Mirror of Justice

Anyone interested in law-and-religion or church-state work will probably want to check out this new paper, "Religion and State:  Some Main Issues and Sources," by my colleague, John Finnis.  (Thanks to Larry Solum for the link.)  Here is a bit:

Any discussion of religion and state derails from the outset if it presumes that, as Brian Leiter puts it, “religion is contrasted with reason” – a theory for which Leiter, if he felt inclined, might summon as a supporting witness the first definition of “religion” in Webster’s New Universal Unabridged Dictionary (New York 1992). And the discussion equally derails if it presumes that no religion’s claims about God and man, world and society are reasonable, or that no religion’s claims are even discussable within the domain of public reason, that is, of the discourse that one should find in universities, schools, and legislative and other political assemblies, including discourse about what laws and public policies to adopt.  The discussion derails, again, if it presumes that the philosophically neutral, default, baseline or otherwise presumptively appropriate framework or basis for the discussion of religion and state is that no religious claims add anything -- whether content, certitude, or probability -- to what is established in moral or political philosophy, or in natural or social science or social theory.

It derails, too, if it holds or presumes that religion’s status is nothing more than one way of exercising the “right” proclaimed as fundamental and “at the heart of liberty”, in Planned Parenthood v Casey (1992): “to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”  Or again if, as Ronald Dworkin says, the basis of the First Amendment’s guarantee of religious freedom is simply that “no one can regard himself as a free and equal member of an organized venture that claims authority to decide for him what he thinks self-respect requires him to decide for himself.”  These celebrations of the right to “decide for oneself” and “define one’s own concept” trade, as we shall see, on an important truth.  But they abandon reason when they assert that the relevant intelligible and basic good in issue is not the good of aligning oneself with a transcendent intelligence and will whose activity makes possible one’s own intellect and will, nor even the good of discovering the truth about some meaningful and weighty questions, but rather the good of self-determination or self-respect.  For these are no true goods unless the goods around which one determines oneself deserve the respect due to what is true, rather than self-interested make-believe.

By the way, it seems to me that the paper's opening sections work as -- even if they are not billed explicitly as -- a response to Brian Leiter's recent essay, "Why Tolerate Religion?"