Abstract
Brian Leiter’s Why Tolerate Religion? valuably clarifies the issues involved in granting religion-specific accommodations (and thus exceptions or exemptions) to laws and policies of general application. His arguments are careful, rigorous, and fair, and in rejecting the deontological arguments for religion-specific accommodations he seems to me largely correct. But when he turns to arguing against the utilitarian case for such accommodations, he employs a seemingly non-standard sense of utilitarianism in which demands of principled consistency constrain what would otherwise be utilitarian welfare-maximization. A more traditional and stronger version of utilitarianism, however, has room for seemingly unprincipled or even irrational distinctions as long as employing those distinctions is utility- or welfare-maximizing. And thus although Leiter’s arguments against the deontological justifications for religion-specific accommodations are largely successful, his arguments against utilitarian justifications, by relying more heavily on the notion of “principle” than a utilitarian should accept, are open to challenge.
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Notes
In the United States, for example, sacramental wine was exempt from the total ban on alcohol during the 1920–1933 Prohibition era, and there are continuing issues arising from claims of various religious groups that their use of peyote, marijuana, and other otherwise illegal substances should be permitted just because of their religious function for the groups claiming the exemption. See Employment Division v. Smith (1990); Gonzalez v. O’Centro (2006).
And thus the usage here parallels the notion of a privilege in the law of evidence, where privileges—against self-incrimination, for confidential communications between spouses, to therapists, and to clergy, for example—provide an exemption against an otherwise general requirement to provide relevant evidence.
See Bob Jones University v. United States (1983).
As in Leiter’s example (pp. 1–3, 64–66) of the devout Sikh who is religiously obliged to carry a dagger (kirpan) in the face of an otherwise valid school regulation prohibiting weapons, or as in the case of an observant Jew in the military whose wearing of a skullcap violated the military’s headgear regulations (Goldman v. Weinberger (1986)).
Employment Division v. Smith (1990).
In Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993), the United States Supreme Court concluded that a ban on animal sacrifice was in fact intended to restrict the practices of the Santeria religion, and thus did not directly confront the question whether a ban not so targeted would have required an exemption for Santeria practitioners.
In the United States, conscientious objectors are typically exempt from conscription as a matter of statute, but such statutes have been held not to be constitutionally required, at least where the religious objections are to particular wars and not to war in general. Gillette v. United States (1971).
As is the case in the United Kingdom, Canada, Australia, New Zealand, the United States, and most of the other common law countries that use juries.
Thus, one might say, with Jeremy Bentham, John Austin, H.L.A. Hart, Joseph Raz, and many others in the positivist tradition, that law just is positive law, even as there are disputes about what is to count as positive law, and even as the existence of law as positive law may say little or nothing about what legal officials should in the final analysis do. Or one might say, with Cicero and Blackstone, that positive law is only genuinely law insofar as it comports with certain moral principles. Or one might say, with Thomas Aquinas and John Finnis, that there are different senses of law and different senses of the word “law,” meaning (for them) that the existence of enacted or otherwise officially adopted positive law does not exhaust the category of law in a larger sense. Or one might say, with Lon Fuller at times and Ronald Dworkin at times, that the very category of positive law cannot be cabined as easily as most legal positivists suggest, and that determining the content of the positive law necessarily requires recourse to morality. There are other positions as well, but this four sentence summary of more than 2,000 years of legal philosophy should be sufficient to explain why Leiter is on sound footing in wanting to stay well away from these questions, at least in this book.
On the many different ways in which law might or might not be related to morality, an important and comprehensive analysis is Green (2008).
The best overview of the debates about whether there is a prima facie moral obligation to obey the law is Edmundson (2004).
As Leiter acknowledges, he is not the first to reach such conclusions. He references (p. 144 n.2) Eisgruber and Sager (2007), and I might add, inter alia, Ronald Dworkin’s 2011 Einstein Lectures, published as Dworkin (2013); Konvitz (1968); Maclure and Taylor (2011); Gedicks (1998); and Schwartzman (2012).
Thus, and I quote (p. 90) an entire paragraph, “I should emphasize that Finnis, a distinguished philosopher of law and Aquinas scholar, as well as a devout Catholic his entire adult life, represents the intellectual best that contemporary Thomism has to offer. The dogmatic incantation of ‘norm of rationality’ functions, alas, in Thomistic discourse as a bludgeon meant to cow the opposition and vindicate the epistemic bona fides of irrational and long discredited positions without any actual argument or evidence. The dialectical bankruptcy of Thomism, which is apparent to everyone outside the relevant sectarian group, will not, I am afraid, salvage an argument for appraisal respect of religious conscience.”
Leiter’s confrontation with deontological and other non-utilitarian arguments for toleration also appear in his analysis of the various arguments from respect (pp. 68–91), where his opponents include Martha Nussbaum and various thinkers in the Thomist tradition.
In a way, Mill is a curious choice. Mill’s commitment to utilitarianism, especially but not only in On Liberty, has often been questioned. Thus, Henry Sidgwick (2000, p. 182) opines that “[i]t is undeniable that in [On Liberty] and some other parts of his works Mill seems to forget the essential limits of the empirical utilitarian method he avowedly employs.” See also Cowling (1963); McCloskey (1971, pp. 87–90); Ryan, (1974); Berlin, 1969); Blasi (2011). Consequently, taking Mill’s complex (or suspect) utilitarianism as an exemplar may make it slightly too easy to avoid some of the more purely or straightforward (or, to some, vulgar) utilitarian arguments for various forms of toleration. Indeed, as I shall argue presently, Leiter’s bracketing of arguments from what he calls “‘Hobbesian’ compromise” (p. 9) or “pragmatic” (p. 9) considerations have the consequence of eliding the strongest or purest forms of utilitarianism itself.
Leiter takes insulation from evidence (pp. 34, 39, 47-48) as one of his criteria for what counts as a religion, but the issue may be more complex than his arguments suggest. Some religious people claim to have heard the words of God, just as people claimed several millennia or more ago to have seen Jesus walk on water and rise from the dead, and to have seen Moses part the Red Sea and Joshua tumble the walls of Jericho. These observations and the conclusions to be drawn from them may be mistaken, as I think they are, but those who have them believe that their religious beliefs are based on evidence. Similarly, those who believe in Intelligent Design believe that some number of unexplained physical phenomena provide for them evidence in support of an intelligent designer. It is of course true that for some or even many religious people there simply is no evidence the opposite way that would lead them to relinquish their beliefs (pp. 39-40), and Leiter places great weight on the way in which genuinely religious but supposedly evidence-based belief is immune from revision in light of newer or better evidence. Still, it is possible that one can believe in a Supreme Being, for example, and yet remain open to receiving evidence that the Supreme Being does not exist. A person with such an attitude would still seem religious in the ordinary sense, but might not be insulated from evidence in Leiter’s sense.
Leiter’s other criterion for religion is what he calls “categoricity,” the presence of demands on action “that must be satisfied no matter what an individual’s antecedent desires and no matter what incentives or disincentives the world offers up.” (p. 34). But just as one can believe that the demands of deontological morality are non-categorical while still making decisions and taking action within a deontological framework (Ross (1930); Nozick (1968); Schauer (1993); Thomson (1977)), so too might someone believe that there are commands from God that must be (presumptively) followed, but that all such commands are defeasible in the service of, say, secular emergency.
Marx (1843–1844).
“Masses” is the common translation from the original German of Marx’s “Volk.” Cassell’s German-English Dictionary translates “Volk” as including not only “people,” but also “troops,” “herd,” “the common people,” “the lower classes,” “the crowd,” and “the rabble,” thus suggesting that “the masses” is not far off from what Marx intended.
On the possibility of using religion as a proxy in just this way, compare the sympathetic treatment in Koppelman (2011) and Koppelman (2013) with Schwartzman (2014). Whoever has the better of this debate as a legal or deontological matter, it seems clear that the utilitarian cannot exclude, while remaining faithful to her utilitarianism, the possibility that using religion qua religion as a probabilistic (and thus under- and over-inclusive) indicator of utility (or existential consolation or any other utility-promoting state) may be the optimal utilitarian approach. But I should make clear that my claim is about what a utilitarian can believe, under certain conditions in certain times and in certain places. I make no claim about the empirics in the societies I inhabit or know. My arguments are only about the nature and commitments of utilitarianism.
For a non-sneering, and indeed sympathetic, view of Government House utilitarianism, see Goodin (1995).
I note for the record that I do not think that this would actually be the case.
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Acknowledgments
An earlier version of this paper was presented at the Pacific Division of the American Philosophical Association in San Diego, California, on April 18, 2014. I am grateful to my co-symposiasts on that occasion—Brian Leiter, Cory Brettschneider, and Kenneth Taylor—as well as to Micah Schwartzman for valuable comments on the written draft.
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Schauer, F. On the Utility of Religious Toleration. Criminal Law, Philosophy 10, 479–492 (2016). https://doi.org/10.1007/s11572-014-9317-2
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DOI: https://doi.org/10.1007/s11572-014-9317-2