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November 17, 2004

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» Law Schools, Political Causes, and Exclusion: from The Volokh Conspiracy
Should law schools take sides on what they perceive as questions of justice and morality? Will Baude considers the dangers of doing so in a post you can access here.

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Comments

Orin Kerr

You write:

"If the objection to X is that it is condemned by God, that is not an appropriate argument for political action because it is not a reason at all for those outside the religion. That the Bible says, is of no importance unless one thinks the Bible is a Bible. But the political community is not founded on acceptance of the Bible. It is founded on other, essentially secular, grounds. When the religious have nothing to offer but the revelation, they are not engaged in legitimate political conduct."

What is your support for the claim that the political community is founded on essentially secular grounds, such that religious arguments are not legitimate? Is that a descriptive, historical claim? Is it an argument about the Constitution? The Establishment Clause? The Enlightenment? Or is that a normative claim? Your argument seems to hinge on this assumption, but many people disagree with it and (as best I can tell) you have not provided any basis for it.


Reply: I have answered Prof. Kerr in part in a subsequent post. There are some additional things to say whcih I hope to put up tomorrow.

Mark Dondero

I find issue most with this passage:

"If reasoned proof is deductive argument, then it is relatively easy to get to the conclusions once premises are set. If the idea is that the premises are subject to revision or subject to argument, the proper response is: So what? That is always true."

I think this just proves Volokh's point. "That is always true." Thus, when a "secular" thinker condemns pro-lifers, her appeal to certain non-Christian values is bound to be specious from the perspective of, for one, Bob Jones. Though this Christian Mafia (which is the best term for it; the whole enterprise smacks of a WASPy Cosa Nostra) is not to be defended, what IS to be considered is the fact that between the evil they represent and the righteousness of progressives is a mass of impressionable folk who ARE persuaded by the Evangelical "moral" code and are comfortable with a contingency of dissent, as long as it is a minority. The unfortunate situation that I think Volokh is addressing is that it is not just the Christian Mafia who fails to make adequate attempts at compromising or persuading those with disparate core beliefs, but the progessive left, too, often fails to consider the (albeit small) legitimacy of the Christian Right, which is a particular problem in the US where every vote counts, even if it's bleeping stupid. Therefore, when someone senses an indignity at being spurned legislatively for reasons which are fundamentally religious, what they must remember is that power can only be won back when a proposal is comprehensive both of those who are enlightened AND those who are biased. What Volokh is trying to point out is that, ultimately, NO ONE is enlightened and unbiased, and so the mission is THAT much more difficult.

Reply:
The writer has misunderstood the point. My claim is not that normative or moral theories peculiarly end up relying on revisable premises or assumption, but that arguments about the world (or about any empirical question) all end up there. The point can be put another way – reasoned argument is not limited to or identical with or even preferentially deductive argument. That is not how one goes about (successfully) investigating the world. One does not do medicine by deductive arguments, or chemistry or biology, etc. Deductive argument has a place, and it can and has produced really remarkable information. But it is not the way one would seriously attempt to do normative theory or much else in the ordinary world. The upshot is that Volokh has gotten a little confused I think, or more likely, careless in expressing his ideas.
Notice also that the import of Volokh's position (as articulated) is that there is nothing to compromise or persuasion -- because there is no possibility of principle or reason mattering.

Fr. Bill

You claim that one can adduce evidence concerning the notion that pain is bad. What sort of evidence would you adduce as to the MORAL weight to be given to pain? What is the "vast amount" of evidence supporting the idea that pain is "presumptively wrong?" Who finds this evidence? Psychologists? Biologists? Moral Philosophers? Theologians? Which evidence counts as "good evidence" and which as bad? How does one know the difference?

You claim that an exclusively religious argument is somehow improper because it will be "no reason at all" for others. That may make it, as Volokh acknowledges, a not very good argument, but I'm not sure how it makes it an "inappropriate" or even "unreasonable" argument. An appeal to utilitarianism would have no appeal to me, nor would it have to Bernard Williams, but that doesn't make such an argument "inappropriate"--it makes it unpersuasive.

It may well be that "exclusively religious" arguments are likely to fail in the political sphere, but that hardly makes them less proper to that sphere than "secular" arguments that garner little support outside of the communities to whom they appeal. The fact that one can defend, say, utilitarianism without recourse to the divinity does not make it a more reasonable view than other views. My guess is, it would exclude more people from finding it appealing than would any number of "exclusively" religious views.

So you need, as Rawls needed (and never found), some better way to distinguish the reasonable from the unreasonable when it comes to political argument.

I also concur with Prof. Kerr's remarks above. You might want to read Jeremy Waldron on Locke's notion of equality before you go replying. Or Michael Perry's Oxford monograph "The Idea of Human Rights." They might change your mind as to the reasonable and unreasonable in these matters.

Felix of Gainesville

Fr. Bill,

Certainly you can see the difference in categories and criteria used between an exclusively religious argument (i.e. argument advanced based solely upon a belief; hence un-reason) and one for, say, utilitarianism. Whether or not an argument for utilitarianism is appealing could be examined by the very same method used to advance the argument in the first place, that is, a thinking process subject to criticism done by using the same criteria (i.e. deductive reasoning) available to others doing the same thinking process, as supposed to a feeling process (i.e. raw religious belief) subject to nothing but personal impulse.

An exclusively religious argument is based solely on a criterion, that is, one's personal faith. Why this should be unreasonable when it comes to a political argument especially in a pluralist society is, again, because of its unethical imposition on those who do not share the same personal impulse upon which to base their feeling process. It is the more unethical when such argument involves proscribing private individual behaviors.

To put it more directly: a necessary condition for a political argument to be ethical - which in turn would fulfill a condition for reasonableness - is that it should be advanced out of a (thinking) process based on those criteria (agreements on what constitutes a valid argument and what makes one a fallacy, etc) which would then again be used by others seeking to either support or disagree with that argument in turn.

Religious or secular value of a political discussion should always be besides the point in a pluralist society; one should not murder another human being because a little thinking would make it clear for him the consequences that result in a society where murder is allowed, and not because the Commandment says so.

And so, asides from the feeling that those religious zealots have that Judeo-Christian God is against gay marriage, they *think* that gay marriage should be illegal because...? Of all the types and variety that could pass as a political discussion, a homily should definitely not be one of them. Fxs

Fr. Bill

Felix,

I do not see why religious beliefs based upon faith are "unethical" whereas arguments based on a faith in John Rawls are not. I think that most "purely" religious arguments will, as a matter of fact, fail. I conceded this, as did Volokh. My own tradition (Roman Catholicism) has long been committed to the notion that one can engage the best of merely human reason to arrive at all sorts of truths, and that revelation (in which we also believe, not unreasonably, unless you employ a merely question-begging definition of reason) is a grace to humanity justified by (1) human fallibility even pursuing truths knowable by reason and (2) God's decision to reveal truths not attainable as a matter of abstract reason (let us say, the procession of the Spirit from the Father and the Son).

Nevertheless, the idea that one defends utilitarianism, say, on the basis of reasons available to reason as a MORAL doctrine is simply far from obvious. That many secular people claim to believe in morality and are in fact moral does not constitute anything like a proof that there are good secular reasons to be moral. This, I think, is what Prof. Volokh had in mind by saying that moral systems, in the end, don't get their "buy in" from what we normally think of as the normal operation of reason. That some forms of moral reasoning (like Utilitarianism, or Rawlsianism) don't invoke the divinity is not to say that they do not, at bottom, rely on premises that are not themselves "reasoned to."

Indeed, when a number of students of Rawls's recognized that he seemed to employ a large number of undefended assumptions, they asked him--how then can one argue against Hitler? Rawls, to his credit, admitted that he had no arguments. He had a view (incorrect, in my mind, though correct if one artificially eliminates religion from the category of reason) that in the end reasonable people see things the same way, and the arguments are about tidying up shared "intuitions" rather than establishing first principles.

I do not think the Declaration of Independence was "unethical" in its invocation of a Creator as the reason to believe in rights (indeed, as the author of those rights). I do not believe John Locke was "unethical" by making explicitly Christian arguments for equality.

It might well, on the other hand, be a betrayal of the intellectual life (and at least in that sense unethical) that so many academics today adopt the language of rights and the language of equality as if anyone had ever made a convincing secular (reasonable?) defense of them. Who has? Dworkin? That would be far from an uncontroversial claim. Rawls? OK--after he abandons Kant (which he surely tries to do) what is left in Kant's place?

So before we religious believers in human rights and human equality are lectured by more "reasonable" types about how unethical it is to employ religious arguments for what we believe, please at least direct us to the "ethical" arguments for human rights and equality. Also, explain to me why Lincoln's Second Inaugural was unethical, or Benjamin Franklin's (abortive) attempt to persuade the Constitutional Convention to pray before their work?

Then I'll be open to the accusation that what I have defended in a rather limited way is in fact "unethical."

W

tnadelhoffer

Fr. Bill,
Peter Singer has defended the rights of animals not to be forced to endure needless suffering. This argument is both secular and based on what are supposed to be premises everyone should accept--viz., (a) needless suffering is wrong, (b) when we can prevent needless suffering without thereby sacrificing something comparable, we should. This very short argument is supposed to establish something much more controversial than merely human rights--it is aimed at establishing animal rights (both human and non-human). Of course, Singer is even more controversial than Dworkin--which means you will likely dismiss his views. But is "controversial" necessarily the mark of the inadequate or the erroneous? History tells us that in science as in politics, controversial ideas are often the "right" ones. Nevertheless, it seems to me that you have simply assumed that the only adequate accounts of human rights are theological--if so, your question is purely rhetorical. And, as my high school English teacher taught me, people usually use rhetorical questions only when their arguments have run out.

I also question your use of the word "faith" when you compare having faith in God with "having faith" in Rawls. The hallmark of faith is an insensitivity to counter-evidence. To see what I mean, ask yourself the following question: what would you take as evidence that there is no God? As the problem of evil has taught us, the answer to this question for most theists is absolutely nothing. This shows that faith in God is a dogma (used here descriptively and not pejoratively). Presumably, given your use of "faith," you would say that people have "faith" in evolutionary theory as well. But this simply is not correct. People who believe in evolution can specify what kinds of evidence would count against evolutionary theory--which just means that their belief in evolution is defeasible in a way that your belief in God is not. By my lights, someone who believes in Rawls does not have the sort dogmatic faith that you suggest. So, for instance, if social scientists reveal that the "homo economicus" used by economists and political philosophers (such as Rawls) turns out to be a myth--i.e. if humans are much less rational than we previously believed--then perhaps much of Rawls should be discarded. But the fact that we can specify what sorts of things would lead us to discard Rawls' account of justice, our belief in this account is sensitive to counter-evidence in a way that faith would preclude.

Fr. Bill

Tnadelhoffer,

You seem satisfied to ask and answer many questions for me. I will suggest that you shouldn't presume that I'm claiming too much. For instance, my point in noting that certain claims are not uncontroversial is not to discount them, but to say that the bar posed for excluding religious beliefs is falsely high--namely, that others might feel excluded by religious premises.

As to Singer's views, I do not reject them because they are "controversial." I reject them because they are part of a world view, utilitarianism, that is rooted in what I take to be an erroneous vision of human flourishing and a dubious vision of the moral life. Prof. Singer has made himself a fine reputation by touting controversial views, but he himself does not live by them (note the old New Republic cover story "Other People's Mothers"). Nevertheless, I do not seek to exclude Singer's arguments from the public to square--to the contrary, I think they are easily debunked. But if I am limited to choosing premises that "everybody" can share, I might have a tougher time (then, so would Peter Singer; after all, it is merely question begging to presume that the human goods we acquire through causing animal suffering do not outweigh the suffering--that's precisely what the argument is meant to establish, whereas the way you put it that is a premise of the argument.)

You may know Rawlsians who think there would be evidence against his theory. I may know some too. My point is that he is often invoked as an authority, in some circles at my Ivy League law school as a deity, and nobody would say such invocations are off-limits, we would just say they are unlikely to persuade people who don't put so much faith in Rawls. This is my view of arguments based on religion. I think it would be perfectly appropriate for me to quote the Pope at people, but if I gave them no better reason, then only people who for other reasons believed in papal authority would listen to me. I would have done nothing out of bounds, just nothing particularly persuasive.

My view of the secular status of moral obligation is that it is taken on faith more than by reason. My high school english teacher told me never to trust arguments that (a) assume what they are trying to prove or (b) invoke phrases like "everybody agrees." It would be nice if everybody agreed to some moral argument. The fact that they rarely if ever do suggests that our work is much harder than just listing areas of universal agreement. And my experience of asking professional philosophers who regard themselves as secular is that they have not often confronted just what gives rise to moral obligation in a world whose laws are limited to physics, chemistry, and biology. Owen Flanagan's answer, recently posed, seems to be "we all want to be moral, and what defense do we need of it?" Fine, until you meet an immoralist (Hitler, Kim Jong Il, etc.).

I think it is simply silly to characterize the many and varied responses of people of faith to the problem of evil as indifference or neglect. I refer you to any decent library (or any decent Barnes and Noble philosophy section) to find the proof that would negate your assertion. You might start with Alvin Plantinga's slender, elegant volume "God, Freedom, and Evil."

Cheers.

tnadelhoffer

Fr. Bill,
I wanted to start by commenting on the following remark:

"I think it is simply silly to characterize the many and varied responses of people of faith to the problem of evil as indifference or neglect. I refer you to any decent library (or any decent Barnes and Noble philosophy section) to find the proof that would negate your assertion. You might start with Alvin Plantinga's slender, elegant volume "God, Freedom, and Evil."

First, if you actually read my earlier comment, you will find that I never suggested that (any/most/all) theists respond to the problem of evil with indifference or neglect--which makes your claims about mischaracterization ironic at best. What I did say, is that to the extent that theists don't even count the Holocaust, slavery, famine, genocide, ethnic cleansing, child molestation, murder, rape, disease, poverty, etc. as evidence against the existence of God, they do not--and will not--count anything at all as counter-evidence. This sort of counter-evidence blindness or aversion is what I was suggesting is the hallmark of faith. It's not that theists don't discuss the problem of evil--it's that no matter the evil, it can be explained away under the banner of theodicy. So, if someone did believe in evolutionary theory and they suggested that nothing would convince them otherwise, then they would indeed have faith in evolution. And science stops where faith begins (to twist a Kierkegaardean maxim for present purposes). In any event, I neither need to go to the library nor do I need to go to my local Barnes and Noble since I am academic philosopher with an adeqaute home library of philosophical texts--including several works by Plantinga. I find many of his arguments and ideas as unconvincing as the ones that you have put forward in this thread.

Ultimately, I think all that is wanted by those who want to keep God out of politics is that we avoid adopting policies that have ONLY theological underpinnings. On many topics, theists and non-theists agree. For instance, people from a variety of backgrounds can agree that we ought to recognize human rights--even if there are several ways of trying to defend human rights, some of which appeal to God and some of which do not. However, I have never heard any non-theological objections to homosexuality. And given that the only people who will likely agree to the moral, legal, and political appropriateness of anti-sodomy laws, for instance, are theists, these laws are unacceptable. It's not that God has no place in the public sphere--it's that the people who believe in God have to share this space. Hence, when God is the sole justification behind a policy, statute, legal rule, or ammendment, we run afoul of one of the basic tenants of a multi-cultural and pluralistic society. As a non-theist, I should not be forced to live according to laws that are grounded entirely in a book and a God that I do not accept. Of course, if theists can give non-theistic reasons for adopting anti-sodomy laws--used here purely as an example--I will be happy to listen to them. But if these arguments are entirely unpersuasive (indeed, most of the ones I can imagine rely on empirically untenable assumptions about the impact of homosexuality on the moral fabric of society), then theists are unjustified in passing legislation and laws that prohibit a behavior that is only objectionable to those who believe in a particular God. To see what I have in mind, consider arguments for prohibition. A good argument for prohibition--by "good" I mean one that does not run afoul of the separation of church and state--is that alcohol has a pernicious effect on society (a claim with ample empirical support). A bad argument for prohibition, on the other hand, is that drinking alcohol is a sin. Notice that the former argument for prohibition is one that both theists and non-theists can agree upon, whereas the latter is not.

In the final analysis, I think that you have failed to appreciate the objection to apprealing to "exclusively religious" beliefs in making public policy. You correctly point out that many theists will reject utilitarianism--but this is not necessarily the case. Indeed, I have a few colleagues who consistently (at least by my and their lights) wed belief in God with a belief in the general correctness of utilitarianism. This just shows that non-exclusively religious beliefs can be shared by theists and non-theists alike. It is precisely this quality that makes these beliefs more appropriate for public policy issues that purely religious beliefs--which by their very nature, are inaccessible or unacceptable to anyone who happens not to believe in the God du jour.

Felix of Gainesville

Fr. Bill,

You miss my points, probably because I didn't elaborate enough in such a short post.

"Religious beliefs based upon faith" (a tautology) are, of course, in themselves not unethical. They become unethical when used to impose upon others (via political arguments) who do not share the same criterion from which to judge those impositions. If a political argument in favor of a particular Rawls's point were presented based solely on the *feeling* that Rawls is right, then it would become unethical especially when it is binding to those who do not share the same sentiment. However, it would as soon no longer be the case if there were other criteria that have nothing to do with blind faith (i.e. religious sentiment or obssession with Rawls) on which one can explain such argument and to which anyone (and not just Rawls-cultists or religious zealots) is able to utilize in determining the strength or weakness of such argument.

For example: someone who is making a political argument saying that Rawls's theory 'will produce a society where individual liberties are maximized for all citizens' solely on the bases of Rawls saying so and his *belief* in everything Rawls has to say is clearly making an unreasonable (thus unethical in this political context we are discussing) argument; whereas someone who is making the same political argument but on the ground of points that Rawls states in his works is neither unreasonable nor unethical because those points are reviewable using criteria that are accessible to those who want to examine the strength and weakness of those points.

The difference between two arguments in the example above is not as obvious as I would like it to be, but consider: a) Rawls was an actual person who, b) advanced his theories based on some premises which, as you argue, may or may not have been "reasoned to"; but to the extent that they have become theories (and political arguments), they must have gone through a series of examinations by deductive reasoning or even comparison with empirical evidences. I am afraid it would be terribly hard to find someone who argues for Rawls's theories only because Rawls says so and who otherwise is totally ignorant of the points supporting those theories.

Now substitute Rawls with Judeo-Christian God (or any god) and the consideration becomes: a) that the existence of such God cannot be proved or disproved using accessible criteria and hence b) what considered to be His Words by the believers cannot in turn be applicable to the non-believers since no criterion is available to determine their validity; or rather, no criterion from which to judge the merit of an argument created out of this mere belief is available.

Of course, unless you think that there is nothing more to the notion that men should be free from a tyrant, or that slavery should be abolished, or that people should be equal, etc. than just a religious belief, then those historically religious-sounded arguments are certain to be distinguished from *exclusively* religious arguments, the only kind which I have been pointing out since my last post to be unethical ones. Notice also that those historically religious-sounded arguments happened to be committed to social justice, a criterion which any non-religious member of a society should be able to utilize in a political argument.

Now tell me what other criteria are available to justify banning gay marriage (which is clearly an exercise in social injustice) or to justify teaching children that the earth is only some six thousand years old - or sixteen thousand according to my high school religion teacher's calculation: yes, I did go through 9 years of Catholic school and 3 years of "Christian" high school - (which is a blatant disregard for science and its procedures) except for the one grounded on a religious belief? Until someone can provide me with a non-religious criterion to justify such nonsensical practices, then I am sticking to my point that those are immoral political decisions stemming from unethical political arguments.

A point about Ben Franklin's attempt: if it was motivated by nothing more than a religious belief, then certainly the attempt was unethical - in so far as that attempt constituted a political argument, which I think it did. But it would have been an exception iff everyone working in the Constitutional Convention had shared the same religious belief upon which Franklin based his political argument. Then the criteria would have been universal within that society (i.e. everyone working in the Constitutional Convention) and to base a political argument that would affect a society on a criterion that is shared by all members of that society is not unethical.

To sum: to have a religious belief in and of itself is NOT unethical; it becomes unethical when such belief is used as the only means to justify a political argument (i.e. an argument about how a society, a collection of people with diverse beliefs, should be governed or should conduct itself) which then results in a political decision used especially - but not limited to - to proscribe private individual behaviors who are members of that society. Fxs

Henry

I think an important distinction to make here is the difference between the secular and religious meanings of the word "faith." In both cases, they mean believing something that you don't understand. The critical question is whether that thing CAN be understood; that is, whether it is subject to empirical study. For example, I believe that gravity exists, but (despite trying my best in high school physics) don't really understand the concept as a whole. Still, the concept can be (at least partially) understood. The fact that I am not personally an authority on it may mean that my opinion about it counts less in the public sphere, but it is different from a religious belief that I might hold. That is because religious faith denotes belief in something that CANNOT be understood; something that is unobservable, ephemeral, spiritual. There is no way to offer evidence for or against it, and evidence is not demanded.

It is true that any moral judgment requires a leap away from reason; not to sound too existential, but there is no universal "reason" for any moral stand someone might take. But the question here is the standards to which reasons for laws must be held, and I think the question of how we arrive at our moral judgments (which is discussed at length above) is an important one. I do not, however, think that it's a question of whether or not we use deductive reasoning -- you can deduce anything from a given premise, and "God exists" is a premise. The question is when the break with reason occurs: whether the moral judgment itself is the break with reason, or whether the premises are; in this case, whether they are demonstrably (religious) faith based. If they are, it seems to me that they could only be accepted by a theocracy, because adopting them as the sole justifications for a law is tantamount to affirming the correctness of the given religious faith. After all, if all premises are predicated on the existence of God, and the conclusion (the law in question) is based exclusively on those premises, then the existence of God is a prerequisite for the law itself.

According to my premise, that any moral judgment requires a leap away from reason, then it is of course a moral judgment to say that I prefer living in a secular democracy to living in a theocracy. But I think you have to be comfortable arguing against that judgment if you're going to argue that it's moral (or at least democratic) to support a law on solely religious grounds.

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