The Pluralist Predicament: Contemporary Theorizing in the Law of Religious Freedom

Steven Smith
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Steven Smith: University of San Diego

University of San Diego Legal Working Paper Series from University of San Diego School of Law

Abstract: Religious pluralism is at once the cause of and a substantial impediment to theorizing about religious freedom. The purpose of theorizing in law is typically to impose order on an unruly collection of phenomena - of seemingly conflicting decisions, or doctrines, or legal arguments - and to do so by articulating and elaborating the foundational truths that govern the subject in question. In a condition of religious pluralism, however, theorists typically suppose that it is impermissible to appeal to contested religious beliefs. But these are the very beliefs that would provide the natural foundations for thinking about the proper relation between government and religion (and that at least until relatively recently did provide the foundations for such thinking). This essay, written to provide a succinct "state of the art" review of current approaches, describes and assesses the various ways in which modern theorists of religious freedom have addressed this fundamental difficulty.

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