Michael A Helfand

Negotiating state and non-state law : the challenge of global and local legal pluralism

Trends in legal philosophy, international law, transnational law, law and religion, and political science all point toward the increasing role played by non-state law in both public and private ordering. Numerous organizations, institutions, associations, and groups have emerged alongside the nation-state, each purporting to provide their members with rules and norms to govern their conduct and organize their affairs. The nation-state increasingly finds itself sandwiched, so to speak, between two broad and contrasting categories of non-state law. The first category – law above the state – captures a wide range of legal systems that function across the territorial borders of nation-states. The second category – law below the state – includes various forms of local customary, religious, and indigenous law. Indeed, as these forms of non-state law persist and proliferate alongside the nation-state, the relationship between state and non-state law becomes more complex, multifaceted, and tense. This volume addresses this relationship between the nation-state and these various forms of non-state law, considering whether and to what extent state and non-state law can coexist and how each form of law seeks to influence, as well as transform, the other.

How to Limit Accommodations: Wrong Answers and Rights Answers

In recent years, the United States has seen a resurgence of debates over the propriety of various religious accommodations afforded religious individuals and institutions from otherwise valid laws. The crumbling consensus over religious accommodations appears largely due to growing skepticism over whether religious accommodations, once granted, can be limited to the “right” kind of cases without bleeding into the “wrong” kind of cases. Some courts and scholars have responded to these growing worries by proposing limits on the scope of legally recognized accommodationist claims; for example, some have argued that commercial entities should, per se, be denied claims for religious accommodation and others have argued that claims for accommodation should not be granted where the theological burden is deemed by a court to be de minimis or non-existent. By limiting the types of recognized accommodationist claims, such arguments hope to prevent religious objections from trumping other important rights and values; if the claims never get off the ground, so the logic goes, there is no need to worry about their potential consequences.This tactic, however, stands on dangerous footing. At bottom, such arguments put government in the position of giving unequal weight and credence to claims for accommodation based upon religious and theological criteria, thereby creating inequalities among religious claims. As an alternative strategy, courts should avoid threshold doctrinal tests for accommodation claims; instead courts should explicitly balance religious claims against important government interests in order to determine whether or not to grant an accommodation. Such an alternative approach pulls courts out of the business of distinguishing between different types of religious claims, encouraging them instead to impose limits on religious accommodation by directly considering governmental interests, precisely the type of inquiry courts are well-equipped to address.

The Persistence of Sovereignty and the Rise of the Legal Subject

Several states have considered bills aimed at preventing courts from enforcing, considering, or relying on both religious and international law. This legislative pushback on international and religious law reflects a concerted effort to consolidate legal authority by asserting the state as the only source of legitimate law. As the core of this controversy stands an age-old philosophical dispute over the relationship between sovereignty and law: Does state sovereignty preclude the possibility of law both above the state – that is, international law – and below the state – that is, religious and customary law? This tension tracks a long-standing fissure within legal positivism. In this chapter, Professor Helfand considers the works of two early positivists – Thomas Hobbes and John Austin, who understood the concept of law as inextricably linked to the notion of sovereignty. In his seminal work The Concept of Law, H.L.A. Hart responded to this theory, decoupling the link between law and sovereignty. Hart believed law could exist even in the absence of a legal system, allowing for the possibility of a form of legal pluralism. Helfand elaborates on this possibility of law without a legal system, emphasizing the importance of the distinction for understanding the dilemmas of the legal subject.

A Liberalism of Sincerity: The Role of Religion in the Public Square

This article considers the extent to which the liberal nation-state ought to accommodate religious practices that contravene state law and to incorporate religious discourse into public debate. To address these questions, the article develops a liberalism of sincerity based on John Locke’s theory of toleration. On such an account, liberalism imposes a duty of sincerity to prevent individuals from consenting to a regime that exercises control over matters of core concern such as faith, religion, and conscience. Liberal theory grounds the legitimacy of the state in the consent of the governed, but consenting to an intolerant regime is illegitimate because it empowers government to demand insincere conduct. Thus, demanding that citizens pursue sincerity ensures that they do not consent away their individual liberties in exchange for promises of security and orderliness.The focus on sincerity also reorients the value that liberalism places on religious pluralism. Although many liberal theorists have proposed that religious pluralism is valuable because it provides individuals with a range of choices on how to live the good life, such theories provide little reason to promote and protect any particular religion. Indeed, if religions are important only because of the range of choice they provide, then the only concern of liberalism is to maintain enough religions so as to provide a meaningful range of options for how to live the good life; conversely, there is no reason to provide accommodations for any particular religion to aid its survival. By contrast, a liberalism of sincerity impels the liberal nation-state to widen the protections afforded to the expressions of sincerity, such as religious conduct and religious discourse. Because religious conduct and religious arguments flow from an individual’s commitment to sincerity, liberalism should provide broad protection for such religious activity in order to enable citizens to pursue sincerity.

When Religious Practices Become Legal Obligations: Extending the Foreign Compulsion Defense

The purpose of this article is to fashion a religious compulsion defense as an outgrowth of the legally recognized foreign compulsion defense. Contra the rationale advanced in Employment Division v. Smith, the article argues that the rationale behind the foreign compulsion defense - to protect individuals from conflicting legal norms of competing legal systems - should also apply to situations where religious law and United States law collide. In adopting the criteria of the foreign compulsion defense, a religious compulsion defense would extract individuals from conflicts of law, protecting individuals in the throes of the most intractable of dilemmas.