Yesterday, at religiousleftlaw.com, Michael Perry referred to a column by Anat Biletski here that argued against the idea that human rights have a divine foundation. Bietski maintains that grounding human rights in divine authority drains the humanity from human rights. Thus, Abraham would have killed Isaac if angels had not intervened says Biletski (Should Abraham have tortured Isaac if God asked him to?).
At some points Biletski seems to be disagreeing with Ronald Dworkin, but they are both working the same side of the street - except Dworkin is at pains to argue that grounding human rights outside the divine is not inconsistent with the Divine or even with Divine authority though the Divine cannot on Dworkin's account command violations of human rights. In a very interesting discussion (at least to me), Dworkin says that he is "taking sides in an ancient theological controversy. Is a god good because he obeys moral laws, or are certain moral laws moral laws only because god had commanded them?" Justice for Hedgehogs 341 (2011). Dworkin suggests that the "familiar idea that a god is the ultimate source of morality is confused: the old churchmen who said that his goodness reflects some independent moral law or truth had the better of the argument." Id. at 342. If one accepts Dworkin's account, what is one to say of the Abraham/Isaac story?
Beyond the divine grounding of human rights (or not), I wish that Dworkin had convincing arguments for his conceptions of the ontology, epistemology, or structure of moral rights (all of which are detailed in his book). In the end, I do not believe that the grounding of human rights can be justified with knockout arguments, nor do I believe that there are knockout arguments for human rights across the many contested areas involved (in fairness, Dworkin does not think so either). People either need to accept forced arguments, follow deliberative intuitions, and/or be comfortable with ambiguity.
cross-posted at religiousleftlaw.com
Perhaps folks here will have seen Adam White's fine essay on Justice Alito. Adam focuses on Justice Alito's recent and emerging free speech jurisprudence, and along the way, he notes that Justice Alito has referred to Alexander Bickel as a strong influence on his views, particularly in those writings where Bickel emphasizes judicial restraint and the passive virtues. I've always found Bickel admirably difficult to pin down -- I think easy descriptions of him as a conservative or liberal are mistaken. For at least the early part of his career (including that part where he authored The Least Dangerous Branch), he was a committed political liberal. On the other hand, there are strains of conservatism that permeate his thought, particularly as he became older, though it is not the currently predominant strain of legal conservatism.
Take a look, for example, at this interesting exchange, "On Pornography," from 1971 (toward the end of Bickel's life) in The Public Interest (this is when Daniel Bell was heavily involved with PI, before it moved rightward). The issue is framed by two lead essays by Walter Berns and James Q. Wilson, with shorter "concurring and dissenting opinions" by Stanley Kauffmann, Wilson Carey McWilliams, Marshall Cohen, and Bickel.
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Monday, July 18, 2011
Robin West's new article, The Anti-Empathic Turn, looks fascinating. A bit from the abstract:
Justice, according to a broad consensus of our greatest twentieth century judges, requires a particular kind of moral judgment, and that moral judgment requires, among much else, empathy - the ability to understand not just the situation but also the perspective of litigants on warring sides of a lawsuit.
Excellent judging requires empathic excellence. Empathic understanding is, in some measure, an acquired skill as well as, in part, a natural ability. Some people do it well; some, not so well. Again, this has long been understood, and has been long argued, particularly, although not exclusively, by some of our most admired judges and justices.
Somehow, however, this idea, viewed as so utterly mainstream for much of the last century’s worth of writing about judging, has, in the first decade of the twenty first century, become positively toxic, at least in the context of confirmation battles to the Supreme Court. What was once regarded as non-problematically central to good judging is now regarded as antithetical to it. No one challenged this claimed antipathy between empathy and judicial excellence. How did that happen?
She sees a broader move from moral judging to scientific judging, which is itself a topic that warrants sustained conversation. I don't agree with Prof. West on all of the issues, but I have found her to be insightful even where we disagree.
Saturday, July 16, 2011
What is the legal distinction between a religious reason and a cultural reason when, say, one seeks an exemption from a generally applicable law? For example, if a circumcision ban were passed in Town X, but Town X included a provision for religious exemption, how would Town X know deep down whether the reason that someone wanted to circumcise their child was really religious as contradistinguished from cultural. What criteria would Town X use? It's easy enough if the basis for the requested exemption shows up in the (or a?) core text of the religion, but what if it is more in the nature of a historical accretion to a religious tradition? Or a (contested) interpretation of the core text? I can understand the reason that people want to rely on the distinction between religion and culture, because if there is no distinction at all, then protections for religious liberty come to encompass far too much. But my own view is that the distinction is often at best a matter of degree or perhaps of emphasis, rather than a difference in kind, and that it is a mistake to make it bear any serious weight.
Some of these problems appear in an interesting recent district court decision, EEOC v. Abercrombie and Fitch, where the plaintiff, a young Muslim woman, alleged that she was not hired as a sales associate because she wanted to wear her headscarf, which (said A&F) did not comport with its "Look Policy." Likewise, she was not granted an exemption from the Policy. The feature of the case that interested me most is A&F's claim that the plaintiff wanted to wear the head scarf for cultural, rather than religious, reasons. This looks like it's an important component of the legal analysis that courts have to undertake -- if it's religious, the discrimination claim survives; if it's cultural, no dice.
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