Abstract
The “rule-and-exemption” approach to the accommodation of minority religious practices has attracted the attention of many political theorists (Parekh 2000; Barry 2001; Miller 2002; Bou-Habib 2006; Quong 2006; Bedi 2007; Minow 2007; Ferretti and Strnadová 2009; Calder and Ceva 2010; Shorten 2010; Ceva 2011). Exempting religious minorities from generally applicable rules is also a long-established legal practice, especially within common law states. Although most exemptions are “individually exercised negative liberties” (Levy 2000, 128) some are exercised by institutions, including schools, adoption agencies, hospitals, corporations, churches, and pharmacies. Surprisingly, these have been neglected within the extensive literature on rule-and-exemption approach, despite being a common feature of the legislative landscape.
This article aims to do two things: present a typology of institutional exemptions and motivate scepticism about a promising strategy for justifying them. The view I criticize says that groups hold moral rights to institutional exemptions. Against this, I argue that many groups are incapable of holding such rights, not because groups are incapable of holding moral rights in general, but because exercising institutional exemptions involves a complex form of agency that only some groups are capable of, and these groups are unlikely rights-holders.1 I proceed by making four claims. First, I demonstrate that exemption rights are not always individually exercised and that some exemption rights are exercised by groups, including at least some institutional exemptions (section 1). Second, I set out a typology of institutional exemptions, distinguishing between subsidy, structure, and purpose exemptions (section 2). Third, I argue that structure and purpose exemptions are partial self-government rights that enhance institutional autonomy (section 3). Fourth, I argue that exercising structure and purpose exemptions involves a complex form of group agency, which many groups may not be capable of (sections 4 and 5). Throughout I concentrate on exemptions that are exercised by religious institutions and not on institutional exemptions that are associated with national or ethnic groups. This is because the practice of exempting religious institutions is especially widespread, and because it raises difficult normative questions that have been neglected in the literature on multiculturalism.
This article aims to do two things: present a typology of institutional exemptions and motivate scepticism about a promising strategy for justifying them. The view I criticize says that groups hold moral rights to institutional exemptions. Against this, I argue that many groups are incapable of holding such rights, not because groups are incapable of holding moral rights in general, but because exercising institutional exemptions involves a complex form of agency that only some groups are capable of, and these groups are unlikely rights-holders.1 I proceed by making four claims. First, I demonstrate that exemption rights are not always individually exercised and that some exemption rights are exercised by groups, including at least some institutional exemptions (section 1). Second, I set out a typology of institutional exemptions, distinguishing between subsidy, structure, and purpose exemptions (section 2). Third, I argue that structure and purpose exemptions are partial self-government rights that enhance institutional autonomy (section 3). Fourth, I argue that exercising structure and purpose exemptions involves a complex form of group agency, which many groups may not be capable of (sections 4 and 5). Throughout I concentrate on exemptions that are exercised by religious institutions and not on institutional exemptions that are associated with national or ethnic groups. This is because the practice of exempting religious institutions is especially widespread, and because it raises difficult normative questions that have been neglected in the literature on multiculturalism.
Original language | English |
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Pages (from-to) | 242-263 |
Number of pages | 22 |
Journal | Journal of Social Philosophy |
Volume | 46 |
Issue number | 2 |
DOIs | |
Publication status | Published - 1 Jun 2015 |