What Establishment Expresses
International Journal of Constitutional Law (Forthcoming)
34 Pages Posted: 24 Sep 2021
Date Written: September 21, 2021
Religious establishment is said to be wrong partly because of what it expresses. But the typical arguments about what establishment expresses are obscure and ambiguous. This paper aims to provide a framework, illustrated by two hypothetical states, to better isolate and understand expressive reasons why establishment might be wrong. The paper argues for the disambiguation of expressive claims about establishment, distinguishes between four types of expression and suggests tests for expression of each type. It illustrates how expressive claims might be contextually assessed using the suggested tests. The paper aims to allow lawyers, judges, policymakers, scholars and members of the public to better understand, assess and appreciate the moral significance of expressive claims about establishment, and potentially, expressive claims about law and government action, more generally.
Keywords: establishment, secularism, expressivism, expressive function of law, law and religion
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