An associational framework for the reconciliation of competing rights claims involving the freedom of religion

Abstract

Conflicts of rights involving the freedom of religion should be approached on the basis of a close examination of the proper competence of law and religions. This examination begins by asking what questions law and religion are best suited to answer in a post theocratic age that views constitutional laws as operating under and within the conditions of diversity and pluralism. An analysis of religious employer exemption cases in two jurisdictions, South Africa and Canada, shows that certain contemporary “liberal ” approaches fail to accord sufficient respect to associational diversity. An historical view of the relationship between law and religion, reviewing both “the goods of religion ” and “the limits of law ” suggests that contemporary liberalism tends to diminish the role of religions and religious associations giving too much power to the State and/or the Courts with a corresponding failure to let religions play the role within culture that their proper jurisdictions, correctly understood, admit and that an open culture requires. The analysis shows that the Canadian and South African courts have, in some cases, explicitly but more often implicitly, stepped into the role of answering metaphysical, philosophical and theological questions for which they are not suited. This problem-- erroneous jurisdictional

Cite this work

No public copy is stored for this record, so only the metadata is cited.

Stored only when both papers are in the corpus — 7 citations exist upstream.

Papers that cite the same references — the relational fallback while embeddings are still backfilling.