Freedom of Religion

44 Pages Posted: 29 Jan 2010

See all articles by Avihay Dorfman

Avihay Dorfman

Tel Aviv University - Buchmann Faculty of Law

Date Written: January 28, 2010

Abstract

Why it is that the principle of freedom of religion, rather than a more general principle such as liberty or liberty of conscience, figures so prominently in our lived experience and, in particular, in the constitutional commitment to the free exercise of religion? The Paper argues, negatively, that the most prominent answers offered thus far fall short; and positively, that the principle of freedom of religion arises out of a thicker understanding of the much neglected relationship between religious liberty and democracy. Indeed, a proper account of the legitimacy of the democratic process, I argue, dissolves the mystery surrounding freedom of religion, and thus allows for an adequate justification of this principle. The thesis of this paper is that freedom of religion is a remedy that redresses the (warranted) exclusion of certain religious arguments from the democratic process. The redress is grounded in a republican concern for political self-determination while exclusion is prescribed by a liberal ideal of political legitimation.

Keywords: Freedom of Religion, democracy, legitimation, First Amendment, public reason

Suggested Citation

Dorfman, Avihay, Freedom of Religion (January 28, 2010). Canadian Journal of Law and Jurisprudence, Vol. 21, No. 2, 2008. Available at SSRN: https://ssrn.com/abstract=1543994

Avihay Dorfman (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel

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