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Tijdschrift Netherlands Journal of Legal Philosophy x Jaar 2015 x
Artikel

Access_open Religion Ain’t Sacrosanct

How to Fight Obsolete Accounts of Religious Freedom

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2015
Trefwoorden Hobby Lobby, Hosanna-Tabor, tolerance-leaning liberalism, equality-leaning liberalism
Auteurs Roland Pierik
SamenvattingAuteursinformatie

    This paper is largely an endorsement and a further elaboration of Cohen’s critical discussion of the Hobby Lobby and Hosanna-Tabor cases and the conceptual overstretch of religious freedom they embody. I disagree with Cohen, however, on the proper interpretation of this debate. Cohen construes the ominous Court cases as an anti-liberal attack on the liberal state order. My main thesis is that the root of this dispute can be traced back to a fault line within liberalism between a more tolerance-leaning and a more equality-leaning tradition. I argue that the ominous cases are instances of the tolerance-leaning tradition in liberalism, which once was characteristic of the liberal tradition. Still, I agree with Cohen that this tradition should be rejected because it reverts to an obsolete interpretation of religious freedom that defends unwarranted privileges for certain groups that are out of sync with the egalitarian underpinnings of contemporary liberal political orders.


Roland Pierik
Roland Pierik is Associate Professor of Legal Philosophy at the University of Amsterdam Law School.

    In her reply to critics, Jean Cohen responds to some of the main criticisms and remarks raised by the respondents.


Professor Jean L. Cohen
Jean L. Cohen is the Nell and Herbert M. Singer Professor of Political Thought and Contemporary Civilization at the Department of Political Science of Columbia University (New York) and will be the Emile Noel Fellow at the Jean Monet Center of the NYU Law School from January till June 2016.
Artikel

Access_open Institutional Religious Accommodation in the US and Europe

Comparative Reflections from a Liberal Perspective

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2015
Trefwoorden European jurisprudence, freedom of religion, religious-based associations, religious accommodation
Auteurs Patrick Loobuyck
SamenvattingAuteursinformatie

    Jean Cohen argues that recent US Supreme Court decisions about institutional accommodation are problematic. She rightly points out that justice and the liberal concept of freedom of consciousness cannot do the work in Hobby Lobby and Hosanna-Tabor: what does the work is a medieval political-theological conception of church immunity and sovereignty. The first part of this commentary sketches how the autonomy of churches and religious associations can be considered from a liberal perspective, avoiding the pitfall of the medieval idea of libertas ecclesiae based on church immunity and sovereignty. The second part discusses the European jurisprudence about institutional accommodation claims and concludes that until now the European Court of Human Rights is more nuanced and its decisions are more in line with liberalism than the US Jurisprudence.


Patrick Loobuyck
Patrick Loobuyck is Associate Professor of Religion and Worldviews at the Centre Pieter Gillis of the University of Antwerp and Guest Professor of Political Philosophy at Ghent University.
Artikel

Access_open Freedom of Religion, Inc.: Whose Sovereignty?

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2015
Trefwoorden accommodation, freedom of religion, political theology, liberalism, liberty of conscience
Auteurs Jean L. Cohen
SamenvattingAuteursinformatie

    This article focuses on an expansive conception of religious freedom propagated by a vocal group of American legal scholars – jurisdictional pluralists – often working with well-funded conservative foundations and influencing accommodation decisions throughout the US. I show that the proliferation of ‘accommodation’ claims in the name of church autonomy and religious conscience entailing exemption from civil regulation and anti-discrimination laws required by justice have a deep structure that has little to do with fairness or inclusion or liberal pluralism. Instead they are tantamount to sovereignty claims, involving powers and immunities for the religious, implicitly referring to another, higher law and sovereign than the constitution or the people. The twenty-first century version of older pluralist ‘freedom of religion’ discourses also rejects the comprehensive jurisdiction and scope of public, civil law – this time challenging the ‘monistic sovereignty’ of the democratic constitutional state. I argue that the jurisdictional pluralist approach to religious freedom challenges liberal democratic constitutionalism at its core and should be resisted wherever it arises.


Jean L. Cohen
Jean L. Cohen is the Nell and Herbert M. Singer Professor of Political Thought and Contemporary Civilization at the Department of Political Science of Columbia University (New York) and will be the Emile Noel Fellow at the Jean Monet Center of the NYU Law School from January till June 2016.
Discussie

Access_open Drones, Targeted Killings and the Politics of Law

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2015
Trefwoorden drone warfare, politics of international law, humanitarian law, targeted killing
Auteurs Wouter G. Werner
SamenvattingAuteursinformatie

    In this article I discuss one of the latest reports on the practice of drone warfare, the UN SRCT Drone Inquiry. I use the report to illustrate some of the specific forms of legal politics that surround drone warfare today. In the first place, I focus on the tension between the capacity of drones to target more precisely and the never-ending critique that drone warfare victimizes civilian populations. Secondly, I focus on the call for more objective legal rules that can be found in many debates on drone warfare.


Wouter G. Werner
Wouter G. Werner is co-founder of the Centre for the Politics of Transnational Law, VU University Amsterdam.

    The article considers the role of the liberal public-private divide in protecting religious minorities against national-majoritarian assault. It links the defence of the public-private divide to liberal neutrality and argues that it rests on two distinct propositions: that the distinction between the ’public sphere’ and the ’private sphere’ is a meaningful way to cognize and structure modern pluralistic societies; and that there is a meaningful way to distinguish what is or ought to be ‘public’ from what is or ought to be ‘private.’ While the latter proposition cannot be defended on grounds of liberal neutrality, the former proposition provides the institutional framework for conducting liberal politics by enabling the negotiation of the public and the private between national majorities and religious minorities as members of the same political community.


Daniel Augenstein
Daniel Augenstein is Associate Professor at the Department of European and International Public Law at Tilburg University.
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