Journal of Law, Religion and State - Volume 1, Issue 3, 2012

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.

It is commonly believed that, from a liberal point of view, there is something problematic in government action rooted in religious considerations. We begin by showing exactly what kind of religious considerations might thought to be ruled out as a basis for such action. We then discuss at length the approach expressed by the Supreme Court of Israel, according to which legislation and other government actions based on religious considerations are problematic because they violate the right to freedom from religion of non-religious citizens. We reject the court’s interpretation of this right and conclude that the court has failed to explain why government action based on religious considerations is illegitimate.

This article analyzes the relationship between religion and state from the viewpoint of Enlightenment philosophers who have shaped political modernity, along with their solutions to the religion-state relationship consonant with human freedom. In so doing, this article underlines the stakes of politicizing religion within modern democracies, highlighting particular approaches by contemporary religious thinkers and philosophical scholars that sketch out ways in which human freedom, both political and religious-theological, may be promoted.

How can the law deal with religion in an adequate manner, if on one hand it must guarantee religion its status of autonomy and therefore cannot construct its own idea of religion, and on the other it needs to know the object of legal protection? The present paper scrutinizes one possible solution to this problem developed by the German Federal Constitutional Court. According to this judicial strategy, the law orients itself by referring to the relevance of religious self-concepts that are to a certain degree legally binding.

In recent years Jewish religious leaders have often expressed religious opinions in matters concerning the foreign and security policy of the State of Israel. The present article focuses on the internal religious legitimacy of halakhic rulings in these matters and reveals the prerequisites that decisors must satisfy before voicing a binding halakhic opinion on issues concerning the Israeli Arab conflict, peace agreements, Jewish settlements in Judah and Samaria, etc.

The article is divided into three parts that answer the following questions: (a) are matters of State policy subject to halakhic norms or are they situated outside the realm of Halakha? (b) does Halakha have a judicial policy seeking to rule on these issues? (c) what are the practical difficulties that decisors face if they wish to rule on them? The article points out the diversity of internal halakhic opinions on the questions under investigation, and outlines an analytical method for a halakhic discussion aimed at answering them.