political Islam and fiqh principles that justify the involvement of ulama in politics. Furthermore, the conclusion leads to three perspectives in political motivations for pesantren’s ulama: to gain power, to preach Islamic values, and to demonstrate the existence of ulama in modern state administration.Contribution: The contribution of the study is to describe the permissibility of politics as an alternative to preaching and to show the existence and ability of ulama in state administration. (shrink)

In this short article, my aim is to introduce readers to some debates about religious freedom and constitutional law in the United States. I highlight a few of the enduring questions debated by political philosophers and legal scholars. For example, does the Constitution require special religious exemptions for citizens whose religious convictions put them at odds with otherwise neutral and legitimate state pol- icy? Should the Constitution be interpreted as supporting a strict secularism or a multicultural egalitarian liberal position? What (...) are the limits to religious freedom? To illustrate how these and related questions are debated I consider some recent work on religious freedom jurisprudence in the United States. (shrink)

This book clarifies the relation between religion and ethics, articulates principles governing religion in politics, and outlines a theory of civic virtue. It frames institutional principles to guide governmental policies toward religion and counterpart standards to guide individual citizens; and it defends an account of toleration that leavens the ethical framework both in individual nations and internationally.

Contemporary critiques of the administrative state are closely bound up with the distinctively American doctrine that republican freedom requires that the legislative, executive, and judicial powers be exercised by separate and distinct branches of government. The burden of this essay is to argue that legislative delegation and judicial deference to the administrative state are necessary, or at least highly desirable, features of a democratic separation of powers regime. I begin by examining the historical and conceptual roots of the (...) separation of powers doctrine, paying particular attention to the unique way in which it was adapted to fit the American case. I then examine three concerns that the resulting constitutional system raises about the republican freedom of those who are subject to it—which I call the accountability, legitimacy, and stability concerns—and argue that the administrative state is a useful, albeit imperfect, tool for reducing the unavoidable tension between these concerns. The thrust of this discussion is to push us away from “in principle” objections to the administrative state, and back toward the kinds of prudential considerations that are associated with ordinary liberal politics. More importantly, the aim of the essay is to encourage sober reflection on the real dangers that face the American constitutional system under current circumstances. (shrink)

'Man being born...to perfect freedom...hath by nature a power...to preserve his property, that is, his life, liberty and estate.'Locke's Second Treatise of Government is one of the great classics of political philosophy, widely regarded as the foundational text of modern liberalism. In it Locke insists on majority rule, and regards no government as legitimate unless it has the consent of the people. He sets aside people's ethnicities, religions, and cultures and envisages political societies which command our assent because they meet (...) our elemental needs simply as humans. His work helped to entrench ideas of a social contract, human rights, and protection of property as the guiding principles for just actions and just societies.Published in the same year, A Letter Concerning Toleration aimed to end Christianity's wars of religion and called for the separation of church and state so that everyone could enjoy freedom of conscience. In this edition of these two major works, Mark Goldie considers the contested nature of Locke's reputation, which is often appropriated by opposing political and religious ideologies. (shrink)

Does John Rawls’s political liberalism require the institutional separation between state and religion or does it allow space for moderate forms of religious establishment? In this paper I address this question by presenting and critically evaluating Cécile Laborde’s recent claim that political liberalism is ‘inconclusive about the public place of religion’ and ‘indeterminate about the symbolic dimensions of the public place of religion’. In response to Cécile Laborde, I argue that neither moderate separation nor moderate (...) establishment, intended as regimes of religious governance that fix specific interpretations of principles of social and economic justice, are compatible with Rawls’s political liberalism. Furthermore, I claim that a state can ensure that both its religious and non-religious citizens enjoy a sense of self-respect and identification with their polity by leaving issues of symbolic establishment and separation open to democratic debate. I conclude that Rawls’s political liberalism transcends the standard distinction between moderate establishment and moderate separation and leaves the public place of religion open to the democratic contestation of ordinary legislative politics. (shrink)

Recent U.S. Supreme Court decisions regarding the scope of the Establishment Clause have failed to provide a clear framework for determining what government actions are prohibited. Part of the problem concerns what kinds of actions constitute an establishment of religion. What criteria should determine the boundaries of an establishment challenge? Are governmental actions that may only indirectly affect religion (either positively or negatively) prohibited? This article aims to provide a coherent and normatively justified understanding of the Establishment Clause (...) to help answer these questions by considering not just the history of the Clause or the cases the Court has decided under it, but also considering overlaps from various philosophical justifications for the Clause—including justifications from rights theory, political liberalism, utilitarianism, and communitarianism. In the process, the article eliminates from consideration the Supreme Court’s so-called “accommodationist” approach and presents a new understanding of the neutrality test that anchors itself between strict separation and the current neutrality approaches. This it does by also taking into account what in moral theory is known as the doctrine of double effect and by showing how the doctrine further limits the various judicial views to just neutrality in the new sense I suggest, while also providing both clearer and firmer conditions. (shrink)

Public health ethics is a subfield of bioethics that focuses on population health. This study aims to conform the principles of biomedical ethics to Islamic values in the context of public health. It culturally helps to optimize health care delivery. The approach is based on the method of immanent critique. The principle of the common good in Islam has a rational justification to draw public interests and ward off harms. The rule of “no harm”, with an emphasis on the (...) preferability of preventing harm to increase benefits, is consistent with the principle of utility, intending to produce a maximum balance of benefit over harm in the context of public health. Thus, on the one hand, the government is obliged to prevent harm and improve public benefits and, on the other hand, as a steward of health and with reference to the article “limitation of the ownership dominance”, it has the right to protect public health with the least justifiable harm. Islam attention to human dignity, individual justice and good will in the rule of goodness implies that Islam, beyond distributive justice, knows that human flourishing and the cultivation of moral virtues are a requisite for the realization of social justice. The present study discusses about the adjustment of the principles of PHE to the principles of the Islamic jurisprudence and, at the same time, it explains why the optimal PH in Muslim societies requires research in order to define accurate indicators of benefit and harm based on the teachings of revelation and reason. (shrink)

This is the first full-length English translation of Benjamin Constant's massive study of humanity's religious forms and development, published in five volumes between 1824 and 1831. Constant (1767-1830) regarded On Religion, worked on over the course of many years, as perhaps his most important philosophical work. He called it "the only interest, the only consolation of my life," and "the book that I was destined by nature to write." While the recent revival of interest in Constant's thought has been (...) welcome and fruitful, it has been incomplete, tending to leave out of account his writings on religion. In this connection, On Religion is essential reading and of interest for many reasons. As an analysis of humanity's religious experience, the work is notable for its methodology. Unlike previous writers with dogmatic commitments, whether theological or philosophical, Constant aimed to work with well-established facts and to relate religious forms to their historical contexts and civilizational developments. In this way, he was a precursor of the scientific study of religion. This objectivity, however, was not tantamount to moral-political neutrality. In the aftermath of the French Revolution, he wanted partisans of the new order to recognize that the religious impulse was natural to the human heart: to extirpate religion was therefore a fool's errand and worse. Likewise, he instructed religious reactionaries that history had left them behind: now the natural state of the religious sentiment was an unfettered "spirituality" left free to find new forms of expression. His counsel to contemporaries has proven prescient concerning subsequent religious developments in democratic and totalitarian societies. In his day, Constant was a consistent liberal, a life-long advocate of representative government, as well as of the central liberal arrangement concerning religion: separation of church and state. But On Religion demonstrates that principled liberalism can turn a sympathetic as well as analytic eye toward religion and, in an unbegrudging way, find an important place for it in free society. There are signs that this is a lesson that contemporary liberalism would do well to relearn. Peter Paul Seaton Jr. teaches philosophy at St. Mary's Seminary and University in Baltimore. His scholarly interests focus on the intersection of religion, politics, and philosophy. He has translated a number of works in French thought, especially political philosophy. These include works by Pierre Manent, Democracy without Nations? and Modern Liberty and Its Discontents (with Daniel J. Mahoney), Chantal Delsol, Unjust Justice, and Rémi Brague, On the God of the Christians and The Legitimacy of the Human. (shrink)

With the arrival of another wave of “boat people” to Australian waters in late 2009, issues of human rights of asylum seekers and refugees once again became a major feature of the political landscape. Claims of “queue jumping” were made, particularly by some sections of the media, and they may seem populist, but they are also ironic, given the protracted efforts on the part of the federal government to stymie any orderly appeals process, largely through resort to “privative clauses”. (...) Such clauses demonstrate the many ways in which human rights of those seeking asylum in far-off lands and are potential future immigrants, who often lack much-touted needed papers, yet who are for the most part genuine refugees, are subject to the slings and arrows of political fortune (and misfortune). Approaching the courts if treated unfairly or seeking a further decision as to your fate would seem one of the fundamental premises of human rights. Yet privative clauses—or attempts to ouster the jurisdiction of the courts and to insulate decisions from appeal—have become an increasingly frequent feature of the Australian migration legislation. With a seemingly watertight federal constitutional power set in stone since 1901, to deal with migration and aliens, and without the tempered contemporary update of a federal Bill of Rights, the Australian federal government has been able to narrow the grounds of judicial review in those contexts. We argue that the concerted efforts to deny such fundamental rights of appeal to those most in need of the full armoury of the protection of the law in a modern, affluent democracy, constitutes both a breach of their human rights and a breach of core constitutional principles such as separation of powers. Those principles may not be formally articulated in the text of the Australian Constitution, but in our view they are implicit in the constitutional arrangements, and hence we can conclude with the arguments of former Justice of the High Court of Australia, Michael Kirby, who asked—to whom does sovereignty truly belong? (shrink)

Principle of equality of arms is part of fair trial concept, which encompasses several guarantees linked to the defence opportunities during the criminal procedure. The accused person is entitled to a fair trial. Balance of rights between the parties is bedrock for procedural fairness and the judge has to perform his competence in providing all necessary preconditions as for the trial to be fair. There are differences between interpretation and implementation of equality of arms in the jurisprudence of European (...) court on human rights and international criminal courts. Decisions of ECtHR are much more similar with domestic understanding of equality of arms as reasonable opportunity of the defence to present the case without disadvantages vis-à-vis the prosecutor, due to inherent inequity between the parties. When analyzing proceeding before the ad hoc Tribunals, there is “more liberal interpretation” of this principle, which allowed the Prosecutor to invoke equality of arms, as well. ICTY Trial Chamber in Aleksovski case concluded that application of the concept of a fair trial in favor of both parties is understandable because the Prosecution acts on behalf of and in the interests of the international community, including the interests of the victims of the offence charged and also has held that it is difficult to see how a trial could ever be considered to be fair where the accused is favored at the expense of the Prosecution. This interpretation has been justified with dependence of the international Tribunals on state cooperation and due to the fact that international criminal courts have no autonomous enforcement agencies at their disposal. Fortunately, ICC Statute considered equality of arms as solely afforded to the defence, or to the Prosecutor on the behalf of accused. (shrink)

Constitutional scholarship has put much emphasis on Montesquieu's principle of separation of powers as developed in the chapter of 'The Spirit of the Laws' devoted to the English constitution (XI, 6). It has also been quite common to mix up this model of separation of powers with elements taken from other sections of Montesquieu's masterpiece. The starting point of this paper is that there is an alternative, second model of separation powers based on the French monarchy of (...) intermediate powers, which is also an instantiation of limited government. From this premise, the paper's aim is to carve out a second version of the principle of separation of powers by focusing on the different role and nature of judicial power in the English and French models. It turns out that the French version of the separation of powers is not based on a strict separation, since it bestows on the higher judicial intermediate bodies both judicial and legislative functions. This also leads to a kind of constitutionalism that is 'in between' ancient and modern, as it is exemplified by Montesquieu's take on the functioning of parliaments. As is typical of his political thought, he sees this intermediate power as representative of traditional and conservative social forces but, at the same time, in virtue of its social status, as an institution which strengthens, by opposing it, the monarch's legislative rationality, and legally contains political action. (shrink)

In the recent decades, many Muslim intellectuals have devoted their intellectual efforts to reconstructing the jurisprudence through a new interpretation of Islam in order to solve the problem of human rights. While they have mostly tried to find a solution based on Ijtihad in derivation of Shari’a, Mahmoud Mohammad Taha and Mohsen Kadivar have asked for structural Ijtihad, presenting reversed and rational abrogation theories. In the current article, the researcher aims to focus on three main questions: Why do they (...) believe that traditional jurisprudence and Ijtihad in derivatives are not able to solve the conflict between Islam and human rights? What are the most important governing principles in the corrective theory of each thinker, and how can their proposed theories lead to the reconciliation of Islam and human rights? And finally, what are the most fundamental principles and common features that lie in the theory of the two thinkers? (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Coherence of a Mind: John Locke and the Law of Nature*Alex Tucknessit is almost thirty years since John Dunn’s book, The Political Thought of John Locke, argued that a more coherent understanding of Locke was possible if his religious beliefs were taken to play a crucial role in his political theory.1 Since that time many scholars have expanded our historical knowledge of the role of religion in (...) Locke’s political thought.2 This article will not use a historical methodology, but will rather take the claim that religion is crucial to Locke’s thought as a starting point. When one combines this assumption with a careful reading of the Two Treatises of Government (Two Treatises), The Reasonableness of Christianity as Delivered in Scripture (The Reasonableness), and the Essay Concerning Human Understanding (Essay), significant progress in resolving many of the long-standing difficulties in Locke’s theory of natural law is possible.The difficulties are indeed serious. Prior to Locke there was a long standing theological debate about whether the laws of nature were binding because they were the command of God (voluntarism) or binding because of their intrinsic compatibility with reason (“rationalism” or “intellectualism”). There has been much dispute about whether Locke was consistently a voluntarist or not.3 Second, Locke argues in the Essay that the principles of morality are [End Page 73] capable of proof just like principles of geometry, yet Locke never produced a proof of the law of nature. In the Second Treatise the laws of nature are more asserted than defended, as if they were self-evident, yet in The Reasonableness Locke says that it is exceedingly difficult to discover the moral law through reason alone and says that no one has ever discovered the complete law of nature through unaided reason. It appears that Locke “… went on believing the arguments of the Second Treatise were plainly true even after he knew he could not properly ground them in natural law….”4Third, Straussians have been quick to point out that Locke adopted a hedonistic theory of human motivation and of good and evil, a position which seems to sit poorly with a Christian theory of natural law. Locke claimed that men5 were motivated to obey the law of nature by their perception of future pleasure or pain and that divine sanctions in the next life were necessary for the law of nature to be a proper law, yet later in life Locke admitted his inability to prove the existence of an afterlife.6 Fourth, the account of moral knowledge in the Essay seems to sit poorly with Locke’s account of natural law in the Two Treatises; his commitment in the latter to empiricism is questionable and the law of nature is presented with little argument as if it were obvious. Laslett has argued that the difficulties are so severe that Locke the philosopher of knowledge and Locke the political thinker should be kept very separate.7 This article will respond to each of these difficulties in order to show that Locke’s theory of natural law is more coherent than his critics have allowed.1. the ground of natural law: rationalism and voluntarismThe early Essays on the Law of Nature of Locke link morality to conformity with the rule of a superior; it is the will of God which provides the essential binding force of the law of nature. (ELN 183–185)8 In the Essay Concerning Human [End Page 74] Understanding, this theme continues. “I grant the existence of God, is so many ways manifest, and the Obedience we owe him, so congruous to the Light of Reason, that a great part of Mankind give Testimony to the Law of Nature”: But nonetheless many affirm these principles not “admitting the true ground of Morality; which can only be the Will and Law of a God, who sees Men in the dark, has in his Hand Rewards and Punishments, and Power enough to call to account the Proudest Offender” (Essay 1.3.6).There are, however, passages which seem to point to a more rationalist account of morality. When Locke writes in the Two Treatises that... (shrink)

David Hume is an ardent supporter of the practice of religions toleration. For Hume, toleration forms part of the background that makes progress in philosophy possible, and it accounts for the superiority of philosophical thought in England in the eighteenth century. As he puts it in the introduction to the Treatise: “the improvements in reason and philosophy can only be owing to a land of toleration and of liberty” (T Intro.7; SBN xvii).1 Similarly, the narrator of part 11 of the (...) First Enquiry comments: -/- Our conversation began with my admiring the singular good fortune of philosophy, which, as it requires entire liberty above all other privileges, and chiefly flourishes from the free opposition of sentiments and argu­ mentation, received its first birth in an age and country of freedom and toleration. (EHU 11.2; SBN 132) -/- The toleration to which Hume refers is broader than religious toleration, but in the context of the eighteenth century, religious toleration is clearly the paradigm case. Indeed, religious toleration represents one of the key accomplishments of the culminating event of Hume’s History of England: the Glorious Revolution of 1688. -/- Yet even though religious toleration forms the background of philosophy in general—or perhaps just because it does so—Hume offers precious few arguments for it, and they are, for the most part, given implicitly rather than as formal argu­ ments. Nevertheless, we can distinguish three different, though interrelated, lines of support for toleration in Hume’s thought: (i) an argument based on a general skepticism; (ii) an argument based on a contempt for organized religion; and (iii) a pragmatic argument based on the need for peace and orderly government. From our point of view, what is striking about all of these argument is how un-Lockean they are: Hume does not rely on the idea of a fundamental conceptual separation of church and state, nor on a natural right to freedom of conscience that character­izes writers working in the Lockean tradition. However, of the arguments he gives, only the last, I will argue, has any hope to provide a useful case for toleration. (shrink)

'Man being born...to perfect freedom...hath by nature a power...to preserve his property, that is, his life, liberty and estate.'Locke's Second Treatise of Government is one of the great classics of political philosophy, widely regarded as the foundational text of modern liberalism. In it Locke insists on majority rule, and regards no government as legitimate unless it has the consent of the people. He sets aside people's ethnicities, religions, and cultures and envisages political societies which command our assent because they meet (...) our elemental needs simply as humans. His work helped to entrench ideas of a social contract, human rights, and protection of property as the guiding principles for just actions and just societies.Published in the same year, A Letter Concerning Toleration aimed to end Christianity's wars of religion and called for the separation of church and state so that everyone could enjoy freedom of conscience. In this edition of these two major works, Mark Goldie considers the contested nature of Locke's reputation, which is often appropriated by opposing political and religious ideologies. (shrink)

My paper will explore boundaries and rights, the public and the private, as to the enforcement of religious legal rules in societies self-consciously founded on Islamic law. I employ as my case-study legal and social controversies aroused by the Saudi Hay’at al-amr bi-al-ma`ruf wa-al-nahy `an al-munkar, the government agency charged with “ordering the good and forbidding the evil.” The paper will first lay out some of the laws fixing the powers of the Hay’at, including various statutes issued by the king (...) but, of equal or greater importance, the received medieval fiqh rules governing the muhtasib . Focus shall be on an issue much debated in the classical law and also a long-time bone of contention in Saudi society, namely the legal limits on the powers of the Hay’at to investigate and punish immoral acts occurring in private. Limits on such powers stem from two sources, both in the law and in social understandings of that law. One source, the more prominent in public debate, concerns revelatory and fiqh and related social norms against spying or prying into people’s behavior and against undue attempts to expose people’s sins. Notably, however, this restriction affects only enforcement. The pervasiveness of laws considered to arise from the relationship of the individual to God still stands. A solitary immoral act performed in privacy can still be a sin and a crime, and punishable if it is somehow legitimately known and proved . The second source of restrictions is more far-reaching, going beyond issues of investigation and proof. As held by the majority of scholars, the Hay’at may not compel or forbid any actions for which the religious-legal ruling is under classical law a matter of legitimate difference of scholarly opinion; or inversely, the Hay’at may compel or forbid only those actions as to which there is a divine command known to a certainty either from a revealed text or from the consensus of scholars. A commonly noted abuse by the Hay’at in Saudi Arabia has been to attempt to enforce rules lacking requisite certainty, such as requiring veiling of the face. Rules known to a certainty have a pervasive role in Islamic constitutional theory. In principle, such rules must be enforced, regardless of whether they concern matters other societies may consider individual or private, such as changing one’s religion. Rules lacking that high degree of certainty cannot – without separate justification on grounds other than religious text – define sins or crimes or be enforced as general rules by the state. Though seemingly scholastic and philosophical, this restriction is potentially crucial in defining a realm of individual autonomy in religious matters and shaping the boundary between public and private in societies self-consciously founded in Islamic law. It is important to examine to what extent the restriction is reflected in legal and social practice in such societies. (shrink)

This paper first adumbrates the theory of religious intolerance in early modern Europe. Then it turns to three leading philosophers of the age, Spinoza, Bayle and Locke, who elaborated philosophical defences of religious toleration. The problem it analyzes is that though these thinkers depart from radically different premises concerning the roles of state and church, the abilities of speculative reason, and the concept of God, yet they conclude that government and church alike must grant an almost complete freedom to the (...) individual in the choice of his or her religion at least in foro interno. As an explanation, we first reconstruct the metaphysical foundation on which Spinoza’s political theological theory rests in the TTP, in order to show that through this theory, his intention was to enable the philosopher to spread a rational enlightenment deriving from an unconditioned philosophy of God; to advocate not the freedom of religion but the freedom to philosophize. Bayle, by contrast, builds his defence of religious toleration on the superiority of natural practical reason over speculative reason, asserting that while the divine nature is only very imperfectly known by speculative reason, the moral commands of religion have to be controlled by the divinely inspired, universal principles of practical reason. Locke advocates the necessary separation of state and church ultimately on the grounds that the individual is able to demonstrate the existence and attributes of God all alone – his rationale of religious toleration is a corollary of his metaphysical theory concerning the nominal knowability, by natural speculative reason, of the divine nature. We conclude that the similarities in their respective defences of religious toleration are only formal, and determined by their different metaphysical presuppositions. (shrink)

The article analyses Egyptian jurisprudence on the issue of apostasy, with a focus on conversion from Islam to Christianity. It argues that the Egyptian judiciary has failed to develop a harmonious relationship between Islamic law and the principle of freedom of religion. It looks at how the majority of cases examined before the Egyptian judiciary reveal a continued tension between freedom of religion as defined in international human rights law and its judges’ interpretation of Islamic law as (...) a constitutive element of public order. Recently, the Supreme Administrative Court tried to break through traditional barriers regarding the right of converts of Christian origin to record their re-affiliation to Christianity in their documents of identification, and pragmatically justified this precedent in light of the requirements of modern states, whereby identity cards should reflect the correct information of each citizen. Yet it argues that the court was not conscious of freedom of religion as a fundamental individual right, and moreover, that this precedent has not been followed with respect to converts of Islamic origin. Finally, the paper argues that, for a sustainable solution to the legal tensions concerning apostasy in Egyptian courts, a new perspective is required on the relationship between Islamic law and religious freedom whereby the universal understanding of freedom of religion can be legitimized from within Islamic legal traditions. The article also proposes a set of constitutional and legal measures to enhance freedom of religion in Egypt. (shrink)

This paper sketches a framework for the separation of church and state and, with the framework in view, indicates why a government’s maintaining such separation poses challenges for balancing two major democratic ideals: preserving equality before the law and protecting liberty, including religious liberty. The challenge is particularly complex where healthcare is either provided or regulated by government. The contemporary problem in question here is the contraception coverage requirement in the Obama Administration’s healthcare mandate. Many institutions have mounted (...) legal challenges to the mandate on grounds of religious freedom. The paper proposes a number of interconnected principles toward a resolution of the problem: for the institutional realm, specific principles for church-state separation and a principle concerning the protection of citizens’sense of identity; and for the ethics of citizenship in the conduct individuals, principles that provide an adequate place for natural (thus secular) reason in lawmaking and political decisions. (shrink)

Today’s globalized economy cannot be governed by legal strictures alone. A combination of self-interest and regulation is not enough to avoid the recurrence of its systemic crises. We also need virtues and a sense of corporate responsibility in order to assure the sustained success of the global economy. Yet whose virtues shall prevail in a pluralistic world? The moral theory of Thomas Aquinas meets the present need for a business ethics that transcends the legal realm by linking the ideas of (...) justice and virtue in an ingenious way. While allowing for, and incorporating, the specificities of region and religion, industry and culture, Thomas’s virtue theory coordinates private and public activities through a set of context-invariant, justice-oriented norms with conceptual appeal to contemporary questions of global business ethics.In our article, we first sketch how Aquinas’s theory can be also of relevance to a non-confessional audience through its appeal to the ‘natural light of reason.’ Then we explain how his theory of ‘natural law’ aligns his ideas of virtue and justice. From this vantage point, we address the tension between cultural diversity and moral uniformity in the economic sphere in general and in today’s globalized business world in particular. Throughout the article, we aim to show that by interpreting the virtue-dimension of business in light of the idea of social justice, Aquinas’s conception of virtuous business conduct gains inter-personal and inter-cultural validity that establishes social justice as the global virtue of business. (shrink)

Balancing respect for religious conviction and the values of liberal democracy is a daunting challenge for judges and lawmakers, particularly when religious groups seek exemption from laws that govern others. Should students in public schools be allowed to organize devotional Bible readings and prayers on school property? Does reciting "under God" in the Pledge of Allegiance establish a preferred religion? What does the Constitution have to say about displays of religious symbols and messages on public property? Religion and (...) the Constitution presents a new framework for addressing these and other controversial questions that involve competing demands of fairness, liberty, and constitutional validity. In this second of two major volumes on the intersection of constitutional and religious issues in the United States, Kent Greenawalt focuses on the Constitution's Establishment Clause, which forbids government from favoring one religion over another, or religion over secularism. The author begins with a history of the clause, its underlying principles, and the Supreme Court's main decisions on establishment, and proceeds to consider specific controversies. Taking a contextual approach, Greenawalt argues that the state's treatment of religion cannot be reduced to a single formula. Calling throughout for acknowledgment of the way religion gives meaning to people's lives, Religion and the Constitution aims to accommodate the maximum expression of religious conviction that is consistent with a commitment to fairness and the public welfare. (shrink)

This book deals with the role of international standards for corporate governance in the context of corporate social responsibility. Based on the fundamentals of moral theory, the book examines governance and CSR in general, addressing questions such as: Is "good governance" not affected by moral concerns? How do the principles and practices of CSR standards adhere to or conflict with insights from business ethics and moral theory? To what extent do the standards and governance models provide normative guidance? Do (...) the standards and governance guidelines provide an adequate means of benchmarking and auditing? Are these standards a help or a hindrance to stakeholder engagement and transparency? The book provides insightful and thought-provoking answers to these and many other important questions concerning CSR standards, and offers a valuable resource for practitioners, academics and students at business schools and other institutions. (shrink)

The mid-thirteenth-century theorist and rhetorician Brunetto Latini proposed a vigorous republican account of the art of government and the nature of community in his encyclopedic treatise, Li Livres dou Tresor. The interpretation of Latini's republicanism has been heavily based on its literary sensibilities, its attachment to rhetoric, and its praise for classical civic virtues. But Latini deserves to be classified as a republican insofar as he founds social and political order upon commercial principles-the production and exchange of material goods (...) for profit-and consequent economic defense of republican government. Hence, the example of Latini challenges one of the principal remaining barriers that supposedly separates medieval defenses of republicanism from Renaissance versions. The essay contends that Latini holds that self-governing institutions depend upon and are especially well suited to sustain a society whose conception of the common good includes the creation and exchange of those material necessities required for physical welfare and comfort. (shrink)

The mid-thirteenth-century theorist and rhetorician Brunetto Latini proposed a vigorous republican account of the art of government and the nature of community in his encyclopedic treatise, Li Livres dou Tresor. The interpretation of Latini's republicanism has been heavily based on its literary sensibilities, its attachment to rhetoric, and its praise for classical civic virtues. But Latini deserves to be classified as a republican insofar as he founds social and political order upon commercial principles—the production and exchange of material goods (...) for profit—and consequent economic defense of republican government. Hence, the example of Latini challenges one of the principal remaining barriers that supposedly separates medieval defenses of republicanism from Renaissance versions. The essay contends that Latini holds that self-governing institutions depend upon and are especially well suited to sustain a society whose conception of the common good includes the creation and exchange of those material necessities required for physical welfare and comfort. (shrink)

In this article I explore how a philosophical conception of love may be used to draw debate on the death of God beyond the binary opposition between theology and philosophy through a comparative study of the work of Jean-Luc Marion and Jean-Luc Nancy. Although Marion’s reading of love—in both its theological and phenomenological guises—proposes an innovative phrasing of a non-metaphysical notion of divinity, I argue that it is ultimately unable to maintain its coherence in nominal discourse due to Marion’s insistence (...) on keeping love and being separate. In contrast, through his unique thinking on ontology, Nancy’s philosophy allows us to reposition love at the heart of being, from whence it may serve as a means of disrupting the very principle governing the atheist and theist world-views. Far from dismantling Marion’s core proposition, I conclude that the two thinkers may in fact be more closely aligned than previous scholarship has acknowledged, coming together in the need to affirm an experience of the impossible that takes place in the present rather than in any eschatological fulfillment to come. At this intersection between two nominally very different thinkers, love forms an ontological limit-point for thought that poses a challenge to both theology and philosophy alike as they continue to grapple with the question of religion in the twenty-first century. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Friends and Other Strangers: Studies in Religion, Ethics, and Culture by Richard B. MillerBill BarbieriFriends and Other Strangers: Studies in Religion, Ethics, and Culture Richard B. Miller new york: columbia university press, 2016. 416 pp. $60.00In his studies on casuistry, war and peace, pediatric ethics, and other occasional topics Richard B. Miller has for some time been a leading source of creative impulses in the field (...) of religious ethics, so it is a welcome event to have this volume organizing past essays of his into a thematically cohesive presentation. His book sets out a vision of the character and concerns of religious ethics that helps counter critics, such as Stanley Hauerwas, who have expressed skepticism about the field.The governing conception of Friends and Other Strangers is that the study of religious ethics is properly shaped by attending to how "our lives ineluctably oscillate between experiences of intimacy and otherness" (5). Accordingly, Miller seeks to guide the field beyond either a one-sided focus on matters of friendship and special relations or a preoccupation with alterity and heterology. To grasp how the dialectic of intimacy and alterity shapes the normative character of personal and public life, he recommends religious ethicists should employ "the category of culture as an organizing rubric" (6).In the book's initial section Miller elaborates on his view of the enterprise of religious ethics and its place in the broader intellectual landscape. In a discussion drawing on Ludwig Wittgenstein, Stanley Cavell, and James Gustafson, Miller first offers his account of the characteristic concerns and history of the field. He then presents the case for a "cultural turn" in religious ethics, arguing not only that practitioners would benefit from incorporating anthropology and cultural studies into their work but that they should extend their ambit to normative questions throughout the academy. Responding to the problems of ethnocentrism and the moral authority of outsiders in criticizing cultural practices, Miller rounds out the section by proposing constructive norms for nonchauvinistic social criticism in multicultural contexts.Among the remaining essays are several that showcase Miller's appreciation of Augustine as a principal source of ethical insight. In a chapter scrutinizing the case for replacing disembodied patterns of moral reasoning with an "ethics of empathy," he proposes that Augustine's ethics of love can sharpen our grasp of both the possibilities and pitfalls of empathy as a moral value. Writing on friendship and evil, Miller invokes the Augustinian "theocentric imaginary" as a guide to how intimacy and alterity are balanced in friendship. And taking [End Page 194] up the ethics and social psychology of war, he presents Augustine's writings on the morality of killing as a source for just war standards that can be applied in cross-cultural normative criticism. That Augustine's seminal reflections on time and memory do not appear in a further chapter on "the moral and political burdens of memory" is a slight disappointment, no doubt attributable to the chapter's origins as a review essay.Other topics tellingly subjected to Miller's characteristically nuanced and sharp analysis include indignation and solidarity, responsibilities to children, and democracy and public reason. A bonus chapter collects six lengthy reviews of recent books—five on topics related to Islam—touted by Miller as exemplary in their embodiment of a cultural turn in religious ethics.Given its endorsement of a "cultural turn" in ethics, the book would have benefited from deeper reflection on discrete meanings of "culture," "cultures," and their various cognates. In addition, the individual chapters, originating in diverse settings, are not all equally well integrated into the book's governing themes. Overall, however, Miller's book amply succeeds in its Geertzian task of presenting both a model of and a model for the field of religious ethics. A fine distillation of the thought of a leading figure in the guild, it is essential reading for serious students of ethics.Bill BarbieriCatholic UniversityCopyright © 2018 Society of Christian Ethics... (shrink)

The article examines the practice of the applicability of the Article 18 of the International Covenant on Civil and Political Rights (hereinafter—ICCPR) and Article 9 of the European Convention on Human Rights and Fundamental Freedoms (hereinafter—ECHR). Through the case—law of the European Court on Human Rights (hereinafter—ECtHR) and insights of the Human Rights Committee the author is investigating the content and limits of the freedom of religion. The article examines in detail the limiting clauses to the freedom of (...) belief (national security, public order, public health, public morals) and the possibility to apply derogation clause. The author comes to the conclusion that due to the complexity of this right it is difficult to forecast the future developments of this right. The jurisprudence of the ECtHR is numerous as well as the decisions of the Court are often accompanied by dissenting opinions. Moreover, some potential cases related to the freedom of religion are not considered by the ECtHR as the admissibility criteria are not met. Therefore the author looks forward to the forthcoming jurisprudence of both—regional and universal human rights bodies. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Ronald Shusterman IN DEFENSE OF ELITISM I One recent trend in criticism, starting notably widi die work of Steven Knapp and Walter Benn Michaels,1 has suggested diat literary theory is either useless, harmful, or bodi. This pragmatist line ofargument can be seen to go hand in hand widi contemporary attacks on the distinction between "high" and "low" art, claiming that a rap text deserves die same attention or esteem (...) as a poem by Eliot. My purposes here are predetermined by die polemical nature of this debate. I shall endeavor to show diat tiieory is useful and diat diere is a valid distinction between low and high. I intend to do so, somewhat negatively, notby giving examples—diough diis would be easy enough— but rather by underlining die contradictions inherent in some of these arguments. I shall also deal widi anodier debate, which may at first appear unrelated, concerning die limits of interpretation. I diink it can be noted that the criteria of judgment involved in distinguishing between high and low are connected to die criteria of interpretation which, though diey do not close die open work, do permit the identification of misreadings. If judgment involves refined analysis, then theory is necessary as an instrument of refinement. If misreadings exist, dien absolute interpretive relativism cannot be justified. One might expect me to begin by defining "literary tiieory," but one of my main points is that such a definition is futile. The dieoretical endeavor is myriad. The term theory can be fruitfully used to designate a wide continuum of discourses about literature diat range from pure explication to pure philosophy. I see no need to find a common denominator diat would bring togedier under a single description narratology, stylistics, deconstructionist criticism, and so on. Philosophy and Literature, © 1994, 18: 242-252 Ronald Shusterman243 Indeed, in dieir original attack on literary theory, Knapp and Michaels were careful to set aside the more "empirical" approaches such as narratology as not relevant to their criticisms (p. 11). Their basic complaint has to do widi theories of interpretation, and they conclude:... theory is nothing else but the attempt to escape practice... theory is notjust another name for practice. It is the name for all the ways people have tried to stand outside practice in order to govern practice from without. Our thesis has been that no one can reach a position outside practice, that theorists should stop trying, and that the theoretical enterprise should therefore come to an end. (p. 30) The point seems to be that criticism, as a practice, can and must be undertaken widiout die interference of a supposed realm of independent principles or axioms. That was ten years ago. Joel Weinsheimer has recently defended similar conclusions in an article entitled "Suppose Theory Is Dead."2 He invokes Gadamer to argue diat "understanding can and does succeed even widiout die imprimatur of theoretical self-consciousness" (p. 252). Weinsheimer refuses what he sees as the "first principle of the first theorist of literature: that only theory counts as knowledge" (p. 263). This, of course, echoes pragmatist philosophy's new emphasis on praxis as a valid form of knowledge: The kind of knowledge involved in acting or story-telling or teaching or practical criticism is practical knowledge, and if it cannot satisfactorily explain orjustify from principles what it practices, that is not its fault but its nature—even its particular significance.... Literature is to be practiced, is the practice of it, its own practice, and in this light at least theory is merely the self-defeating attempt to abstract literature from its presentations, from the concrete practice diat is itself. (Weinsheimer, p. 263) To those who would argue that any practice presupposes theoretical principles, Weinsheimer retorts that such presuppositions need not be considered as tiieory: "Interpretation supposes a form of life, perhaps, but a form of life is not a theory" (p. 255). I admit to being somewhat confused when he writes that practical criticism "involves tacit knowledge, certainly, but such knowledge is not necessarily dieoretical" (p. 255). I do not think diat what we do when 244Philosophy and Literature reading critically can be assimilated to what we do when, say, riding a bicycle... (shrink)

Arabic was among the sciences that were widely taught along with religious sciences for reasons such as the fact that the basic sources of religion were in Arabic, the need to teach the language to non-Arabs in parallel with the expansion of borders, the spread of errors (lahn) in the language, Arabic being the dominant language in official correspondence and its use as a language of science. To ensure a better understanding of religious texts, to present the lessons clearly (...) and comprehensibly, to be a qualified preacher and orator, to bring evidence and justify ideas, and to be successful in debate and jadal also required a good command of Arabic. These reasons and needs paved the way for the formation and teaching of nahw as a branch of science; its teaching took place in places such as bādiye (desert), kuttāb, houses, masjids, mosques, bookstores, libraries, government offices, and madrasas. This study deals with the teaching of Arabic from the perspective of madrasas and focuses on the teaching of literary sciences in general, and the teaching of grammar in particular, by focusing on the Nizāmiyyah and Mustansiriyyah Madrasas. The aim of this study is to reveal that the Arabic language was taught in these madrasas both as preparation and support for religious sciences and as a separate field. In this context, the study aims to reveal in which centers the Arabic language was taught before the establishment of madrasas and how it continued. Nizāmiyyah Madrasas are the general name of the madrasas founded in Baghdad, the first of which was in Nîsâbûr, in 449-450/1057-1058 by the Great Seljuk vizier Nizāmulmulk (d. 485/1092). And the Mustansiriyya Madrasah was built between 625/1227-28 and 631/1233-34 by Abu Ca‘far Mansûr Mustansır-Billah (623-640/1212-1242), one of the caliphs of the Abbasid State (750-1258). In these madrasas, especially in the Nizāmiyyah Madrasas, religious sciences (such as Shāfi’ī jurisprudence, hadīth, Qur’ān and tafsīr), and among these, especially the sciences of fiqh (furu', usūl, ferā'īz, madhhab, and hilāf) were taught. Although in these madrasas did not have an independent nahw chair or a department devoted to nahw, it is understood from the sources that courses on nahw were given due to the need for it. However, it is understood from the sources that nahw was also taught in these madrasas. In fact, the endowment of the Baghdad Nizāmiyyah Madrasah clearly states that a teacher of grammar (nahw) will be hired for the teaching of grammar, and moreover, there are considerable scholars of grammar among the mudarris working here. It is also understood from the biographies of the students who studied in madrasas that the science of nahw was taught. However, it should be noted that these madrasas did not have an independent nahw chair or a department for nahw. Since the research focuses on a historical issue, it was handled with the technique of analyzing written documents. Accordingly, the data were obtained primarily from the main sources related to the period/madrasas; current research was also utilized, especially in the interpretation, comparison, inference, and justification of claims. (shrink)

This article defends the principle of non-establishment against 21st-century projects of political religion, constitutional theocracy and political theology. It is divided into two parts, which will appear in two consecutive issues of Philosophy & Social Criticism, 39(4–5) and 39(6). Part 1 proceeds by constructing an ideal type of political secularism, and then discussing the innovative American model of constitutional dualism regarding religion that combined constitutional protection for the freedom of religious conscience and exercise with the principle of non-establishment. (...) The article analyses the strengths and limits of the ‘separation– accommodation’ frame that became hegemonic in 1st amendment jurisprudence from the 1940s to the 1990s. It challenges the standard caricature of the American model as strictly separationist and privatizing. It then critically assesses two contemporary alternatives to that frame: the integrationist approach and the equal liberty approach. The first, disguised as a concern for pluralism and fairness, challenges ‘separation’ and political secularism in a subtle attack on the non-establishment principle, aimed at drastically narrowing its scope. Successes of this approach in recent Supreme Court jurisprudence and politics have triggered a response by liberal egalitarians. The author addresses this response – the equal liberty model – in part 2, which will appear in Philosophy & Social Criticism 39(6), arguing that although on the right track, it fails to find a middle ground between political secularism and integration. (shrink)

Discursive liberal democracy might not be the best of all possible forms of government, yet in Europe it is largely accepted as such. The attractors of liberal democracy (majority rule, political equality, reasonable self-determination and an ideological framework built in a tentative manner) as well as an adequate dose of secularization (according to the doctrine of religious restraint) provide both secularist and educated religious people with the most convenient ideological framework. Unfortunately, many promoters of ideological secularization take too strong a (...) stance against the manifestation of religiosity in the public sphere. They claim that people may discuss, debate or adopt (coercive) laws and regularities only by means of secular public reasons and secular motivation. We argue that these secular restraints on the ideological framework are unfairly biased against religion, counterproductive and unreasonable. The exaggerated secular restrictions create a strict secular public sphere that appears to be a Pickwickian world suitable just for inoffensive, dull and lethargic people. Deliberately separated from the idea of truth, secular public reasons cannot sustain a complex adaptive system like discursive liberal democracy. Liberal democracy needs citizens with a strong sense of truth and with a sufficient will-power to follow both a personal ideal and a collective ideal. Religious beliefs provide people with just such a sense of truth and with the desire to have a certain kind of character. In the secularized public sphere of liberal democracy, people can manifest just educated religious beliefs that correspond to the real world and respect the principle of peaceable conduct. In the final part of the article we support the assertion that believers could and should educate their religious belief before expressing them in the public sphere. Educated religious beliefs have a wide enough propositional content, obey the moral imperative of William Clifford, are purged from all propositional components against which there is strong evidence and are consciously cultivated by the mechanism of suggestion. (shrink)

This article examines whether the degree of religiosity in an institutional environment can stimulate the emergence of a robust corporate governance system. This study utilizes the Nigerian business environment as its context and embraces a qualitative interpretivist research approach. This approach permitted the engagement of a qualitative content analysis (QCA) methodology to generate insights from interviewees. Findings from the study indicate that despite the high religiosity among Nigerians, religion has not stimulated the desired corporate governance system in Nigeria. The (...) primary explanation for this outcome is the presence of rational ordering over religious preferences thus highlighting the fact that religion, as presently understood and practiced by stakeholders, is inconsistent with the principles underpinning good corporate governance. (shrink)

There is a view that the U.S. Supreme Court has acted as a “republican schoolmaster,” defining and educating the public on the permissible interaction between government and religion. The Court gave government, especially state governments, considerable latitude until incorporation of the religion clauses in the 1940s. In Everson v. Board of Education (1947), the Court articulated a rigid conception of church and state which set precedents for decades. Those precedents restricted accommodation to religion by government, based (...) on an incomplete reading of the Founding debates on religion. It has been gradually corrected since Justice William Rehnquist’s dissent in Wallace v. Jaffree (1985). The implications of the separationist interpretation have had consequences that remain. The most obvious being forestalling experimentation with school choice for non-public school students and precluding the use of public facilities for religious groups until a series of corrective rulings beginning, for the most part, in the 1990s. The republican schoolmaster is now accountable for the intellectual lineage it uses. (shrink)

Given the rise of religious movements during the past decade, some have argued that the basic principles of liberal democracy such as separation of church and state and principle of the public use of reason are too restrictive and ought to be rethought. I would like to argue along a Habermasian line that the principle of secular justification ought not to result in a private/public split in religious citizens’ identity if they recognize and adopt an “institutional translation proviso”. (...) This proviso requires an epistemic ability on the part of religious citizens that enables them to translate their religious beliefs and insight into secular reasons when they pass beyond the informal public sphere into governmental institutions like courts and parliaments. Citizens can express and defend their claims in the public sphere in religious terms if they cannot find secular translation for them. However, this proposal requires a complementary change in the mentality of the secular citizens that recognizes the continued existence of religious communities in diverse liberal democracies. (shrink)

The codes of ethics and conduct of a number of psychology bodies explicitly refer to human rights, and the American Psychological Association recently expanded the use of the construct when it amended standard 1.02 of the Ethical Principles of Psychologists and Code of Conduct. What is unclear is how these references to human rights should be interpreted. In this article I examine the historical development of human rights and associated constructs and the contemporary meaning of human rights. As human (...) rights are generally associated with law, morality, or religion, I consider to which of forms of these references most likely refer. I conclude that these references in ethical codes are redundant and that it would be preferable not to refer to human rights in codes. Instead, the profession should acknowledge human rights as a separate and complimentary norm system that governs the behavior of psychologists and should ensure that they have adequate knowledge of human rights and encourage them to promote human rights. (shrink)

In this paper, I explore the effects of religious denomination and patterns of church-going on the construction of political values for high-school students. I argue that religion plays a role in the formation of political attitudes among teenagers and it influences their political participation. I examine whether this relationship is constructed along denominational lines. From a theoretical perspective, previous research heralded the compatibility between Western Christianity and the democratic form of government. Samuel Huntington, in his famous Clash of Civilization, (...) argued that there is a natural symbiosis between Western Christianity and democratic forms of government, going insofar as to separate the world into religious civilizations. While, this approach essentializes religion as a fixed and immutable entity, Huntington also neglects the importance of dynamic historical, political and social contexts that can, and, in fact, do affect the functioning of religion in different countries, and hence their ability and willingness to accommodate democracy. Much research followed the Clash of Civilizations, either qualifying the central argument, by showing evidence of support for procedural democracy in most of the World, but without its liberal component or even arriving at the opposite conclusion that irrespective of religion, every country is “democratizable”. While I do not attempt to disconfirm fundamental huntingtonian thinking, I do raise the questions of how context can and does influence the intimate relationship between religion and politics. The analysis is conducted on survey data collected by the Center for the Study of Democracy (CSD) at Babes-Bolyai University with subjects of 14-15 years old, and the results show that, while Greek Orthodox students do not seem to differ in their political values form their Catholic and Protestant counterparts, they are more prone to participate politically. Nevertheless, their active participatory behavior is only more pronounced in what voting is concerned, an opposite effect being recorder for any other acts of political participation. (shrink)

The present study delves into the complex interplay between religion and secularism within the framework of contemporary European democracies. It explores how secularism is changing and how it is affecting public life, societal norms, and government. The purpose of the study is to clarify the difficulties and controversies surrounding secularism in Europe by examining the historical context and current dynamics. For measuring, the research used Smart PLS software and generated results, including descriptive statistics, which also present a smart PLS (...) Algorithm model between them. The discussion is on how secularism is interpreted and applied differently in different European nations, emphasizing the conflicts between the principles of religious freedom and governmental neutrality. It describes how secularism affects immigration, globalization, and cultural diversity and how these factors shape European cultures' social fabric. The article also critically assesses the charges made against secularism, such as the devaluation of moral principles and the marginalization of religious minorities. Concerns about the misapplication of secularism for discriminatory and cultural hegemony are also covered, especially in light of Islamophobia and clothing rules based on religion. The study argues for a nuanced view of religion's place in contemporary European democracies through this reevaluation. To promote inclusive forms of government that consider the diverse religious landscape of Europe, it highlights the significance of striking a balance between secular ideals and respect for religious plurality and freedom. (shrink)

The mid-thirteenth-century theorist and rhetorician Brunetto Latini proposed a vigorous republican account of the art of government and the nature of community in his encyclopedic treatise, Li Livres dou Tresor. The interpretation of Latini's republicanism has been heavily based on its literary sensibilities, its attachment to rhetoric, and its praise for classical civic virtues. But Latini deserves to be classified as a republican insofar as he founds social and political order upon commercial principles—the production and exchange of material goods (...) for profit—and consequent economic defense of republican government. Hence, the example of Latini challenges one of the principal remaining barriers that supposedly separates medieval defenses of republicanism from Renaissance versions. The essay contends that Latini holds that self-governing institutions depend upon and are especially well suited to sustain a society whose conception of the common good includes the creation and exchange of those material necessities required for physical welfare and comfort. (shrink)

This article defends the principle of non-establishment against 21st-century projects of political religion, constitutional theocracy and political theology. It is divided into two parts. The first part, published in special issue 39.4–5 of Philosophy and Social Criticism, proceeds by constructing an ideal type of political secularism, and then discussing the innovative American model of constitutional dualism regarding religion that combined constitutional protection for the freedom of religious conscience and exercise with the principle of non-establishment. It then critically assesses (...) the integrationist approach –disguised as a concern for pluralism and fairness – as an alternative to this framework. The integrationist approach challenges ‘separation’ and political secularism in a subtle attack on the non-establishment principle, aimed at drastically narrowing its scope. Successes of this approach in recent Supreme Court jurisprudence and politics, have triggered a response by liberal egalitarians. I address this response – the equal liberty model – in this second part, arguing that although on the right track, it fails to find a middle ground between political secularism and integration. Instead, by abandoning the discourse of separation, it plays into populist integrationist hands without delivering on the promise of providing a coherent standard for deciding cases. The article proposes a third approach, one that does not throw out the non-establishment baby with the strict separationist bathwater and that wholeheartedly endorses political secularism, a sine qua non for 21st-century constitutional democracy. Equal liberty properly construed can help provide criteria for determining when an accommodation, a regulation or no regulation of religion by the state is appropriate. But it must be supplemented by other values – democratic and civil republican. The article concludes with a typology of the forms of regulation that are warranted under the conditions of the contemporary regulatory state, now the target and prize of politicized religion. (shrink)

The article provides an analysis of the European Court of Human Rights judgments in the case of Lautsi v. Italy (application no. 30814/06), also known as the Italian crucifix case. The applicant claimed that displaying crucifixes in the Italian State-school classrooms attended by her children was contrary to the principle of secularism, by which she wished to bring up her children, and therefore infringed her right to ensure their education and teaching in conformity with her religious and philosophical convictions, and (...) also breached her freedom of conviction and religion, as protected by Article 9 of the Convention. In its judgment of November 3, 2009, the seven-judge Chamber declared that there had been a violation of Article 2 (right to education) of Protocol No. 1 of the European Convention on Human Rights taken together with Article 9 (freedom of thought, conscience, and religion) of the Convention. The judgment was given unanimously and none of the judges appended a separate opinion. The Italian Government asked for the case to be referred to the Grand Chamber by virtue of Article 43 of the Convention. In the judgment of the Grand Chamber, delivered on March 18, 2011, the Court held, by fifteen votes to two (and with separate opinions of six judges), that there had been no violation of Protocol No. 1 and no violation of the Convention itself. The analysis in the article is focused on selected principal factors determining the Court's decision. It shows that the proposal for the Court to recognize secular convictions as those protected by Article 2 of Protocol No. 1 or Article 9 of the Convention has no sufficient basis in the Convention itself and in earlier Court's case-law and, even, may be considered as promotion of religious intolerance, threatening the freedom to publicly manifest a religion or belief, as guaranteed by Article 9 of the Convention. -/- Opracowanie zawiera analizę wyroków Europejskiego Trybunału, które zapadły w sprawie Soile Lautsi (app. 30814/06), zwaną „włoska sprawa krzyża” (Italian Crucifix Case). W sprawie tej skarżąca zarzucała, że okazywanie znaku krzyża w klasach włoskich szkół państwowych, do których uczęszczały jej dzieci, jest sprzeczne z zasadą sekularyzmu, zgodnie z którą chciała ona wychować swoje dzieci i dlatego stanowi naruszenie jej prawa do wychowania i nauczania zgodnego z jej religijnymi i filozoficznymi (moralnymi) przekonaniami, oraz stanowi naruszenie wolności religijnej, gwarantowanej art. 9 Konwencji. W wyroku siedmioosobowej izby ogłoszonym 3 listopada 2009 r. izba uznała naruszenie art. 2 (Prawo do nauki) Protokołu dodatkowego nr 1 do Konwencji o ochronie praw człowieka i podstawowych wolności w powiązaniu z art. 9 (Wolność myśli, sumienia i wyznania) Konwencji. Wyrok zapadł jednomyślnie i żaden z sędziów nie dołączył do wyroku swoich uwag. Rząd Włoch złożył wniosek w trybie przewidzianym art. 43 Konwencji o przekazanie sprawy do Wielkiej Izby. W wyroku Wielkiej Izby ogłoszonym 18 marca 2011 r. Trybunał uznał zdecydowaną większością głosów – 15 za wobec 2 przeciw (sześciu sędziów dołączyło swoje uwagi), że nie doszło do naruszenia ani Protokołu nr 1, ani samej Konwencji. Analizy koncentrują się na wybranych zagadnieniach, kluczowych dla argumentacji Trybunału. Analizy te pokazują, że postulowanie przez izbę uznania za prawo podmiotowe radykalnie pojętej negatywnej wolności religijnej, oraz postulowanie - tak przez izbę, jak i przez Wielką Izbę - ochrony przekonań sekularystycznych jako przekonań chronionych art. 2 Protokołu dodatkowego nr 1 lub art. 9 Konwencji, nie posiada należytego uzasadnienia ani w samej Konwencji, ani w dotychczasowym orzecznictwie Trybunału, a co więcej – może być uznane za propagowanie nietolerancji religijnej, godzącej przede wszystkim chronioną art. 9 Konwencji wolność publicznego uzewnętrzniania przekonań religijnych i filozoficznych. (shrink)

This article considers the difficult question of whether there are any reasons for theocratic religious devotees to affirm liberalism and liberal institutions. Swaine argues not only that there are reasons for theocrats to affirm liberalism, but that theocrats are committed rationally to three normative principles of liberty of conscience, as well. Swaine subsequently discusses three institutional and strategic implications of his arguments. First, he outlines an option of semisovereignty for theocratic communities in liberal democracies, and explains why an appropriate (...) valuation of liberty of conscience may justify a standard of that kind. Second, he addresses the question of permissible government aid for religion and symbolic endorsement of religious groups. Third, Swaine considers innovations and new approaches that could be employed internationally to better display liberal government's affirmation of religiosity, to promote liberty of conscience, and to help improve relations between liberal and theocratic parties around the globe. (shrink)

The present investigation challenges the traditional distinction between cohesion and coherence; i.e., the distinction between the syntactical rules governing the composition of lexical units within the scope of the clause and the semantic-pragmatic rules guiding the composition of text units beyond the scope of the clause. To this end it exposes two major principles of semantic combination that are active through all levels of linguistic composition: viz. frame-schematic structure and narrative structure. These principles are considered as being (...) components of a semantic combinatorial system to be determined in terms of dependency relations. (shrink)

The present investigation challenges the traditional distinction between cohesion and coherence; i.e., the distinction between the syntactical rules governing the composition of lexical units within the scope of the clause and the semantic-pragmatic rules guiding the composition of text units beyond the scope of the clause. To this end it exposes two major principles of semantic combination that are active through all levels of linguistic composition: viz. frame-schematic structure and narrative structure. These principles are considered as being (...) components of a semantic combinatorial system to be determined in terms of dependency relations. (shrink)