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The Place of Religion in Constitutional Goods

Published online by Cambridge University Press:  20 July 2015

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This paper is about the place of religion in Alan Brudner’s Constitutional Goods. More generally, it offers some thoughts on the place of religion in constitutional theory and political philosophy today. This theologico-political question was central for many centuries, but gradually faded as our secular age affirmed itself. Recent political and social events at the European and at the global level have firmly turned the tide.

Research Article
Copyright © Canadian Journal of Law and Jurisprudence 2009

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1. In Europe, Jürgen Habermas devoted a considerable amount of time to the issue. See, for example, Habermas, Jürgen, Between Naturalism and Religion: Philosophical Essays (London: Polity Press, 2008).Google Scholar In the U.S., John Rawls was the first to raise new questions concerning the place of religion in the society in his “public Reason Revisited“, infra note 19. Recently Taylor, Charles contributed to the debate with A Secular Age (Cambridge, MA: Harvard University Press, 2007)Google Scholar and so did Lilla, Mark with Stillborn God (London: Knopf, 2007).Google Scholar See also Nussbaum, Martha C., Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2008).Google Scholar To that one must add the huge literature on the place of Shar’ia Law in Western and Islamic countries.

2. See T.R.S. Allan, ‘In Defence of the Common Law Constitution: Unwritten Rights as Fundamental Law,’ paper presented at the LSE workshop in this volume.

3. Brudner discusses the specific meaning of non-establishment, which he declines in the anti-theocratic principle, the anti-coercion principle, and the anti-preferential treatment principle. He then asks whether non-establishment entails a neutrality principle between belief and non-belief; see Brudner, Alan, Constitutional Goods (Oxford: Oxford University Press, 2004) at 8288.Google Scholar [Page numbers hereafter are found in the text.]

4. See Dworkin, Ronald, Is Democracy Possible Here? Principles for a New Political Debate (Princeton, NJ: Princeton University Press, 2006).Google Scholar

5. BVerfGE 23 (1972), in Kommers, Donald, The Constitutional Jurisprudence of the Federal Republic of Germany (Durham, NC: Duke University Press, 1997) at 45358.Google Scholar

6. See John Charvet, ‘Transitional Problems in Brudner’s Inclusive Conception of Liberalism,’ paper presented at the workshop in this volume.

7. See Clare Chambers, ‘Inclusivity and the Constitution of the Family,’ paper presented at the workshop in this volume.

8. Bowers v. Hardwick, 478 U.S. 186 (1986).Google Scholar

9. Lawrence v. Texas, 539 U.S. 558 (2003).Google Scholar

10. Tribe, Laurence, “Lawrence v. Texas: The Fundamental Right That Dare Not Speak Its Name” (2004) 117 Harv. L. Rev. 1893.CrossRefGoogle Scholar

11. See Clare Chambers, supra note 7 for a very good discussion, passim.

12. For a longer discussion, see Chambers, ibid.

13. Zucca, Lorenzo, “Too Good to be True” (2007) XX Can. J. L. & Juris. 257.CrossRefGoogle Scholar A Critical Notice of Brudner’s Constitutional Goods.

14. Zucca, Lorenzo, Constitutional Dilemmas: Conflicts of Fundamental Legal Rights in Europe and the USA (Oxford: Oxford University Press, 2007).Google Scholar

15. For an interesting perspective that provoked a huge public debate in the U.K., see Williams, Dr. Rowan, “Civil and Religious Law in England: A Religious PerspectiveThe Archbishop of Canterbury (07 February 2008)Google Scholar, online: The Archbishop of Canterbury For an argument in favour of the possibility to reconcile Shar’ia law and the Secular State, see Ahmed An-Na’im, Abdullahi, Islam and the Secular State (Cambridge, MA: Harvard University Press, 2008).CrossRefGoogle Scholar Brudner makes an argument for integrating religious courts into the overarching framework of the constitution, showing why this is not in conflict with the anti-theocratic and anti-coercion principles. While this may be true under certain circumstances, it is not always the case. Indeed a genuine conflict between a religious and a secular norm could well be possible. Thus the problem does not concern the place we can give to religious institutions, but the role of religion in shaping public reason.

16. For a recent masterful discussion see Kaplan, Benjamin J., Divided by Faith: Religious Conflict and the Practice of Toleration in Early Modern Europe (Cambridge, MA: Harvard University Press, 2007).CrossRefGoogle Scholar

17. de Tocqueville, Alexis, L’Ancien Regime et la Revolution (Paris: GF-Flammarion, 1988).Google Scholar

18. Ratzinger, Joseph & Pera, Marcello, Senza Radici-Europa, Relativismo, Cristianesimo, Islam (Milano: Mondadori, 2004).Google Scholar

19. Rawls, John, “Public Reason Revisited” in Rawls, , The Law of Peoples (Cambridge, MA: Harvard University Press, 1999)Google Scholar; see also Habermas, supra note 1. It is curious that Brudner deals so little with their worries concerning the place of religion in the public sphere.

20. Allan, supra note 2.

21. Rawls, supra note 17.

22. Zucca, supra note 13.

23. Perry, Michael, Toward a Theory of Human Rights-Religion, Law, Courts (Cambridge: Cambridge University Press, 2007).Google Scholar

24. Raz, Joseph, “Human Rights without Foundations” in Besson, Samantha & Tasioulas, John, eds., The Philosophy of International Law [Oxford University Press, forthcoming in 2009]Google Scholar; an early version is retrievable from

25. Waldron, Jeremy, “Free Speech and the Menace of Hysteria”, Book Review of What to do About Hate Speech by Link, Perry, New York Review of Books (29 May 2008) 55.Google Scholar

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