Date of Award
Theodore M. Vial, Ph.D.
Franz Rosenzweig, Masterpiece cakeshop, Religious freedom, Secularization, Talal Asad, Winnifred Fallers Sullivan
Positioned as a critique of rights-based justice, this project critically rethinks the American system of law by rooting its failures in its philosophical anthropology of atomistic individualism grounded in Locke, and recommends replacing that anthropology with an anthropology inspired by Franz Rosenzweig's The Star of Redemption. In particular, the project explores how Rosenzweig's "beloved soul" invites us to understand human individuality as open and relational, which might help pivot the law away from its current myopic focus on rights-based justice and the often unjust zero-sum modality that rights-based justice produces. Rooting law in open and relational individuality rather than Lockean atomism and abstractions changes the goals of law, encouraging it to embrace complexity and devise more complicated rulings that better reflect the complexity of human diversity within a pluralist democracy. I argue that this move from zero-sum to complicated (even messy) rulings, rooted in a shift in the philosophical anthropology that roots our legal system, is the best and only path forward to increased equity for minoritized and marginalized persons and groups.
To illustrate the difference this shift might make, I reconsider the U.S. Supreme Court ruling in Masterpiece Cakeshop. The rights-based approach frames and adjudicates the case as a question of competing rights. The outcomes within such a frame are limited. On the other hand, the open and relational frame of an anthropology drawn from Rosenzweig invites a messier, more complicated, but also more equitable and just set of outcomes without a winner or lose, e.g. disputants might be required to participate in a reconciliation conference that allows all parties to express and discuss with each other their different views of the conflict. In order to emphasize the importance of this kind of shift in our legal system, I draw on Talal Asad"s genealogical critique of the secular and Winnifred Fallers Sullivan"s critique of the First Amendment' religious freedom guarantees. In exposing both the public square and law as only apparently secular, their work helps me underscore the problem posed when majority religious values and prejudices are exempted from application of anti-discrimination laws generally and public accommodations laws specifically.
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Cole, Lilith Zoe, "Critiquing Atomistic Individualism in Law: Rosenzweig's Beloved Soul as Open and Relational Subject" (2019). Electronic Theses and Dissertations. 1649.
Received from ProQuest
Lilith Zoe Cole