The Constitutional Justification of Religion
in Ecclesiastical Law Journal 18 (2016) 14-35.
25 Pages Posted: 12 Mar 2017 Last revised: 1 Jul 2017
Date Written: March 9, 2017
In this paper, I address religion from a legal perspective. I argue that religion should be settled outside the secular legal system; otherwise, the secular legal system would not be truly secular. However, religion demands special protection as a public good and social value, as it constitutes an extrinsic constitutional limit of the legal. For a secular legal system, protecting religion ultimately means protecting human beings’ pursuit of the suprarational. Protecting suprarationality has three important legal consequences: (a) suprarational acts in the strictest sense should never be validated as legal acts; (b) democratic communities should not use suprarational arguments in legal discourse; and (c) the secular legal system cannot regulate suprarationality or the essentials of the religious community. The protection of religion demands both a dualistic structure that distinguishes the political community from the religious community and the treatment of religion as a right: the right to religion.
Keywords: religion, constitution, religious freedom, suprarationality
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