June 06, 2013
Haupt on the Mirage of Constitutional Convergence
Check out Claudia Haupt's first post over at CLR Forum. Claudia is a fellow at Columbia Law School and the author of a fine book dealing with the law and religion regimes of the US and Germany. Her post makes a very interesting comparative point about "neutrality" in the law and rhetoric of the US and Germany. As she puts it, "From a comparative perspective, it might be tempting to assume that the courts say the same thing about the relationship between church and state, because they are both using the term neutrality. But we have to look beneath the surface. The meaning of neutrality evolved contextually, separately in each system. If we take the language of neutrality at face value, without regard to history and context, we fall into the convergence trap: we see one thing that looks just like the other thing, and we assume they’re substantively the same."
Claudia is right that the meaning of a term like neutrality cannot be properly assessed without reference to cultural and historical particulars. The use of the same term inter-culturally creates a mirage of convergence. But an additional difficulty may be that the term lends itself to multiple and (at times) conflicting interpretations within the same legal and cultural system. That can create confusion about a term's meaning as well. At least, this is what I argue in Chapter 2 of The Tragedy of Religious Freedom.
ADDENDUM: I was also reminded of this example from Joseph Raz's The Morality of Freedom (121-22):
Imagine that the Reds are fighting the Blues. We have no commercial or other relations with the Blues, but we supply the Reds with essential food which helps them maintain their war effort. If we want to be neutral, should we continue normal supplies to the Reds or should they be discontinued? If we continue supplying the Reds, we will be helping them more than the Blues. If we discontinue supplies, we will be hindering the Reds more than the Blues. (I am assuming that even if similar supplies to the Blues will help them, continuing not to help them is not hindering them.)....The[se cases] form a special class where, in the circumstances of the case, not helping is hindering....In [them] two standards of neutrality conflict.
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