Brigham Young University Law Review
This year’s Association of American Law Schools convention provided a genuinely engaging panel discussion between Michael Sandel and Judge Stephen Reinhardt. Michael Sandel, Harvard philosopher of community and the “encumbered self,” delivered his defense of an ethics of appreciation which goes beyond mere toleration, arguing for honor for persons rather than mere dignity. Reinhardt countered by characterizing Sandel’s stuff as the sort of academic theorizing which has nothing much to do with the world, and raised with almost unconscious elegance the main issue, and a deeply troubling concrete dilemma.
Reinhardt noted that Sandel’s portrait of the person did not work because we are not free and we are not determined, but rather are some mix. In one sense, this concedes much of Sandel’s point about the inadequacy of the Kantian, Rawlsian unencumbered rational self, yet at the same time it reveals Sandel’s fatal incompleteness. And it focuses the issue of religious freedom in a postmodern age; it highlights the concern of what religious liberty means in a world of fluid discourse.
Public speech has been variously characterized as merging horizons, as an ongoing conversation, as the constitution of communities of discourse, as constructing a social world and as being constructed by a social world. What, in this dialogic constitutionalism, does religious freedom mean? Perhaps it is the right not only to exercise one’s religious beliefs, but also to offer something about that right, as a gift, to the public discourse.
Emily Fowler Hartigan, Surprised by Law, 1993 BYU. L. Rev. 147 (1993).