The Facebook page for this event states:

The New Zealand Bill of Rights Act states:

13 – Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.

14 – Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

15 – Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

• How should we read these sections alongside idea that New Zealand is a secular society?
• How should we read them alongside the viewpoint advanced most notably by philosophers such as John Rawls that religion should be privatised?
• Does Separation of Church and State require Separation of Religion from public life?
• Can we still have Freedom of Religion in New Zealand and hold to these views?
• What approach is just and fair in a pluralistic society like ours?

Analytic Theologian and Ethicist, Dr Matthew Flannagan and Legal Scholar, Madeleine Flannagan (a post-graduate student in Law at Auckland) will give a joint lecture followed by a Q&A session on the topic Freedom of Religion in a Secular Society from 7.00-8.30pm on Monday 12 September 2011 in Clock Tower 032.

http://www.youtube.com/watch?v=sfnCKFs9DWk

Each speaker has published the speeches they wrote for this event:

• Matthew Flannagan’s speech – Theology
• Glenn Peoples’ speech – Philosophy
• Madeleine Flannagan’s speech – Law

Hat tip (and credit for filming and editing this video): Stuart at Thinking Matters.

“One good way to end a conversation – or start an argument – is to tell a group of well educated professionals that you hold a political position (preferably a controversial one such as being against abortion or pornography) because it is required by your understanding of God’s will. In the unlikely event that anyone hangs around to talk with you about it, chances are that you will be challenged on the ground that you are intent on imposing your religious beliefs on other people. And in contemporary political and legal culture, nothing is worse.”[1]

Carter is referring to the separationist understanding of religion and public life, the idea that in a contemporary pluralistic society significant restraint must be put on the political role of religious reasons. This restraint is negative; when a functionary deliberates over a proposed policy it is not justified for that functionary to decide to support or oppose that policy on grounds derived from religion. A corollary of this is that citizens should not try to influence public policy by appealing to religious reasons. Separationists argue that the public policy of a pluralistic society must be able to be justified by a plausible secular justification in order for it to be just to all. Religious beliefs, while utilised and followed in private, should be kept separate from public policy debates, the administration of public institutions and the deliberation of public functionaries.

Dominant advocates of this view include philosophers John Rawls, Robert Audi, Gerald Gaus and Jürgen Habermas. In “Religion as a Conversation-Stopper” Richard Rorty described separationism as:

“the happy, Jeffersonian compromise that the Enlightenment reached with the religious. This compromise consists in privatizing religion — keeping it out of … “the public square,” making it seem bad taste to bring religion into discussions of public policy.”[2]

Advocates for religious restraint typically claim that it need not be codified. It is simply a moral requirement which applies to all citizens regardless of their role within society — some form of censure rather than legal stricture is what is suggested. This is what Rorty means when he refers to it being “bad taste” to bring religion into the public square. Notwithstanding the separationists stated intention, in my thesis I will argue that this call for religious restraint is not simply theoretical philosophy, which is present in society only by way of self-imposed moral restraint or the sort of peer-pressure Carter’s quote alluded to. I will argue that the norm of religious restraint is increasingly present in our public policy and jurisprudence.

Rorty alluded to Jefferson’s famous “Wall of Separation Letter” where Jefferson set out his understanding as to how the First Amendment’s Establishment Clause should be interpreted. Tellingly, this suggests a link between the separationist philosophy and the way the religious freedom components of Bills of Rights are interpreted. These components address the very same questions I opened with; how should religion fit into a just pluralistic society? The purported answers are commonly given in slogans, “freedom of religion”, “free exercise”, “freedom to manifest one’s religion” and statements declaring the separation of church and state, opposing Establishment and so on. I say ‘slogans’ because such clauses are typically light on detail; fleshing out what they mean and how they are to apply at a practical levels, to specific cases falls to the commentators, the lawyers who propose particular interpretations in their submissions and ultimately the judiciary. The resulting body of jurisprudence reflects the perspectives of the dominant views in society.

Consider the US Supreme Court’s three leading Establishment Clause precedents: Lemon, Endorsement and Coercion. The first of the three parts of the Lemon Test requires public policy to have a valid secular purpose, a non-religious rationale must be offered for all state actions. The Endorsement Test prohibits the state from “endorsing” religion over irreligion. The Coercion Test provides that the state must not coerce religious practice; not only must it not be required, but in Lee v Weisman the application was shifted to what Justice Scalia, in his dissent, termed a “test of psychological coercion”. The US Supreme Court essentially took the view that being one of few (or the only one) to opt out of a religious practice in a public setting was considered a form of state coercion by peer pressure. I will argue that in each of the dominant Establishment tests, a requirement for the state to place a restraint on religion or for religion to be kept from public life can be seen. This stricture affects public policy and is essentially separationism in codified form.

Despite its current orthodoxy, separationism has its critics, particularly in philosophy and law. These critics collectively hold that although separationism claims to operate impartially, it, in fact, gives public hegemony to secular perspectives. Critics argue that the call for religious restraint is unjust for religious citizens as it requires conformity to secularism and thus privileges secularism over religion. Philip Quinn observes;

These principles impose burdens on religious people that [the separationist] nowhere suggests imposing on nonreligious people. … [The separationist] does not propose that nonreligious people must be sufficiently motivated by adequate religious reason for their advocacy or support of restrictive laws or policies. The lack of symmetry is striking.[3]

Christopher Eberle, Terence Cuneo agree there is a clear asymmetry in the way religious beliefs are treated by the state compared with secular beliefs. They question why religious believers, who participate in public, are required to bracket beliefs they hold as both true, important and relevant to the issue; Stephen Carter labels this “[t]he separation of church and self.”[4] Nicholas Wolterstorff argues that separationism violates the equal freedom component of a pluralistic democratic society, “Using their religious convictions in making their decisions and conducting their debates on political issues is part of what constitutes conducting their lives as they see fit.”[5][Emphasis added] Philip Devine point out that “Freedom of religion is not only the freedom to advocate religious (or irreligious) ideas; it is the freedom to form, sustain, participate in, and transmit, forms of community life”.[6] Yet separationists maintain that some form of religious restraint is not only in accord with the notion of liberal democracy but essential to it. As Rorty put it, “we shall not be able to keep a democratic political community going unless the religious believers remain willing to trade privatization for a guarantee of religious liberty.”[7]

The dominant tests seek to apply a reading of Jefferson’s “Wall of Separation Letter”; but in an article in First Things entitled “Establishing Free Exercise,” Vincent Phillip Muñoz argues that James Madison, the author of the First Amendment and a noted authority on the subject, did not intend this;

“When editing the religious freedom amendment to Virginia’s state Bill of Rights, Madison proposed the following:

‘That religion or the duty we owe to our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not violence or compulsion, all men are equally entitled to the full and free exercise of it accord[in]g to the dictates of conscience; and therefore that no man or class of men ought, on account of religion to be invested with peculiar emoluments or privileges, nor subjected to any penalties or disabilities.’

Madison interpreted “free exercise” to mean no privileges and no penalties on account of religion.”[8][Emphasis added]

Munoz argues that Madison’s “no privileges, no penalties” test could unify “the no-establishment and free exercise provisions into a coherent whole that recognizes the legitimate concerns of both sides of the debate while, at the same time, respecting our nation’s founding heritage.”[9]

“no privileges, no penalties” would not require forays into students’ psychological feelings. Judges would not need to inquire if school children feel like “insiders” or “outsiders,” or if a child might perceive the state to be “endorsing” religion, which are necessarily subjective judgments. Courts would only need to ask if, on account of religion, religious citizens as such were granted a material benefit or if nonreligious citizens were subject to a penalty like a fine or imprisonment. For Newdow, the relevant question is: Was Michael Newdow’s daughter subject to some form of disciplinary action because she would not say the Pledge? Since she was not, the Pledge stands.”[10]

The “no privileges, no penalties” test upholds freedom of religion and separation of church and state by essentially permitting religion to have a place in public life as long as those who engage in public religious conduct do not gain a privilege for doing so and those who do not wish to participate are both free to opt out and are not penalised for doing so. Interestingly, the New Zealand jurisdiction’s approach, within the limited cases to date – where as long as one can ‘opt out’ of a religious practice there is no coercion, has some affinity or parallel with a “no privileges, no penalties” approach. Munoz’s appropriation of Madison has the potential to be a just way forward in both the debate within philosophy and in law. It does not have the privatising effect on religion that the dominant tests do, neither does it have the asymmetry.

I have this week been accepted into the University of Auckland’s LLM program. In 2011 I will start my studies towards a Masters of Law by thesis-only. This blog post is part of the proposal I have submitted to write it on – it may change as my supervisors and I work things out but this is the gist of what is in my head. I’d love to hear your thoughts – it will help get me thinking on where I am going with this!

RELATED POSTS:
Contra Mundum: Secularism and Public Life
Religious Restraint and Public Policy: Part I
Religious Restraint and Public Policy: Part II
Religious Restraint and Public Policy: Part III
Religious Restraint and Public Policy: Part IV
Religious Restraint and Public Policy: Part V
Religious Restraint and Public Policy: Part VI

[1] Stephen Carter The Culture of Disbelief: How American Law and Politics Trivialise Religious Devotion (1993) 23-24.
[2] Richard Rorty “Religion as a Conversation-Stopper” (1994) 3:1 Common Knowledge 1, 2.
[3] Philip Quinn “Religion in the Public Square: The Place of Religious Convictions in Political Debate” (2000) 60:2 Philosophy and Phenomenological Research 487 (book review).
[4] Carter, above n 1, 1.
[5] Nicholas Wolterstorff “The Role of Religion in Decision and Discussion of Political Issues” in Nicholas Wolterstorff & Robert Audi (eds) Religion in the Public Square: The Place of Religious Convictions in Political Debate (1997) 77.
[6] Philip Devine We: A Study in Social and Political Philosophy, Ch 10 accessed 10 December 2010.
[7] Rorty, above n 2, 3.
[8] Vincent Phillip Muñoz “Establishing Free Exercise” First Things (January 2004) 139-142, 141.
[9] Ibid 139.
[10] Ibid 142.

(b)        Thinness

A closely related problem is that if it is applied consistently the argument from respect excludes too much. If justification is limited to principles that no reasonable person can reasonably be expected to reject then little will be able to be justified. Glenn Peoples notes the problem;[31]

Given this view of justification, you can only endorse a policy if it is such that it can be endorsed in light of the actual beliefs and goals held by the KKK, the Catholic Church and the humanist rationalist society.

Wolterstorff observes that “in our actual societies, anyone who embraced this position would simply refrain from advocating any position whatsoever on any issue of importance to society.”[32] Quinn agrees, “as Wolterstorff notes, he knows of no law or policy that has come up for discussion in the United Sates in recent years that has had the support of a consensus of all the rational adult citizens.”[33]

Gerald Gaus, who is otherwise sympathetic to the DRR, also agrees; he notes that, given Rawls’s requirement for consensus, public reason “loses its character as a liberal doctrine, for little, if anything, is the object of consensus among reasonable people.”[34] Kent Greenawalt argues that public reason is incapable of grounding policy on most contentious political issues.[35] Peter de Marneffe concurs.[36]

Wolterstorff contends that public reason must be supplemented by ideas drawn from comprehensive doctrines or it will not be able to function as an adequate base for justifying many substantive policies. To make his point, Wolterstorff cites the welfare debate. Advocates for the varying perspectives appeal to ‘freedom’ and ‘equality’ but mean different things by these terms; they prioritise the relevant rights differently, they disagree as to how such rights should be weighed against social utility. It is unlikely that public reason, common sense and uncontroversial science can justify welfare legislation to a standard that all can reasonably accept. [37]

Wolterstorff makes similar points over the fundamental premise in the abortion debate; equal protection has radically different meanings depending on how one interprets public reason’s answer to the question, ‘is the fetus a person or not?’[38] Eberle,[39] Quinn[40] and Jean Hampton[41] agree that public reason cannot settle the question as to whether a fetus is a person yet Rawls argues that public reason can settle the abortion debate (case in point: reasonable people disagree over the answers public reason can give). [42]

Rawls’ version of the argument from respect is not the only one that faces these problems; similar issues arise with other conceptions of the DRR. Any attempt to ground the DRR in the notion that coercive legislation cannot be justified unless the reasons advanced can be grounded in the reasonably-held principles and beliefs shared by all people will face the same problem. This is evident when one examines other versions of the DRR which do not employ Rawls’ idea of public reason.

Rawls employs public reason to place a restraint on all comprehensive viewpoints, whether religious or secular. Robert Audi’s position is less restrictive. Audi applies the restraint primarily to religious reasons. He proposes a principle of “secular rationale”, a principle of “secular motivation” and something he calls “theo-ethical equilibrium.”[43]

His secular rationale principle claims that “one should not advocate or support any law or public policy that restricts human conduct unless one has, and is willing to offer, adequate secular reason for this advocacy or support.”[44] His principle of secular motivation goes further; “one should not advocate or promote any legal or public policy restrictions on human conduct unless one not only has and is willing to offer, but is also motivated by, adequate secular reason, where this reason (or set of reasons) is motivationally sufficient for the conduct in question.”[45] Theo-ethical equilibrium is “a rational integration between religious deliverances and insights and, on the other hand, secular ethical considerations … a mature, conscientious theist who cannot reach it [theo-ethical equilibrium] should be reluctant or unwilling to support coercive laws or public policies on a religious basis that cannot be placed in that equilibrium.”[46]

Audi argues that “an adequate reason for a law or policy is a proposition whose truth is sufficient to justify it.”[47] He places the restraint on religious reasons;[48]

A secular reason is, roughly, one whose normative force, that is, its status as a prima facie justificatory element, does not (evidentially) depend on the existence of God (for example, through appeals to divine command) or on theological considerations (such as interpretations of a sacred text), or on the pronouncements of a person or institution qua religious authority.

Given that comprehensive secular perspectives are not excluded by this version of the DRR, it appears that Audi’s conception can escape the problem of thinness that Rawls’ public reason faces. Comprehensive secular viewpoints should provide people with a thicker perspective, broad enough to justify many substantive policies.

However, an examination of the reasons Audi advances in favour of his version of the DRR will reveal this contention to be mistaken. By broadening public reason to adequate secular reason Audi’s position is thicker than Rawls’ but its asymmetrical treatment of religious and secular views puts it back in the path of the charges of incoherence and thinness. I will elaborate.

Like Rawls, Audi offers a version of the argument from respect. He states “as advocates for laws and public policies, then, and especially for those that are coercive, virtuous citizens will seek grounds of a kind that any rational adult citizen can endorse as sufficient for the purpose”[49] [Emphasis added] In another article, he argues that[50]

adherence to the principle of secular rationale helps to ensure that, in determining the scope of freedom in a society, the decisive principles and considerations can be shared by people of differing religious views, or even no religious convictions at all.

Audi assumes that secular views are accepted by all whereas not everyone accepts the truth of religious premises. This is a big assumption. In fact some secular views are not accepted by all; religious people can and do reasonably reject secular views. This renders Audi’s position incoherent as adherence to Audi’s position, by Audi’s position, requires us to reject it. Quinn explains, [51]

If the fact that religious reasons cannot be shared by all in a religiously pluralistic society suffices to warrant any exclusion of religious reasons for advocating or supporting restrictive laws or policies, then much else ought in fairness also to be excluded on the same grounds. For example, justification of a restrictive law or policy by an appeal to its maximization of utility should be excluded because many citizens reasonably reject utilitarianism. Indeed, it would seem that the appeal to any comprehensive ethical theory, including all known secular ethical theories, should be disallowed on the grounds that every such theory can be reasonably rejected by some citizens of a pluralistic democracy. And if justification of restrictive laws or policies can be conducted only in terms of moral considerations no citizen of a pluralistic democracy can reasonably reject, then in a pluralistic democracy such as ours very few restrictive laws or policies can be morally justified, a conclusion that would, I suspect, be welcomed only by anarchists.

In addition, Audi’s position imposes a burden on religion that is not imposed on secularism despite secularism possessing the same features used to exclude religion. In the absence of some other factor, specific to religion and not applicable to secularism, the asymmetry is arbitrary. To escape this problem Audi would have to reject not only religious reasons but all reasons that are not “shared by people of differing religious views, or even no religious convictions at all.” However, if he takes this line, his position is rendered too thin and fares no better than Rawls.’

(c)        Audi’s defence

In a defence of his position against this line of critique, Robert Audi questions if the DRR is as thin as critics maintain, [52]

I would think that if we stick to principles of justice, which form only a small part of a comprehensive view, and if we do not take agreement to imply unanimity as opposed to consensus, there is a better chance of agreement than on the whole of such a larger view. Perhaps the chance is still not good, … But is there not a strong consensus, at least among citizens of democratic societies, that justice requires not only equal protection of the laws but also laws that protect liberty, including political and religious liberty and freedom of speech, up to a certain level? There are of course disagreements on matters of detail…

While it is true that most people hold to some conception of justice and equality, and affirm the right to exercise certain liberties, the details of their understanding of these norms are not as minor as Audi suggests. As I alluded to earlier, people can mean quite different things by these terms and can prioritise and weigh their importance quite differently. Closer examination of these “matters of detail” reveals substantive lack of consensus.

Equal protection requires agreement over the question as to whom it applies. In Nazi Germany everyone was owed equal protection by the state; however, certain classes of people were deemed sub-human. Likewise with justifications offered for the new-world slavery as practised in the British Empire and antebellum United States, slaves did not qualify; similarly, with the abortion debate over the status of the fetus. Then there is the extent and nature of the protection to consider. Should the state regulate how many times a week one engages in exercise and eats fruit and vegetables on the grounds of protecting the health of its people or should it simply protect people from aggressors? Is Audi suggesting that simply agreeing that such protection should apply equally to all is sufficient to make his case and what form that should take is mere detail? Unless supplemented by definitions as to its recipients, nature and scope the term “equal protection before the law” is a vague statement lacking substantive content.

The liberties Audi lists are also fraught with difficulty in interpretation as reasonable people do not agree on them.  Are they negative or does the state have a duty to provide or subsidise them? The substantive content and meaning of the terms ‘freedom’ and ‘liberty’ is disputed depending on whether one is talking to a libertarian or a socialist. Then there are the problems specific to each liberty.

Consider freedom of religion. Steven Smith has argued that, strictly speaking, it is inaccurate to claim there is such a thing as a right to freedom religion. Instead there exists a spectrum of views about religious tolerance. Diverse writers, such as Aquinas, Cromwell, Locke and Mill each agreed that some religious dissent should be tolerated by the state but disagreed both on the limits and on which religions should be tolerated in society. Smith concluded that as no state tolerates all religious sects and very few tolerate none, the idea of a concept of freedom of religion supported by some and opposed by others is illusory. Which account of religious tolerance is correct depends on comprehensive views; adjudication between different understandings of religious tolerance is not possible without appealing to some comprehensive view. Settling these matters from something like public reason or adequate secular reason seems extremely difficult.[53]

Does freedom of speech entail prior restraint or does it stop at the initiation of force? What about content and the manner of expression? How should we define speech? Does it include a right to engage in hate, racist, blasphemous, defamatory or sexist speech? Is it acceptable to wear Nazi emblems or deny the holocaust?

Reasonable people disagree over more than just the details; they disagree over the terms, the nature, the extent and hold to a different range of finite cases. People use and understand the relevant terms in very different ways. Audi misconstrues the situation when he argues there is unanimity in society on fundamental principles of justice. The thinness objection stands.[54]

In my next post, Religious Restraint and Public Policy: Part IV, I will look at Gerald Gaus’ attempt to salvage the argument from epistemic inaccessibility and will offer some critical analysis of this.

[31] Glenn Peoples Religion in the Public Square: Liberal Political Philosophy and the Place of Religious Convictions
[32] Nicholas Wolterstorff “The Role of Religion in Decision and Discussion of Political Issues” in Nicholas Wolterstorff & Robert Audi (eds) Religion in the Public Square: The Place of Religious Convictions in Political Debate (Rowman and Littlefield Publishers Inc, Lanham Md, 1997) 67-120, 154.
[33] Philip Quinn “Religion in the Public Square: The Place of Religious Convictions in Political Debate” (2000) 60:2 Philosophy and Phenomenological Research 486, 487 (book review), 488.
[34] Gerald Gaus Justificatory Liberalism: An Essay on Epistemology and Political Theory (Oxford University Press, New York, 1996) 293.
[35] Kent Greenawalt Private Consciences and Public Reasons (Oxford University Press, New York, 1995) 141-150.
[36] Peter de Marneffe “Rawls’s Idea of Public Reason” (1994) 75 Pacific Philosophical Quarterly232.
[37] Wolterstorff, above n 32, 103-104.
[38] Ibid 104.
[39] Christopher Eberle Religious Convictions in Liberal Politics (Cambridge University Press, Cambridge, 2002) 217-222.
[40] Phillip Quinn “Political Liberalisms and Their Exclusions of the Religious” (1995) 69:2 Proceedings and Addresses of the American Philosophical Association 35, 37-46.
[41] Jean Hampton “The Common Faith of Liberalism” (1994) 75 Pacific Philosophical Quarterly 208.
[42] John Rawls Political Liberalism (Columbia University Press, New York, 1993) 243-244.
[43] Robert Audi “Liberal Democracy and the Place of Religion in Politics” in Nicholas Wolterstorff & Robert Audi (eds) Religion in the Public Square: The Place of Religious Convictions in Political Debate (Rowman and Littlefield Publishers Inc, Lanham Md, 1997) 1-66, 25-37.
[44] Robert Audi “The Separation of Church and State and the Obligations of Citizenship” (1989) 18 Philosophy and Public Affairs 259, 279.
[45] Ibid 284.
[46] Audi, above n 43, 21.
[47] Audi, above n 44, 284.
[48] Ibid 278.
[49] Audi, above n 43, 17.
[50] Audi, above n 44, 290.
[51] Quinn, above n 40, 39-40.
[52] Audi, above n 43, 131-132.
[53] Steven Smith Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (Oxford University Press, New York, 1995). (PhD Thesis, University of Otago, 2007) 118.
[54] Paul Rishworth suggests these examples do not show there is no secular consensus but rather that there is a secular consensus at a high level of abstraction. Supervisor’s feedback from Paul Rishworth to Madeleine Flannagan dated 30 October 2009. This may be the case, however, the thinness objection does not maintain that there is no secular consensus; it maintains that there is no secular consensus thick enough to provide an answer to many substantive public policy questions. For Rishworth’s objection to stand, this higher level of abstraction would have to furnish principles thick enough to answer such questions and the examples above show that it cannot.

RELATED POSTS:
Religious Restraint and Public Policy: Part I
Religious Restraint and Public Policy: Part II
Religious Restraint and Public Policy: Part IV
Religious Restraint and Public Policy: Part V
Religious Restraint and Public Policy: Part VI

II         Arguments for the Doctrine of Religious Restraint

Of the reasons advanced in favour of the DRR most fall into one of two categories, an appeal to respect or arguments around the dangers of religion.

A         Arguments from Respect
Two variants of the argument from respect are common in the literature; one appeals to the golden rule, that we should do to others what we would have them do to us, the other is that religious reasons are epistemically inaccessible.

1          The golden rule
Audi advances a version of the golden rule;[12]

Let us apply the do-unto-others rule to that case: one would not like having a different religious group, with which one deeply disagrees, press for its religiously preferred policies solely for religious reasons of its own, even if a good secular reason could be offered. … We are especially likely to disapprove of the dominance of religious motivation if the policy or law in question is backed by severe punishments.

Audi expands a hypothetical example offered by Kent Greenawalt[13] where people advocated voting for candidates on religious grounds because they would protect animals. [14]

Suppose, however, that much money must be spent in enforcement and that many jobs will be lost through the changes in the food sector of the economy, so that human conduct is significantly restricted, even if meat consumption remains legal. Then one might ask the religious voters in question whether they would accept comparable restrictions of their conduct, as well as similar job losses or mandatory shifts, on the basis of coercive legislation protecting the dandelion as a sacred species.

Audi’s example imagines a “religious group, with which one deeply disagrees,” and gives the example of a belief in “the dandelion as a sacred species.” However, it is not just that one is being subjected to coercion on religious grounds, it is that the grounds are ones that we consider to be false. Lydia McGrew explains,[15]

A major reason, perhaps the only reason, why many of us would not want other people to impose their religious standards on us is that we think their religions false, not that there is something special about religion. …. So the Golden Rule argument turns out to have very little to tell us about religion, specifically. [Emphasis added]

Imagine the situation where a false secular belief is being imposed; an environmentalist political party seeks to impose a policy that the aesthetic value of dandelions requires all adults within society to make the same substantial sacrifices Audi refers to. The policy could be reasonably objected to in spite of its grounds being secular. The same is true in reverse. Consider a policy most people strongly agree with being proposed on religious grounds; a Christian party advocates the abolition of female circumcision on the basis that the practice conflicts with its religious belief of the body being sacred. The policy could attract widespread support despite its grounds being religious.

These examples suggest that the merits of the policy itself are what is important and not that the grounds used for its justification are religious or secular.[16] Audi disagrees;[17]

Citizens in [a democracy] are naturally and permissibly resentful about coercion by religious factors…in a way in which they are not permissibly resentful concerning coercion by, for instance, considerations of public health. Even the moral errors of others are, for many, easier to abide as supports of coercion than religious convictions having the same result.

McGrew responds by contrasting two cases; first she argues that, “A slave owner would not be permissibly resentful of the emancipation of his slaves on the grounds that their emancipation had come about as a result of religious arguments.”[18] Conversely she argues, a parent would “be permissibly resentful of the forcible administration to his perfectly healthy child of mind-altering drugs even if such a policy was argued for from secular premises.”[19] So it appears that[20]

How permissible (if one means, as Audi must mean, something like “understandable” or “reasonable”) one’s resentment of some law is depends on how reasonable the law is. It does not depend upon the origin of the considerations that brought about the law but rather upon whether the law is good or bad, merely annoying or outrageous, and so forth.

That we should do to others what we would have them do to us does not just apply to the religious. While it is true that most people would strongly object to having to abide by religiously-grounded policies they reject as false, it is also true that they would strongly object to having to abide by secularly-grounded policies they reject as false. Consider a Muslim woman who believes it is her religious duty to wear a burqa. The passage of a law requiring her to remove her burqa for her driver’s license photo would likely be offensive to her. A parallel golden rule argument would require us to oppose coercive laws drawn from secular grounds.

2          Epistemic inaccessibility
Simplified, the most prominent type of argument offered in support of the DRR is that in a pluralistic society, coercive legislation cannot be justified unless the reasons advanced can be grounded in the reasonably-held principles and beliefs shared by all people. People disagree over which religious views, if any, are correct; therefore, any coercive laws justified on religious grounds cannot be legitimate because not all reasonable people accept religious premises. As such, religious reasons are epistemically inaccessible. Eberle sums this up, “the norm of respect imposes on each citizen an obligation to discipline herself in such a way that she resolutely refrains from supporting any coercive law for which she cannot provide the requisite public justification.”[21]

The paradigmatic and most influential version of this argument is that of John Rawls. Rawls argues that society [22]

is always marked by a diversity of opposing and irreconcilable religious, philosophical, and moral doctrines. Some of these are perfectly reasonable, and this diversity among reasonable doctrines political liberalism sees as the inevitable long-run result of the powers of human reason at work within the background of enduring free institutions.

Rawls uses the fact of diversity of comprehensive viewpoints, present in a pluralistic society, to argue for his version of restraint. Any justification drawn from such distinct grounds will always be reasonably rejected by someone.[23] Given this, some form of restraint is necessary.

Unlike most advocates of the standard view, Rawls’ version of the DRR does not only exclude religion but also other comprehensive secular doctrines that reasonable people disagree over. He notes,[24]

Our exercise of political power is proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in light of principles and ideals acceptable to them as reasonable and rational.

Note that the reason that Rawls excludes comprehensive views is that “[not] all citizens may reasonably be expected to endorse [such views] in light of principles and ideals acceptable to them as reasonable and rational.” Rawls argues that when comprehensive views are removed from consideration there remains sufficient common ground from which coercive laws can be justified to all reasonable people. Rawls refers to this “public reason,” which he explains as follows;[25]

We start by looking to the public culture itself as the shared fund of implicitly recognized basic ideas and principles. We hope to formulate these ideas and principles clearly enough to be combined into a political conception of justice congenial to our most firmly held convictions. We express this by saying that a political conception of justice, to be acceptable, must accord with our considered convictions, at all levels of generality, or in what I have called elsewhere, ‘reflective equilibrium.’

Public reason should comprise[26]

presently accepted general beliefs and forms of reasoning found in common sense, and the methods and conclusions of science when these are not controversial … we are not to appeal to comprehensive religious and philosophical doctrines–to what we as individuals or members of associations see as the whole truth–nor to elaborate economic theories of general equilibrium, say, if these are in dispute.

Whilst the boundaries being drawn this way enables Rawls’ position to escape the charge of asymmetry, his critics and even many of those who also advocate some form of restraint on justificatory reasons claim that his position excludes too much.

(a)        Incoherence
Nicholas Wolterstorff identifies several problems; [27]

No matter what principles of justice a particular political theorist may propose, the reasonable thing for her to expect, given any plausible understanding whatsoever of ‘reasonable and rational,’ is not that all reasonable and rational citizens would accept those principles, but rather that not all of them would do so. It would be utterly unreasonable for her to expect all of them to accept them. It would be unreasonable of her even to expect all her reasonable and rational fellow theorists to accept them; the contested fate of Rawls’ own proposed principles of justice is illustrative. What is reasonable for her to expect is that her proposals will stir up controversy and dissent not only at the point of transition from the academy to general society, but within the academy.

In short, there is no more hope that reasonable and rational citizens will come to agreement, in the way Rawls recommends, on principles of justice, than that they will come to agreement, in the foreseeable future, on some comprehensive philosophical or religious doctrine. It is odd of Rawls to have thought otherwise; [Emphasis original]

The divisions in society over welfare, abortion, state funding of social projects, euthanasia, pornography, genetic modification of foods, climate change, capital punishment, Maori seats and so on seem very broad; in most cases no argument or reasons advanced for these issues are likely to be accepted by all reasonable people. That reasonable people will disagree over what constitutes public reason does, prima facie, seem plausible. If this is the case then Rawls’ position is incoherent.

Rawls argues that we have a moral obligation to reject any view that “[not] all citizens may reasonably be expected to endorse in light of principles and ideals acceptable to them as reasonable and rational.” Public reason will “alone give a reasonable public answer to all, or to nearly all, questions involving the constitutional essentials and basic questions of justice.”[28] However, as Wolterstorff pointed out, even the deliverances of public reason are such “that not all reasonable people will agree.” Wolterstorff’s reference to the lack of consensus on Rawls’ own “principles of justice” supports this claim. In A Theory of Justice Rawls attempted to expound on his idea of public reason to develop principles of justice that a society could be ordered by.[29] The reception to A Theory of Justice was not a consensus in favour; present in the literature are a number of rejections, offered by reasonable people, on anything from the conclusions drawn, through to the methods used, to the principles themselves.

If we have a moral obligation to reject any view that “[not] all citizens may reasonably be expected to endorse in light of principles and ideals acceptable to them as reasonable and rational” and principles drawn from public reason are themselves things that not all citizens may reasonably be expected to endorse then, by Rawls, we have a moral obligation to reject any principles drawn from public reason.

Matthew Flannagan agrees,[30]

Rawls rejects appeals to comprehensive doctrines because people can reasonably reject them and argues that there is a duty to not decide questions of basic justice this way. If this is true then we should reject appeals to public reason as well; in fact, we have a duty to not follow public reason.

In my next post, Religious Restraint and Public Policy: Part III, I will look at the objection that the argument from respect is too thin, that applied consistently the argument from respect excludes too much. I will conclude by looking at Audi’s response to this.

[12] Robert Audi “Liberal Democracy and the Place of Religion in Politics” in Nicholas Wolterstorff & Robert Audi (eds) Religion in the Public Square: The Place of Religious Convictions in Political Debate (Rowman and Littlefield Publishers Inc, Lanham Md, 1997) 1-66, 30.
[13] Kent Greenawalt Private Consciences and Public Reasons (Oxford University Press, New York, 1995) 67.
[14] Audi, above n 12, 28.
[15] Lydia McGrew “The Irrational Faith of the Naked Public Square” (2008) 1 The Christendom Review (at 2 October 2009).
[16] Wolterstorff makes the same point, above n 3, 106.
[17] Audi, above n 12, 32.
[18] McGrew, above n 15.
[19] Ibid.
[20] Ibid.
[21] Christopher Eberle Religious Convictions in Liberal Politics (Cambridge University Press, Cambridge, 2002) 12.
[22] Ibid 3-4.
[23] The policy itself might be accepted as it may be able to be justified on grounds the person does accept, though these grounds are not immune from being reasonably rejected by other people. I am grateful to Glenn Peoples for the development of this point.
[24] John Rawls Political Liberalism (Columbia University Press, New York, 1993) 217. Note: Rawls limits his support of a form of the DRR in the policy areas of “constitutional essentials and questions of basic justice.” Rawls’ critics argue that his position commits him to holding to his version of the DRR for all coercive legislation; see for example, Wolterstorff, above n 3, 106; Glenn Peoples Religion in the Public Square: Liberal Political Philosophy and the Place of Religious Convictions (PhD Thesis, University of Otago, 2007) 88; Matthew Flannagan Is Historic Christian Opposition to Feticide Defensible in the 21^st Century? (PhD Thesis, University of Otago, 2006) 200.
[25] Ibid 8.
[26] Ibid 224-225.
[27] Nicholas Wolterstorff “The Role of Religion in Decision and Discussion of Political Issues” in Nicholas Wolterstorff & Robert Audi (eds) Religion in the Public Square: The Place of Religious Convictions in Political Debate (Rowman and Littlefield Publishers Inc, Lanham Md, 1997) 67-120, 99.
[28] Rawls, above n 24, 225.
[29] John Rawls A Theory of Justice (Harvard University Press, Cambridge MA, 1971).
[30] Matthew Flannagan Is Historic Christian Opposition to Feticide Defensible in the 21^st Century? (PhD Thesis, University of Otago, 2006) 195.

RELATED POSTS:
Religious Restraint and Public Policy: Part I
Religious Restraint and Public Policy: Part III
Religious Restraint and Public Policy: Part IV
Religious Restraint and Public Policy: Part V
Religious Restraint and Public Policy: Part VI

Thanks to the wonders of WordPress’ more tag it is complete in this post.

Rawls on Religion and Public Life

One common line of argument for excluding theological premises from public debate is that not everyone accepts the truth of such premises. Any policy decisions based on such a purported divine law would be binding upon these people in spite of the fact they do not accept such theological doctrines.

One obvious problem with this line of argument is that exactly the same thing can be said about many secular, non-theological, beliefs. Phillip Quinn articulates this point,

… if the fact that religious reasons can not be shared by all in a religiously pluralistic society suffices to warrant any exclusion of religious reasons for advocating or supporting restrictive laws or policies, then much else ought in fairness also be excluded on the same grounds.[1]

Quinn notes correctly that secular moral theories such as Utilitarianism or Kantianism, Intuitionism, Socialism, Libertarianism, can all be reasonably rejected in a philosophically-pluralistic society.

Indeed, it would seem that the appeal to any comprehensive ethical theory, including all known secular ethical theories, should be disallowed on the grounds that every such theory can be reasonably rejected by some citizens in a pluralistic democracy. And if justification of restrictive laws or policies can be conducted only in terms of moral considerations no citizen of a pluralistic democracy can reasonably reject, then in a pluralistic democracy such as ours very few restrictive laws or policies would be morally justified, a conclusion that would, I suspect, be welcome only to anarchists.[2]

One influential attempt to avoid these problems is proposed by John Rawls in Political Liberalism.[3] Rawls defends the thesis that it is wrong to appeal to religious or theological beliefs in debates pertaining to “constitutional essentials and questions of basic justice”.[4] Rawls does this on the same grounds that Quinn refers to above; such beliefs can be “reasonably rejected by some citizens in a pluralistic democracy”.[5] Rawls states,

Our exercise of political power is proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in light of principles and ideals acceptable to them as reasonable and rational.[6]

On the other hand, Rawls concedes Quinn’s point; “it would seem that the appeal to any comprehensive ethical theory, including all known secular ethical theories, should be disallowed on the grounds that every such theory can be reasonably rejected by some citizens in a pluralistic democracy”.[7] Rawls acknowledges this and argues that it is not just wrong to appeal to theological premises but also, “no comprehensive doctrine is appropriate as a political conception”.[8] [Emphasis added] Rawls maintains that contemporary society,

[I]s always marked by a diversity of opposing and irreconcilable religious, philosophical, and moral doctrines. Some of these are perfectly reasonable, and this diversity among reasonable doctrines political liberalism sees as the inevitable long-run result of the powers of human reason at work within the background of enduring free institutions.[9]

In summary, Rawls states there is a plurality of comprehensive doctrines that are irreconcilable with each other. Each doctrine is reasonably held by some people and reasonably rejected by others. Yet, respect for others forbids us to appeal to premises that we can expect reasonable people to reject.[10] It follows then, that in questions of “constitutional essentials and questions of basic justice” that no one should appeal to premises that require the truth of a comprehensive doctrine that some people can and/or do reasonably reject.[11]

However unlike Quinn, Rawls denies that this has anarchistic implications. He rejects Quinn’s claim, as cited above, that this rationale entails that “in a pluralistic democracy such as ours very few restrictive laws or policies would be morally justified”. Instead, Rawls maintains that one can construct answers to “constitutional essentials and questions of basic justice” by utilising what he calls “public reason” the basic idea is that if a people will address basic questions of “constitutional essentials and questions of basic justice” by appealing only to ideas implicit in the shared political culture of society. Nicholas Wolterstorff calls this the “consensus populi”.[12] Rawls explains this process:

[B]y looking to the public culture itself as the shared fund of implicitly recognized basic ideas and principles. We hope to formulate these ideas and principles clearly enough to be combined into a political conception of justice congenial to our most firmly held convictions. We express this by saying that a political conception of justice, to be acceptable, must accord with our considered convictions, at all levels of generality, or in what I have called elsewhere, ‘reflective equilibrium.’[13]

In addition to appealing to the consensus populi, public reason can utilise “presently accepted general beliefs and forms of reasoning found in common sense, and the methods and conclusions of science when these are not controversial”.[14] However, in using public reason people, “are not to appeal to comprehensive religious and philosophical doctrines”.[15]

There are numerous problems with Rawls’ contention here. Wolterstorff sums some of them up.

Suppose, then, that someone has followed that strategy; she has analyzed our political mentality into its constituent ideas and has elaborated these ideas into principles of justice. I submit that no matter what those resultant principles of justice may be, the reasonable thing for her to expect is not that all reasonable people who use their common human reason will agree with her results, but that not all reasonable people will agree. It would be utterly unreasonable for her to expect anything else than disagreement. The contested fate of Rawls’ own principles of justice is an illustrative case in point. There’s no more hope that all those among us who are reasonable and rational will arrive, in the way Rawls recommends, at consensus on principles of justice, than that we will all in the foreseeable future, agree on some comprehensive philosophical or religious doctrine.[16] [Emphasis original]

Here Wolterstorff emphasises two points. Firstly, he suggests that the contents of public reason are such that it is to be expected that reasonable people will disagree over them. Secondly, Wolterstorff hints that this renders Rawls’ position incoherent. Rawls rejects appeals to comprehensive doctrines because people can reasonably reject them and there is a duty to not decide questions of basic justice this way.[17] If this is true then we should reject appeals to public reason as well; in fact, we have a duty to not follow public reason. However, if we cannot follow public reason and we cannot follow comprehensive doctrines, we are left with nothing; few restrictive laws or policies could be morally justified. This is precisely the implication that Quinn suggested.

Wolterstorff’s argument depends on his claim that it is reasonable to expect disagreement over the contents of public reason. He cites Rawls’ own theory of justice in support of this. In A Theory of Justice, Rawls attempts to develop an account of basic justice based on public reason.[18] However, there is widespread disagreement amongst reasonable people not only over the conclusions reached but the methods and implicit principles themselves.

Of course, merely appealing to one case is unpersuasive; it is possible this is a single anomaly. However, in an earlier work Wolterstorff cited other examples where public reason appeared unable to be used in a manner that would be agreed upon by reasonable people.[19] In “The Role of Religion in Political Issues,” Wolterstorff cites the work of Kent Greenawalt to illustrate that not only is public reason incapable of resolving questions of contentious political issues but also on many issues it is “simply irrelevant”,[20] public reason has “nothing to say”.[21]

For example, Wolterstorff refers to the debate about whether the state has a duty to provide social welfare.[22] In this debate not only is there disagreement about the conclusions but also debate about the very basic principles or concepts involved. Both supporters and opponents of state welfare appeal to such things as ‘freedom’ and ‘equality’ but have radically different conceptions as to what freedom and equality are. Also involved in this debate are different assumptions about whether there are property rights and if there are, how such rights are weighed against social utility. It is unlikely that the consensus populi, common sense and uncontroversial science provide answers to these questions that all reasonable people would accept.

Wolterstorff is not alone in these observations. Christopher Eberle makes similar observations about such things as abortion and freedom of religion.[23] De Marneffe argues that on contentious moral and social issues public reason will fail to offer any substantive answer.[24] Jean Hampton suggests that public reason cannot provide an answer to the question of abortion.[25] Quinn makes similar observations.[26] The point is, that if we genuinely limit ourselves to principles upon which no reasonable person can be expected to reject, what we are left with is inadequate to provide answers to many, if any, substantive questions. Only if we supplement these with premises drawn from some comprehensive doctrine will answers be adequate.

The case of abortion that these authors refer to is particularly instructive. Rawls’s own comments on this issue unwittingly confirm this. When discussing how public reason would address the question Rawls simply asserts that reasonable people will agree that in the early stages of pregnancy the right to equality overrides our due concern for human life. However, he seems to countenance the idea that reasonable people may limit abortion in the second trimester in certain circumstances. Now this, clearly, is not an obvious intuition shared by all reasonable people – unless one wishes to stipulate ‘reasonableness’ to rule out anyone who does not hold Rawls’s substantive normative views on abortion.

Moreover, it appears that one cannot adjudicate any dispute between Rawls and a critic on this issue without appealing to a comprehensive doctrine. Suppose, for example, that a fetus is a person in the first trimester of pregnancy then Rawls’s suggestion that the value of equality overrides in the first trimester but may not always in the second is false. Why would it be acceptable in the name of equality for a woman to kill a person in one trimester and not the other in otherwise identical circumstances? It seems that Rawls’s intuition is justified only if one assumes that a first trimester fetus is not human. On the other hand, if one assumes that a fetus is human at this point then Rawls’s position is erroneous. Hence, only by addressing this issue can such a debate be settled.

However, addressing this issue by appealing to public reason or common sense can hardly provide an answer. As Quinn notes, “common sense is divided on or simply perplexed on the question of abortion”.[27] Uncontroversial science can tell us facts of fetal development but it cannot tell us the moral significance of those facts or what facts are important for determining personhood. In addition, there is no consensus populi on this issue; the political culture of many countries is divided on this question. It seems impossible to offer any argument one way or the other without utilising a premise drawn from some comprehensive doctrine over which reasonable people do not agree.

Similar points apply to Rawls’ claim that a right to abortion is necessary so as to give the right to equality “substance and force”. This follows only if one assumes a particular understanding of equality yet neither the consensus populi nor common sense will produce this conclusion. In fact, it is arguable that much of the popular appeals to equality are confused and ambiguous.[28] Moreover, even if such a consensus on the nature of equality were available, it does not follow that a right to abortion is necessary for giving it force unless one supplements this concept with understandings of sexuality and gender drawn from some comprehensive perspective.[29]

I do not think abortion is an isolated case. The same would apply to other substantive questions such as homosexual marriage, affirmative action, capital punishment, welfare, etc. Wolterstorff’s contention that public reason will not, un-supplemented with comprehensive doctrines, provide information that all rational people can be reasonably expected to accept or even provide an adequate base for deciding many substantive issues appears justified. If this is so, Rawls’s position is incoherent or ad hoc.

[1] Wolterstorff, “Why We Should Reject What Liberalism Tells Us,” 174.
[2] I am grateful for discussions with Glenn Peoples for helping me to develop this argument.
[3] John Rawls, A Theory of Justice, (Cambridge MA: Harvard University Press, 1971).
[4] Wolterstorff, “The Role of Religion in Political Issues,” 102-104.
[5] Ibid., 102.
[6] Ibid.
[7] Ibid, 103-104.
[8] Eberle, Religious Conviction in Liberal Politics, 217-222.
[9] de Marneffe, “Rawls’s Idea Of Public Reason,” 232-250.
[10] Jean Hampton, “The Common Faith of Liberalism,” Pacific Philosophical Quarterly, 75 (1994), 208-209.
[11] Quinn, “Liberalism and Their Exclusions of the Religious,” 149-150.
[12] Ibid.,150.
[13] See Louis Pojman, “Theories of Equality: A Critical Analysis,” Behavior and Philosophy 23:2 (1995): 1-27, and his “Equal Human Worth: A Critique of Contemporary Egalitarianism.” http://72.14.209.104/search?q=cache:CvaEU_1lw5IJ:www.louispojman.com/equalworth.pdf+Equal+Human+Worth+Pojman&hl=en&gl=nz&ct=clnk&cd=8.
[14] See de Marneffe, “Rawls’s Idea of Public Reason,” 234-235.
[15] Phillip Quinn, “Political Liberalism and their Exclusion of the Religious,” in Religion and Contemporary Liberalism, ed. Paul Weithman (Notre Dame, IN: University of Notre Dame Press, 1997), 144.
[16] Ibid.
[17] John Rawls, Political Liberalism (New York: Columbia University Press, 1993).
[18] Ibid, 214.
[19] Quinn, “Political Liberalism and their Exclusion of the Religious”, 144.
[20] Rawls, Political Liberalism, 217.
[21] Quinn, “Political Liberalism and their Exclusion of the Religious”, 144.
[22] Rawls, Political Liberalism, 135.
[23] Ibid, 3-4.
[24] Christopher J Eberle argues that Rawls’ rationale here is incoherent as it conflicts with the method that purports to justify it. See Religious Convictions in Liberal Politics (Cambridge: Cambridge University Press, 2002), 140-150.
[25] I am grateful for discussions with Dr Glenn Peoples for helping me to develop this argument.
[26] Nicholas Wolterstorff, “The Role of Religion in Decision and Discussion of Political Issues,” in Religion in the Public Square; The Place of Religious Convictions in Political Debate, ed. Nicholas Wolterstorff & Robert Audi (Lanham, Md: Rowman and Littlefield Publishers Inc, 1997), 91.
[27] Rawls, Political Liberalism, 8.
[28] Ibid, 224.
[29] Ibid.

RELATED POSTS:
Some More Thoughts on Religion and Public Life: Robert Audi’s Critique of Wolterstorff

In “Wolterstorff on Religion, Politics, and the Liberal State” in Religious Beliefs in the Public Square, Robert Audi argues that Wolterstorff’s conclusion is mistaken. He argues that Rawls’ position is more qualified than Wolterstorff appears to think. Audi points out that Rawls is only, “speaking above all about coercive state power in relation to matters of basic justice, not about every political issue. … Moreover, the emphasis is not on actual agreement, … but on its realistic possibility given rationality.”[1] [Emphasis original] Audi suggests that concerning issues of constitutional essentials and questions of basic justice there are “some very basic moral intuitions that are common to mature rational adults who are conscientiously devoted to living together in harmony”.[2]

However, Wolterstorff has not just argued that public reason is problematic because it will not deliver actual agreement. His argument was that such agreement was not a realistic possibility. He said, “It would be utterly unreasonable” for a person using Rawls’ method to “expect anything else than disagreement”. Wolterstorff claims that agreement is not a realistic possibility because while some will agree, some will not. “[T]he reasonable thing … to expect is not that all reasonable people who use their common reason will agree with … [the] results, but that not all reasonable people will agree.”

Audi’s other points seem to be that Rawls limits his position to “basic issues of justice” and “constitutional essentials” and that on these matters agreement is a realistic possibility. However, I noted above that on many substantive matters there is not a realistic possibility of agreement. The question then needs to be asked, are these matters of basic justice or constitutional essentials? If they are, then Audi’s position appears false. On these types of matters, it is simply not true that there are sufficient common sets of intuitions for a reasonable hope of agreement to occur.

On the other hand, if these are not matters of basic justice or constitutional essentials then Rawls’ position lacks any bite. If, for example, the question of feticide is not a question of basic justice or constitutional essentials then Rawls’s position entails no objection to appeals to divine law on this topic. It is only on constitutional essentials and basic justice that such appeals are wrong and this is not such an issue.

Note that if Audi is correct here, much of the sting is taken out of Rawls’ position. One cannot appeal to comprehensive doctrines in contexts where there is widespread agreement on basic issues; one can only appeal to such doctrines where there is widespread disagreement. Therefore, on deeply contentious issues like abortion, euthanasia, homosexual rights, etc appeals to divine law are perfectly appropriate. Appeals to divine law are only wrong when there is widespread consensus amongst rational people.

However, Wolterstorff does address this issue in the article Audi refers to. In “The Role of Religion in Political Issues” Wolterstorff states, “if my using reasons that I know you do not endorse really does constitute my not treating you as equal, then it constitutes that whether or not the issue is constitutional essentials or matters of basic justice”.[3] On this, he seems correct. Consequently, if Rawls’ claims about why one should bracket comprehensive beliefs on such matters are cogent then we should bracket them on other matters as well. This would of course mean that on many questions of public debate, if not most, no answers would be forthcoming. Moreover, as Wolterstorff himself points out, it would mean one could not appeal to the values of political liberalism either. Liberalism presumably is a comprehensive doctrine so again Rawls position would be rendered incoherent.[4]

On the other hand, if Rawls’s reasons for bracketing comprehensive beliefs are incorrect with regards to non-constitutional matters, if on these issues of coercive legislation one can appeal to theological beliefs that are rejected by rational people yet not disrespect them, then it is hard to see how they can become incorrect just because the topic has changed. Hence, it is doubtful that Rawls can limit his restriction in the way he wants to and given this, all the problems of applying public reason to non-constitutional issues apply with full force.

These responses all assume Audi’s contention that on matters of basic justice and constitutional essentials, agreement between reasonable people can be reasonably expected. Audi bases this claim upon a rhetorical question.

But is there not a strong consensus, at least among citizens of democratic societies, that justice requires not only equal protection of the laws but also laws that protect liberty, including political and religious liberty and freedom of speech, up to a certain level? There are of course disagreements on matters of detail…[5]

The problem here is that each of these examples involves appeal to an ambiguous and vague notion. However, as soon as an attempt is made to fill out these concepts with substantive content the apparent consensus disappears.

Consider the example of freedom of speech. Audi notes that most people agree that there should be freedom of speech, however, what does this mean? Free from what? From prior restraint? From the initiation of force? From no restraint upon content but not upon the manner of expression? Is this a negative freedom so that it forbids merely coercive attempts to prevent speaking? Is it a positive freedom so that the state has a duty to provide public funds to subsidise expression? Reasonable people can be expected to disagree on the answers to these questions. Moreover, these are not just matters of detail, they are disagreements over the very meaning of the term ‘freedom’ in the phrase ‘freedom of speech’. It may be true that people use the same terms but the substantive content and the meaning that they understand the terms to denote differs widely.

Similar disagreement arises over what sort of speech is referred to in the term ‘freedom of speech’. Does it include a right to engage in hate speech? Does it include speech denying the Holocaust occurred? What about racist and sexist speech? Does it include speech that is blasphemous or defamatory? Again, reasonable people disagree; not only do they disagree over the meaning of the term “freedom” they also disagree over what types of speech one is free to engage in.[6]

I think the same thing occurs concerning freedom of religion. In his book Foreordained Failure, Steven Smith demonstrates that there is no such thing as a right to freedom of religion. Instead there is a spectrum of views about religious tolerance that comes in degrees; no state tolerates all religious sects and very few states tolerate none. He notes that Aquinas, Cromwell, Locke and Mill all advocated and defended forms of religious tolerance. However, each disagreed as to which religions such tolerance should apply to and the proper limits upon those they disagreed with.[7]

Smith argues further that these differing accounts of freedom of religion all depended upon comprehensive views and one cannot adjudicate between them without appeal to such views. Attempts to articulate a right to freedom of religion from a neutral or public stance are quite hopeless.[8] Similar things can be said about the idea of ‘equality’ within the term ‘equal protection of the laws’. Hence, it appears that even on these issues of basic justice and constitutional essentials public reason will not utilise principles that all reasonable people can be expected to endorse, nor will one be able to get very far without utilising comprehensive doctrines of some sort.

I think the difficulties Rawls’ position faces are illustrative of a general problem with the dialectic over theological beliefs in the public square. If one attempts to exclude theological beliefs from public discourse, because reasonable people can reject them, then secular comprehensive beliefs must also be excluded as reasonable people can and do reject secular beliefs. If one does not exclude secular beliefs then special pleading is going on. If one does exclude both secular and religious beliefs then what is left will be insufficiently thick to address many public issues. One would have to appeal to some comprehensive belief to answer the questions that one faces but such restrictions upon comprehensive beliefs would render one’s position incoherent.

[1] Robert Audi, “Wolterstorff on Religion, Politics, and the Liberal State,” in Religion in the Public Square; The Place of Religious Convictions in Political Debate, ed. Nicholas Wolterstorff & Robert Audi (Lanham, Md: Rowman and Littlefield Publishers Inc, 1997), 133-134.
[2] Ibid., 134.
[3] Wolterstorff, “The Role of Religion in Political Issues,” Religion in the Public Square; The Place of Religious Convictions in Political Debate, ed. Nicholas Wolterstorff & Robert Audi (Lanham, Md: Rowman and Littlefield Publishers Inc, 1997), 106.
[4] Ibid.
[5] Audi, “Wolterstorff on Religion, Politics, and the Liberal State,” 132.
[6] Ibid. Audi argues that in these types of situations one means substantially the same thing by the term, agrees on the paradigms of its application and yet offer differing definitions. This is because “providing definitions is a demanding task” and “many different definitions can be applied to the same finite range of cases”. However, this misconstrues the situation. As noted it is not that these people use the term the same way but that they use it and understand it in a very different way. They disagree over the paradigms and hold to a different range of finite cases even if there is some overlap between them.
[7] Steven Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom, (New York: Oxford University Press, 1995).
[8] Ibid.

RELATED POSTS:
Rawls on Religion and Public Life Part 1
Rawls on Religion and Public Life Part 2

There are numerous problems with Rawls’ contention here. Wolterstorff sums some of them up.

Suppose, then, that someone has followed that strategy; she has analyzed our political mentality into its constituent ideas and has elaborated these ideas into principles of justice. I submit that no matter what those resultant principles of justice may be, the reasonable thing for her to expect is not that all reasonable people who use their common human reason will agree with her results, but that not all reasonable people will agree. It would be utterly unreasonable for her to expect anything else than disagreement. The contested fate of Rawls’ own principles of justice is an illustrative case in point. There’s no more hope that all those among us who are reasonable and rational will arrive, in the way Rawls recommends, at consensus on principles of justice, than that we will all in the foreseeable future, agree on some comprehensive philosophical or religious doctrine.[1] [Emphasis original]

Here Wolterstorff emphasises two points. Firstly, he suggests that the contents of public reason are such that it is to be expected that reasonable people will disagree over them. Secondly, Wolterstorff hints that this renders Rawls’ position incoherent. Rawls rejects appeals to comprehensive doctrines because people can reasonably reject them and there is a duty to not decide questions of basic justice this way.[2] If this is true then we should reject appeals to public reason as well; in fact, we have a duty to not follow public reason. However, if we cannot follow public reason and we cannot follow comprehensive doctrines, we are left with nothing; few restrictive laws or policies could be morally justified. This is precisely the implication that Quinn suggested.

Wolterstorff’s argument depends on his claim that it is reasonable to expect disagreement over the contents of public reason. He cites Rawls’ own theory of justice in support of this. In A Theory of Justice, Rawls attempts to develop an account of basic justice based on public reason.[3] However, there is widespread disagreement amongst reasonable people not only over the conclusions reached but the methods and implicit principles themselves.

Of course, merely appealing to one case is unpersuasive; it is possible this is a single anomaly. However, in an earlier work Wolterstorff cited other examples where public reason appeared unable to be used in a manner that would be agreed upon by reasonable people.[4] In “The Role of Religion in Political Issues,” Wolterstorff cites the work of Kent Greenawalt to illustrate that not only is public reason incapable of resolving questions of contentious political issues but also on many issues it is “simply irrelevant”,[5] public reason has “nothing to say”.[6]

For example, Wolterstorff refers to the debate about whether the state has a duty to provide social welfare.[7] In this debate not only is there disagreement about the conclusions but also debate about the very basic principles or concepts involved. Both supporters and opponents of state welfare appeal to such things as ‘freedom’ and ‘equality’ but have radically different conceptions as to what freedom and equality are. Also involved in this debate are different assumptions about whether there are property rights and if there are, how such rights are weighed against social utility. It is unlikely that the consensus populi, common sense and uncontroversial science provide answers to these questions that all reasonable people would accept.

Wolterstorff is not alone in these observations. Christopher Eberle makes similar observations about such things as abortion and freedom of religion.[8] De Marneffe argues that on contentious moral and social issues public reason will fail to offer any substantive answer.[9] Jean Hampton suggests that public reason cannot provide an answer to the question of abortion.[10] Quinn makes similar observations.[11] The point is, that if we genuinely limit ourselves to principles upon which no reasonable person can be expected to reject, what we are left with is inadequate to provide answers to many, if any, substantive questions. Only if we supplement these with premises drawn from some comprehensive doctrine will answers be adequate.

The case of abortion that these authors refer to is particularly instructive. Rawls’s own comments on this issue unwittingly confirm this. When discussing how public reason would address the question Rawls simply asserts that reasonable people will agree that in the early stages of pregnancy the right to equality overrides our due concern for human life. However, he seems to countenance the idea that reasonable people may limit abortion in the second trimester in certain circumstances. Now this, clearly, is not an obvious intuition shared by all reasonable people – unless one wishes to stipulate ‘reasonableness’ to rule out anyone who does not hold Rawls’s substantive normative views on abortion.

Moreover, it appears that one cannot adjudicate any dispute between Rawls and a critic on this issue without appealing to a comprehensive doctrine. Suppose, for example, that a fetus is a person in the first trimester of pregnancy then Rawls’s suggestion that the value of equality overrides in the first trimester but may not always in the second is false. Why would it be acceptable in the name of equality for a woman to kill a person in one trimester and not the other in otherwise identical circumstances? It seems that Rawls’s intuition is justified only if one assumes that a first trimester fetus is not human. On the other hand, if one assumes that a fetus is human at this point then Rawls’s position is erroneous. Hence, only by addressing this issue can such a debate be settled.

However, addressing this issue by appealing to public reason or common sense can hardly provide an answer. As Quinn notes, “common sense is divided on or simply perplexed on the question of abortion”.[12] Uncontroversial science can tell us facts of fetal development but it cannot tell us the moral significance of those facts or what facts are important for determining personhood. In addition, there is no consensus populi on this issue; the political culture of many countries is divided on this question. It seems impossible to offer any argument one way or the other without utilising a premise drawn from some comprehensive doctrine over which reasonable people do not agree.

Similar points apply to Rawls’ claim that a right to abortion is necessary so as to give the right to equality “substance and force”. This follows only if one assumes a particular understanding of equality yet neither the consensus populi nor common sense will produce this conclusion. In fact, it is arguable that much of the popular appeals to equality are confused and ambiguous.[13] Moreover, even if such a consensus on the nature of equality were available, it does not follow that a right to abortion is necessary for giving it force unless one supplements this concept with understandings of sexuality and gender drawn from some comprehensive perspective.[14]

I do not think abortion is an isolated case. The same would apply to other substantive questions such as homosexual marriage, affirmative action, capital punishment, welfare, etc. Wolterstorff’s contention that public reason will not, un-supplemented with comprehensive doctrines, provide information that all rational people can be reasonably expected to accept or even provide an adequate base for deciding many substantive issues appears justified. If this is so, Rawls’s position is incoherent or ad hoc.

[1] Wolterstorff, “Why We Should Reject What Liberalism Tells Us,” 174.
[2] I am grateful for discussions with Dr Glenn Peoples for helping me to develop this argument.
[3] John Rawls, A Theory of Justice, (Cambridge MA: Harvard University Press, 1971).
[4] Wolterstorff, “The Role of Religion in Political Issues,” 102-104.
[5] Ibid., 102.
[6] Ibid.
[7] Ibid., 103-104.
[8] Eberle, Religious Conviction in Liberal Politics, 217-222.
[9] de Marneffe, “Rawls’s Idea Of Public Reason,” 232-250.
[10] Jean Hampton, “The Common Faith of Liberalism,” Pacific Philosophical Quarterly, 75 (1994), 208-209.
[11] Quinn, “Liberalism and Their Exclusions of the Religious,” 149-150.
[12] Ibid.,150.
[13] See Louis Pojman, “Theories of Equality: A Critical Analysis,” Behavior and Philosophy 23:2 (1995): 1-27, and his “Equal Human Worth: A Critique of Contemporary Egalitarianism.” http://72.14.209.104/search?q=cache:CvaEU_1lw5IJ:www.louispojman.com/equalworth.pdf+Equal+Human+Worth+Pojman&hl=en&gl=nz&ct=clnk&cd=8.
[14] See de Marneffe, “Rawls’s Idea of Public Reason,” 234-235.

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One common line of argument for excluding theological premises from public debate is that not everyone accepts the truth of such premises. Any policy decisions based on such a purported divine law would be binding upon these people in spite of the fact they do not accept such theological doctrines.

One obvious problem with this line of argument is that exactly the same thing can be said about many secular, non-theological, beliefs. Phillip Quinn articulates this point,

… if the fact that religious reasons can not be shared by all in a religiously pluralistic society suffices to warrant any exclusion of religious reasons for advocating or supporting restrictive laws or policies, then much else ought in fairness also be excluded on the same grounds.[1]

Quinn notes correctly that secular moral theories such as Utilitarianism or Kantianism, Intuitionism, Socialism, Libertarianism, can all be reasonably rejected in a philosophically-pluralistic society.

Indeed, it would seem that the appeal to any comprehensive ethical theory, including all known secular ethical theories, should be disallowed on the grounds that every such theory can be reasonably rejected by some citizens in a pluralistic democracy. And if justification of restrictive laws or policies can be conducted only in terms of moral considerations no citizen of a pluralistic democracy can reasonably reject, then in a pluralistic democracy such as ours very few restrictive laws or policies would be morally justified, a conclusion that would, I suspect, be welcome only to anarchists.[2]

One influential attempt to avoid these problems is proposed by John Rawls in Political Liberalism.[3] Rawls defends the thesis that it is wrong to appeal to religious or theological beliefs in debates pertaining to “constitutional essentials and questions of basic justice”.[4] Rawls does this on the same grounds that Quinn refers to above; such beliefs can be “reasonably rejected by some citizens in a pluralistic democracy”.[5] Rawls states,

Our exercise of political power is proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in light of principles and ideals acceptable to them as reasonable and rational.[6]

On the other hand, Rawls concedes Quinn’s point; “it would seem that the appeal to any comprehensive ethical theory, including all known secular ethical theories, should be disallowed on the grounds that every such theory can be reasonably rejected by some citizens in a pluralistic democracy”.[7] Rawls acknowledges this and argues that it is not just wrong to appeal to theological premises but also, “no comprehensive doctrine is appropriate as a political conception”.[8] [Emphasis added] Rawls maintains that contemporary society,

[I]s always marked by a diversity of opposing and irreconcilable religious, philosophical, and moral doctrines. Some of these are perfectly reasonable, and this diversity among reasonable doctrines political liberalism sees as the inevitable long-run result of the powers of human reason at work within the background of enduring free institutions.[9]

In summary, Rawls states there is a plurality of comprehensive doctrines that are irreconcilable with each other. Each doctrine is reasonably held by some people and reasonably rejected by others. Yet, respect for others forbids us to appeal to premises that we can expect reasonable people to reject.[10] It follows then, that in questions of “constitutional essentials and questions of basic justice” that no one should appeal to premises that require the truth of a comprehensive doctrine that some people can and/or do reasonably reject.[11]

However unlike Quinn, Rawls denies that this has anarchistic implications. He rejects Quinn’s claim, as cited above, that this rationale entails that “in a pluralistic democracy such as ours very few restrictive laws or policies would be morally justified”. Instead, Rawls maintains that one can construct answers to “constitutional essentials and questions of basic justice” by utilising what he calls “public reason” the basic idea is that if a people will address basic questions of “constitutional essentials and questions of basic justice” by appealing only to ideas implicit in the shared political culture of society. Nicholas Wolterstorff calls this the “consensus populi”.[12] Rawls explains this process:

[B]y looking to the public culture itself as the shared fund of implicitly recognized basic ideas and principles. We hope to formulate these ideas and principles clearly enough to be combined into a political conception of justice congenial to our most firmly held convictions. We express this by saying that a political conception of justice, to be acceptable, must accord with our considered convictions, at all levels of generality, or in what I have called elsewhere, ‘reflective equilibrium.’[13]

In addition to appealing to the consensus populi, public reason can utilise “presently accepted general beliefs and forms of reasoning found in common sense, and the methods and conclusions of science when these are not controversial”.[14] However, in using public reason people, “are not to appeal to comprehensive religious and philosophical doctrines”.[15]

Continued in part 2.

[1] Phillip Quinn, “Political Liberalism and their Exclusion of the Religious,” in Religion and Contemporary Liberalism, ed. Paul Weithman (Notre Dame, IN: University of Notre Dame Press, 1997), 144.
[2] Ibid.
[3] John Rawls, Political Liberalism (New York: Columbia University Press, 1993).
[4] Ibid., 214.
[5] Quinn, “Political Liberalism and their Exclusion of the Religious”, 144.
[6] Rawls, Political Liberalism, 217.
[7] Quinn, “Political Liberalism and their Exclusion of the Religious”, 144.
[8] Rawls, Political Liberalism, 135.
[9] Ibid., 3-4.
[10] Christopher J Eberle argues that Rawls’ rationale here is incoherent as it conflicts with the method that purports to justify it. See Religious Convictions in Liberal Politics (Cambridge: Cambridge University Press, 2002), 140-150.
[11] I am grateful for discussions with Dr Glenn Peoples for helping me to develop this argument.
[12] Nicholas Wolterstorff, “The Role of Religion in Decision and Discussion of Political Issues,” in Religion in the Public Square; The Place of Religious Convictions in Political Debate, ed. Nicholas Wolterstorff & Robert Audi (Lanham, Md: Rowman and Littlefield Publishers Inc, 1997), 91.
[13] Rawls, Political Liberalism, 8.
[14] Ibid., 224.
[15] Ibid.

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What people seem unaware of, or at least have not articulated clearly, is that the controversy over this case is symptomatic of a deep problem with the popular liberal response to pluralism. Let me elaborate.

The problem of Pluralism is this: we have in New Zealand people who hold to and live in accord with various differing “comprehensive views” as Rawls called them. A comprehensive doctrine can be theistic like Islam or Christianity or it can be secular like certain forms of Naturalism; Marxism, Liberal rationalism, humanism etc. However such views function as religions in that they answer fundamental questions such as who are we, what is the nature of good, what is real, etc. Now the problem such plurality creates is this: How does one maintain peace and order in a society characterized by radical disagreement over these fundamental questions? Each group believes (and cannot but believe) that their view is true and the others mistaken. Failure to find a solution to this problem can be deadly people can and have killed each other over these questions.

In New Zealand the answer popularly given is “tolerance”. One should allow each person to believe and act in accord with whatever view they think is correct and no one should be compelled to adopt some form of enforced orthodoxy. However there is one immediate problem with this response. Sometimes believers in different comprehensive doctrines will interact with one another. Hence, there needs to be rules or norms governing the relationships between believers of different “comprehensive doctrines” and the obvious difficulty is that these different groups frequently disagree over precisely what the correct norms or rules which constitute our duties are.

This is the case in the body snatchers incident. One group of people come from a community in which individual autonomy is an important value (this btw reflects certain religious and philosophical beliefs articulated in the late middle ages). Under this understanding of the world, when a person dies the individual who died can, prior to death decide ( within reason) how their body is to disposed of. Moreover certain relatives, become next of kin and aquire the responsibility to carry the deceased’s wishes out. The problem is that people from other cultures have quite different understandings of the world. I am not an expert on Maori culture and so will not try and elaborate. But the idea seems to be that individual autonomy is subordinated to the wider family and certain traditions which this family are required to uphold. Hence the wider community decides where one is buried in accord with their traditions regardless of the individual in questions wishes. Moreover there are different understandings of what constitutes membership in the relevant group. One group tends to think that if one is not brought up within a culture or does not conciously adopt it they are not part of a group that embodies this culture. Another however believes that mere biological lineage determines ones membership in the culture.

In this case a person dies. According to group A the deceased is not part of group B and the right thing do do is X. According to group B, she is a member of group B and the right thing to do is Y. Y however is incompatible with X only one of the two options is possible. I maintain that there is no *culturally or religiously neutral* way of adjudicaticating this dispute. At the end of the day we must decide which view of the world is correct and side with the solution they propose.

This case shows up the popular liberal response to the problem. The popular response is to suggest that the no group can impose the norms they believe in upon another group. Instead, norms governing relationships between practioners and believers of different comprehensive doctrines should be governed of norms that all reasonable people can accept regardless of their religious or quasi religious beliefs. This idea is often described as “public reason” the notion that there is a set of premises which are accepted implicitly by all reasonable people from which public policy regarding what rights everyone has can and coercive laws enacted can be decided.

The problem, which this case shows, is that public reason is something of a myth. If one defines a “reasonable person” broadly there is simply does not exist a set of principles which is both accepted by all reasonable people and also sufficiently “thick” and comprehensive to provide a basis for answers to public policy questions. On the other hand if one defines “a reasonable person” narrowly to exclude radical disagreement the very concept of a reasonable person will depend on the truth of a particular comprehensive perspective for its plausibility. The debate over Gods existence is a good example. Alvin Plantinga has argued, correctly I think, that if God exists and created men in his image and then revealed himself to them, much of what Christians believe is probably rational. If however God does not exist, its probably a delusion. However, its impossible to come to an answer on the rationality of theism without presupposing a stance on the ontological question of its truth. In fact it’s difficult to see how one can come to an understanding of what constitutes a *reasonable person* if without appealing to premises specific to some comprehensive doctrine about what exists and what sort of beings people are.