Transforming Religious Liberties: A New Theory of Religious Rights for National and International Legal Systems - Chapter One: Introduction (Cambridge University Press, anticipated 2017)
43 Pages Posted: 16 Feb 2017
Date Written: February 15, 2017
This chapter is the first in a book that proposes a new theoretical approach to religious liberty that both transcends and transforms current approaches to law and religion. The text’s broad interdisciplinary analysis overcomes longstanding challenges to existing religious rights regimes and identifies a new analytical paradigm that specifically addresses the types of tensions that arise in religiously pluralist societies. The goal is to create a system that both religious and non-religious people can support and thereby increase civic peace between individuals and groups. The discussion includes both analytical and practical elements. On the one hand, the book relies heavily on the work of renowned legal and political philosophers ranging from John Rawls to John Finnis to generate a new jurisprudential framework for religious liberty. On the other hand, the text tests the validity of the new proposals against actual “hard cases” generated through historical, comparative and international inquiry. Existing approaches to religious freedom are subject to the same inquiries, thereby allowing an accurate comparison of the old and the new. Although the book takes various principles of national and international law into account, it is not set within any particular legal system. As a result, the proposals reflected herein are suitable for adoption in a variety of national and international legal systems. Chapter one introduces the book’s research goals and methodology so as to lay the foundation for subsequent analysis. The discussion includes basic background information on various international instruments concerning freedom of religion and outlines the religio-legal structures of the three countries (the United States, the United Kingdom and the Republic of Ireland) that serve as primary exemplars of domestic approaches to religious liberty. These three nations have been chosen to reflect the three standard means of addressing the intersection between law and religion, namely secular disestablishment, religious establishment and religiously intermediate. Although all three countries come from the common law tradition, the same range of religio-legal structures exist in civil law nations (for example, France is secular, Greece is established and Germany is intermediary) and Islamic nations (for example, Turkey is secular, Iran is established and Indonesia is intermediary). The analysis cites common law, civil law and Islamic law examples throughout the book in addition to cases generated by the European Court of Human Rights. In so doing, the text ensures that its proposals are suitable for adoption not only as a matter of international law but also in a wide range of national systems.
Keywords: law and religion, Rawls, constitutional law, comparative law, international law, jurisprudence, legal theory, freedom of religion, interdisciplinary, Islamic law, European Court of Human Rights
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