Relational Pluralism: Non-State Group Sovereignty without Libertarian Assumptions

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It was thought that Western secular society had found a way to come to grips with the relationship between the state and religion. But over the last twenty years issues over the integration of Muslims in Western Europe and Quebec are serious enough that some scholars are calling it the death of multiculturalism. (Joppke 2017) In Quebec and the rest of Canada, ten years after the Taylor/Bouchard report, anxiety about religious accommodations continues to be high. (Selby et al., 2018) This malaise is illustrated by Quebec’s attempts at banning burqas in public, patterned on bans in Western Europe. And so fundamental questions about the state’s relationship to religion need to be revisited. The challenge that is now confronting constitutional courts is that religion is a phenomenon that is wide-ranging as traditional practices, as a mode of association, as conscience-based obligations, and as Indigenous claims that land is sacred. How do we make sure that one of these ways of being religious does not get preferential treatment over all other, radically diverse ways? Is religion a special category such that we should accommodate it but not secular practices such as conscience objectors or vegans? And if religion isn’t special, how do we protect religious freedom?

I have already started answering these problems with an article, “Against ‘the Moral System’ as a Standard for Religious Accommodation” currently under review in the Journal of Political Philosophy. In it I criticize how we handle demands from minorities for religious accommodation from general law. I argue that law focuses too narrowly on religious phenomena that can be expressed as obligatory as the threshold for exemption. By exploring legal cases from the European Court of Human Rights (ECHR) involving the hijab, I argue that other practice-based religions, such as Hinduism (Spinner-Halev 2005), lay tradition-based Catholicism (Sullivan 2005), Hutterites (Kislowicz 2014), etc. get unfairly ruled against. I argue that between mere subjectivity and objective duty, there are many actions we consider valuable and that we should protect through law. If we want a theory of religious accommodation that can be inclusive of practices that land is sacred and what I call “practices of self-realization and virtue” (PSRV) we cannot rely on a single principle, such as obligation, “conscience” (Taylor and Maclure 2011) or “integrity,” (Bou-Habib 2006; Maclure 2018) to arbitrate.

Having critically cleared the table, conceptually, of standard accounts of religious accommodation, my task over the course of the post-doctorate will be to articulate my own positive account. In combining “legal pluralism” and “relational autonomy” into what she calls “relational pluralism”, Avigail Eisenberg has pioneered a concept that can be used to explore new relationships of different groups between each other and the state. Normally legal pluralism is grounded on worries of state interference with groups and their relationships, yet relational autonomy in law starts with seemingly the opposite assumption: that we often overlook how law, institutions, and social practices shape all our relationships, even our intimate ones. The relational pluralist combines the two theories by using the government to make sure there are no power asymmetries between intra-state groups and only then allows these groups to negotiate with each other. This is an alternative to centrally forcing all groups to conform to one law. Applying relational pluralism to the problem of religious accommodations, I give three hypotheses about the questions I asked at the start of this project: i) If the government is successful in equalizing power before negotiation begins, I hypothesize this both protects the autonomy of radically different groups yet also means no group is unfairly advantaged. This is because the groups themselves will negotiate what they hold most important and what they will compromise so obligation doesn’t have to be the measure of what gets accommodated, although it can be. ii) Because groups are autonomous, I leave it to them how to prioritize the full range of being religious in negotiation, from how to protect the group as an association to the sacredness of its land. iii) Finally, we do not need to worry about whether religion is special or not because many different groups can be involved in negotiation, secular or not, from unions to churches.

I defend relational pluralism from three rival theories: 1) Cecile Laborde’s (2017) disaggregative strategy breaks up “religion” into different values in order to protect each, but this recreates hierarchies when different values, such as obligation and PSRVs, conflict; 2) I argue that a minimal liberal state (Dworkin 2013) can not work since one cannot defend funding art or environmental protection and a minimal state gives an impoverished picture of the individual; 3) I argue that legal pluralism (Muniz-Fraticelli 2014) grounded on a libertarian foundation gives a reified and hierarchized view of groups.

I will also address worries that relational pluralism does not protect vulnerable minorities within minorities like women and children. Claire Chambers (2008), Jean Cohen (2012), and Seyla Benhabib (2002) argue that a focus on groups means that protection of individuals is contingent on independent groups responding to the worries of their own minorities. But a liberal state owes all its citizens a guarantee of protection. While this critique is apt for libertarian pluralism, relational pluralism is more robust in promoting all groups, including groups within groups. Relational pluralism helps vulnerable and minority groups check and adjust the majority group by balancing power asymmetries between groups. But this also means that protections do come from the groups themselves, challenging and negotiating with each other. Every state has different groups and this means that every state’s protection of minorities will be different as different webs of groups come up with particular and contextual protections for themselves from other groups. This is better than “franchising” single way of allowing groups that have radically different organization and histories to have authority over their members.

I conclude by putting my theory in touch with Indigenous scholars such as John Borrows, Dale Turner and Joanne Barker’s work on sovereignty. It was assumed that the concept of sovereignty had withered away as irrelevant due to the rise of globalism, but native thinkers have brought sovereignty back by transfiguring it into a relational concept. This solves the problems brought up earlier about PSRVs and land considered sacred. But also, by unmooring sovereignty from its colonial European roots, we avoid the contemporary critique that sovereignty as control gets individual and group agency wrong, both normatively and descriptively. (Markell 2003; Krause 2015)