Stanley Fish appears skeptical of some of law professor Brian Leiter’s presuppositions in his new book, Why Tolerate Religion?, which argues that:
[T]here is no apparent moral reason why states should carve out special protections that encourage individuals to structure their lives around categorical demands that are insulated from the standards of evidence and reasoning we everywhere else expect to constitute constraints on judgment and action.
Leaving aside the “standards of evidence and reasoning” line that implies religious “proofs” can or should be evaluated in the same manner as one particular conception of how natural science research should work (a presupposition hardly unique to this argument) what’s perhaps most interesting here is that Leiter argues this because he asserts that “distinctions between [all non-state entities] are finally inessential,” that ”religion is no different from any other ‘comprehensive doctrine,’” in Rawls’ terminology. This, of course, is a marked difference from many other critics of religion, including recent and not-so-recent liberal theorists, who’ve argued that it (and, if we’re being honest, Christianity in particular) constitutes a unique and paramount kind of threat or “poison” or collective ailment to be neutralized by the state. But as Fish summarizes: “Religion, philosophy, morality, therapy, what’s the difference? In Leiter’s argument, they present the same problem for the liberal state.” Historically liberal theorists haven’t seen it that way.
Both the “special threat” argument and the “no difference” take do share similar goals: To bump religion down in public prominence. But the latter seems to be a new, or at least newer, development, and one that may grow in appeal as religion’s social sway fades and incomprehension of it grows. While Leiter claims the particulars of doctrines on grace, heaven and hell, or the character of the moral law make no difference, he is surely aware of at least some of these differences. But he’s spinning a philosophy for a future public that isn’t, or that doesn’t care.
We can and should object to various moving parts in this case. But we should also address the conclusion head-on. It’s been a recurring one of late, and not just in speculative essays (see the patchwork of lawsuits over the healthcare law): What is it about religion that makes it more than just another conscience claim; distinct from a pacifist draftee; deeper than an “important” piece of civil society patchwork? That, indeed, it stands in completely separate category anterior to all the others? Then how do we convince a court of that?
January 11th, 2013 | 3:46 am
The “no difference” idea has deep roots in liberal thinking. Consider the Declaration of the Rights of Man of 1789 – “No one shall be disquieted on account of his opinions, including his religious views…” [ne doit être inquiète pour ses opinions, mêmes religieuses]
This seems to challenge the notion that religious opinions are somehow different.
January 11th, 2013 | 10:22 am
Thanks for posting this. I’ve mulled this topic for years, and would very much appreciate hearing other people’s perspectives.
“No servant can serve two masters. Either he will hate the one and love the other, or he will be devoted to the one and despise the other…. You cannot serve both God and mammon.”
This style of argument suggests that no one lacks a religion; some people simply lack sufficient self-awareness to recognize their religion. When the Leo Burnett Company created the Schlitz Beer campaign “You only go around once in life so you’ve got to grab for all the gusto you can!” they were articulating a religious viewpoint — whether they acknowledged it or not.
But this creates at least three conceptual challenges. First, why should we characterize some of these perspectives as “religious” and grant them special status relative to the other perspectives?
Second, why would anyone who has access to the Truth WANT to be categorized along with a collection of other worldviews that are flawed at best – if not outright malevolent? Does it really make sense for a Roman Catholic to embrace being in the same category as Jehovah’s Witnesses, seeking to ensure that the Witnesses enjoy a privileged legal status from which to attach Catholicism?
Third, who’s the gatekeeper? Who should have the legal authority to rule on which religions count as religions, and which don’t? Who should have the legal authority to evaluate the sincerity of another man’s faith?
Given that whatever legal privilege I gain for my religion I must share with all rival religions, I have serious doubts about the practical merits of this arrangement. I’m more comfortable with equality before law. Pretty much all of these legal conundrums go away if we get government out of the business of discriminating on the basis of religion.
January 11th, 2013 | 11:45 am
The bringing up of “non-state entities” raises a counter point. Why should NOT other non state entities besides religion be protected? If there are not protections of the rights of “non state entities” there is nothing between the individual and the state. And I might add(as the state is ultimately just a machine) there is nothing between the individual and whatever faction controls the state at the momment.
January 11th, 2013 | 2:18 pm
Jason Taylor
Lord Acton explains, “It condemns, as a State within the State, every inner group and community, class or corporation, administering its own affairs; and, by proclaiming the abolition of privileges, it emancipates the subjects of every such authority in order to transfer them exclusively to its own. It recognises liberty only in the individual, because it is only in the individual that liberty can be separated from authority…”
That is why the passion for equality and the hatred of noble and clerical privileges is often so tolerant of despotism. If the supreme power is needlessly limited, the secondary powers will run riot and oppress. Its supremacy will bear no check. Napoléon was the consummation of the Revolution, not its reversal.
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