scholarly journals Judges and Religious-Based Reasoning: A Response to Ginn and Blaikie

2012 ◽  
Vol 21 (1) ◽  
pp. 15 ◽  
Author(s):  
Sarah E Hamill
Keyword(s):  
Public Sphere ◽  
Supreme Court ◽  
Recent Article ◽  
Religious Discourse ◽  
Religious Practices ◽  
Supreme Court Of Canada ◽  
The Public ◽  
Public Square ◽  
The Supreme Court ◽  
The Public Sphere

The Canadian jurisprudence on freedom of religion has tended to focus on the accommodation of religious practices rather than exploring the constitutionality of judicial reliance on religious-based reasoning. A recent article by Diana Ginn and David Blaikie seeks to argue that, in certain circumstances and under certain conditions, it would be acceptable for judges to rely on religious-based reasons in their judgments.  Ginn and Blaikie see their recent article as being a continuation of sorts to their earlier piece, "Religious Discourse in the Public Square." While I found their earlier piece to be a persuasive defence of the use of religious-based reasoning in the public sphere, I have serious doubts over the constitutionality and applicability of their argument with regard to judges. It is the purpose of this paper to refute Ginn and Blaikie’s argument and to show that, in Canada, the use of religious-based reasons by judges is likely precluded by decisions of the Supreme Court of Canada. 

Contingency in the Age of Religion: The Hajj and Religion-Making in Colonial and Postcolonial India

2015 ◽  
Vol 27 (3) ◽  
pp. 247-277
Author(s):  
Caleb Elfenbein
Keyword(s):  
Public Sphere ◽  
Supreme Court ◽  
Direct Access ◽  
Legal Research ◽  
The Public ◽  
Proper Role ◽  
The Supreme Court ◽  
The Public Sphere ◽  
Indian Supreme Court

InUnion of India v. Bhikan(2012), the Indian Supreme Court ruled that government hajj subsidies violated the Indian Constitution’s secular principles. What is notable about this decision is that the Supreme Court based the ruling on its own interpretation of the Qur’an, privileging direct access to scripture over historically established practices surrounding the pilgrimage in discerning what “Islam says” about the state’s proper role in the hajj. Archival and legal research shows thatUnion of India v. Bhikanis merely the latest moment in over a century of colonial and postcolonial debates about pilgrimage management. This article employs the theoretical and methodological insights of Jonathan Z. Smith and Talal Asad to explore this history and its effects, using the matter of hajj administration to identify the concrete implications of different methods of “religion-making,” or the construction of religion as an object for consideration and regulation, in the public sphere.

Religious Arguments in the Public Sphere: A View from Israel

2012 ◽  
Vol 1 (3) ◽  
pp. 242-257
Author(s):  
Gidon Sapir ◽  
Daniel Statman
Keyword(s):  
Public Sphere ◽  
Supreme Court ◽  
Point Of View ◽  
Government Action ◽  
The Public ◽  
The Supreme Court ◽  
The Public Sphere ◽  
The Right ◽  
Religious Considerations

It is commonly believed that, from a liberal point of view, there is something problematic in government action rooted in religious considerations. We begin by showing exactly what kind of religious considerations might thought to be ruled out as a basis for such action. We then discuss at length the approach expressed by the Supreme Court of Israel, according to which legislation and other government actions based on religious considerations are problematic because they violate the right to freedom from religion of non-religious citizens. We reject the court’s interpretation of this right and conclude that the court has failed to explain why government action based on religious considerations is illegitimate.

scholarly journals Desiring the Secular: Capital, Cohesion, and the Fantasy of Secularization

Religions ◽  
2021 ◽  
Vol 12 (6) ◽  
pp. 410
Author(s):  
Ian A. Morrison
Keyword(s):  
Twentieth Century ◽  
Public Sphere ◽  
Religious Practices ◽  
Proper Place ◽  
The Public ◽  
Religious Difference ◽  
Religious Subject ◽  
Global North ◽  
The Public Sphere

Towards the end of the twentieth century, religion re-emerged as a topic of pressing concern in a number of the most self-consciously secularized states of the global north. From disputes over the wearing of headscarves in schools to debates over accommodations for religious practices in the public sphere, religion, particularly the ‘foreign’ religiosity of migrants and other minority religious subjects, appeared on the scene as a phenomenon whose proper place and role in society required both urgent and careful deliberation. This article argues that in order to account for the affective potency produced by the immanence of the figure of the ‘foreign’ religious subject, it is necessary to understand secularization as fantasy. It is within the fantasy of secularization that the secular emerges as an object of desire—as something that, if attained, appears as a solution to the problem of ‘foreign’ religiosity—and figures of inassimilable religiosity assume the role of scapegoats for the failure to resolve these concerns. In this sense, within this fantasy scene, the secular promises to provide ‘us’ with something that we are lacking. However, this promise has been undermined by the apparent persistence of religious difference. As such, as a result of their continued religiosity, ‘they’ appear to be taking something from ‘us’.

scholarly journals Women in the Public Sphere and Religious Discourse Interpretation in the Post-Conflict Aceh

MAZAHIB ◽  
2020 ◽  
Vol 19 (2) ◽  
Author(s):  
Husni Mubarrak ◽  
Faisal Yahya
Keyword(s):  
Public Sphere ◽  
Armed Conflict ◽  
Primary Source ◽  
Religious Discourse ◽  
The Public ◽  
Post Conflict ◽  
Literature Reviews ◽  
Discourse Interpretation ◽  
The Public Sphere

This article aims to discuss women and their access to the public sphere after a long term of the last three decades of armed conflict in Aceh. As many occurred in the other most conflict regions, women are mostly victims of any regime policies, either in political or economic access. This article would like to elaborate more on how women's position perceived within Acehnese society in the post-conflict Aceh since 2005? Furthermore, how are religious doctrines being interpreted regarding women’s issues in the post-conflict Aceh? By combining literature reviews and interviews as the primary source of data collection, this article argues that the long army conflict in Aceh and unfortunate Aceh's current political context are the leading cause of women's position degradation in Aceh and not because of the religious interpretation contestation. Thus, even though the formal sharia implementation has taken place in Aceh since 2002, male political domination and contestation have influenced women's position degradation in contemporary Aceh's public sphere.

The Charter of Rights and Freedoms: Undermining Parliamentary Sovereignty and Federalism

Federalism-E ◽  
2019 ◽  
Vol 20 (1) ◽  
pp. 57-65
Author(s):  
Joshua Nahmias
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Political Environment ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
The Public ◽  
Public Purse ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
Core Concepts

This article explores the Canadian Charter of Rights and Freedoms and its role in altering two core concepts of Canadian democracy: parliamentary sovereignty and federalism. The author argues that the Charter has undermined these concepts through the empowerment of Canada's judiciary, namely the Supreme Court of Canada. The article explores ways in which the powers of parliament have been superseded by the courts, specifically through the establishment of "charter proofing," parliament's loss of power over the "public purse," and the erosion of the provinces' policy autonomy. Ultimately, the article seeks to demonstrate that the Charter has "legalized" Canadian politics to the extent that the judiciary unwieldy an unacceptable amount of power in Canada's political environment. Cases explored in the essay include Morgentaler v. the Queen (1988), Schachter v. Canada (1992), and Attorney-General of Québec v. Association of Québec Protestant School Boards (1984).

scholarly journals An Exemption for Sincere Believers: The Challenge of Alberta v. Hutterian Brethren of Wilson Colony

2011 ◽  
Vol 56 (3) ◽  
pp. 719-750
Author(s):  
Sara Weinrib
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Religious Beliefs ◽  
Critical Role ◽  
Religious Practices ◽  
Supreme Court Of Canada ◽  
General Application ◽  
Canadian Charter ◽  
The Supreme Court ◽  
Strict Reading

In Alberta v. Hutterian Brethren of Wilson Colony, the Supreme Court of Canada reconfigured its approach to section 1 of the Canadian Charter of Human Rights and Freedoms by holding that the final step of the R. v. Oakes test—the requirement of proportionality between a measure’s salutary and deleterious effects—provided the critical framework for its analysis. The author suggests that the Court’s emphasis on the last step of the Oakes test was not the most appropriate response to the specific minimal impairment argument Alberta presented. Alberta argued that the reason it could not safely offer an exemption from its licence photo requirement to Hutterites who objected to photos on religious grounds was because Syndicat Northcrest v. Amselem restricted government inquiries into the sincerity of religious beliefs. Ontario intervened in support of Alberta’s concerns. Although the Court did not address this minimal impairment argument, the author argues that it reflects an unnecessarily strict reading of how Amselem’s guidelines would apply in this context. In support, the author presents an exemption that would have cohered with Amselem and achieved Alberta’s safety objectives. The author then argues more broadly that the provinces’ concerns in Hutterian Brethren demonstrate the critical role the minimal impairment step of the Oakes test plays in generating solutions to clashes between laws of general application and minority religious practices. The Court’s new emphasis on the proportionate effects test, in contrast, may unfortunately discourage both parties from formulating potentially innovative alternatives.

scholarly journals DISKURSUS AGAMA DALAM RUANG PUBLIK MENURUT JÃœRGEN HABERMAS

LOGOS ◽  
2020 ◽  
Vol 16 (2) ◽  
pp. 1-25
Author(s):  
Leo Agung Srie Gunawan ◽  
Nathanio Chris Maranatha Bangun
Keyword(s):  
Public Sphere ◽  
Religious Discourse ◽  
Religious Fundamentalism ◽  
The Public ◽  
Rational Consensus ◽  
Religion And State ◽  
The Public Sphere ◽  
The Relationship

Today, the role of religions still exists in the public sphere. Habermas sees that religious citizens tend to give their aspirations in the public sphere in a destructive way. As a result, A religion is considered the cause of crime. Actually, It has a various positive benefits to be brought into the public sphere. Therefore, they can convey aspirations in a more appropriate way, namely through a religious discourse. The religious discourse is an act of discourse, that is a discussion with arguments to reach a rational consensus of the best arguments, in the realm of religion. It involves the religious, the secular, and the citizens. It also faces several challenges such as religious fundamentalism, religious privatization, and political religiofication, but it is very relevant to Indonesia, which has many religions and belief streams. Particularly, it is important to see how the relationship between religion and state in Indonesia in order to should be realized.

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