Leiden Law Blog

Religious Freedom, Eastern Ethical Monism And Western ‘Civic Totalism’

Posted on by Hans-Martien ten Napel in Public Law
Religious Freedom, Eastern Ethical Monism And Western ‘Civic Totalism’ William A. Galston

In a recent article, entitled ‘A pluralist reconstruction of Confucian democracy’, Kim Sungmoon attempts ‘to revamp Confucian democracy, which is originally presented as the communitarian corrective and cultural alternative to liberal democracy, into a robust democratic political theory and practice that is plausible in the societal context of pluralism’.

The same source of inspiration that Kim uses to reconstruct Confucian democracy, i.e. William Galston’s notion of liberal pluralism, can be used to critically appraise the current state of Western liberal democracy. More specifically, to what extent does Western liberal democracy still manage to realize the principle of expressive liberty, defined by Galston as ‘a robust though rebuttable presumption in favor of individuals and groups leading their lives as they see fit, within a broad range of legitimate variation, in accordance with their own understanding of what gives life meaning and value’?

As far as the United States is concerned, it has already been argued by Mary Ann Glendon and Raul F. Yanes in a 1991 article, after a comprehensive survey of the U.S. Supreme Court’s modern Religion Clause jurisprudence, that ‘in retrospect (...) the Court was fairly consistent in pursuing an individualistic, secularist, and separationist approach to religion cases’.

Glendon and Yanes have pleaded in this context for an alternative, more holistic approach to religion cases that they baptised ‘structural free exercise’. Their approach attempts to take into account the role religion has played culturally and historically in the American democratic experiment. In doing so, it almost automatically comprises both the individual and the associational and institutional dimensions of religious freedom.

In a lecture delivered exactly 20 years after her article on ‘Structural Free Exercise’, however, Glendon had to concede that the freedom of religion in the West was ‘at heightened risk from (...) the erosion of conscience protection for religious individuals and institutions, restrictions on the autonomy of religious institutions’, among other things. Indeed, according to Glendon, ‘[o]ur legal system’s neglect of the associational and institutional dimensions of religious freedom, though punctuated with some notable exceptions, seems to be accelerating’.

One explanation for this development is without doubt the pursuit of the inherently political ideal of equality. The paradox at work here is that, the more the importance of equality and individual freedom is being emphasized, the more government interference and regulation becomes necessary to realize these ideals. As a result, freedom is diminished, to the extent that all individuals and institutions are now required to subscribe to these ideals, even if this was not the case before the state became involved.

Kim rightly points out that, paradoxically, religious freedom is often ‘in practice grounded in the radical unavailability of freedom of choice for a person who is radically situated in a particular religious and/or cultural community as a member’. Just like by the ethically monistic character of certain theoretizations of Confucian democracy, expressive liberty is threatened by a Western ‘civic totalism’ that – as Galston puts it – ‘tacitly views public institutions as plenipotentiary and civil society as a political construction possessing only those liberties that the polity chooses to grant and modify or revoke at will’.

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