SERIES “DIRITTO E RELIGIONI”SABRINA MARTUCCI 03 – Riflessioni preliminari su tolleranza, dissenso e attuazione della libertà religiosa
SERIES “DIRITTO E RELIGIONI”GIUSEPPE LEZIROLI 05 – La Chiesa e l’Europa
The study examines Value Pluralism, according to the thesis of Objective Pluralism, as a characteristic of globalism in private law, and highlights its suitability for changing the ontological status of the legal order, that is, primarily through the character of Incommensurability, to become a Complexity Maker. Starting from the theoretical elements found in the formulation of General System Theory, we examine the reasons that lead to the falsification of the dominant paradigm of homo economicus and the related elements summarised around the notions of Rationality and Knowledge and, furthermore, in the law of subjects, the adoption within the tradition of the Rule of Law (“what the law ought to be”) of the ordering parameters of the “True” Individual and the Universalizable Rule according to the Evolutionary Approach to Law. The ontological characteristics of value are retraced from the perspective of Objective Pluralism, focusing on the legal problems that arise from it and the potential regulatory and predictive incompatibilities that can be detected in certain approaches, with regard to the assumption and application of Value in the regulatory case of private law. Complexity, as an ontological characteristic of the legal order produced by Value Pluralism and Incommensurability, therefore outlines the justificatory basis and the exclusive Ratio of the Universalizable Rule, according to the Evolutionary Approach to Law, for the purposes of the Governance of global private law.
Freedom of religion is examined in relation to certain subjective legal situations and certain individual acts of exercise inferred as expressions of the relevant right. It is chosen as an area of corroboration given its position among the so-called fundamental rights of Western legal systems and, at the same time, the methodological horizon derivable from Value Pluralism. In light of the decisive criteria and critical elements already identified, this study examines the theoretical core of certain legal rules of Anglo-Saxon law, especially North American law, since the presence of countless religious affiliations, the legal recognition at the highest hierarchical level of freedom of religion in the contemporary and widespread recognition of Value Pluralism, seem to constitute this legal area as an ideal “laboratory” for private law science in terms of the application and elaboration of legal rules concerning so-called fundamental rights. The corroboration develops on the basis of the compatibility of such rules with regard to questions concerning the quality and limits of individual rights attributable to freedom of religion and their conflicts with other rights and legal positions recognised as “fundamental” in contemporary legal systems.


