New Essay on Transnational Tribunals and Religious Freedom

In case anyone is interested, I have posted to SSRN an essay that is part of a written symposium in honor of Father Robert Drinan and his book Can God and Caesar Coexist? The symposium also includes essays by professors Elizabeth Defeis and Mark Janis, as well as a responsive essay by Father Drinan, one of his last published pieces.

My essay focuses on Father Drinan’s proposal to establish a transnational tribunal for the protection of religious freedom and freedom of conscience. The essay tries to bring together a few different strands in order to consider the efficacy of transnational tribunals as tools to support religious freedom/ freedom of conscience. (I use the term “transnational tribunals” to refer to tribunals that allow subnational actors such as individuals or groups of people to have causes of actions against sovereigns states)

One strand that I consider is how Father Drinan’s proposal is part of the “modernist” tradition of international legal jurisprudence that traces its roots to the European Enlightenment and, in particular, how aspects of his argument are similar to those of Hersch Lauterpacht. Another strand is made up of critiques of the modernist worldview, particularly those of rational choice theory and so-called “critical” or new stream perspectives on international law.

I use each of these perspectives as a foil against the others and show how Father Drinan’s proposal may profit from the perspectives of rational choice and the new stream (as well as insights from transnational legal process and legitimacy theory) and vice versa. I also highlight what I see as an underlying tension in Father Drinan’s proposal – the attempt to use rationalist/universalist tools (a global tribunal that assumes a universal right to religious freedom) to defend particular conceptions of the good held by groups that reject the use of universalist techniques (such as transnational tribunals). Referring to recent debates on the effectiveness of tribunals, I assess whether legalization and the use of a tribunal would actually be counter-productive in this instance.

However, while Father Drinan’s proposal has its difficulties, new stream and rational choice theorists can learn from his mainstream/modernist methodology in considering how to address the sectarian struggles of today. Father Drinan’s proposal may not be perfect, but it does present a clear path towards attempting to resolve real problems. I argue that bridging theory with practice remains one of the enduring aspects of Father Drinan’s scholarship and that the ongoing process of trying to find a solution may be all the solution that exists.

If you happen to read the essay and have any comments, I would be very interested in hearing them.