June 26, 2014

On Raz's service conception of authority

Anyone working in legal philosophy ought to read this essay.

Posted by Brian Leiter on June 26, 2014 in Jurisprudence | Permalink

June 15, 2014

"The Case Against Free Speech"

Very much work in progress, so comments welcome.

Posted by Brian Leiter on June 15, 2014 in Jurisprudence | Permalink

June 09, 2014

"The limits of religious tolerance"

The scholarly debate has made it to the Chronicle of Higher Education,with lots of lawprofs featured, including me, Schwartzmann, Laycock, McConnell, Sager, Smith, and Koppelman.


Posted by Brian Leiter on June 9, 2014 in Faculty News, Jurisprudence, Of Academic Interest | Permalink

June 06, 2014

"The Recurring Myth about Nietzsche and Fascism"

Now at The Huffington Post.

Posted by Brian Leiter on June 6, 2014 in Jurisprudence, Of Academic Interest | Permalink

May 28, 2014

My legal philosophy blog...

...is coming back to life.

Posted by Brian Leiter on May 28, 2014 in Jurisprudence | Permalink

May 23, 2014

On the right to be forgotten

A sensible commentary from my colleague Eric Posner.  It's one of the many travesties that is modern First Amendment law that it would prohibit the recognition of such a right here.

Posted by Brian Leiter on May 23, 2014 in Jurisprudence, Law in Cyberspace, Of Academic Interest | Permalink

May 16, 2014

Why philosophy has been central to legal education

Now in Turkish.

Posted by Brian Leiter on May 16, 2014 in Jurisprudence, Of Academic Interest | Permalink

May 14, 2014

The many academic defenders of the inequality at the core of our current religious exemptions jurisprudence...

...had better speak out forcefully about the latest in religious-inspired anarchy.

Posted by Brian Leiter on May 14, 2014 in Jurisprudence, Of Academic Interest | Permalink

April 30, 2014

"Legal Realisms, Old and New"

This was the 2012 Seegers Lecture in Jurisprudence at Valparaiso, now on-line courtesy of their Law Review.

Posted by Brian Leiter on April 30, 2014 in Jurisprudence | Permalink

April 28, 2014

On the "social goods" allegedly promoted by religion

Prof. Mark Movsesian (St. John's) tries to respond to the "religion is not special" view (that I, Eisgruber & Sager, and Schwartzmann, among others, defend) in this blog posting.  Here is the crux of his claim:

Religion, especially communal religion, provides important benefits for everyone in the liberal state—even the non-religious. Religion encourages people to associate with and feel responsible for others, to engage with them in common endeavors. Religion promotes altruism and neighborliness, and mitigates social isolation. Religion counteracts the tendencies to apathy and self-centeredness that liberalism seems inevitably to create.

As I argue in Why Tolerate Religion?, it is certainly true that in the Western capitalist societies, religion is one of the most common sources of resistance to the market pressure towards "self-centeredness," but qua generalization, Movesian's claim is obviously false:  religion encourages the communal sentiments Movesesian describes, but mostly intra-religious group; there is no evidence, and Movesian cites none, that it encourages them generally outside the religious group.  This, of course, is why religion remains, as it has been for millenia, one of the great catalysts of inter-group violence and hatred.  

In lieu of actual evidence, Movsesian writes:

Tocqueville saw this in the nineteenth century. Egalitarian democracy, he wrote, encourages a kind of “individualism.” It trains each citizen to look out for himself according to his own best judgment and discount the needs of the wider society. Self-reliance is a good thing; at least Americans have long though so. But the attitude poses two great dangers for liberal society. First, it makes it difficult to motivate people to contribute to the common projects on which society depends: public safety, schools, hospitals, and the like. Second, it makes it easier for despotism to arise. The despotic state desires nothing more than for individual citizens to feel isolated from and indifferent to the concerns of others, so that the state can easily divide and dominate them all.

Tocqueville saw that voluntary associations could lessen these dangers. Religious associations are particularly useful in this regard. They are uniquely good at promoting social engagement—secular as well as religious. According to sociologist Robert Putnam, for example, regular churchgoers are more likely to vote, serve on juries, participate in community activities, talk to neighbors, and give to charities, including non-religious charities. And when it comes to defying state oppression, no groups are more effective than religious associations, which can inspire members to truly heroic acts of resistance, as dictators down the centuries have learned.

Tocqueville was a shrewd observer, but his observations do not constitute real evidence that religion qua religion produces social goods.  Indeed, Tocqueveille's primary claim was about voluntary associations, of which religion was one example--in the 19th-century a very important one, but less so now.  Again, as I discuss in Why Tolerate Religion?, there is no question that religious believers were among the resolute opponents of Nazi despotism (though other religious believers were also among the supporters); but communists were equally resolute in their opposition to Nazism (though less keen on charity, admittedly, since charity is one of the ways that capitalist societies legitimate an economic system that discards a portion of the population). In terms of motivating opposition to "state oppression," communists not in power have a much stronger record (against Hitler, against apartheid South Africa, against Franco's fascists) than any religious denomination.  (Communists in power have the same awful record as all "true believers," including religious ones, in rationalizing oppression.)  I don't think this means there shoudl be a "free exercise of communism" clause in the Constitution, but that is where a Movesesian-style argument would point, if taken seriously.

I have no doubt that categorical commitment to certain moral ideals is a good thing to cultivate in a population; but there is no evidence--literally none--that religion is uniquely good at doing that and doing it well (Movsesian cites none, obviously).  The peculiarity of religion--with its curious conjunction of categorical commands and insulation from ordinary standards of evidence--has always been that it can motivate people to do things that no one else would typically do.  Sometimes that is very good, and sometimes it is very bad.  In Why Tolerate Religion?, I assume that the protection of conscience is a good--in this regard, I am a mundane liberal--and some readers have criticized me on this score.  But that conscience is a good falls far short of thinking that religious conscience--whose history is far more mixed than Movsesian's quick gloss allows--is a good.  But that's what would need to be established for those who want to defend the inequality at the core of our current First Amendment jurisprudence in the United States.

UPDATE:  Professor Movesesian thinks the material he cited from Robert Putnam is evidence that religion uniquely produces social goods that benefit those outside the religious group.  It does not seem to me it is, and the passge he cites does not show that it is.  Many of the activities in question are also not, or not necessarily, "social goods":  e.g., voting (it depends how one votes obviously) or participating in voluntary associations (those may be good for the participants, but they may not be good for society as a whole).

ANOTHER:  Philosopher Craig Duncan (Ithaca College) calls to my attention to his interesting essay on "Religion and secular Utlitiy:  Happiness, Truth and Pragmatic Arguments for Theistic Belief," Philosophy Compass 8/4 (2013): 381–399 (on-line at Wiley-Blackwell).  In that essay he discussed Norenzayan, Ara and Azim F. Shariff. ‘The Origin and Evolution of Religious Prosociality.’ Science 322.3 (2008):  58–62:

An oft-noted datum, for instance, is the correlation between religious belief and greater charitable giving. Yet even here the picture is complicated, since some recent research suggests that much of the increase in charitable giving is due primarily to a concern to maintain a favorable reputation among one’s religious peers. In a recent and wide-ranging meta-analysis published in Science, for instance, Ara Norenzayan and Azim F. Sharif sum up their findings as follows: ‘‘The preponderance of evidence points to religious prosociality being a bounded phenomenon. Religion’s association with prosociality is most evident when the situation calls for maintaining a favorable social reputation within the ingroup’’ (Norenzayan and Shariff 2008, p. 62). Moreover, the authors go on to note that ‘‘the ‘dark-side’ of within group cooperation is between-group competition and conflict’’ (Norenzayan and Shariff 2008, p. 62) – presumably, they have religious intolerance in mind – and they also note that ‘‘there are many examples of modern, large, cooperative, and not very religious societies (such as those in Western and Northern Europe), that nonetheless, retain a great degree of intragroup trust and cooperation’’ (Norenzayan and Shariff 2008, p. 62; cf. Zuckerman 2008).

As Prof. Duncan summed it up to me:  "So the prosocial effects of religion, to the extent they exist, are rather thin inasmuch as they are largely motivated by reputational concerns rather than intrinsic moral concern."

Posted by Brian Leiter on April 28, 2014 in Jurisprudence | Permalink