Academic

Monday marked this year?s first meeting of the Law and Philosophy Workshop. It is traditional for one of the workshop?s early meetings to be limited to students in order to familiarize them with some of the key concepts and common problems that characterize that year?s topic. This year?s topic being ?Toleration and Religious Liberty,? it was fitting for Brian Leiter to present his paper, ?Why Tolerate Religion?? (available here) at this first student-only meeting.

?Why Tolerate Religion?? is an attempt to find a principled argument for religious toleration that does not apply equally to toleration of conscience generally. Leiter notes that religion has been given a special place in our constitutional system, and asks if this is justified. At the workshop?s opening, he acknowledged that in his paper he was taking for granted that if there is a principled foundation for the law of religious liberty, it is to be associated with the idea of toleration, as opposed to some other concept such as equal respect.

A principle of toleration, according to Leiter, applies only in cases where one group does not like the actions or beliefs of another group, but still allows it to carry on with its beliefs or actions despite having effective and reliable means to change them. This is important because he wants to distinguish principles of toleration, which have some moral (or epistemic) basis, from practices of toleration which might be rooted in self-interest or other concerns unrelated to the value of toleration itself.

Leiter goes on to describe three different types of argument for toleration of difference, not limited to religion. The first is a broadly Kantian argument channeled through Rawls. In A Theory of Justice, Rawls puts forth the claim that from the original position, a fictional pre-societal condition where people retain their ability to reason, but none of their other characteristics, ?equal liberty of conscience is the only principle that the persons . . . can acknowledge.? People would not be willing to gamble with the beliefs that they may have, so intolerance is not a viable option. The second type is a simple utilitarian ?private space? argument. It merely claims that people are better off when they are allowed to choose how to live their lives and worse off when they are not. The third is also utilitarian, but it contains an epistemic claim as well as a moral one; it is attributed to Mill. Mill argues that toleration is required because finding truth and attaining understanding increases utility and this cannot be done without exposure to diverse beliefs and practices.

The principled arguments for toleration above apply to religion, but they also apply to other things, such as systems of morality and types of families. Therefore, a principled argument for religious toleration must explain why we should tolerate religion qua religion, not merely as a subset of conscience or diversity. Remember, the project here was to explain, at least in part, the unique status enjoyed by religion in our legal system. In order to do so, it is necessary to isolate what is special about religion.

Leiter settles on two properties that he believes are present together in religion and not elsewhere: 1) ?Religious belief issues in categorical demands on action,? and 2) ?Religious beliefs do not answer ultimately (or at the limit) to evidence and reasons.? 

Armed with this characterization of religion, Leiter is ready to look back at the principled arguments for toleration stated above and determine whether there is any reason in particular to tolerate religion. The Rawlsian analysis is quick. People in the original position may know that they will be subject to some categorical demands, but they do not know from where these demands will come. For this reason, they will not be amenable to a society that will only tolerate religious categorical commands and not commands that issue from some other source.

The epistemic argument is, again, more complex. Leiter states that, at first, it seems that this argument does not work for religion at all. How could toleration of beliefs that are insulated from evidence and reasons contribute to knowledge of truth? However, it may be consistent with Mill to be tolerant of alternate epistemic methods, those based on faith, as opposed to those based on scientific and common sense ideas of evidence. But in the end, for the purpose of Leiter?s paper, it does not really matter. If a Millian argument supports toleration of epistemic methods that are divorced from what we generally consider to be evidence, faith-based methods would only be one of many of these alternative methods, consultation of Ouija board would be another.

Leiter observes that there is another type of Millian epistemic claim. Mill is not only concerned with the search for truth and understanding, but also with the search for the best way of life. The only way for a person to choose between ways of life is to engage in ?experiments in living.? The religious life of following categorical commands that are insulated from evidence and reasons could be seen as one of these experiments; possibly the pleasure experienced by the religious individual is preferable to all, or many, others. However, this claim, unsurprisingly, applies to non-religious modes of living as well.

After addressing the Millian and Rawlsian claims, Leiter comes back to a point mentioned earlier in the paper, one of side-constraints. Both Rawls and Mill are willing to accept that their principles of toleration are not absolute. Rawls will admit that toleration may not be appropriate if it will result in a loss of liberty that is worse than intolerance would be. Mill will allow coercive force to be exerted over an individual in order to prevent harm to others. Leiter posits that categorical commands insulated from ordinary empiricism might yield greater danger to people and liberty than other types of beliefs. This, however, is not a conclusion, but a question to be addressed elsewhere.

Leiter concludes that while there may compelling reasons to have a broad conception of liberty of conscience, there is no apparent principled reason to privilege religious conscience over other varieties. Moreover, the fact that we do so can be seen as rewarding ?categorical fervor based on epistemic indifference,? a practice that he seems to find puzzling.

Overall, I enjoyed this paper, and its treatment in the workshop, but I am not entirely convinced of the first assumption that the principled foundation for religious liberty is one of toleration and not something else. In the workshop, I brought up the idea of subsidies to favored (religious) groups. I was unsure whether they were consistent with Leiter?s view of toleration. It seems that most of the time they are. This leads me to believe both that toleration is not enough and that it is not the guiding or foundational principle of religious liberty in America. During the course of the workshop we will be confronted with alternate theories that I expect will solidify my views on this subject.

Next time: 10/13/08 Martha Nussbaum will present chapters from her recent book Liberty of Conscience defending the moral grounds of religious liberty as a principle of ?equal respect? for conscience and applying that perspective to some Establishment Clause cases.