Sunday, March 2, 2008

Religiously-based legislation

Consider the following thesis: (*) In a liberal democratic society, it is wrong to introduce coercive legislation on religious grounds.

Here is a simple counterexample. Suppose that the vast majority of the citizens hear a voice from God, and see lots of corroborating miracles such as the clouds spelling out a disproof of the Riemann Zeta Conjecture and a proof of Goldbach's conjecture. The voice announces that prohibiting burning coal in large quantities would decrease cancer rates in 80 years by 80%. Let us suppose that a quick review of the scientific literature finds no evidence either for or against this claim. It seems that it would reasonable and not wrong to forbid the burning of coal in large quantities on the basis of this revelation, and to do so under pain of significant penalties, and, in fact, it might be wrong not to introduce such legislation. (Sure, one could do research on the question, but the long term nature of the research would dictate that one would have to act before the research was in.) Yet such a prohibition would be coercive legislation introduced on religious grounds. Hence, (*) is false.

Objection 1: Bite the bullet—the legislation would indeed be wrong.

Response: Suppose that the voice isn't from God but from an alien scientist where the aliens had a science thousands of years ahead of ours. Then plainly the legislation would be reasonable (assuming one could rule out ulterior motives on the part of the scientist). But the only reason to listen to the scientist is that its testimony is likely true, and the same reason applies a fortiori in the case of God. Hence, if the testimony comes from God, it is even more reasonable to introduce the legislation.

Objection 2: This isn't the relevant sense of "on religious grounds." The claim that stopping burning coal would reduce cancer rates is not religious in nature. Granted, the claim is epistemically based in religious claims—the revelation of God—but the claim is not itself religious.

Response: That may be. But if so, then the prohibition on religiously based legislation prohibits a lot less than is generally thought by defenders of the prohibition. For instance, this will mean that anti-abortion legislation based on a religiously based belief that embryos and fetuses are persons will not count as religiously based in the relevant sense, since the claim that embryos and fetuses are persons is not religious in nature—it is a metaphysical or ethical claim (or some combination of these). If metaphysical or ethical claims like this were automatically religious in nature, then civil rights legislation based on the conviction that members of some class are persons and should be treated as such would likewise be ruled out, which is absurd. So on this view, (*) is not violated by legislation based on metaphysical or ethical claims that are epistemically grounded in religious claims. Then, even legislation that prohibited homosexual activity on the grounds that it is immoral, with the claim of immorality being justified by means of the Bible, would not count as religiously based, at least as long as "immoral" was understood in a non-religious way. This defense of (*), thus, undercuts what typical proponents of (*) want to use (*) for.

Objection 3: In the example given, the divine-revelation justification is epistemically based in a good publicly available argument for the reliability of the revealer, based on obvious miracles. But that is an outlandish hypothetical case: the reliability of the revealer in real-world religions is not something for which one can argue in a publicly available way.

Response: If this objection is correct, the problem isn't with the religious basing of some legislation, but simply with the legislation's not being based on good publicly available arguments. Here, I inserted "good", because in fact apologists for all the major religions do publicly offer arguments for their religions, so if the objection was the lack of argument, the objection would be unsound. Rather, the objection has to be to the lack of good publicly available argument. To make this case, one has to be in a position to show that all the apologetic arguments for the different religions fail. That is a non-trivial task (and I think an impossible one, because the apologetic arguments for Catholicism as a matter of fact are successful).

It's worth noting that even though the principle that one shouldn't introduce legislation based on something lacking good publicly available arguments may be correct, it is not a principle we really want constitutionally enshrined. The consequences of striking down all laws whose introducers (or maybe the voters for which) lacked good publicly available arguments would be really scary by everybody's lights.

18 comments:

David said...

How about a variation on Objection 3:
One shouldn't introduce the coercive legislation, unless the argument for the legislation is so convincing that it's difficult to imagine a reasonable person rejecting it. This variation is consistent with holding that there are true apologetic arguments. (I don't accept this view myself but am just trying to find a version of Objection 3 that withstands your counter.)

Alexander R Pruss said...

David:

Interesting suggestion. But then, unless one only required such strong arguments in the case of religious based legislation, which would be ad hoc, the government would be hamstrung in its power to extract taxes for various purposes. (The extraction of taxes is, plainly, coercive--taxes are extracted under pain of legal penalty.) Almost no law increasing taxes is such that it is difficult to imagine a reasonable person rejecting it. One would end up with an incredibly limited government--some conservatives will say that that's not so bad.

Francis J. Beckwith said...

Here's another reply to David's suggested revision of Objection 3:

It seems reasonable to reject the principle that "one shouldn't introduce the coercive legislation, unless the argument for legislation is so convincing that it's difficult to imagine a reasonable person rejecting it." Thus, since I can imagine a reasonable person rejecting this principle, and since this principle would limit the rights of citizens to affect legislation (and thus is coercive), I can reject it on its own grounds.

larryniven said...

I think a more pragmatic response to objection 3 would be to say that a religious argument must not be only good (we've got lots of plausibly good arguments) but rather head-and-shoulders above its competitors. Our government wastes enough time as it is - do we really want them debating philosophy of religion questions? I also have to point out, a huge amount of legislation is ad hoc, as the government does not operate on any real sort of formula. So, yeah, requiring explicitly religion-based legislation to pass a higher test would be ad hoc - so what?

Alexander R Pruss said...

The claim that the government's debating philosophy of religion questions would be a "waste of time" would need justification.

Moreover, it is not so much a matter of government debating them, but of the voters debating them, and then electing representatives who are sympathetic to the voters' positions.

larryniven said...

Alex, philosophers haven't found satisfactory answers to these questions. Politicians wouldn't even be able to come close. And if the point here is to convince the public, they don't even need to be good arguments, just convincing ones. At that point, you're not talking about philosophy anymore but rather forensic debate. And you expect this of a country that once split in half because people thought it was okay to own slaves?

Alexander R Pruss said...

I have my doubts that philosophers are, on the whole, particularly good at answering the deep questions of life and religion. :-)

The problem, in any case, infects just about all public deliberation, and not just about religious matters. There seems to be little reason to single out religious cases.

David said...

I don't think it's plausible to say, as Frank Beckwith suggests, that a restrictive rule on coercive legislation is itself coercive, because it interferes with right of citizens to affect legislation. The supposed "right" is a right to coerce. The attempt to enact the rule I mentioned, then, would not fail its own test.

Alexander R Pruss said...

David:

Isn't forcibly preventing x from coercing y a form of coercion of x?

David said...

I'm sympathetic to Bob Nozick's view of coercion, in which forcibly preventing x from coercing y isn't coercing x, unless x has a right to coerce y. In any case, the rule I mentioned doesn't forcibly prevent people from doing anything. It is only a necessary condition for a measure to have legal effect.

larryniven said...

"I have my doubts that philosophers are, on the whole, particularly good at answering the deep questions of life and religion. :-)"

Precisely.

"The problem, in any case, infects just about all public deliberation, and not just about religious matters. There seems to be little reason to single out religious cases."

Well, I think to some extent one has to accept that this is the ostensible premise of the country. Going the other way (i.e., establishing an official religion) would be singling out religious cases, too, just in the other direction. You may like the latter case more than the former, but neither treats religious questions the same way it treats areligious ones.

Alexander R Pruss said...

Well, it's perfectly fine to establish an official tax policy or an official health policy, even though deliberation about what tax or health policies are appropriate is infected by the same problem, so I think that religion is singled out.

Alexander R Pruss said...

David:

It still sounds like coercion to me. In any case, the proposed rule, then, is (using my sense of "coercion"): "One shouldn't introduce legislation that either (a) forcibly requires some activity, or (b) forcibly prohibits a non-coercive activity, or (c) forcibly prohibits a coercive activity that the subject has a right to engage in, unless the argument for the legislation is so convincing that it's difficult to imagine a reasonable person rejecting it." This principle seems to me to have too many disjuncts to be a basic principle (that's just a heuristic). Is there a more basic principle it's derived from? Is there something that cases (a), (b) and (c) have in common?

David said...

I don't have a good answer, but there is a simpler way to escape Frank's objection. One can take the principle as advising people not to enact coercive legislation, unless there is a convincing argument of the required strength. One need not enact this principle itself; hence, even if you and Frank are right that to do so would be coercive, the principle need not be rejected on its own grounds. People who didn't choose to follow the advice wouldn't be coerced.

Alexander R Pruss said...

Does that then just come to the principle that barring an argument of the required strength, there is a presumption against a coercive law?

David said...

Yes, I think so. But there is a complication. Frank assumed I intended the principle to apply generally, and I replied on that basis. But I intended it only to apply to religiously-based legislation. People such as Rawls have what they think (in my view wrongly) are good reasons to restrict religiously-based legislation. I was imagining how they might respond to your case of the voice and miracles. They would deny that it is ad hoc to apply the principle only to religiously-based legislation, because they think there are special reasons to restrict religiously-based legislation that don't apply more generally.

Alexander R Pruss said...

And this difference is what I don't see. I don't see why the testimony of an angel should somehow be treated differently from the testimony of an alien, if all the epistemically relevant aspects are the same.

David said...

But on the view I was suggesting, the testimony of the angel and the alien wouldn't be treated in an epistemically different way. It isn't that the opponents of religiously-based legislation need think that religiously-based arguments are inherently weaker than non-religious arguments. They think that in considering religiously-based legislation, one should either disregard religiously-based arguments altogether or else demand a much tougher standard. I think they are mistaken, but if one wants to reject their view, doesn't one have to address their arguments for opposing religiously-based legislation, rather than just point out, correctly, that religious arguments aren't epistemically weaker than non-religious ones?