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Article
The Virtues of Law in the Politics of Religious Freedom
Osgoode Legal Studies Research Paper Series
  • Benjamin L. Berger, Osgoode Hall Law School of York University
Research Paper Number
15/2014
Document Type
Article
Publication Date
2014
Keywords
  • Religious Freedom,
  • Politics,
  • Incompletely Theorized Agreements,
  • Modesty,
  • Canada,
  • Israel
Abstract
The moral force and capacity for inspiration of both religion and politics alike arise in part from the sense that they authentically map the world as we find it, yielding claims about how it should be. This paper asks what role we might imagine for law in this “hyper-real” world of religion and politics, arguing that law can display distinctive virtues linked to its capacity for strategic agnosticism about the real. Applying Sunstein’s idea of “incompletely theorized agreements” to the politics of religious freedom, the paper examines the role of law as a tool of adhesion in two very different constitutional settings – Canada and Israel – and argues for modesty as a functional virtue in law and legal process. Viewed in this way, law draws its worth from its tolerance for ambiguity, its sub-theoretical nature, and its pragmatic proceduralism, seeking to sustain political community in the presence of normative diversity, rather than speaking truth to difference.
Citation Information
Benjamin L. Berger. "The Virtues of Law in the Politics of Religious Freedom" (2014)
Available at: http://works.bepress.com/benjamin_berger/32/