A New Theoretical Paradigm For Religious Rights And Liberties (S.I. Strong)

S.I. Strong.  Transforming Religious Liberties:  A New Theory of Religious Rights for National and International Legal Systems.  Cambridge:  Cambridge University Press, 2018.  Hardback, e-book.  374 pp.  ISBN-10: 1107179332.

For centuries, policymakers have struggled to identify the best way to address the relationship between law and religion in religiously pluralist states.  Earlier notions of religious tolerance were eventually replaced with the concept religious liberty as a matter of right, and although a strong consensus currently exists that religious belief and practice must be protected, the means by which those protections arise can vary significantly.

Indeed, contemporary societies often struggle to accommodate the demands of those whose allegiance does not lie primarily with the state while also protecting the rights of those who do not share the religious values of the majority.  The situation has become even more complicated in recent years given the ever-increasing diversity of religious traditions found within and between states and the concomitant expansion of what constitutes a religion or religious practice.

Difficulties have also been caused by the ever-increasing competence of the state.  Not only does the Habermasian “expansion of law” generate a rising number of tension points between law and religion, it also results in the “juridification of religion,” whereby conflict is framed in legal terms and resolved through legal means.  As a result, courts around the world are facing a rising number of challenges to longstanding laws and practices.

Traditionally, states have sought to protect religious liberty through three interrelated rights:  the freedom of non-discrimination on the basis of religion, the absolute protection of religious belief and the limited protection of religious practice.  While effective in religiously homogenous states, this trio of protections has proved problematic in religiously pluralist states, particularly when some individuals’ religious beliefs and practices conflict with deeply held social or moral values (such as the concept of laïcité in France) or with the fundamental freedoms of others.

Tension can arise not only between different rights (such as freedom of religion and freedom of expression) but also between different aspects of religious liberty (such as the right to non-discrimination on the basis of religion and the right to religious practice).

This book seeks to overcome these issues by creating a new theoretical paradigm that better protects religious belief and practice by taking a more realistic view of the rights and interests of both religious and non-religious people.  The task is a difficult one, since it not only involves values and principles that are inherently resistant to compromise but also requires the integration of both Western and non-Western religio-political philosophies, but is such an analysis is vital to the creation of a harmonious social order.

Methodologically, the study adopts a cross-border, cross-cultural and cross-disciplinary approach that is unusual in a field that has often been dominated by studies reflecting a single national ore religious perspective.  Conventional wisdom suggests a narrow scholarly analysis to be the only appropriate model for work involving religious liberty because of the actual or presumed religious homogeneity of most countries and the notion that every constitutional system is the unique product of particular legal and cultural influences.  However, the globalizing tendencies of the late twentieth and early twenty-first centuries not only generated a significant increase in religious pluralism, they also triggered the rise of comparative constitutional law as a legitimate field of scientific endeavor.

Although the last few decades has seen an increase in the amount of scholarship concerning law and religion, the literature reflects a number of gaps, most notably in the area of jurisprudence.  Indeed, comprehensive, cross-border theoretical analyses of religio-legal concerns are virtually non-existent.  Furthermore, there is relatively little diversity in the nature of the research that is conducted.

For example, while a number of scholars refer to the work of John Rawls and John Finnis, relatively few discuss other contributions to legal philosophy, such as Cass Sunstein’s notion of incompletely theorized agreements in matters of constitutional law or Ronald Dworkin’s suggestions for compromise in politically and religiously charged conflicts, such as those regarding abortion.  Religious rights theorists have also paid scant attention to the work of H.L.A. Hart, Hans Kelsen, Lon Fuller and Joseph Raz, even though analyses regarding the interplay between law and morality, positivism and natural law, and internal and external perspectives on law would provide important insights into the debate about the relationship between law and religion in contemporary legal orders.

This book attempts to redress these shortcomings by generating an extranational theoretical construct that provides a new and broadly applicable model of religious rights that is suitable for adoption in a large number of legal systems.  In so doing, the research utilizes an international and interdisciplinary methodology that relies on existing studies while simultaneously expanding the applicability of those works.  As a result, this book not only incorporates various principles of international and comparative constitutional law, but also includes elements of legal and political philosophy, comparative religion and international relations.

The book is structured as follows.  Following an introductory chapter, the discussion moves in chapter two to a description of how religious beliefs and practices have traditionally been treated under the law.  Chapter two also identifies the theoretical rationales supporting and opposing current approaches to religious rights and outlines the reasons why religious people often object to conventional formulations of religious rights and why religious pluralism creates so many problems for modern nation-states.

Whereas chapter two focuses primarily on historical and contemporary approaches to religious liberty, chapter three looks forward to new possibilities and paradigms.  This chapter introduces a new analytical framework for religious rights that seeks to resolve the tensions and concerns identified in chapter two.  This framework, referred to as “the religiously oriented original position,” attempts to universalize religious rights analyses by parsing through the constituent elements of all types of religiously-based legal claims so that they can be addressed in a more objective and standardized manner.

One of the conclusions generated in chapter two involves the way in which existing constitutional structures exacerbate conflicts regarding religious liberty.  As a result, the religiously oriented original position is extranational in nature, meaning that it exists outside the structure of any particular national or international legal system.  However, the insights available through this analysis can nevertheless assist individual states by helping them appreciate what is really at stake in the debate about religious rights and offering a new paradigm that can be adopted at the national and international level.  The model outlined in this book is also helpful to those seeking to evaluate and promote religious liberties across jurisdictional lines, given the functional method used in the text.

After setting forth the assumptions on which the religiously oriented original position is based, chapter three provides an eight-pronged analytical framework that categorizes the various types of religiously-oriented claims that can and do arise in religiously pluralist states.  However, chapter three only offers an introduction to the proposed framework, with further description and analysis of the eight types of claims coming later, in chapters four through seven.

Chapters four through seven each discuss a pair of religious claims to determine whether and to what extent those claims can be accommodated by the state as a matter of both theory and practice.  Each chapter follows a similar structure.  First, each chapter describes how current approaches to religious rights address each pair of practices in theory, followed by a discussion of how the religiously oriented original position responds to those particular claims.

Each chapter then tests the effectiveness of the two theoretical paradigms by introducing a series of “hard cases” that arise in practice and evaluating how those matters would be addressed under existing religious rights regimes and the religiously oriented original position.  Chapters four through seven also consider how well the two contrasting approaches to religious rights fulfil the theoretical rationales for religious liberty discussed in chapter two.

Chapter eight brings together the various strands of analysis and compares the overall effectiveness of the two competing approaches to religious rights as a matter of both practice and theory.  As it turns out, the religiously oriented original position improves significantly on existing models of religious rights and therefore offers a useful means of reducing the amount of religious litigation and religio-legal conflicts experienced around the world.  The book concludes with some suggestions on how the religiously oriented original position might be brought into effect as a matter of national or international law.

As the preceding suggests, this book presents an entirely new look at the interaction between law and religion.  By adopting a diverse international and interdisciplinary perspective, the analysis seeks to provide a new solution to the challenges associated with religiously pluralist states and offers a new theoretical paradigm that is suitable across jurisdictional lines.  While this aim may sound ambitious, that sort of paradigm-breaking approach may be precisely what is necessary to escape the deadlock that currently exists in this field.

S.I. Strong is the Manley O. Hudson Professor of Law at the University of Missouri School of Law.  She has also taught jurisprudence and British constitutional, contract and tort law at the University of Cambridge and the University of Oxford in the United Kingdom and international commercial arbitration at Georgetown University Law Center in Washington, D.C.  Professor Strong has served as a U.S. Supreme Court Fellow in Washington, D.C., the Henry G. Schermers Fellow at The Hague Institute for the Internationalisation of Law in The Netherlands, a Visiting Researcher at the Max Planck Institute for Comparative and International Private Law in Hamburg, Germany, and a Visiting Fellow at the Lauterpacht Centre for International Law at the University of Cambridge in the United Kingdom.