Abstraction from the Religious Dimension
47 Pages Posted: 3 Nov 2018
Date Written: October 11, 2018
Should the law in liberal democracies care about religion simply because it is religion? This question opens the floor to reflect on two intertwined aspects of the law and religion debate in jurisprudence that require normative positioning. First, how should liberal democracies understand and accordingly interpret religious freedom? Second, how should non-theocracies outline the contours of the normative relationship between law and religion? Thus, how should liberal democracies understand and deal with religion in law? Over the past years, legal scholars and philosophers have contributed to these two interpretative concerns of the law and religion debate via the question what the legal definition of religion and religious freedom should be. The focus of this essay is on the liberal theories of religious freedom and their main contribution to the debate on law and religion in jurisprudence. Based hereon, this essay introduces a conceptual framework that consists of normative positions, each theorising a particular approach towards religion and religious claims for exemptions from general laws. This conceptual framework of normative positions involves argumentation patterns that are helpful in theorising the outcome of the question whether liberal democracies should care about religion because it is religion. Therefore, this essay starts by juxtaposing the most influential liberal and apparently non-religious positions present in the religious freedom theories. These normative positions are classified as rejection; substitution; generalisation; equation and representation. This classification of positions is the first step in answering the covering question whether religion qua religion requires special legal protection in liberal democracies. The answer to this question is threefold, and the synthesis of this threefold answer is abstraction from the religious dimension, which refers to the very distinctly religious dimension. Thus, abstraction is the binding element of the various normative positions discussed in this essay. Abstraction dismisses the special legal protection of religion qua religion. In other words, it renounces arguments that justify religious freedom with an appeal to the distinct value of religion. Subsequently, abstraction proposes a more general framework to justify free exercise, and it rethinks religious claims for exemptions from general laws, from that particular framework of general values. Consequently, abstraction involves arguments that stand for the adoption of a non-sectarian and religion-empty understanding of religious freedom. That is to say, free from distinctly religious values, though certainly not hostile to religion.
Keywords: Abstraction from the Religious Dimension; Law and Religion; Religious Freedom; Free Exercise Clause; Non-Establishment Clause; Separation of Church and State
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