Benjamin L. Berger

The Limits of Belief: Freedom of Religion, Secularism, and the Liberal State

Canadian courts are increasingly faced with the challenging task of reconciling a secular, liberal polity with the Charters guarantee of freedom of religion. Conventional approaches to liberalism and secularism have made this reconciliation particularly difficult by promoting a conceptually unsatisfying vision of an a-religious and hyper-rational public space devoid of moral commitments. At the same time, liberal theorists have failed to fully appreciate the nature and demands of religious conscience. This article considers liberalism, secularism, and religious conscience, and argues for an understanding of the relationship among the three that would consist of a mediated pluralism premised upon a language of civic values. Through a case law analysis, the author demonstrates that this form of reconciliation is already tacitly at play in Canadian jurisprudence. The most theoretically consistent manner of delineating the limits of religious conscience in Canadian society, this approach gives substance to religious freedom while maintaining due regard for the common good and the gifts of secular liberalism.

On the Book of Job, Justice, and the Precariousness of the Criminal Law

The criminal law has been subject to both increased demands in the societal functions that it is expected to perform, and heightened scrutiny for those points at which it fails to achieve these ends. The resulting pressures put into question the criminal laws capacity to perform justice. Rather than turning to contemporary sources to assess the criminal laws relationship to claims of justice, the author uses an analysis of the ancient myth found in the Book of Job as a means of exposing the irresolvable tensions at the core of the criminal law systems quest for justice. In the end, injustice manifests as senseless suffering. The profound precariousness of contemporary criminal law is that its prescribed task is to make sense of suffering but it is always unable to wholly achieve this goal and is, indeed, always on the precipice of making things worse.

QOHELET AND THE EXIGENCIES OF THE ABSURD

This article considers the Book of Qohelet in terms of its concerns and stylistics and with an eye towards the books modern analogues. In particular, I look at the themes of toil and progress, time and memory, justice, and wisdom and knowledge while endeavouring to maintain the contradictory and self-negating dynamics of the text. Qohelet, I conclude, finds no ultimate good and no foundational principle in the universe. The declaration that all is judgement about the human experience of existence. Ours is not a world that admits human reason or responds to our longing for meaning-it is an absurd existence. Various stylistic strategies are employed in the text to support and sustain this message and these techniques combine to form a poetics of absurdity. The book is cast in an autobiographical voice, plays with the dynamics of aphorism and tautology, and, most significantly, builds itself around the poetics of contradiction. The text is engaged in a continual process of erasure whereby statements are made, explored, and then negated. I conclude by considering two modern analogues to the book of Qohelet, Albert Camus and Lev Shestov. These two thinkers parallel the book of Qohelet in both concern and style. They too find that the universe is infused with contradictions and does not bend to our longing for order and reason. Ultimately, all three sources convey a similar understanding of the human existential condition.

Belonging to Law

This article examines the appeal to law as the basis for civic identity and political belonging under conditions of religious diversity. Beginning by assessing the descriptive utility of the concept of ‘secularism’, the article argues that secularism is best approached as a repertoire of moves available in negotiating the relationship between religion and political authority, focusing then on one such move evident in the contemporary project of liberal secularism: the assertion, in the face of the challenges posed by religious diversity, that to belong to the political community means, above all else, to belong to law. This shift of ‘obedience to the law’ to the diagnostic center of civic belonging is explored by turning to two case studies drawn from the legal encounter with Islam in Canada: the debate over official recognition of Sharia law and controversies surrounding the niqab. Having assessed the implications that this move has for the understanding and management of religious difference, the article explains the attractiveness of this symbolic appeal to law – whereby law begins to stand as a kind of synecdoche for the secular state – and assesses the effect of this alignment of law and belonging on the politics of religious diversity.

UNDERSTANDING LAW AND RELIGION AS CULTURE: MAKING ROOM FOR MEANING IN THE PUBLIC SPHERE

The relationship between law and religion in contemporary civil society has been a topic of increasing social interest and importance in Canada in the past many years. We have seen the practices and commitments of religious groups and individuals become highly salient on many issues of public policy, including the nature of the institution of marriage, the content of public education, and the uses of public space, to name just a few. As the vehicle for this discussion, I want to ask a straightforward question: When we listen to our public discourse, what is the story that we hear about the relationship between law and religion? How does this topic tend to be spoken about in law and politics – what is our idiom around this issue – and does this story serve us well? Though straightforward, this question has gone all but unanswered in our political and academic discussions. We take for granted our approach to speaking about – and, therefore, our way of thinking about – the relationship between law and religion. In my view, this is most unfortunate because this taken-for-grantedness is the source of our failure to properly understand the critically important relationship between law and religion.

The Abiding Presence of Conscience: Criminal Justice Against the Law and the Modern Constitutional Imagination

In much contemporary constitutional thought the exercise of state power unbounded by or contrary to the law is nothing other than the failure of justice in the constitutional order. Yet it has not always been so. For a substantial period of common-law legal history the exercise of judgment despite the law was viewed as essential to seeing that justice was done. This article argues that attention to the imaginative architecture of our criminal justice system discloses the continued presence of the concept of the positive conscience-based exception as a dimension of modern constitutionalism. This article looks at jury nullification, the royal prerogative of mercy, and prosecutorial discretion as abiding expressions of the idea that law and reason alone are insufficient to give full expression to our sense of state justice. The persistence of these sites for conscience-based decisions unbounded by the law ought to trouble prevailing theories of modern constitutionalism based on the pre-eminence of a reason-driven proportionality in which all decisions must be contained and regulated by the reason of law. Without denying the dangers of the exception, this article suggests that the conscientious decision made against or in spite of the law remains an important component of the way in which we imagine criminal justice.

Reading in Colors: Highlighting for Active Reading in Religious Studies

This note from the classroom suggests that multicolor highlighting is a useful study technique for religious studies students. The note first reviews the literature regarding the effectiveness of traditional highlighting, then discusses advantages of the modified technique. Monochrome highlighting works only if readers select text through a discriminating reading process. Reading in colors fosters this sort of active reading. It prompts readers to ask how and why a given term, phrase or passage is important. This technique can help students grasp the basic categories and concepts of the discipline and it can embody course requirements or learning outcomes. The note concludes with practical suggestions for using the technique in the classroom.

Religious Freedom in Canada. A Crucible for Constitutionalism

This article examines three axes around which contemporary Canadian debates on freedom of religion are turning: the status and protection of group and collective religious interests; the emergence – and instability – of state neutrality as the governing ideal in the management of religious difference; and the treatment of Indigenous religion. Each is discussed as a key thematic and doctrinal development emerging from recent activity in the freedom of religion jurisprudence in Canada. Each is also an instance, the article suggests, of religion doing its particularly effective work of exposing the fundamental tensions and dynamics in Canadian constitutionalism more generally.

Key Theoretical Issues in the Interaction of Law and Religion: A Guide for the Perplexed

There is perhaps no more important access point into the key issues of modern political and legal theory than the questions raised by the interaction of law and religion in contemporary constitutional democracies. Of course, much classical political and moral theory was forged on the issue of the relationship between religious difference and state authority. John Locke’s work was directly influenced by this issue, writing as he did about the just configuration of state authority and moral difference in the wake of the Thirty Years’ War. Yet debates about the appropriate role of religion in public life and the challenges posed by religious difference also cut an important figure, in a variety of ways, in the writings of Hobbes, Rousseau, Spinoza, Hegel, and much of the work that we now view as being at the centre of the development of modern political philosophy.

Judges, Juries and the History of Criminal Appeals

The three articles offered in this forum on the early history of criminal appeals do us the great service of adding much of interest on this important but neglected issue in the development of Anglo–North American criminal procedure. The opaqueness of the legal history of criminal appeals stands in stark contrast to their centrality and apparent naturalness in contemporary criminal justice systems in England, Canada, and the United States. These three papers look at the period leading up to and immediately following the creation of the first formalized system of what we might call criminal appeals, the establishment of the Court of Crown Cases Reserved (CCCR) in 1848. This key period in the development of the adversary criminal trial was marked by both a concerted political effort to codify and rationalize the criminal law and by profound structural changes in the management of criminal justice.