Establishment and Encounter

Research Handbook on Law & Religion (Edward Elgar Publishing, Rex Ahdar, ed.) (Forthcoming).

38 Pages Posted: 26 Dec 2017  

Perry Dane

Rutgers Law School

Date Written: December 19, 2017


One of the great puzzles in the law of “religion and law,” considered normatively, is the profound and dramatic diversity, even among Western nations, of the basic norms governing religious establishment and disestablishment and the institutional, financial, and expressive relationships between religion and state. One challenge, then, is to articulate a sort of normative minimum that respects that diversity but also provides a language by which we might begin to assess specific religion-state dispensations. The principles of liberal democracy, including religious liberty, are one important pillar in constructing that normative minimum. But this essay argues that we also need to look elsewhere, to a different perspective that is both older and broader than the discourses of democracy and rights. In that view, religion and state are distinct sovereign realms engaged in an existential encounter. The encounter can take various forms. Nevertheless, church and state must, in a deep sense, respect each other’s essential independent dignity. The church should not subsume the state, and the state should not subsume the church. With this master idea in mind, we can at least begin to appraise specific religion-state dispensations by the spatial metaphors at their heart. Thus, both American separationism – with its metaphor of a “wall” between church and state – and English religious establishment – which has been described as taking the form of an “interlocking jigsaw” – fare well, at least in principle. But French laïcité, whose roots go back in part to a different metaphor – “The State is not in the Church, but the Church is in the State” – does not.

Keywords: Law and Religion, Establishment Clause, Church of England, laïcité, Balinese Hinduism, Caliphate

Suggested Citation

Dane, Perry, Establishment and Encounter (December 19, 2017). Research Handbook on Law & Religion (Edward Elgar Publishing, Rex Ahdar, ed.) (Forthcoming). . Available at SSRN:

Perry Dane (Contact Author)

Rutgers Law School ( email )

United States
856-225-6004 (Phone)
856-225-6004 (Fax)


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