January 05, 2014

The Winter Quarter starts here at Chicago this week...

...and no doubt others are returning from their winter breaks and/or AALS (barring winter weather fiascos!).  Here then a few blog items from the winter break you might have missed:

Judges do read law reviews after all!

Paul Campos defending cyber-harassment and sexist abuse

Michael McConnell on Why Tolerate Religion?

January 5, 2014 in Jurisprudence, Law in Cyberspace, Law Professors Saying Dumb Things, Legal Profession, Of Academic Interest | Permalink

December 27, 2013

"Why Tolerate Religion?" at Philosophy Talk radio

Here this week (middle column, click on the free live stream).  John Perry and Ken Taylor (philosophers at Stanford who host the show) and I had fun!

December 27, 2013 in Jurisprudence | Permalink

December 21, 2013

"Why Tolerate Religion?" redux

Since we recently commented on a not very edifying review, here's a new one that is both informative and (almost entirely) accurate about the arguments in the book (see it's not that hard!) and makes some fair criticisms.

ADDENDUM:  Given the time of year, I should note that Why Tolerate Religion? will fit nicely in most stockings!

December 21, 2013 in Jurisprudence | Permalink

December 18, 2013

"Why Tolerate Religion?" has clearly touched a nerve: some comments on Michael McConnell's review

Why Tolerate Religion? has had a good 12 months, with almost 3,000 copies sold, nice reviews in the popular media in Britain, Italy, Denmark, Sweden and elsewhere, and French and Italian translations already in the works (and an English paperback edition next fall).  While "new atheist" types have generally been critical of me for not being intolerant of religion, some religious believers have, not surprisingly, taken a different view.  The Family Research Council (a far right religious organization in the U.S.) condemned the book as, "[O]ne of the most troubling and intellectually discreditable books by a serious American scholar in some time."  (I have urged Princeton University Press to put this on the dustjacket!)  More soberly, First Things, a conservative Catholic magazine of ideas, worried that I had outlined "what may well become the theoretical consensus used to reinterpret the First Amendment."  This struck me, but not them, as wild optimism.  Most recently, an Elder of the Mormon Church gave a major public address in which he discussed my argument, concurring with my defense of liberty of conscience, but disagreeing that religion should not be legally "special." 

Although my 2001 paper on "Legal Realism and Legal Positivism Reconsidered" (Ethics, 2001) was chosen as "one of the ten best papers" of the year by The Philosopher's Annual; although my 2002 book Nietzsche on Morality (Routledge) has been called "arguably the most important book on Nietzsche's philosophy in the past twenty years" (Journal of Nietzsche Studies, 2010); and although my 2007 collection of essays Naturalizing Jurisprudence (Oxford) was lauded as "an important book by one of the most influential legal philosophers of our time" (Notre Dame Philosophical Reviews, 2010), I have to confess that the Family Research Council, First Things, and the Mormon Church let these momentous works pass in silence (so did the Yale Law Journal and Harvard Law Review, see infra). Go figure?

But not Why Tolerate Religion?!

Now within academia, where religion looms less large, the reaction has been friendlier than in the public religious sphere.  The political theorist John Gray, writing in Britain's New Statesman, called the book, "A model of clarity and rigour and at points strikingly original, this is a book that anyone who thinks seriously about religion, ethics and politics will benefit from reading."  Religious liberty scholar Christopher Eisgruber, formerly of NYU Law School, and now President of Princeton University, said, "Every reader will learn something from this remarkable book, and, beginning now, every serious scholar of religious toleration will have to contend with Leiter's bold claims."  And the Harvard Law Review opined that the book "exposes several tenuous assumptions underlying the predominant justifications for religious exemptions. At the same time, it provides a fresh and intuitive framework for analyzing conscience-based objections to facially neutral laws that should appeal to legal practitioners, jurists, and philosophers alike."

Given the preceding, I was gratified and a bit surprised that the most distinguished and accomplished conservative scholar of law and religion in the United States, Michael McConnell of Stanford, took the time to pen a lengthy review of my book in the Yale Law Journal:  that he felt the need to write 40 pages on a 185-page book tells me I must be on to something!  (The second most distinguished and accomplished conservative scholar of law and religion [yes, I rank those too], Michael Stokes Paulsen at St. Thomas, will be reviewing it for the Michigan Law Review, and I'm looking forward to that too!)  Although McConnell gets the majority of the arguments right, parts of the review do involve mistakes and misrepresentations that sometimes make it read a bit like a "hit job" on a book that, as First Things worried, might actually affect the consensus.  (I'll comment on a few of those, below.)

Professor McConnell makes clear at the start why he is worried (citations omitted):

Religious beliefs have always generated controversy. But religious freedom—the right of individuals and groups to form their own religious beliefs and to practice them to the extent consistent with the rights of others and with fundamental requirements of public order and the common good—has long been a bedrock value in the United States and other liberal nations. Religious freedom is one thing nearly all Americans, left and right, religious and secular, have been able to agree upon, perhaps because it protects all of us. Atheists are protected from imposition of prayer and Bible reading in state schools; churches are protected from interference with the hiring of ministers; religious minorities are protected from majoritarian legislation indifferent or hostile to their concerns. Progressive churches are protected when they oppose segregation or counsel draft resisters; traditionalist churches are protected when they oppose abortion or operate faith-based schools; nontraditional faith groups with unfamiliar worship practices are allowed to carry them out in peace. Because none of us can predict who will hold political power, all of us can sleep more soundly if we know that our religious freedom does not depend on election returns.


When the Supreme Court narrowed its interpretation of the Free Exercise Clause in 1990, in the so-called “Peyote Case,” Employment Division v. Smith, Congress passed the corrective Religious Freedom Restoration Act (RFRA) by unanimous vote in the House and a margin of 97-3 in the Senate. Supporters included the ACLU, the National Association of Evangelicals, People for the American Way, the American Jewish Congress, the Christian Legal Society, and virtually every other religious and civil liberties group. Recently, however, this consensus seems to be weakening—largely from fallout over culture-war issues such as abortion and the legal recognition of same-sex relationships. Many activists on these issues see religion as antagonistic to their interests, and are responding in kind. A new whiff of intolerance is in the air.


University of Chicago law professor and legal philosopher Brian Leiter has entered the debate with his new book Why Tolerate Religion? His answer? Although we should not persecute religious believers, religion as such does not warrant any “special” legal solicitude such as that provided by the Religion Clauses of the First Amendment. “[T]here is no apparent moral reason why states should carve out special protections that encourage individuals to structure their lives around categorical demands that are insulated from the standards of evidence and reasoning we everywhere else expect to constitute constraints on judgment and action.” Leiter argues, moreover, that it would be consistent with “principled toleration” for the secular state to affirmatively discriminate against religious believers in access to public spaces, such as by barring student Bible clubs from meeting on public school property, even when every other form of student organization is free to meet. So long as religious believers retain the right to express their own beliefs (including wearing religious symbols and clothing), the regime may advocate a “Vision of the Good” that is “irreligious” and may selectively deny religious believers and religious speakers equal access to public resources and opportunities.

The final paragraph is a very fair summary of my conclusions, though it omits the fact that I also think religious establishment is compatible with "principled toleration" (McConnell does note that later in the review).  My book is silent on all the "culture war" issues, except the French culture war issue about banning the head scarf and Jewish skull caps in the public schools, which I argue is a case of impermissible intolerance.  I was surprised, however, by McConnell's association of my argument with "intolerance," since it is a resounding defense of liberty of conscience (as the Elder of the Mormon Church correctly noted), including the liberty of religious conscience, but it denies that liberty of religious conscience is more important than other kinds. 

Indeed, it is a curious feature of McConnell's discussion that he never offers a counter-argument to this central thesis, other than noting that it entails some conclusions to which he is unsympathetic.  If a demand for "equality of conscience" constitutes "intolerance," then I will plead guilty.  The closest he comes to contesting the core thesis is to deny the plausibility (at 798-800) of one of my examples of the demands of non-religious conscience.  Perhaps McConnell is right that the example is ill-chosen.  But only if McConnell believes that the non-religious never have conscientious obligations on a par with those of the religious would this matter.  Does he really believe that?  He is coy, and I'm unsure, but I would hope he doesn't accept such an absurd conclusion.  [Note:  I will cite McConnell's review by page number, and my book as WTR followed by page numbers.]

Among hostile readers, McConnell is admirable for how much he gets right about the actual argument of my book.  And he makes two quite important, critical points, that deserve further discussion by those interested in these issues (including me when I return to them!): 

(1)  I do assume, reasonably but without extended argument, that the most epistemically reliable standards of reason and evidence are those that have emerged from the natural and human sciences since the scientific revolution.  McConnell is right to call attention to this assumption and the role it plays in parts  of my argument (though not quite as many as he appears to believe) (786-789).  His concrete challenges to the assumption are, alas, mostly silly, including invoking the authority of Thomas Kuhn and Richard Rorty (apparently unaware of the vast literature post-Kuhn in the last fifty years, or that Rorty is not, shall we say, a philosophical "authority" in these matters), and invoking Alvin Plantinga, a leading philosopher of religion and apologist for the rationality of religious belief.  He doesn't actually defend Plantinga's view on the merits, he just complains that I dismiss them without considering their merits.  Fair enough, I do invoke the philosophical consensus about the rationality of religious belief, and for a simple reason:  others have written other books on this subject (e.g., Mackie's The Miracle of Theism), and I can't do better than what they have already done.  McConnell seems miffed by invocations of epistemic authority, even though his essay is awash in such moves--for example, when he objects that I can't say it is "unwarranted" to believe in God when "many persons, including thinkers of the first rank" (788) do so.  He can't, unfortunately, have it both ways:  if the opinions of "thinkers of the first rank" count, then the fact that most disagree with Plantinga also counts.  McConnell is right to call attention to the fact that if the philosophical consensus is wrong about the epistemic status of some religious beliefs, that will affect some of my arguments (though not, e.g., the ones he singles out at p. 801).  But the only relevant response is on the merits of the epistemic arguments, about which McConnell is utterly silent.


(2) In the final chapter of the book, I argue that exemptions from neutral laws of general applicability should be available to all conscientious objectors, as long as they do not involve shifting burdens on to others.   Although McConnell confuses the idea of "burdens" with the Millian Harm Principle (803, 805), he correctly objects that I do not say nearly enough about what constitutes acceptable and unacceptable burdens to help with the resolution of concrete cases, and offers some useful examples (803-807).  He even notes that the "logic of [Leiter's] arguments may be more supportive of these claims for exemption than the more generalized rhetoric...would suggest" (807), though I would suggest the problem is that he read things into the "rhetoric" and ignored the "logic"!

In what follows, I want to correct five mistakes about or misrepresentations of the argument, and then comment on three misunderstandings or confusions (readers of my book will have to decide whether I am culpable for the latter--some reviewers have had related confusions, but others have not).  Most of the mistakes are minor (though some revealing), while the misunderstandings are perhaps more significant.  I conclude with a brief comment on a "cheap shot" that ill-befits a scholar of McConnell's reputation.

One generic comment:  McConnell, unsurprisingly given his expertise, mostly talks about the U.S. First Amendment, but my book is not about American constitutional law, and the First Amendment figures only as an occasional example, along with cases from France, Italy, Germany, Canada, and elsewhere.  I am interested in whether there is a moral justification for giving religion special legal solicitude, as all the Western democracies do; it is clear from my book that I think American First Amendment jurisprudence is in many respects--from "hate speech" to free exercise--morally indefensible.   When McConnell chastises me for ignoring the history of the First Amendment, notes differences between my view and the justifications offered in Employment Division v. Smith (797-799), or notes that I disagree with the outcome in Smith given the facts (803), he is having a dialogue with himself, not my book.  I won't belabor these distractions in what follows.

Continue reading

December 18, 2013 in Jurisprudence | Permalink

December 11, 2013

"Why Tolerate Religion?" at Chicago

A video of a talk given as part of our "Best Ideas" series, in which faculty talking about their work for about 25 minutes and then answer student questions for another half hour or so.  It was a lot of fun, and some readers might enjoy it.

December 11, 2013 in Jurisprudence | Permalink

November 29, 2013

"The Truth is Terrible"

This was the annual Epes Humanities Lecture at Davidson College, which some readers here might perhaps enjoy.  (Some law colleagues told me they did enjoy it, so I'm posting it here as well.)

November 29, 2013 in Jurisprudence, Navel-Gazing | Permalink

November 24, 2013

Functional explanations in positive (descriptive) legal theory

In the most recent installment of his very useful Legal Theory Lexicon, this one on functional explanations, Larry Solum (Georgetown) concludes by noting:

Let me conclude with a very short diatribe. Legal theorists need a basic understanding of positive legal theory. (I hope this is obvious to everyone!) That means that legal academics should, at a minimum, have a working familiarity with the general concepts of the methodology and theory of the social sciences, including basic ideas about the role of functionalist explanations. But almost no law schools (even the elite ones that train most academics) offer courses in the methodology of positive legal theory! That's bad. Real bad. 

Of course, as Larry knows, many legal philosophers do not think positive theories are particularly relevant to philosophical questions, though I am not one of them.  I do agree with his basic point that some grasp of foundational issues about the social sciences would be useful, including understanding methodological individualism vs. holism, the nature of functional explanations, and the relationship between functional and causal explanation.   I will note that Michael Forster and I do teach a lot of this material in connection with teaching Marx in various seminars, including, again, this Winter Quarter (while we do use Elster, and some G.A. Cohen, we actually use a 1986 paper by Peter Railton on "Explanatory  Asymmetry in Historical Materialism" (from Ethics) as the counterpoint to Elster, though Cohen ended up endorsing something like this view [I think]).  Whether all law teachers should be required to have had a course in the methodology of the social sciences is a harder question, but it surely couldn't hurt!

November 24, 2013 in Jurisprudence, Of Academic Interest | Permalink

November 21, 2013

Religious exemptions to the law

A short opinion piece at the new Al Jazeera America site, drawing on some themes from my book.

November 21, 2013 in Jurisprudence, Of Academic Interest | Permalink

November 06, 2013

Speaking of the law of religious liberty...

...I was pleasantly surprised to have my work noted by an Elder of the Mormon Church.   I'm glad we share "half a loaf" as he puts it!

November 6, 2013 in Jurisprudence, Of Academic Interest | Permalink

October 18, 2013

Responsibility, Guilt, Punishment

For those who are interested:

I offer an interpretation of Nietzsche’s striking idea of “the innocence of becoming” (die Unschuld des Werdens), and offer a partial defense of its import, namely, that no one is ever morally responsible or guilty for what they do and that the so-called “reactive attitudes” are always misplaced.  I focus primarily, though not exclusively, on the arguments as set out in Twilight of the Idols.  First, there is Nietzsche’s hypothesis, partly psychological and partly historical or anthropological, that the ideas of “free” action or free will, and of responsibility for actions freely chosen or willed, were introduced primarily in order to justify punishment (“[m]en were considered ‘free’ so that they might be judged and punished”).  Call this the Genetic Thesis about Free Will.  Second, there is Nietzsche’s claim that the moral psychology, or “psychology of the will” as he calls it, that underlies this picture is, in fact, false—that, in fact, it is not true that every action is willed or that it reflects a purpose or that it originates in consciousness.  Call these, in aggregate, the Descriptive Thesis about the Will.  (Here I draw on earlier work.)  Finally, there is articulation of a programmatic agenda, namely, to restore the “innocence of becoming” by getting rid of guilt and punishment based on guilt—not primarily because ascriptions of guilt and responsibility are false (though they are), but because a world understood as “innocent,” one understood in terms of “natural” cause and effect, is a better world in which to live.   I thus try to explain and defend Zarathustra’s  recommendation:  “’Enemy’ you shall say, but not ‘villain’; ‘sick’ you shall say, but not ‘scoundrel’; ‘fool’ you shall say, but not ‘sinner.’”  Nietzsche’s views are contrasted with those of important modern writers on these topics, including P.F. Strawson and Gary Watson.

Comments are welcome, thanks.

October 18, 2013 in Jurisprudence | Permalink