Brett G. Scharffs is Director of the International Center for Law and Religion Studies and Rex E. Lee Chair and Professor of Law at Brigham Young University Law School. This post is excerpted from a chapter in the forthcoming book in the Routledge ICLARS Series on Law and Religion: Law, Religion, and Freedom: Conceptualizing a Common Right, W. Cole Durham, Jr, Javier Martínez-Torrón, and Donlu Thayer, eds. (Routledge 2020).
Setting aside the immediate exigencies of the coronavirus crisis, we are living at an important time for religious freedom, and that is not necessarily a good thing. It seems quite apparent that in recent years many nations are in the midst of a world-defining struggle between two dramatically different visions of the state and its relationship with its people. The contest is between what is sometimes called monism, which is inclined towards various types of statism that emphasize the state’s monopoly on legal power, and dualism, the idea that the state’s domain over the peoples’ lives is in some important way subject to limits that lie outside and beyond the state itself.
Dualism is an old idea. The Gospel of Mark famously reflects a worldview at least 2000 years old in Jesus’s answer to a lawyer who asked whether it was lawful to pay taxes to the ruling state: “ Render unto Caesar the things that are Caesar’s, and to God the things that are God’s.” Mark 12:15-17 (KJV). Continue reading “The World-Defining Contest between Monism and Dualism and the Future of Religious Freedom”
Paul Gowder is Professor and O.K. Patton Fellow in Law, the Iowa University College of Law
The rule of law is a normative principle governing the conduct of state (or state-like) coercive power. It requires that such power be exercised pursuant to the law, and, more fundamentally, pursuant to public-regarding reasons and for public-regarding goals which recognize the equal standing of those who hold power and those who have power exercised over them. A rule of law state deploys the active participation of the beneficiaries of law in their own collective self-defense against the powerful, and operates through individual access to the legal system on equal terms to vindicate individual rights. In that form, the rule of law is recognizable as a demand that citizens have made against their political authorities at least since Classical Athens.
For just as long, citizens have sought to back up these demands with divine sanction. Hesiod, in Works and Days, traditionally dated to the 7th or 8th century B.C., threatens his reprobate brother—and the bribe-taking lords to whom his brother appeals in an inheritance dispute—with the wrath of Zeus. From the classic Hugh G. Evelyn-White translation: Continue reading “Religion and the Rule of Law: Elements of Desperation and Inspiration”