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Friday, May 02, 2014

Weekend Reading: "The 'Law' in Dworkin's Treatment of Law and Religion"

Just posted on SSRN is my forthcoming short piece, "A Troublesome Right": The 'Law' in Dworkin's Treatment of Law and Religion. Comments and corrections welcome, as always. Here's the abstract:

In his final book, Religion Without God, Ronald Dworkin offers an eloquent and gloriously compact treatment of a massive subject--life, death, eternity, and the human condition. He also offers an application of his views on those broader questions to a narrower, more practical issue: the law of religious freedom. In this paper, I focus narrowly and critically on Dworkin's treatment of the law of religious freedom. 

Dworkin asks whether there is a principled "justification for offering religion a right to special protection that is exclusive to theistic religions," and if not, what the scope and nature of religious freedom should be. He ultimately proposes, in effect, to interpret "religion" broadly for purposes of "freedom of religion" but demote that freedom altogether. He would treat freedom of religion as "a very general right to what we might call 'ethical independence'" rather than as a "special right." As such, subject to some constraints, government could infringe freedom of religion without having to show a compelling interest in doing so. Dworkin would also, it appears, substantially limit the occasions on which government can or should provide legislative accommodations for burdened religious practices. What we have, when Dworkin is done, is basically a narrow version of the Supreme Court's decision in Employment Division v. Smith, but without that decision's receptivity to legislative rather than judicial accommodation of religion.

There is much to admire in Dworkin's broader arguments about religion in the book. His arguments about the law of religious freedom are quite another matter. The accuracy and persuasiveness of Dworkin's arguments on this issue rest substantially on three things: his statements about current law; the initial moves by which Dworkin clears the ground for his demotion proposal; and his applications of the demotion proposal, which he suggests could help lower the temperature of the culture wars. I argue that all three elements of Dworkin's argument for the demotion of religious freedom are deeply flawed.

Posted by Paul Horwitz on May 2, 2014 at 11:00 AM in Paul Horwitz | Permalink


I read a draft from of his argument from back when he gave the lectures that ultimately was crafted into this book. So, I was looking forward to it, though thought the chapter on the wonders of science sort of went off the rails a bit. I thought, e.g., his argument in "Life's Dominion" that questions about life and death (abortion, euthanasia etc.) in some large sense are religious in nature had much insight.

I was somewhat disappointed when I finally got around to reading the book version, noting that he passed away before he was able to provide a final version (others worked off what I take was seen as basically a finished product). You flag one concern. I think the volume might not properly take the time to address the argument -- it's a small book of under 200 pages and covers a good amount of ground.

Finally, I think as seen by his views on euthanasia, abortion and the like, the substantive liberty he would protect -- regardless of his Smith-like language -- at the end of the day would still protect a lot of liberty that some would view as "religious" in nature. Again, the book might have been better with more discussion on the point.

As to distrust of legislative accommodation, Dworkin is known for thinking on certain matters the courts should be trusted with more power. Unlike Scalia, e.g., he would not give the legislature as much broad power over end of life decisions. Still, if his position has an up to date liberal wariness of RFRA, it wouldn't surprise.

Posted by: Joe | May 2, 2014 12:30:06 PM

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