For the first time in a half-century, the Encyclopaedia Britannica has commissioned a new essay on "Philosophy of Law," written by myself and a former student, Michael Sevel, now at the University of Sydney. Hopefully ours will have a half-century run as well!
During my October (2014) "Italy tour" (when I gave the Fresco Lectures at Genoa, and also gave a seminar at Palermo), I was fortunate to visit the European University Institute for the first time, thanks to Prof. Dennis Patterson. While there, Joseph Weiler, President of the EUI and editor in chief of the European Journal of International Law, asked to record a short discussion about Why Tolerate Religion?
This is a lightly revised version of a paper I gave last week at a very enjoyable conference on "Philosophy in the Public Sphere" at the Jindal Global University in Sonipat, India, near Delhi; the abstract:
The idea of “public philosophy”—that is, philosophy as contributing to questions of moral and political urgency in the community in which it is located—is paradoxical for two reasons. The first is that normative philosophy has no well-established substantive conclusions about the right and the good. Thus, philosophers enter into moral and political debate purporting to offer some kind of expertise, but the expertise they offer can not consist in any credible claim to know what is good, right, valuable, or any other substantive normative proposition that might be decisive in practical affairs. But philosophers—at least those in the broadly Socratic traditions--do bring to debate a method or way of thinking about contested normative questions: they are good at parsing arguments, clarifying the concepts at play in a debate, teasing out the dialectical entailments of suppositions and claims, and so on: Socratic philosophers are, in short, purveyors of what I call “discursive hygiene.” This brings us to the second paradox: although philosophers can contribute no substantive knowledge about the good and the right, they can contribute discursive hygiene. But discursive hygiene plays almost no role in public life, and an only erratic, and highly contingent, role in how people form beliefs about matters of moral and political urgency. I call attention to the role of two factors in moral judgment: non-rational emotional responses and “Tribalism,” the tendency to favor members of one “tribe” at the expense of others. The prevalence of emotional responses, especially tribalist ones, undermines the efficacy of discursive hygiene in public life.
I conclude that the role for public philosophy is quite circumscribed, though public philosophers should learn from their cousins, the lawyers, who appreciate the role that rhetoric, beyond discursive hygiene, plays in changing moral attitudes and affecting action. Along the way, I discuss Stevenson’s emotivism, what we can learn from Peter Singer’s schizophrenic role as a public philosopher (lauded for his defense of animal rights, pilloried for his defense of killing defective humans), evolutionary explanations of tribalism, the lessons of American Legal Realism for the possible relevance of discursive hygiene, and Marx and Nietzsche as "public" philosophers.
If you've studied philosophy at the undergraduate or graduate level, and are thinking about law school, I would like to urge you to consider the University of Chicago Law School. The Law School trails only Yale in per capita placement in law teaching, and graduates are also hugely successful in the private firm market, and in clerkships. Although we have a relatively small faculty (35 full-time academic faculty), we have two philosophers full-time in the Law School (myself and Martha Nussbaum), and a large number of colleagues with philosophical interests. This year, we have three philosophically-minded visiting professors in the Law School as well, Corey Brettschneider from Brown University, Alon Harel from the Hebrew University and Robert Simpson from Monash University, as well as our Law and Philosophy Fellow for this year, Amanda Greene; we expect to have other philosophical visitors in coming years, including Derrick Darby from Michigan.
There is an annual Law & Philosophy Workshop that meets throughout the year, and which students may take for credit: last year's theme (when Martha Nusssbaum ran it with our Law & Philosophy Fellow Sarah Conly ) was "Life and Death," with speakers including Dan Brock, Jeff McMahan, Julian Savulescu, Daniel Wikler, and others and others; the year before (when I ran it with our Law & Philosophy Fellow Justin Coates) the theme was "Freedom and Responsibility," and speakers included Derk Pereboom, Gary Watson, Pamela Hieryonmi, Hanna Pickard, and others. This year's topic is "Free Speech and Its Critics," and speakers will include Joshua Cohen, Seana Shiffrin, Susan Brison, Jason Stanley, and Mary Kate McGowan, among others. We also have regular offerings in the Law School in jurisprudence, feminist philosophy, political philosophy and other areas. Each year we have both a Law & Philosophy Fellow in residence, and a week-long Visiting Political Philosopher in residence (last year it was T.M. Scanlon, the year before David Estlund). The annual Dewey Lecture in Law & Philosophy has recently brought Barbara Herman, Philip Pettit and Elizabeth Anderson to the Law School; Axel Honneth is this year's Dewey Lecturer. In addition, there are usually one or more conferences each year in the Law School related to philosophical topics; last Spring, for example, I organized a conference on "Skepticism about Freedom and Responsibility," with main papers by Conly, Jesse Prinz, Paul Russell, Saul Smilansky, and Gideon Yaffe, with JD and PhD students serving as commentators. There is now a large and lively group of philosophically-minded students here. (More than 10% of the first-year class last year came to us with a philosophy major or advanced degree--that's the highest since I've been here, and probably one of the highest percentage of philosophy students at any law school in the U.S. That doesn't count one JD/PhD in philosophy student, who started in philosophy last year.) Of all the law schools in the U.S., the Chicago experience is also probably most like that of a graduate program in a PhD field, in terms of the intellectual engagement of both faculty and students.
Chicago currently has substantial merit aid to offer to very strong students (the best-known are the Rubenstein Scholarships, but there are other sources of aid, including for students interested in a JD/PhD). Philosophy students, both those with undergraduate majors and those with advanced degrees, have been very successful in getting this aid, and have performed very well at the Law School; as a result philosophy students receive favorable consideration here. Excellent numerical credentials are very important, of course, but even within that pool, applicants with philosophy backgrounds stand out. Students with philosophy backgrounds have recently turned down Yale, Harvard, and other peer law schools to come to Chicago. If you have questions about law study at Chicago, feel free to e-mail me at bleiter-at-uchicago-dot-edu.
The journal Criminal Law & Philosophy kindly organized a symposium on my book, with essays by F. Boucher (Montreal) & C. Laborde (UCL), F. Schauer (Virginia), C. Brettschneider (Brown) and P. Jones (Newcaslte). A draft of my reply is here.
Justice Sotomayor (and colleagues) are exactly right about this. Note that Wheaton, a not-for-profit religious organization, is claiming that the requirement to fill out some paperwork in order to be exempt from the requirement to pay for health insurance covering contraception is a substantial burden on its free exercise of religion. The claim is preposterous on its face, as Judge Posner made clear during oral arguments on this issue in the 7th Circuit a couple of months back. I still suspect that when this gets to the Supreme Court, they are going to side with the government, not the Wheatons.
UPDATE: Here's the full opinion. P. 11 of Justice Sotomayor's dissent is very good and goes to the issue the majority got wrong in Hobby Lobby as well. A lot of the dispute here is about the standard for granting injunctive relief under the All Writs Act, about which I know exactly nothing. It is worth emphasizing that the granting of the injunction is not a decision on the merits of Wheaton's claim, it just stays the law until the merits are adjudicated.
Your posts clarified today's ruling, though the whole thing seems rather complicated.
My first response is to suspect that Roberts and Scalia view the constitution and the amendments as an appendix to the Bible.
Is it too cynical to suspect that their ruling was influenced heavily or subtly, by their faith? I'm surprised they didn't quote scripture in their decision.
The logic of the case as it appears to the common sense of the man on the street is that employees are prevented from doing legal actions in their private lives because their bosses feel uneasy with it. In this case because of religious beliefs which are somehow privileged.
In the minutia of the ruling isn't the broader point of the rights of citizens overshadowed?
Your comments puts this in perspective. It's not the end of the world or America. But isn't it disturbing?
I agree it is disturbing, though I have to confess my expectations were so low that I was pleasantly surprised by the way in which the majority opinion tried to narrow the import of the decision. I think there is no doubt that many, perhaps all, members of the majority were influenced a bit by their religious commitments; but even more so, I think they were influenced by their political ideology and the desire to "throw a bone" to the right-wing religious crazies, a point nicely made by law professor Joey Fishkin. The "common sense" perspective Mr. Berman describes aptly captures what is wrong with the Court's finding that a requirement to pay for insurance substantially burdens "free exercise" in this case, a point with which I am wholly sympathetic.
My own prediction is that the decision will generate some nuisance litigation--various family-owned businessed controlled by religious crazies of one stripe or another will try to challenge their disfavored medical procedure, and they will pretty uniformly lose in the lower courts--but that it also poses a real risk for LGBT rights. Justice Alito, a right-wing Catholic, in his majority opinion went out of his way to say that the decision would not exempt a religious racist from having to comply with anti-discrimination laws pertaining to race, but he said nothing about laws prohibiting discrimination based on gender and, more ominously, sexual orientation. The ray of hope here is that Justice Kennedy, who joined the majority in Hobby Lobby, also wrote the rather aggressive majority opinion in Lawrence v. Texas, striking down all homosexual sodomy statutes nationwide; he is likely to view anti-discrimination laws about sexual orientation as on a par with those about race, and so is likely to conclude both that government has a compelling interest in eliminating anti-gay discrimination and that there is no other way to do that than to prohibit such discrimination tout court.
I expanded my earlier posting, for those who might be interested, but let me correct a few mistakes about the decision I've been seing on social media from other philosophers:
1. The decision does not hold that corporations are people with free exercise rights. It holds that closely held corporations, e.g., the family-owned businesses who brought the legal challenge, have free exercise rights. General Motors has no cause of action against anything after today's decision.
2. The decision does not deprive employees of access to contraception. The Court accepts that the government has a compelling interest in insuring such access, and notes that the government had already found a way to insure that such access was met while allowing religious not-for-profit organizations (e.g., the University of Notre Dame) to opt out of paying for it: namely, requiring that the insurers cover the entire cost of such contraceptive coverage for employers with religious objections. The Court points out the same alternative is available for closely held corporations whose owners have religious objections to contraception.
3. The decision was not a constitutional decision; it was based on a federal statute, the Religious Freedom Restoration Act. RFRA is a bad law, and as readers of my book know, I oppose such carve-outs for religion; but given RFRA, the Court's decision is not wholly surprising.
4. It's contentious, but not ridiculous, to argue that closely held corporations can be "persons" for purposes of RFRA. The Court gives some fairly sensible reasons for thinking they can be in the opinion.
5. The major error in the Court's reasoning occurs at p. 36 of the majority opinion (Justice Ginsburg notes this problem at pp. 21-22 of her dissent). The Court has long held that it will not adjudicate whether religious beliefs are sensible, only whether they are religious and sincerely held. But that does not mean that the Court must defer to the religious person's beliefs about whether the law substantially burdens their religion: that is a question for the Court. In this case, it strains credulity to suggest that Smith's sincere religious belief that life begins at conception and that therefore the "morning after" pill is akin to murder is somehow "burdened" because Smith must pay for health insurance which an employee might use to seek medical services of which Smith disapproves. The Court should have found there was no "substantial burden" on Hobby Lobby in my view.
The good, the bad, and the ugly. (This is a comment on the quality of the reviews, not the verdicts they reach!) You would think a very clear, 185-page book would generate more consistently competent reviews, but the topic of religion, alas, seems to be an obstacle.
...is now out, with new essays by Stephen Perry, Barbara Baum Levenbook, Matthew Kramer, Bruno Celano, Michael Giudice, R.A. Duff, C.L. Ten, Hanoch Sheinman, and Luis Duarte D'Almeida. The volumes covers topics in general jurisprudence, as well as the philosophy of criminal law, international law, and contracts, among other topics. Perry's important paper has already commanded attention from jurisprudential scholars.
I'm also pleased to report that John Gardner, the Professor of Jurisprudence at Oxford, will join Leslie Green and me as co-editors of volume 3.
I gave a very short talk on this topic a few years ago, but this new draft paper is a much expanded and more systematic discussion, given as a keynote address in August for the annual meeting of the Australasian Society of Legal Philosophy in Sydney. I hope it will interest some readers, and I would especially encourage those outside general jurisprudence but with some interest in the philosophy of law to take a look, since I hope it clears up some common confusions about positivism and about Dworkin's theory of law.
...either because of this or this, not sure which. Money quotes:
"[O]ne of the most troubling and intellectually discreditable books by a serious American scholar in some time."--Family Research Council
"Students and scholars likely will be citing Leiter's clear and powerful arguments for many years."--Choice
(For non-US readers: Choice is widely used by libraries in deciding what to purchase; the Family Research Council is the main policy arm of the far right Christian movement in the U.S.)
UPDATE: My thanks to Brandon Conley for posting a sensible reply at the FRC blog. Still, I am trying to persuade PUP to use the FRB blurb, above, in promotional materials!
ANOTHER (May 5): There was a second comment pointing out the obvious, that the FRC author had not read the book, but that comment has disappeared. So just in case, here is Mr. Conley's comment from the FRC site, which, happily, is still there:
This review willfully misrepresents Leiter's aim as one of criticizing freedom of religious practice without persecution when Leiter's actual target is the idea that religious practices should receive preferential treatment by being exempted from laws designed for the common good. Here's a quote from an honest synopsis of the book displaying the kinds of questions it tackles:
" Why, for example, can a religious soup kitchen get an exemption from zoning laws in order to expand its facilities to better serve the needy, while a secular soup kitchen with the same goal cannot? Why is a Sikh boy permitted to wear his ceremonial dagger to school while any other boy could be expelled for packing a knife? Why are religious obligations that conflict with the law accorded special toleration while other obligations of conscience are not?"
In other words, Leiter is arguing for equal treatment of all claims of conscience, whether secular or religious. Since by far the most persecuted religious affiliation in the U.S. is atheism (in many states it is illegal for an atheist to hold public office), these questions are important to ask. The FCR is employing the all to common tactic of painting an argument against special treatment as an argument for persecution.
First Things is a conservative Catholic intellectual magazine. An unsigned editorial in the April 2013 issue opines that,
A recent book by...Brian Leiter outlines what may well become the theoretical consensus used to reinterpret the First Amendment. "There is no principled reason," he writes in Why Tolerate Religion?, "for legal or constitutional regimes to single out religion for protection." He buys the ideological [sic] attack on religion, describing religious belief as a uniquely bad combination of moral fervor and mental blindness. It serves no public good that justifies special protection. More significant--and this is his main thesis--it is patently unfair to provide it with such. Why should a Catholic or Jew have a special right while Peter Singer, a committed utilitarian, doesn't? Evoking the principle of fairness, Leiter argues that everybody's conscience should be accorded the same legal protections. Thus he proposes to replace religious liberty with a plenary "liberty of conscience."
Without dwelling on some of the mischaracterizations of my argument (the general thrust of it they have right), it's striking to me that they believe this "may well become the theoretical consensus used to reinterpret the First Amendment." I would welcome that, but I don't expect it to happen in my lifetime. I do think there's more potential in Canada and the European countries, many of which already recognize "liberty of conscience," but have yet, in practice, to extend that much beyond religious claims of conscience. (Of course, I also think there should be no exemptions from laws respsecting the principle of toleration and that promote the general welfare, unless those exemptions do not shift burdens on to others.)
So Princeton University Press tells me they have ordered a new printing of 1,000 more copies of Why Tolerate Religion?, in addition to the 2,000 initial run from October--so while I won't be retiring on the royalties, I must say it's quite a remarkable experience to be on the verge of selling 3,000 hardcover copies of an academic book! Thanks to those of you out there who have bought a copy!
In addition to the event in DC in April, I'll be doing something similar for the Center for Inquiry in Los Angeles in early October; more details on that to come.
Continental Philosophy Farhang Erfani, a philosopher at American University, provides a useful set of links to news, events, interviews, reviews, videos, etc. related to "Continental philosophy" (broadly construed)