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Critiquing Atomistic Individualism in Law: Rosenzweig's Beloved Soul As Open and Relational Subject

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Critiquing Atomistic Individualism in Law: Rosenzweig's Beloved Soul As Open and Relational Subject University of Denver Digital Commons @ DU Electronic Theses and Dissertations Graduate Studies 1-1-2019 Critiquing Atomistic Individualism in Law: Rosenzweig's Beloved Soul as Open and Relational Subject Lilith Zoe Cole University of Denver Follow this and additional works at: https://digitalcommons.du.edu/etd Part of the Law Commons, Philosophy Commons, and the Religion Commons Recommended Citation Cole, Lilith Zoe, "Critiquing Atomistic Individualism in Law: Rosenzweig's Beloved Soul as Open and Relational Subject" (2019). Electronic Theses and Dissertations. 1649. https://digitalcommons.du.edu/etd/1649 This Dissertation is brought to you for free and open access by the Graduate Studies at Digital Commons @ DU. It has been accepted for inclusion in Electronic Theses and Dissertations by an authorized administrator of Digital Commons @ DU. For more information, please contact [email protected],[email protected]. Critiquing Atomistic Individualism in Law: Rosenzweig’s Beloved Soul as Open and Relational Subject ______________ A Dissertation Presented to the Faculty of the University of Denver and the Iliff School of Theology Joint PhD Program University of Denver ____________ In Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy ____________ by Lilith Zoe Cole November 2019 Advisor: Dr. Theodore M. Vial ©Copyright by Lilith Zoe Cole 2019 All Rights Reserved Author: Lilith Zoe Cole Title: Critiquing Atomistic Individualism in Law: Rosenzweig’s Beloved Soul as Open and Relational Subject Advisor: Dr. Theodore M. Vial Degree Date: November 2019 Abstract 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 ii 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. iii Acknowledgements My first go to my Dissertation Committee members who always went above and beyond to support and encourage me. My friends, biological family, and parish family were also instrumental in making sure I had whatever I needed to complete my task. And last, but certainly not least, my everlasting thanks go to the Rev. Dr. Jerome Berryman and Dr. Randolf G. Wagner, without whom I could perhaps have done it, but it would not have meant nearly as much. iv Table of Contents Abstract ............................................................................................................................... ii Acknowledgements ............................................................................................................ iv Table of Contents ................................................................................................................ v Introduction ......................................................................................................................... 1 Chapter descriptions ............................................................................................... 12 Chapter One: Religion and Law in the Public Square ...................................................... 15 Chapter Two: Rosenzweig’s New Philosophy & New Theology .................................... 55 Structural Overview ................................................................................................ 61 Going Deeper .......................................................................................................... 66 Beloved Soul-Man’s Transformation ..................................................................... 80 Communal Structures ............................................................................................. 87 Chapter Three: Open and Relational Subject.................................................................... 94 Relationality ............................................................................................................ 96 Openness ................................................................................................................. 99 Rethinking Masterpiece Cakeshop ....................................................................... 106 Chapter Four: Revisiting Law and Religion in the Public Square .................................. 135 Conclusion ............................................................................................................ 154 Bibliography ................................................................................................................... 157 v Introduction The American legal system rests on the implicit assumption that adherence to the rule of law effects justice, secures religious liberty, and thereby fosters human flourishing. Both lawyers and non-lawyers use the legal system to resolve conflicts, redress harm, and even prevent loss. This is accomplished primarily through the individual rights advocacy model, which has in fact done much good in expanding rights and securing religious liberty. Despite the good accomplished through this model, however, both justice and human flourishing remain stubbornly elusive: too many individuals are unable actually to exercise their abstract rights in practice or participate as social or economic equals in their communities. As important as rights are to both liberty and equality, the exclusive focus on rights does not adequately capture the legal or social meaning of individuality. Only in the creative fiction of the Social Contract theory are individuals all free, equal, and independent, with like faculties and no natural subordination.1 In fact, different faculties and a variety of structures of subordination reduce individual freedom, perpetuate forms of dependence, and reinforce inequity. Indeed, the focus on individuality as rights alone in some cases actually counteracts liberalism’s core goals of securing both equality and liberty for all. 1 Locke, Second Treatise, Chapter II and Chapter III generally. 1 This dissertation proposes that the problem is not law, or even the paradox at the heart of liberalism–the fact that assuring equality sometimes conflicts with liberty–but rather the law’s understanding of individuality. Embedded in and undergirding American legal theory and practice is a philosophical anthropology of individualism, based on Locke’s version of the social contract theory, in which independence predominates and tends toward abstraction. However, to be human is not simply to be an autonomous individual, prior to civil society as Locke proposes. Rather, to be human is to be open and relational; that is finite, imperfectible, particular, present, transformed and transforming, as well as constituted by and constituting other relationships. Even minimal flourishing, as the preservation of life, liberty, and property, requires law. Arguably, this is part of why Locke’s free, equal, and independent individual left the apparently idyllic state of nature to form civil society. Yet, grounded in Locke’s individual, law fails at even this most basic task. While law is required, law needs to be based on this broader understanding of individuality. 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.2 In particular, the project explores how Rosenzweig’s “beloved soul”
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