Mirror of Justice

[I've reproduced below two entries from Eugene Volokh's blog (Nov. 16) and a response from a blog titled "Ciceronian Review" (Nov. 17).  Thought this material would be of interest.  Later, I'll post my own thoughts.]

[Volokh, posted on Nov. 16:]

One's Religious Dogma on the Legal System:

I keep hearing evangelical Christian leaders criticized for "trying to impose their religious dogma on the legal system," for instance by trying to change the law to ban abortion, or by trying to keep the law from allowing gay marriage. I've blogged about this before, but I think it's worth mentioning again.

I like to ask these critics: What do you think about the abolitionist movement of the 1800s? As I understand it, many -- perhaps most or nearly all -- of its members were deeply religious people, who were trying to impose their religious dogma of liberty on the legal system that at the time legally protected slavery.

Or what do you think about the civil rights movement? The Reverend Martin Luther King, Jr., after all, was one of its main leaders, and he supported and defended civil rights legislation as a matter of God's will, often in overtly religious terms. He too tried to impose his religious dogma on the legal system, which at the time allowed private discrimination, and in practice allowed governmental discrimination as well.

Or how about religious opponents of the draft, opponents of the death penalty, supporters of labor unions, supporters of welfare programs, who were motivated by their religious beliefs -- because deeply religious people's moral beliefs are generally motivated by their religious beliefs -- in trying to repeal the draft, abolish the death penalty, protect labor, or better the lot of the poor? Perhaps their actions were wrong on the merits; for instance, maybe some anti-poverty problems caused more problems than they solved, or wrongly took money from some to give to others. But would you condemn these people on the grounds that it was simply wrong for them to try to impose their religious beliefs on the legal system?

My sense is that the critics of the Religious Right would very rarely levy the same charges at the Religious Left. Rather, they'd acknowledge that religious people are entitled to try to enact their moral views (which stem from their religious views) into law, just as secular people are entitled to try to enact their moral views (which stem from their secular, but generally equally unprovable, moral axioms) into law.

Now some particular legal proposals may well be wrong. Perhaps banning abortion, or setting up welfare programs, or abolishing the death penalty violates people's rights, or is bad social policy, or what have you. But if that's so, then these proposals would then be equally wrong whether they're suggested by religious people for religious reasons, or by secular people for secular reasons. And conversely, if particular legal proposals are morally and pragmatically right, then religious people are just as entitled as secular people to advocate them.

So people should certainly criticize the proposals of the Religious Right (or Religious Left or Secular Right or Secular Left) that they think are wrong on the merits. But they would be wrong to conclude that the proposals are illegitimate simply on the grounds that the proposals rest on religious dogma. Religious people are no less and no more entitled than secular people to enact laws based on their belief systems.

And they would be quite inconsistent to (1) say that religious people ought not enact law based on their religious views, and nonetheless (2) have no objection when religious people do precisely that as to abolition of slavery, enactment of antidiscrimination laws, abolition of the death penalty, repeal of the draft, and so on.

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[Volokh, posted on Nov. 16:]

Reason and Law:

Reader Michael Benson responds to my post [above] by saying:

"Personally I hold the position that it's illegitimate (from an ethical, not a constitutional standpoint) to justify one's decisions about how society should be run based on assumptions one cannot defend reasonably. As I have yet to see any compelling defense made on evidence that for example 1) there is a god and 2) that god does not want me to be a homosexual, I find it unethical to try to legislate my choice to be or not be homosexual based on those propositions. My understanding is that a significant segment of the religious right makes their case exclusively on these grounds. I take this position not because of moral relativism, but because of the lack of a reasoned argument that can be presented for the case. To the extent that one desires to restrict another based on propositions one cannot defend reasonably, I believe that one is behaving unethically. I think that legislating me based on assumptions based on faith rather than reason disrespects me as a human being capable of thought.

"This could cut against someone like Martin Luther King ONLY in the event that he was unwilling and/or unable to justify his program without resorting to indefensible references to god. IE, if he was incapable of making a case through reason he was behaving unethically.

"With that said, I should note that I'd be unwilling to endorse any legislation that tried to enforce this rule because I think as a practical matter it would be liable to the worst kinds of abuses. But as a principle of right action, this is what makes me believe the religious right is behaving in a way that I not only disagree with, but find morally reprehensible."

[Now, Volokh responds:]

I sympathize to some extent with the correspondent's point; for instance, if we don't hear a compelling reasoned justification for a proposed law, that certainly is reason for us to reject the proposal.

But the trouble with the correspondent's broader notion -- "that it's illegitimate . . . to justify one's decisions about how society should be run based on assumptions one cannot defend reasonably" -- is that ultimately most of the moral principles that each of us has can't be defended purely reasonably. Should people be barred from abusing animals? There's no purely reasonable answer to that; at some point, it comes to down to a moral axiom, such as "people shouldn't be allowed to pointlessly inflict pain, even on animals" or "people should be free to do whatever they please with their property." And if you think this claim isn't an axiom, but can be defended reasonably through some other principle, that just means there's some other moral axiom lurking in the background.

Likewise, should abortion be legal? Pro-life people say personhood, and entitlement to moral rights, begins at conception. Pro-choice people select some other line. There's no way of proving it using pure reason; even if one makes an argument such as "a woman should be free to do what she likes with her own body" (which would, incidentally, allow abortions even at 8 1/2 months), then that becomes the axiom that you may believe but can't prove.

Or what about protecting endangered species? Many people want to protect them purely on moral principles -- humans shouldn't exterminate other species. That too is a moral axiom, or at least rests on moral axioms. Others argue that there's a pragmatic reason for it, for instance that protecting endangered species is needed in case the species may yield some useful biotech products some time in the future, or in case they fill an important ecological niche. But even such pragmatic reasons rest on unprovable moral judgments, such as that a small and incalculable chance that the species might prove useful in the future justifies the real costs to real people that saving the species would involve. Now these judgments may well be right -- but they aren't reasonably provable. And ultimately, the same is true, I think, for moral judgments even about matters such as the wrongfulness of murder, rape, robbery, and so on, and certainly for more contested matters such as race discrimination, breach of contract, defamation, invasion of privacy, moral rights in published works, and so on. All these moral and legal claims rest on unprovable moral assertions.

Of course, these assertions may be supportable, though not provable -- one can come up with plausible arguments that might influence people to accept one or another (for instance, "dogs can feel pain and emotions just like humans do, it's bad to needlessly inflict pain on humans, and it's therefore bad to needlessly inflict pain on dogs"). But these are appeals to intuition, aesthetics, and emotion. They aren't reasoned proof.

In this respect they're similar to religious people's arguments that, for instance, homosexuality is wrong because it's unnatural, and because the normal uses of our various organs reveal that God intended us to use them one way and not another way. Now the former arguments may be more persuasive to you or me than the latter. (I find the unnaturalness argument quite unpersuasive, for reasons I mention here.) But it's not because the former involved reason proof and the latter don't. Neither involve pure logic; both involve attempts to appeal to intuitive senses of right and wrong, though intuitive senses that vary among people.

So we are certainly free to say that certain arguments, whether arguments from the text of the Bible, arguments from the perceived will of God as expressed in the way the world works, arguments from church teachings, or what have you, are unpersuasive. And then if someone uses those arguments to support a law that we think is immoral, we can criticize him on the grounds that the arguments are unpersuasive and yield immoral results.

But I don't think that we can argue that the only legitimate laws are ones that can be defended using pure reason -- most important judgments about what the law ought to be ultimately rest on some unprovable moral assumptions.

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[Ciceronian Review, posted Nov. 17:]

Clear Miss

I want to remark on an argument advanced by Prof. Volokh.  The gist is that it is a confusion (at best) to argue tha it is wrong for the religious to attempt to impose their religious values through legislation, because moral values all end up as assumptions and there is no reaonsable basis for sorting them.  Volokh lays it out in more detail and with a bit more care, but the central argument is there.  It is wrong, and pretty clearly wrong.  Volokh trades on ambiguity in the notion of reasonable.  His line requires that in the absence of proof to certainty, assumptions are on par with each other.  There are a host of things wrong with this sort of thinking.  First of all, there is no need to insist on certainty, and no reason to think of certainty in this context as a standard of deductive proof.  Second, there is no genuine distinction on the sort of standard Volokh is using.  Deductive proofs are based on asumptions of various kinds, which cannot themselves be proven within the same system.  Third, there is a great difference between a value argument founded on publicly shared values and one founded on revelation.  The complaint within the poltiical sphere turns on the nature or the political association.  Volokh seems to presume that the political association is bare majoritarianism.  That is a mistake.  It is doubtfula  political community could survive on such a basis, and it is reaosnably clear that the US is not such a polity even if one were possible (or should I say practicable?).  Fourth, the notion that values are indistinguishable, which is what V's position ends up, is very hard to make sense of, for a variety of reaosns related to the nature of the expressions used and the nature of the values.  (He could, however, simply deny that anyting was going on, but then his libertarianism would be pointless) .  I will try to develop this in reasonable detail later in the week.

Update:

Here is the key to Volokh’s argument:

There's no purely reasonable answer to that; at some point, it comes to down to a moral axiom, such as "people shouldn't be allowed to pointlessly inflict pain, even on animals" or "people should be free to do whatever they please with their property." And if you think this claim isn't an axiom, but can be defended reasonably through some other principle, that just means there's some other moral axiom lurking in the background.

Let’s take it in pieces. What this paragraph responds to is the claim that public morality should be based on reasonable argument, i.e., values reasonably defensible. Volokh answers that there is no ‘reasonable answer’ because every answer in the end, ultimately, ends up at a moral axiom. I think by ‘axiom’ what is meant is that there is some basis not itself subject to proof, but I am not sure. Axiom is an odd choice of terminology here. It is not an axiom in the normal sense to believe that pain is disfavored and presumptively wrong. For one thing, there is a vast amount of evidence supporting this idea, so it is not unsupported. For another thing, there is no proper deduction at issue. I am not trying to present a (logically) valid argument to a conclusion. (Spinoza’s Ethics  is not the usual model of moral philosophy or of political argument.) Note also that there has been a shift in argument standard with the introduction of axioms. The original problem called for consideration of reasonable belief. That is not a call for deductive proof or derivation. Calling for reasonable argument is rather different, and asks for such things as considered evidence, relevant within the context, for values or beliefs which can be connected in a relatively straightforward fashion to the available evidence, etc. There is no doubt that the category ‘reasonable” is vague, but it is not for that unworkable.

Volokh also suggests that the criticism of religious beliefs fails because there must come an end to inquiry in moral and political discourse at some point. Well, certainly there must come an end, but in everything. There is no ineluctable epistemology laying around, applicable to human endeavor other than value theory. The standard is unworkable – it fails science, it fails mathematics. The whole line of argument ends up in emotivism.

“Of course, these assertions [re values] may be supportable, though not provable -- one can come up with plausible arguments that might influence people to accept one or another (for instance, "dogs can feel pain and emotions just like humans do, it's bad to needlessly inflict pain on humans, and it's therefore bad to needlessly inflict pain on dogs"). But these are appeals to intuition, aesthetics, and emotion. They aren't reasoned proof.”

This does not work either. If reasoned proof is deductive argument, then it is relatively easy to get to the conclusions once premises are set. If the idea is that the premises are subject to revision or subject to argument, the proper response is: So what? That is always true. It may be that there is nothing but emotions and aesthetics (how did aesthetics show up in this list? Isn’t it just a version of emotions here? And, while we have paused, what is meant by emotions in this context? Does Volokh really mean just affect/disaffect? Emotions, after all, entail cognitive content.), but this is not the road to showing that.

“So we are certainly free to say that certain arguments, whether arguments from the text of the Bible, arguments from the perceived will of God as expressed in the way the world works, arguments from church teachings, or what have you, are unpersuasive. And then if someone uses those arguments to support a law that we think is immoral, we can criticize him on the grounds that the arguments are unpersuasive and yield immoral results.”

This is incoherent given the preceding arguments Volokh has advanced. There can’t be immoral results in any robust sense of ‘immoral’, any more than there is any sense to ‘persuasive’ here. On Volokh’s account, persuasive can’t really exist. Instead, there is only ‘looks nice to me or not.’ Alternatively, the argument concedes exactly what is at issue, namely that there are terms or conditions on political argument, and hence some standards. That is, if ‘persuasive’ has content, then it is not just ‘strikes a pleasant feeling in me’ and so there are good and bad arguments.

The entire line of argument seems not to get off the ground. I think this is because Volokh is not really understanding what the complaint about religion in politics is. The point is not, at least as I understand it, that there I something wrong with people acting on moral beliefs, whether based in religion or not. The complaint is about whether it is appropriate to consider political action based on exclusively religious reasons. If the objection to X is that it is condemned by God, that is not an appropriate argument for political action because it is not a reason at all for those outside the religion. That the Bible says, is of no importance unless one thinks the Bible is a Bible. But the political community is not founded on acceptance of the Bible. It is founded on other, essentially secular, grounds. When the religious have nothing to offer but the revelation, they are not engaged in legitimate political conduct. But that hardly bars from political action, or legitimate political action. It merely requires (or counsels) that the political argument be couched in terms of values that part of the public political community. This is not a disadvantage to the religious because those terms of debate are fully open to them.

So, in terms of M.L. King, he is of political significance because he did not argue solely in terms of his religion. Abolition may have been grounded in religious beliefs, but the arguments we need to consider go beyond (in the limited sense of addressing other value sources), and do not rest with some purported revelation. Thus, the underlying complaint is that the religious arguing from their religious beliefs alone is disrespectful to the rest of the political community. The debate should not be about the nature of value theory or about moral epistemology.