Mark D. Rosen

Beyond Interpretation: the “Cultural Approach” to Understanding Extra-Formal Change in Religious and Constitutional Law

A challenge common to both religious and constitutional law is the need to respond to changes over time. Both systems typically have formal amendment mechanisms: prophets and Article V of the United States Constitution, for example. But significant changes occur outside these formal mechanisms. This article presents a single framework, which I call the “cultural approach,” that identifies the points at which extra-formal change can occur in both religious and constitutional law. The cultural approach has many promising benefits. It shows how cultures can change while maintaining continuity with the past, and enables identification of changes that otherwise can be difficult to spot. Because different cultures accommodate change in similar ways, the cultural approach suggests that there may be benefits to cross-cultural study. Furthermore, the cultural approach can help members of particular cultures identify culture-specific mechanisms by which changes may be pressed, thereby facilitating use of the full range of institutions in their culture that properly play a role in change. Finally, the cultural approach provokes explicit consideration of the benefits and costs of allowing for change at each of the three stages that the cultural approach identifies.

Two Ways of Conceptualizing the Relationship between Equality and Religious Freedom

There are two possible ways to conceptualize the relationship between equality and religious freedom. The first is that both equality and religious freedom are derivative of some single, conceptually prior Master Value, such as dignity or self-determination: Monism. The second is that equality and religious freedom are independent, irreducibly distinct rights: Pluralism. According to Monism, the Master Value’s conceptual unity means its derivative values cannot conflict. Pluralism understands rights to be susceptible of intractable conflict because they are incommensurable.Though Monism may sound more attractive than Pluralism, the Essay identifies two difficult-to-satisfy prerequisites of Monism. First, each derivative value must be Fully Translatable to the Master Value. For if Full Translatability is not satisfied – that is to say, if a derivative value encompasses normative considerations not captured by the Master Value – then the Master Value alone cannot reliably determine how the derivative values should be reconciled or integrated, because exclusive reliance on the Master Value would omit normatively relevant considerations. Second, Monism is normatively attractive only if the Master Value also encompasses any and all normatively relevant political values not contained within the derivative constitutional values: the Exhaustiveness Requirement. The Exhaustiveness Requirement might be thought to be a null set – that only considerations of a constitutional status properly play a role in resolving conflicts among constitutional interests. But there are strong reasons to think otherwise: because constitutional jurisprudence in all liberal democracies allow some sub-constitutional considerations of sufficient importance to justify restrictions of constitutional rights, it almost certainly follows that some sub-constitutional considerations may play a normatively proper role in sorting out conflicts among constitutional rights.The difficulty of satisfying the Full Translatability and Exhaustiveness requirements must count as strong evidence in favor of Pluralism. The Essay then argues that Pluralism’s world of intractable conflict among rights is not as problematic as it may sound at first. Although resolving such conflicts is not a matter of cold logic, conceptual intractability does not rule out the possibility of there being principled, consistent resolutions. The Essay then provides substantial guidance as to how rights-conflicts are best approached. Building on the work of Robert Alexy, the Essay argues there is no a priori ordinal or cardinal ranking of constitutional rights; religious freedom will not always trump equality, nor will equality always trump religious freedom. Rather, the strength of each right will be a function of facts – context matters. But the Essay also identifies an important deficiency of Alexy’s metaphor that rights-conflicts are resolved through a process of balancing, and proposes an alternative conceptualization for resolving rights-conflicts that it calls orchestration. Orchestration captures the subjective, identity-reflecting and identify-informing process of resolving rights-conflicts better than does the metaphor of balancing. Determining how the array of rights is to be orchestrated is best understood as being continuous with, rather than subsequent to, the process of constitutional decisionmaking. The conclusion that conflict-resolution is both identity-reflecting and identity-forming raises important questions as to what institution appropriately participate in determining how conflicts are to be resolved. That conflict-resolution is identity-reflecting and identity-determining also suggests there is a range of permissibility among which liberal democracies may select, rather than a single resolution to rights-conflicts that is correct for all liberal countries.

The Educational Autonomy of Perfectionist Religious Groups in a Liberal State

This Article draws upon, but reworks, John Rawls’ framework from Political Liberalism to determine the degree of educational autonomy that illiberal perfectionist religious groups ought to enjoy in a liberal state. I start by arguing that Rawls mistakenly concludes that political liberalism flatly cannot accommodate Perfectionists, and that his misstep is attributable to two errors: (1) Rawls utilizes an overly restrictive “political conception of the person” in determining who participates in the original position, and (2) Rawls overlooks the possibility of a “federalist” basic political structure that can afford significant political autonomy to different groups within a single country. With these insights, I argue that some, though not all, religious Perfectionists are consistent with a stable liberal polity, and explain why foundational Rawlsian premises require that Perfectionists be accommodated to the extent possible.My ultimate conclusions are that liberal polities ought to grant significant autonomy to those illiberal groups that satisfy specified conditions, and that the autonomy of such “eligible” illiberal groups is subject to two further constraints, which I call “well-orderedness” and “opt-out.” The autonomy to which eligible Perfections are entitled includes the authority to educate their children in a way that provides a fair opportunity for the groups to perpetuate themselves. The constraint of well-orderedness, however, permits the State to impose educational requirements that facilitate peace and political stability. Accommodating eligible illiberal groups, subject to these constraints, is an instantiation of liberal commitments, not a compromise of liberal values.