San Diego Law Review


Perry Dane

Library of Congress Authority File


Document Type



That term “existential encounter” is meant to convey several important ideas. First, it suggests that what is at stake here is not merely a set of legal doctrines or policy prescriptions, but something deeper and more constitutive. The sovereign nation-state, in some sense, looks out at the world around it and sees other entities that do not easily fit into its own internal sovereign architecture. Some of these are other nation-states. Some might be other types of essentially secular, but non-state, human associations. And others are, or should be, communities—large and small, organized or not, united or splintered—whose normative commitment is to a transcendent source of meaning and obligation. In all these cases, the sovereign state must step outside a purely internal frame and try to make sense of the existential Other.

Second, though we can try to articulate purposes and justifications for the legal structures arising out of this encounter, they are not at the end of the day reducible to purposes and justifications. On this score, it is useful to compare the existential encounter to the sort of I-Thou relationship described by Martin Buber. That is to say, it is a meeting of selves before it is an analysis of normative structures.

Third, the encounter between church and state, though this piece is not actually required by Buber’s description of the I-Thou relationship, is powerfully two-sided. Just as the state needs to make sense of the religious nomos and decide how to understand the boundaries of competence and deference between the two realms, religious communities need to make sense of the state and decide to what extent its claims can be accommodated within what might otherwise seem the absolute and cosmic claims of divine governorship.

Fourth, while these master metaphors of jurisdiction, sovereignty, and dialogical encounter are by some lights jurisprudentially radical, their practical normative payoff is—at least in the abstract—more complicated and open-ended. Religious traditions can recognize the legitimacy and authority of the state without necessarily subordinating themselves to it in all cases. And, the state can acknowledge the claims of religious communities without necessarily deferring to them.