Religion & Law

Last week I highly recommended (here) Steve Smith?s new book, The Disenchantment of Secular Discourse. I do, however, have some significant disagreements. Smith believes that the problems he associates with secular discourse can be remedied by opening up our public discourse to religion. I certainly agree that American universities would have thicker, richer discussions if theologians were part of the discussion. Indeed, the exclusion of religion is part of a larger problem which is the extent to which disciplines seeking to be scientific crowd out normative questions or marginalize those who engage in normative issues, or reduce all normative questions to some form of cost benefit analysis, or treat them exclusively from a philosophical perspective or in legal language.

I do not agree that our public political discourse lacks religious voices. American academics debate about public reason, but American public discourse has always included religious voices. One of the strongest arguments against Rawls in my view is that the public reason doctrine is utterly impractical. Religion will never be absent from public discourse. From the perspective of the left, for example, if the religious right is to use religious arguments, the left must criticize their politics and their theology, not chide them for having bad manners in bringing religious into public life and engaging in public religious silence.

Although I think that religious discourse adds much of importance to political life and could add much to university life, I think that if Smith applied the same rhetorical weapons he applies to secular discourse against religious discourse, similar results would follow. Smith could easily demonstrate that religious discourse is indeterminate and that people smuggle assumptions from elsewhere into their religious arguments. Smith criticizes Nussbaum for the indeterminancy of a concept like human flourishing. But in the moral and political realm there are dozens of questions about human flourishing that turn out to be the same whether human dignity arises from our being created in the image of God or from more mystical support. In the end, I think Smith looks for arguments that cannot be rejected in public discourse. Those arguments in my view are rarely available.

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