There's a number of interesting new papers on SSRN that discuss issues related to pluralism and religion. Specifically, each paper deals with a variant of the basic question of what broad 'template' - in terms of conceptual schemes, historical analogies etc. - may be best suited for current thinking about the accomodation of religious difference within constitutional orders.
First, Benjamin Berger (University of Victoria) has published his article 'The Cultural Limits of Legal Tolerance' (Canadian Journal of Law and Jurisprudence 2008). This is the abstract:
This article presents the argument that our understanding of the nature of the relationship between modern constitutionalism and religious difference has suffered with the success of the story of legal tolerance and multiculturalism. Taking up the Canadian case, in which the conventional narrative of legal multiculturalism has such purchase, this piece asks how the interaction of law and religion - and, in particular, the practices of legal tolerance - would look if we sought in earnest to understand law as a component, rather than a curator, of cultural diversity in modern liberal societies. Understanding the law as itself a cultural form forces us to think about the interaction of law and religion as an instance of cross-cultural encounter. Drawing from theoretical accounts of cross-cultural encounter and philosophical literature about the nature of toleration, and paying close attention to the shape of Canadian constitutional doctrine on religious freedom (law's rules of cross-cultural engagement), this paper suggests that legal toleration is far less accommodative and far more assimilative than the conventional narrative lets on. Influential alternative theoretical accounts ultimately reproduce this dynamic because they similarly obscure the role of culture on both sides of the encounter of law and religion. Indeed, owing to the particular features of the culture of law's rule, even the more thickly cultural "solutions" proposed in dialogic theory ultimately fail. In the end, this article exposes the very real cultural limits of legal tolerance.
An analysis of historical 'templates' can be found in Robert A. Kahn's (U St. Thomas School of Law) paper 'Are Muslims the new Catholics? Europe's Headscarf Laws in Comparative Historical Perspective' (U St. Thomas Legal Studies Research Paper 08/26). The abstract:
European opponents of the headscarf often view themselves as engaged in a "struggle against totalitarianism." This paper explores an alternative framing: What if Muslims - rather than Nazis or Communists in training - are the more like nineteenth century Catholics, who were seen as a religious threat to European (and US) liberalism? To explore this idea, my paper looks at the headscarf debate through the lens of the German Kulturkampf (1871-1887) and nineteenth century US laws that banned public school teachers from wearing clerical garb. I reach two tentative conclusions. First, many of the claims made against European Muslims - especially about the "backward" nature of the religion - were also made against Catholics. Second, just as the Kulturkampf (and US clerical garb laws) failed to create a new "modern" Catholic, headscarf laws will not create Islamic moderates. However, the ultimate incorporation of Catholics in the years after 1945 suggest a more hopeful future - one that will come quicker if there is less legal repression.
An empirical study nuancing the Muslims/Catholics parallel, finally, can be found in a new paper by Eduard J. Bomhoff and Mary Gu (both Nottingham Univ. - Malaysia Campus), entitled 'Malaysia's Muslims: The First World Values Survey' (Nottingham Univ. Business School Malaysia Campus Research Paper 08/10). The abstract:
In the Islamic world, Malaysia is a happy outlier: richer and politically more mature than the average of the 58 members of the Organization of the Islamic Conference. That makes it interesting to test theories of modernization for this prosperous Islamic country. In our analysis of the first World Values Survey in Malaysia, we look at questions in the following four areas: 1. Tolerance of abortion, homosexuality, prostitution, divorce, euthanasia and suicide. 2. Acceptance of the ideology of the economic market. 3. Equality between men and women. 4. Esteem for democracy. Responses on such questions show to what extent Malaysia is a "modern" country on the definition of Inglehart . We provide context by comparing the results for Malaysia to currently available WVS data for all other Islamic nations as well as a comparator group of strongly Catholic countries. For the questions on tolerance of abortion etc., we find both in Islamic and in Catholic countries, that more religious people adhere to the traditional views of their religion. For the other three groups of questions, however, the association in most Islamic nations is strikingly different from the pattern in the Catholic countries: many of the strongly religious Muslim respondents exhibit openness to gender equality, and keenness for democracy and the laws of the market which are significantly greater than the average for their nation. We also find that the often-mentioned link between more education and a more "modern" outlook holds for the Catholic countries but is an inappropriate generalization for the Islamic world.
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