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Faith-Based Morality and Public Policy

Richard Posner

Brian said I’m an atheist, but the word has two distinct meanings. The first is a person who does not have a sense that there is a God—who, in short, is not a religious person. The second is a person who adheres to the doctrine that there is no God. That is a metaphysical proposition that does not interest me. You cannot convince a religious person that there is no God, because he does not share your premises, for example that only science delivers truths. There is no fruitful debating of God’s existence.

I note that President Bush, in his press conference following his reelection, said, in answer to a question about the increased political activism of religious people, that in America not only is anyone free to worship as he pleases, but also anyone is free not to worship at all, and the people who choose not to worship are just as patriotic as the worshippers. Well, I am one of thse nonworshippers, but I have no interest in promoting a doctrine of atheism.

I read recently, in a book on Locke—who grounded his egalitarianism in Christianity—that “Modernity has a secular self-understanding that tends to deny religious doctrine a role in political jus­tification.” Let me take this quotation as my text, and remind you of six actual or hypothetical cases involving religion and the Constitution:

1. The peyote case—an Indian tribe uses peyote in its religious ceremonies; the state outlaws peyote.

2. The Amish case—the Amish don’t want their kids to attend high school, in violation of the state’s compulsory schooling law.

3. The Ten Commandments case—is it lawful to post the Ten Commandments in a courthouse or other public building?

4. May a state ban the teaching of evolution, or require teaching of “creation science,” in its public schools.

5. Should the fact that most opposition to abortion is based on belief in ensoulment invalidate laws restricting abortion on demand?

6. Should the fact that much of the opposition to gay marriage rests on religious belief invalidate laws refusing to recognize such marriages?

In the first two cases, religion is seeking an exemption from secularly motivated laws of general applicability. In the next pair of cases, the state is being asked to enact, in effect, a religious dogma. The last two cases are the interesting ones. A law prohibiting abortion or gay marriage is not an enactment of religion in the same sense as posting the Ten Commandments or teaching divine creation, because those prohibitions do not mention religion or contain a religious message; they are merely inspired by religion. It would be a leap to regard them as “establishing” religion. And, in my view, a leap too far.

The leap would imply that the only morality that should guide public policy in today’s

United States

is a secular morality. There are secular moralities, such as utilitarianism. But should the Constitution, or political philosophy, be understood to prescribe utilitarianism, whether in the Benthamite or J. S. Mill versions, or maybe “secular humanism,” as our civic religion? That might depend on the character of morality, on what kind of normative order morality is, exactly. Specifically, on whether it must be reasoned, functional, practical, articulably derived from or related to some unexceptionable social goal. Well, much or even most morality seems based, rather, on instinct, emotion, custom, history, politics, or ideology, rather than on widely shared social goals. Think of the absolute prohibition of infanticide in contrast to the far more tolerant view of even late-term abortions. Think of the prohibition of bullfighting, cock fights, and cruelty to animals generally. Think of the rejection in our society of the Islamic punishment code, public nudity, polygamy, indentured servitude, chain gangs, voluntary gladiatorial combat, forced redistribution of wealth, preventive war, torture, the mutilation of corpses, sex with corpses, sex with nonobjecting animals, child labor, duelling, suicide, euthanasia, arranged marriages, race and sex discrimination. Are there really compelling reasons for these unarguable tenets of the current American moral code? One can give reasons for them, but would they be anything more than rationalizations? They have causes, that history, sociology, or psychology might elucidate, but causes are not reasons.

If morality, or at least a large part of the moral domain, lives below reason as it were, isn’t the practical consequence that morality is simply dominant public opinion? And so if the population is religious, religion will influence morality, which in turn will influence law, subject to constitutional limitations narrowly interpreted to protect the handful of rights that ought not to be at the mercy of the majority.

Rawls and others have thought that religious beliefs shouldn’t be allowed to influence public policy, precisely because they are nondiscussable. But this view rests on a misunderstanding of democracy. Modern representative democracy isn’t about making law the outcome of discussion. It is not about modeling politics on the academic seminar. It is about forcing officials to stand for election at short intervals, and about letting ordinary people express their political preferences without having to defend them in debate with their intellectual superiors.

If this analysis is sound, then we see that the statement that “Modernity has a secular self-understanding that tends to deny religious doctrine a role in political jus­tification” depends on whether modernity is equated with the dominance of the secular. The statement is thus entirely circular.

I welcome comments, as well as suggestions of additional topics for me to address during my guest week.

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50 responses to “Faith-Based Morality and Public Policy”

  1. Jeff

    Giant Hedgehog,

    Is J.S. Mill's libertarian philosophy, which suggests that governments act legitimately only to combat harm, a moral-infused political philosophy? If so, is the morality only in one's definition of harm? So in your view, there is no such thing as a political philosophy, or perhaps a constitutional (or structural) framework, free of morality?

    Would you recognize, or perhaps suggest, a distinction between public (civic) and private morality?

    You have always invited students to envision how people in disagreement about public policy would have privately contracted in the absence of prohibitive transaction costs. It's a little difficult to do at the macro level we are talking about here, but I can give it a twirl. Pre-conceived beings, with no knowledge of who they are, what the Earth is, much less anything about its animals, children, religion, and the like, come together, knowing only that they are soon to be dispatched together to a foreign place without any rules. They consider a contract. I think it's fair to say that they would probably agree on a few set priciples. Perhaps only one: Don't take my property and I won't take yours. Would they agree on anything else?

    Reply
  2. John Deer

    Prof. Posner,
    What do you think of this blogging phenomenon? Now that publishing information to the entire internet-savvy world is virtually cost-free, what will be the consequences? Is the fact that one can be completely anonymous significant?

    Reply
  3. Luka Yovetich

    Judge Posner,

    I would love to read something from you on, or that is directly related to, libertarian theory.

    Also, about your first paragraph, I bet $100 there have been some theists converted to atheism by argument. Any takers?

    Reply
  4. George Smith

    It often turns out that people who want to avoid any metaphysical underpinnings to their theory and practice of political decisionmaking are just concealing their preferred underpinnings. (That, I take it, is one point of Waldron's book, from which I assume you're citing, doubting that Locke's equality arguments can "swing free" of their Christian origins.) Your position involves a pessimism coupled with an optimism. The pessimism is that preference formation is fundamentally irrational — that whether people believe in one God or another or many or none is inscrutable and unchallengeable. But it also involves an optimism, that there exists some mode of public adminstration — democratic voting to choose leaders and empowerment of experts for many things that democracy as a political principle ought not to cover because people are too ignorant — that will allow the "best" results in most cases. But the idea that there is a "best" result "pragmatically" on "neutral" principles is what is most open to doubt. For your position (as Leiter's parenthetical remarks in his intro suggest) defines "best" in a partisan way, one that turns out to assume a whole controversial anthropology (individual good as individual satisfaction of uncorrected preferences, etc., collective good as the most overall satisfaction so defined). The question is whether the Rawlsians, in hoping for a more thorougly optimistic mode of public decisionmaking, in which preferences are forced to be justified in some common public language and correct themselves in light of other justificiations, involves less "irrationality" that your first premise and at least as much plausibility as your second. It is not clear to me why an anthropology of man as a seminar discussant is any more or less metaphysical or debatable or problematic than your preferred belief that man is simply the satisfier of whatever preferences society and history has shaped him to have. Each involves a controversial choice.

    Reply
  5. Shag from Brookline

    Have you posted recently your views on natural law? As I recall, you are a Holmesian positivist. Is there a correlation between faith-based morality and natural law? Are you influenced by the Marxian (Groucho) philosophy of not joining a club that would accept you as a member? If so, welcome to the club, or not.

    Reply
  6. Michael Rosen

    Judge Posner,

    I was interested in the distinction you make between the fourth and fifth cases.

    You write:

    "A law prohibiting abortion or gay marriage is not an enactment of religion in the same sense as posting the Ten Commandments or teaching divine creation, because those prohibitions do not mention religion or contain a religious message; they are merely inspired by religion."

    What about mandating the teaching of "Intelligent Design"? ID does not mention religion (or even necessarily pre-suppose it) although we all know that it is inspired by religion –as much as are blanket bans on abortion/stem cell research.

    By the way, I should very much like to hear you discuss Brian's characterization of your views on morality and its place if you have the time.

    Reply
  7. Craig

    Dear Judge Posner:

    I would love to see you post something on your views on pragmatic adjudication which Professor Leiter referred to in his introduction. Is there anything you would add to your recent book on the subject book since its publication?

    Reply
  8. Doug B.

    How about some discussion of punishment theory and/or the application of pragmatic adjudication to sentencing decision-making?

    Reply
  9. JeffS

    What counts as “religious beliefs” that should not be allowed to influence public policy, rather than ethical beliefs that happen to be religiously inspired?

    Here’s a suggested test: could the position in question be held by someone who does not share the particular established religion that inspired it. For example, outlawing the slaughter of animals in a manner that does not conform to Islamic/Jewish dietary laws – that’s a purely religious influence on policy, and should be restricted. By contrast, outlawing “inhumane” slaughter of animals would not be such a religious imposition – because one might conceivably propose it without subscribing to any organized religion. Similarly, opposing abortion and even gay marriage might conceivably involve no recognizable religious beliefs – even if in fact religion inspires them.
    Without this test, or something like it, we risk getting into the unmanageable business of deciding either a) what truly inspired a certain social policy position or b) what kinds of beliefs count as ethical (eg. is disgust an “ethical” motivation?). Better to simply rule out which sorts of positions count as purely religious – as opposed to also religious. At least that’s the test I’m suggesting.

    BTW, I don’t think the distinction between a secular, goal-oriented morality and a “rationalization of intuition, instinct. etc.” morality really holds up. Something, at bottom, must ground the favoring of one ultimate favorable consequence over another, right? But I know you’ve heard this one already… Thanks for the provocative post.

    Reply
  10. Aaron S.

    "Modern representative democracy isn’t about making law the outcome of discussion. It is not about modeling politics on the academic seminar. It is about forcing officials to stand for election at short intervals, and about letting ordinary people express their political preferences without having to defend them in debate with their intellectual superiors."

    I guess what you are suggesting of Rawls is that he is asking each and everyone of us to adopt the mantle of a judge when we vote. But clearly this is impossible for most people. So, I agree with your interpretation, but I am disappointed that it must be the case.

    Reply
  11. Orin S. Kerr

    I think it would be interesting — and of lasting value — if you blogged about the major misconceptions first-year law students have about the law. Entering law students are eager to read that kind of thing, and it might be a way to introduce your views to a generalist audience at the same time.

    Reply
  12. Brian Leiter

    The moral philosopher David Velleman has posted some thoughts on Judge Posner's comments here: http://left2right.typepad.com/main/2004/12/another_well_po.html

    Reply
  13. Greg

    Judge Posner,

    I have a few comments on your introductory paragraph concerning atheism and the debatability of the question of God's existence.

    First, you say that on the first sense of "atheist", an atheist "is a person who does not have a sense that there is a God—who, in short, is not a religious person". I am a bit confused as to how this sense of atheist differs from the second sense, according to which an atheist "is a person who adheres to the doctrine that there is no God". Is it simply that to be an atheist in the second sense one must believe the negation of the proposition that God exists, whereas to be an atheist in the first sense one need merely fail to believe the proposition that God exists?

    If that is what the distinction is supposed to amount to, then I think that the first and second parts of you explication of what it is to be an atheist in the first sense come apart. There are many religious groups–for example, the Jains–who do not believe that God exists. Others (presumably) would include Hindus and most Buddhists.

    To repeat: Is the distinction merely that between those who fail to believe the proposition that God exists ("atheists in the first sense") and those who believe the negation of that proposition ("atheists in the second sense")? [Notice that if it is then just about all atheists in the second sense will count as atheists in the first sense.] If not, then perhaps the problem lies with your use of the phrase "does not have a sense that there is a God" in your explication of atheism in the first sense. As far as I can see, this locution has to senses: In the first sense, to have a sense that p is merely to believe that p. On the second sense, to have a sense that p is for it to seem to one that p. In the second sense, I have a sense that a straight stick placed in water is bent, even if I don't believe that is so. If it is the first sense, then clearly to be an atheist in the first sense is just as I said it was above: it is merely to fail to believe that God exists. If it is the second sense, on the other hand, then I take it that your explication of what it is to be an atheist in the first sense is not well-developed, as someone might be in the same position vis-a-vis the proposition that God does not exist that we are in vis-a-vis the proposition that the stick is not bent when we see a straight stick placed in water: believing the proposition but having it seem to one that the negation of the proposition is true. That is, if it is the second sense of what it is to have a sense that p, then someone who believes that God does not exist but for whom it seems that God exists will count as an atheist in the first sense. And so it seems that this would not count as a sense of the term "atheist" at all.

    What have I missed, if anything?

    As for your comments on the debatability of the question of God's existence, I take your skepticism about the fruitfulness of debating that question to be ill-founded. First (although in reverse order from your presentation), it seems to me that no atheist ought to include the premise "Only science delivers truths" in any of his arguments, for (unless one has an unreasonably broad conception of what counts as science) that premise is demonstrably false. So, for instance, my eyesight delivers the truth that there is a computer screen in front of me. Historical investigation delivers the truth that the Civil War ended in 1865. Testimony delivers the truth that my grandfather fought in WWII. And so on for many other examples.

    Now, as to the first part, I again disagree with you. Oftentimes theists and atheists DO agree concerning the truth-values of many propositions. Or, at least, they can be convinced of these by the other. So, for instance, consider the following argument:
    1. If God exists, then this world was created by an omniscient, omnipotent, omnibenevolent being.
    2. If this world was created by an omnipotent, omniscient, omnibenevolent being, then this world is the best of all possible worlds.
    3. If this world is the best of all possible worlds, then this world contains no more evil than the best of all possible worlds.
    4. This world contains more evil than the best of all possible worlds.
    Conclusion: God does not exist.
    This argument was recently presented in an Introduction to Philosophy course that I TAed for and (it seemed to me) many of the students were rather convinced, upon explanation of the premises, that they were true. And, in fact, I believe that some even rejected the existence of God upon coming to this conclusion. If this is so, however, then one CAN give an argument for the nonexistence of God that will convince (at least some) theists. Black box.

    Reply
  14. Deborah Frisch

    Judge Posner: There are secular moralities, such as utilitarianism. But should the Constitution, or political philosophy, be understood to prescribe utilitarianism, whether in the Benthamite or J. S. Mill versions, or maybe “secular humanism,” as our civic religion?

    Deborah: Yes! Adios Jesus and God. Bonjour Jeremy and John Stuart. I can't imagine a better christmas present than that.

    JP: Modern representative democracy isn’t about making law the outcome of discussion. It is about forcing officials to stand for election at short intervals, and about letting ordinary people express their political preferences without having to defend them in debate with their intellectual superiors.

    D: Well, is doesn't imply ought, judge. This is how it is but it better change soon or this democracy is history.

    Surely you are in favor of replacing faith-based morality with reason-based morality. Something along the lines of Bentham, Mill, Rawls and Singer. That is the logical punchline of your analysis, yet you seem to have missed it.

    Reply
  15. Steve Marsh (Ethesis)

    Not since Benjamin Cardozo 75 years ago, have we had a sitting judge who has written so frankly about what it is judges do and ought to do.

    I've always admired your willingness to do that.

    Too bad agnostic doesn't mean null a gnositc. Liked your definition of yourself, which seems a fair one.

    Look forward to reading more posts.

    Reply
  16. von

    Judge Posner:

    I second Orin Kerr's suggestion, namely:

    "I think it would be interesting — and of lasting value — if you blogged about the major misconceptions first-year law students [i.e., educated laypeople] have about the law. Entering law students are eager to read that kind of thing, and it might be a way to introduce your views to a generalist audience at the same time."

    I'd merely add that relatively young lawyers (as I still count myself) would be eager to read that kind of thing as well.

    Reply
  17. Tadlow Windsor II

    "[Representative democracy] is about forcing officials to stand for election at short intervals, and about letting ordinary people express their political preferences without having to defend them in debate with their intellectual superiors."

    But that's entirely consistent with the notion that deliberation among representatives ought to be based all and only on public reason. (Politicians ineluctably will pander, but that's hardly dispositive of the normative question.)

    Reply
  18. anon

    "They have causes, that history, sociology, or psychology might elucidate, but causes are not reasons."

    In a Aristotelean sense, efficient causes are perfect reasons ("The means or agency by which a thing comes into existence."). Perhaps you mean that causes are not justifications.

    Maybe the circular nature of the initial quote is the cause for such splitting of hairs, but I don't think the observation (either reading) furthers the debate at all.

    I'd be interested to know, in light of the above discussion, if you believe Lawrence was wrongly decided?

    -kd

    Reply
  19. Fernando

    The analysis as such does seem to lead to circular reasoning. Close inspection reveals an alternative approach. It’s understood that philosophers or those engaged in the abstract domains of enlightened discourse tend to make use of metaphors and linguistic use that may not only provide profound insight butt may as well lead to opaqueness, at times conundrums. For example, to claim that “modernity has a self-understanding” is a case in pint. Does modernity have or is it even capable of self-understanding? This clearly personifies an epoch. Perhaps through charitable reading we can take Locke to mean that “those engaged in the abstract domains of enlightened discourse,” the kind with secular “stripes”, are more likely to “deny religious doctrine a role in political justification.” That’s to speak of a class of people within a epoch. Moreover, another pressing question is: what does Locke mean by “denying” such doctrine? Does this mean that secularist deny consideration? Does it mean that secularists take/(took) the actual physical initiative to prevent such doctrine from fusing with political thought, action, and policy? Granted, we learn much from the Lockean quotation. It provides a clear venue into the powerful cognitive abilities of great philosophical minds, the type that make an effort to appease the “human condition,” in the large sense of the expression.

    Reply
  20. Matt Burr

    The framing of the last two situations is disengenuous. The are framed so as to facilitate reaching the conclusion that you reached. I know no prochoice or pro-gay marriage folks who adopt their position for the purpose of being contrarian to religion-inspired law. Many of them are, in fact, quite religious. For example, I know prochoice Catholics who are pro-choice out of a feeling of religion-inspired compassion for the pregnant woman and a desire to be merciful toward them (i.e., not to judge the woman's decision). Such people, it would seem, do not oppose the influence of religion in the law – they simply come to different result.

    Reply
  21. abb1

    Religion(tradition)-based morality affecting the law is fine, up to the point when it becomes harmful – from the utilitarian point of view. When a religious taboo becomes detrimental, then, clearly, a compelling public interest has to take precedence.

    So then, all those superstition-based laws are merely indulgences for superstitious people, like allowing a child to leave the bedroom door ajar at night. Sure, why not – if it's harmless; but inevitably silly superstitions cause real hardships, tribulations and sufferings to real people and that's where the clash begins.

    Reply
  22. Anon

    Judge Posner:

    Your comments suggest a realist conception of democracy — that is, democracy works in such a way that we are allowed to vote our prejudices, biases, whatever their foundation, without having to justify them to others. I take this to be a plausible (and perhaps positive) conception of democracy.

    Now I ask what foillows with the recognition taht you have derided your academic peers for making repeated calls for "deliberative democracy" (including Prof.Jim Fishkin , formerly of U. of Texas and Bruce Ackerman). While your statements above certainly suggest a rejection of an imposed deliberation, I am wondering how you feel about attempts that do not have state authority behind them that are aimed at the promotion of deliberation in diverse democracies. This would be something like a cross between the academic seminar and the noisy, boundariless public sphere that actually more accurately describes our politics. Particularly, do blogs contribute to this deliberation, or are they only communities of the "converted," no pun intended.

    Reply
  23. Keith Douglas

    It seems to me that we can get some interesting mileage out of Rawls' suggestion by tweaking it ever so slightly.

    I propose instead that while people may be inspired, so to speak, to take certain positions in legal matters (or other social, political, cultural, economic, etc. matters) they must, to the extent that their actions impact others, make the justification for same be able to garner high degrees of epistemic warrant.

    Now, I do not claim to know to what degree one needs a "factual foundation" of the above sort to make a law. I regard this (as a philosopher of science!) as a deep problem in the philosophy of law. Philosophers of science might note that I have moved the religious influence into the "context of discovery" of law, in order to protect "the conduct of justification."

    In short, I have sort of moved the bump under the carpet, and so I have perhaps not done too much. But I think the approach has merit for at least the following reasons.

    1) Requiring people to submit the grounding of their legal (etc.) actions in publically accessible terms makes one "think twice" as one does when one recasts an argument for a position in other terms.

    2) Because standards of epistemic evidence change over time (hopefully for the most part for the better!) our* laws would become better and better grounded in facts about "what works" – however understood. (I think of law as ideally being a sociotechnology, but I realize that's a whole other topic. :))

    3) I am currently a volunteer at an NGO, where there are several volunteers and staff members who are members of a religious affiliation I do not share. Anecdotally, I see the process I have suggested at work at this organization. My religious colleagues may be motivated by their religion, and myself by my secular sense of justice, but we try to put our positions in such ways as I have described above.

    (* Humanity's laws as a whole – I happen to be Canadian.)

    Reply
  24. frank schmidt

    If the converse positions for #'s 5 and 6 on your list of questions were substituted for 1 and 2, would your conclusions be different? What would you say for example, if homosexuals claimed a religious exemption from the state's proposition that marriage could only involve two individuals, one of each gender? Or if someone claimed a religious exemption from the state's proposition that "life begins at conception"?

    Reply
  25. Robert M

    Judge Posner,

    There is a passage from Dostoevsky's "The Brothers Karamazov" that has some bearing on the topic:

    "Ivan Fyodorovich added parenthetically that that is what all natural law consists of, so that were mankind's belief in its immortality to be destroyed, not only love but also any living power to continue the life of the world would at once dry up. Not only that, but then nothing would be immoral any longer, everything would be permitted, even anthropophagy. And even that is not all: he ended with the assertion that for every separate person, like ourselves for instance, who believes neither in God nor in his own immortality, the moral law of nature ought to change immediately into the exact opposite of the former religious law, and that egoism, even to the point of evildoing, should not only be permitted to man but should be acknowledged as the necessary, the most reasonable, and all but the noblest result of his situation."

    Do you see any valuable social norms that will no longer be enforced if the Judeo-Christian morality fully erodes?

    Reply
  26. Achillea

    Greg: Judge Posner's 'atheist in the first sense' is an agnostic ('without knowledge' as to whether God exists, considering it unproven and/or unprovable). This is in contrast with his 'atheist in the second sense' who 'knows' God does not and the theist, who 'knows' God does.
    This, however, skips over entirely the definition of 'God,' which is where theological arguments (like the one you reference) hit the reefs. Exactly what are the characteristics of this being under discussion? Omnicience, omnipotence, and omnibenevolence? Leave out any one of those characteristics (let alone two or all three), and the whole 'there is no God' proof you mention falls apart (that was always my problem with Sartre, who would go astray with his first or second given, but I digress). How are these characteristics determined? The Bible? The Koran? The Talmud? Some other reference? Thin air?
    That said, the question it seems to me being asked is twofold: How much role does religious morality play in shaping the law (which is, essentially, the codification of commonly-agreed-upon morality), and how much role should it play? This, however, begs the question of defining what qualifies as religious morality. Jeff S. cogently points this out, as does frank schmidt, who opens up another can of worms in the form of 'where does faith become religion as defined and protected by law?' I would add a further hypothetical to Frank's: On Monday, you pay a call girl $1000 to persuade her to have sex with you, and on Tuesday, you give your girlfriend a $1000 diamond necklace ('every kiss begins with Kay?'), to persuade her to have sex with you. Why was Monday night illegal and not Tuesday?
    It's clear that religion (specifically Judeo-Christian religion) plays a role in our (American, for the sake of argument) laws. It's also clear that it plays less of a role than it did in the past, and I think it's safe to say its influence will continue to decrease. As a Wiccan and a libertarian, I'm all for that. There are those who feel that it hasn't been and isn't happening fast enough, but Keith Douglas rightly names it an evolution. It's not going to happen overnight. You can't just wave a magic secularization wand and zap all the 'religion-based' laws out of existence. As much role as religion has in shaping members of the public's views of morality, it's going to have in shaping those expressions of morality known as laws.

    Reply
  27. Ian Best

    Prof. Posner,

    If it's not too off-the-wall, I would be very interested in your perspective on the work of Friedrich von Hayek, especially as it relates (if at all) to law.

    Thank you. I am thrilled that you are guest-blogging here.

    Reply
  28. James A, Anderson

    Your first net commentary (blog) is completely in character with the erudite arguements in your book " The Economics of Justice" (1981). Your concepts are not as difficult to penetrate as Hegel, as in "The Phenomenology of the Mind" (1910). Close though. I am one of the ones of whom you are by far an "intellectual better" and grateful that you express so well my point of view. I Look forward to your continuing postings. I wish I could be taking one of your classes.
    J. A. Anderson San Marino, California

    Reply
  29. Mark

    Judge, Posner,

    You write:
    "One can give reasons for them, but would they be anything more than rationalizations? They have causes, that history, sociology, or psychology might elucidate, but causes are not reasons."

    Even among rationalizations, aren't some rationalizations better than others? I.e.
    (1) I thought about it long and hard vs.
    (2) My dog told me to.
    Now, if you're willing to concede that, then I just need to do the work of showing there is a specific domain of moral reasons, with some privileged position. Okay, that's a big "just."

    Reply
  30. SupremacyClaus

    Prof. Posner: Could you comment on the Scholasticist origin of the mens rea? If a paper trail can be shown from Medieval Church to prosecutor office of 2004, what would your opinion be about this violation of the First Amendment Establishment Clause?

    Reply
  31. Henry Swift

    Judge Posner,

    In your post, you mention that you are an atheist, or at least not religious. Many Christians believe that atheists who have the opportunity to become Christians and do not will, after death, live forever in an otherworldly "Hell" which is not a pleasant experience, indeed someone in Hell would be in constant pain for eternity. This is arguably a "catastrophe" along the lines of that which you discuss in your recent book. Can you comment on the application of the cost-benefit analysis you use in your book to this problem? Although I myself am not religious, it would seem like the costs of not being a Christian, even given a very small chance of the existence of such a Hell, would outweigh the relatively small benefits from being an atheist (no church on Sundays, etc.) Thank you.

    Reply
  32. a-train

    I third Orin Kerr's suggestion, namely:

    "I think it would be interesting — and of lasting value — if you blogged about the major misconceptions first-year law students [i.e., educated laypeople] have about the law. Entering law students are eager to read that kind of thing, and it might be a way to introduce your views to a generalist audience at the same time."

    "I'd merely add that relatively young lawyers (as I still count myself) would be eager to read that kind of thing as well."

    That would be great to read.

    Reply
  33. Lawrence Solum

    I've posted extensive comments at:
    http://lsolum.blogspot.com/archives/2004_12_01_lsolum_archive.html#110419722634627913

    Reply
  34. William G

    "because he does not share your premises, for example that only science delivers truths."

    I'm glad I'm not in a world where people share that ridiculous premise except perhaps some really screwed up empricists. For example, science does not "deliver" that 2+2=4 or that all cats are cats or that the necessitated principle of the indiscernibility of identicals is true…

    W

    Reply
  35. anon

    Judge Posner,

    You're the man. Thanks for writing.

    Reply
  36. Greg

    Achillea,

    You say that Judge Posner's "atheist in the first sense" (AITFS) is an agnostic. That seems fine to me, for the most part. In fact, that understanding of what Posner meant when he described what it was to be an AITFS was basically just what I was going for in the first paragraph of my opening post. There, though, I thought that being an AITFS was compatible with believing the proposition that God does not exist, since Posner only said that a AITFS does not have a sense that there is a God. He did not deny that an AITFS has a sense that there is no God.

    In addition, even if being an AITFS was just being an agnostic (where to be an agnostic is to believe neither the proposition that God exists nor its negation), my point concerning Jains, Buddhists, and others still applies. Many of these fail to believe the proposition that God exists and fail to believe the proposition that God does not exist, yet are still religious.

    You second point concerns the argument I presented. You say that theological arguments get hung up on the definition of "God", and that, in particular, my argument's identification of God with an omniscient, omnipotent, omnibenevolent being is worrisome, because without these the whole thing "falls apart". You then suggest that selecting these characteristics is unfounded: "How are these characteristics determined? The Bible? The Koran? The Talmud? Some other reference? Thin air?"

    In answer: To argue about any subject, one needs to have a particular conception that one is working with. In this case, you want one that will capture the beliefs of many concerning the type of being God is. Suppose you ask the ordinary theist these questions:
    a. Can God do anything?
    b. Does God know everything?
    c. Does God always do the right thing?
    My guess is that they will answer in the affirmative to all three. So, the notions of omnipotence, omniscience, and omnibenevolence are simply cleaned-up ways of introducing these properties that the ordinary theist claims that God has. Because of this feature, the conception of God as an omniscient, omnipotent, omnibenevolent being is certainly not pulled out of thin air! Not only that, but many great thinkers and philosophers (including saints) have assented this this conception, and there is a good deal of support for it in the Judeo-Christian-Islamic tradition.

    Anyway, the point of my introducing the argument in the first place was to show that it is not futile to debate the existence of God, since some students in the class apparently changed their beliefs due to the argument. Thus, criticism of the argument aside, one may fruitfully debate the existence of God with theists.

    Reply
  37. Dallas

    mores pl.n. 1. The accepted traditional customs and usages of a particular social group that come to be regarded as essential to its survival and welfare, thence often becoming, through general observance, part of a formalized legal code.

    Confusion abounds because we fail to appreciate that questions of morality are questions of strategy. The predominant questions are always the same:

    Does this practice enhance the survivability and welfare of our particular social group?

    What are the costs?

    What are the risks?

    We must think about moral questions in the manner a military commander thinks about the deployment of available forces and materiel.

    Reply
  38. Charles

    Judge Posner,

    It would be interesting to learn your views on cultural relativism and morality. Is it really possible to remove religious beliefs from society and still have a set of moral standards that are secular and not invite the collapse of morality under cultural relativism?

    Religion seems to be the ultimate end all, be all of morality. X is right and Y is wrong. Removing this backbone would essentially make everything right or wrong based on the mass consensus. Morality could be rewritten by popular vote, citing that if enough people find no objection to it then an act must be acceptable.

    Perhaps we could consider how those actions would impact others’ personal freedoms. Actions that impose will on another such as murder could be seen as an exception, but the certainly opens the door to the slippery slope arguments.

    It would also be interesting to see your take on legislative morality. It seems that there is a subtle difference between something that is legal to do and something that is explicitly illegal to do. By enacting laws that permit certain actions, doesn’t the general populous equate legality with morality? For example it is not illegal to buy alcohol or produce, and over time people have no moral objections to either. However, other drugs are illegal and carry with them a stigma of immorality. What responsibility does the legislature and judicial branches have to morality when faced with the knowledge that allowing certain actions will change their moral paradigm. Isn’t this one reason why religious or some other moral backbone is needed?

    Reply
  39. AlanC9

    Charles, how does religion provide "moral backbone"? If the consensus beliefs of the congregants go against what the religion teaches, either the religion changes to suit the congregants' beliefs, or congregants move to different denominations, or the congregants simply ignore the religion's teachings. We've seen all these happen here in recent decades.

    Sure, the teachings provide a brake on developments, and may help to shape the consensus. But that's not quite the same thing as an "ultimate end all, be all."

    I'm also not sure the legislature should worry so much about changing moral paradigms. Causation works both ways there. It's pretty clear that alcohol prohibition hurt law more than alcohol, and I'd be surprised if marijuana criminalization hasn't delegitimized the law more than it delegitimized marijuana use.

    Reply
  40. Steve Marsh (Ethesis)

    http://left2right.typepad.com/main/2004/12/another_well_po.html#comments

    Is where you've spawned a long discussion — and one that does not seem to have paid attention to anything but your first post. Does that happen to you very often?

    Reply
  41. Charles

    Alan,

    Religion provides a backbone on morality in the sense that religion provides a foundation. I completely understand that people can choose what religion or even doctrine they will adhere to, but religion itself sets the basics.

    On broad scope, Christianity provides the 10 commandments, which act as a basic set of morals for the people who claim to be Christian. Individual denomonations each have thier own docrtines that go even deeper.

    The point is that religion in its true form is derived from God. If God is unchanging and either set forth morality or recognized it as moral and conveyed that to us, then it stands to reason that morality is unchanging. The times may change but that does not mean that God has suddenly said X is now moral when 1000 years ago it wasn't.

    That is how I see religion providing a backbone. Without some definitive position, most moral arguments simply fall into the category of some group believes this and some that. This invites the arguements of cultural reletavism which ultimately means everyone is right and no one wrong.

    Reply
  42. Paul G. Brown

    Erm..

    I'm not sure that I discern an argument here at all.

    I mean, 'modernity' is only one of a number of cultural forces at play. And 'modernity' defines itself precisely as you suggest: a rejection of 'religon' and an embrace of the 'secular' (for better or for worse).

    If you had said "'Democracy has a secular self-understanding that tends to deny religious doctrine a role in political jus­tification' depends on whether democracy is equated with the dominance of the secular", I would have found the piece interesting and insightful.

    Reply
  43. seth edenbaum

    In this country the english language is the language of record in a court of law. You may not argue a point in latin and then demand it not be translated. You can not argue from canon law or the logic of the wergeld and expect to win a case. If you want to make a case for a position that for yourself is based on religious doctrine, you must be able to translate, or transliterate, that argument into one that someone of another doctrine may come to understand and with which s/he may be willing to agree. This country is based on an ideal of secular politics for this reason alone, that of communication amongst doctrines; Catholics arguing with Jews about Baptists. It's that simple.

    And to think that Posner does not argue from metaphysical positions is absurd.

    I haven't read most of the other comments so I may be repeating someone,
    but I doubt it.

    Reply
  44. Ron Mashate

    Judge Posner,

    What do you think about the Jay-Z and Linkin Park collaboration

    Reply
  45. TheJew

    So Judge Posner liked Frank Lutz’s idea of making the homosexuals the new jews so much that he is saying the Nuremberg laws may not even be that unconstitutional. Restriction of marriage rights: Check!

    But why stop there? Maybe only married people should be eligible for public office? We don’t have any Constitutional protections saying who can run for office, only a few prohibitions on who can’t.

    And if the government can constitutionally intrude on the liberty of an individual to do what ever they please with their livestock, because it is icky, then maybe we don’t want those icky homosexuals holding our flag. In fact, I don’t see why we couldn’t make them where a little patch identifying themselves as homosexuals.

    Theoretically, nothing in the Constitution currently forbids the removal of voting rights from non-married persons. We cannot discriminate whom gets voting rights on basis of age, race, or sex, but marital status is not technically on that list.

    The point is that we should not be concerned over what is or what is, but what should be. Twice Posner confuses what is with what should be. He asks:

    But should the Constitution, or political philosophy, be understood to prescribe utilitarianism, whether in the Benthamite or J. S. Mill versions, or maybe “secular humanism,” as our civic religion?

    And later answers:

    And so if the population is religious, religion will influence morality, which in turn will influence law, subject to constitutional limitations narrowly interpreted to protect the handful of rights that ought not to be at the mercy of the majority.

    And who interprets those constitutional limitations? Judges. Technically, they can decide what should and shouldn’t be (and whether that should be narrowly or broadly interpreted).

    He sets up a potential counter argument:

    Rawls and others have thought that religious beliefs shouldn’t be allowed to influence public policy, precisely because they are nondiscussable.

    And refutes it with a literal description of the mechanisms by which we are attempting to realize some ideal:

    It [modern democracy] is about forcing officials to stand for election at short intervals, and about letting ordinary people express their political preferences without having to defend them in debate with their intellectual superiors.

    Whether admitted to or not, the Judiciary constitutes an American dictatorship practically. Since they are the only people who can interpret the Constitution, they can practically dictate law. If they interpret “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.” to imply that they are owed sexual favors from interns, what Constitutional recourse would exist?

    This is not a bad thing, in fact I believe it may have been by design. In times of stability, a benevolent dictatorship can be the best form of government. The fickle nature of the demos does not usually produce ideal conditions for leadership decisions from elected politicians. In times of moderate instability the Executive can take power through martial law (though that is still subject to the ruling of judges constitutionally), and is in direct command of, well, government assets that can execute commands. The people of course are the ones in control in situations of total instability. Theoretically they are lead by the members of our legislature. If the Judiciary plays its role correctly, then stability will ensue and never allow other branches to take away its control, creating incentive to be benevolent.

    So if one aspires to be one of these benevolent dictators, the questions of what should be are the most vital ones to answer. So, Judge Posner, while you have given a succinct summary of what is, one question you have failed to answer is what, precisely, should be?

    Reply
  46. Eric Rasmusen

    Judge Posner wrote of his question,

    "4. May a state ban the teaching of evolution, or require teaching of "creation
    science," in its public schools."

    that:

    " the state is being asked to enact, in effect, a religious dogma", which he
    seems to think is bad (whether the Constitution really bans states from
    establishing religions or, as I think, *protects* those establishments is a
    question for another time).

    Judge Posner also writes the following, the best paragraph of the post:

    "Rawls and others have thought that religious beliefs shouldn’t be allowed to
    influence public policy, precisely because they are nondiscussable. But this
    view rests on a misunderstanding of democracy. Modern representative democracy
    isn’t about making law the outcome of discussion. It is not about modeling
    politics on the academic seminar. It is about forcing officials to stand for
    election at short intervals, and about letting ordinary people express their
    political preferences without having to defend them in debate with their
    intellectual superiors."

    And in a later post he is sympathetic to the idea that ethical beliefs should
    not be disallowed merely because they are affected by religious beliefs.

    I don't see that banning the teaching of evolution or requiring creationism to
    be taught because of religious beliefs is any different from making murder
    illegal because of religious beliefs. In all three cases, the voter's opinion is
    based on his religion, and other voters' opinions are based on their own
    background beliefs. Person A believes that the Bible is inerrant, and based on
    this believes that evolution is a mistaken theory. Persons B and C believe
    the Bible is errant, or that inerrancy does not imply that evolution is wrong. I
    don't see why B's opinion should be privileged over the others. From the point
    of view of A, B wants to teach a false theory, and exclude the teaching of
    competing theories. Shouldn't we be "lettng ordinary people express their
    political preferences"?

    Consider the following question:

    "4a. May a state ban the teaching of astrology, or require teaching of astrology
    in its public schools."

    Surely both of these are in the power of the state, despite the lack of
    scientific support for astrology. But why should astrologers be privileged over
    Fundamentalists?

    In general, we do not let experts overturn voter preferences. If voters want a
    minimum wage or sugar import quotas, we do not cite the mass of hostile expert
    opinion as a reason to thwart them. Legislatures do silly things all the time.
    If we let public schools teach that recycling helps the environment and saves
    resources, both clearly false, why should we not let them teach creationism?

    Reply
  47. Tony the Pony

    Another example of the dangers of blogging to add to the litany of your colleague Prof. Sunstein; viz., that the medium of the blog imposes of tyranny of small-mindedness on ideas that deserve larger arenas.

    One would suspect that someone with a passing familiarity with constitutional law would note that, when a court is asked to go behind the stated reasons for public legislation and discover a discriminatory purpose, that such court will quickly invoke a lot of doctrines to justify it not doing so. (It's been a while since I took con law but I think Arlington Heights?)

    And one would assume that someone talking about Locke and Rawls and public justifications would be able to distinguish between legitimate private positions (of which the set may be said to be fairly universal) and legitimate _public_ positions (quite more circumscribed). I may secretly support environmentalist causes and the Endangered Species Act because of my reading of the story of the Flood in Genesis, but so long as the Act has a valid public purpose and enjoys the support of a majority—all of whom may support it for their various private reasons which would be illegitimate as public reasons—then it should become law.

    (The usual example of this is the birth of religious tolerance after the religious wars in England—each different sect had their own motivations for supporting public secularism, but the outcome was the same.)

    What Locke means by "Modernity has a secular self-understanding that tends to deny religious doctrine a role in political jus­tification," then, is fairly clear. He's drawing a distinction between _political_ justification, which are those we're allowed to say when we want to convince the majority of our rightness, and, you might say, _real_ justification, which is the reason we want to persuade others in the first place. The sentence is only circular if one takes "modernity" and "political" to be fairly wide concepts, meaning roughly what-we-do and how-we-do-it, respectively.

    But that's not nearly the case. "Modernity" has a meaning. I'm by no means well-enough schooled to define it specifically, but it's wrapped up in modern economies (i.e., non-traditional, and the overwhelming tendency has been towards capitalist economies specifically), pluralism, liberalism and democracy. Pluralism—the task of reconciling a social order that demands public meanings and justifications with a diverse population that often disagree about fundamental values, all while maintaining a plausible veneer that each individual has equal merit—is the especially important part. It also involves materialism and cynicism post-romantic sexism and Tom Wolfe's latest and a whole host of other unpleasant things, too, but that's a rough sketch of it.

    You might detect in my description of pluralism—that it's not a value at all, but merely a requirement of living in a complex world under the assumption that certain values matter—the source of my quibble. Namely, your skepticism that values are real, I worry, is incredibly destructive to the social fabric, or would be if widely disseminated. Like it or not, people do believe we're a people made cohesive by the shared commitment to some values, and if that belief is only sustainable so long as we don't poll people to discover what disparity exists as to what those values are supposed to be, so be it.

    So a large part of the moral domain might indeed be sub-rational. But it cannot be all of it—our shared commitment requires that there exist some set of moral values that do belong to a realm susceptible to reason. (John Finnis's Natural Law & Natural Rights is an amazing contribution to this way of thinking.)

    Oh, and Mr. Rasmusen: Because the Constitution is silent on recycling, but not on religion. And the Constitution is law and is binding on government. Of which the public schools are a part. A primer: "Amendment No. 1: Government doesn't get to tell you when or how or to whom to pray." What's difficult about that?

    Reply
  48. Aunt Deb

    I think that there are many religious people for whom the "sense that there is a God" is rather like my children's long-ago belief there was a Santa Claus. Frankly, if people in seeming authority said there were no God, most of these believers would accept the disappearance of the Father, the Son, and the Holy Ghost. What is most interesting to me about our current state is the unwillingness of so many of those in power to say this. Judge Posner says he does not do so because he is uninterested in conversion. But what of proselytizing?

    Reply
  49. Nathan Newman

    From my blog

    Judge Richard Posner is guest blogging at Leiter Reports and has a post on why morality has to influence politics and why it is hopeless for liberals to attack policies merely because they are religiously inspired. In a sense, folks may try to disguise their motives but one's ultimate metaphysical beliefs will inevitably shape that policy.

    On one level, Posner is arguing that demanding intellectual justification for policy just puts a premium on ex post rationalization:
    Think of the rejection in our society of the Islamic punishment code, public nudity, polygamy, indentured servitude, chain gangs, voluntary gladiatorial combat, forced redistribution of wealth, preventive war, torture, the mutilation of corpses, sex with corpses, sex with nonobjecting animals, child labor, duelling, suicide, euthanasia, arranged marriages, race and sex discrimination. Are there really compelling reasons for these unarguable tenets of the current American moral code? One can give reasons for them, but would they be anything more than rationalizations?If liberals attack religiously-inspired policies by demanding such rationalizations, all you get is rightwing think tanks churning out secular-looking rationalizations.

    Not only is this no gain for real intellectual debate, a demand for such intellectual debate is fundamentally undemocratic. As Posner argues:
    Rawls and others have thought that religious beliefs shouldn’t be allowed to influence public policy, precisely because they are nondiscussable. But this view rests on a misunderstanding of democracy. Modern representative democracy isn’t about making law the outcome of discussion. It is not about modeling politics on the academic seminar. It is about forcing officials to stand for election at short intervals, and about letting ordinary people express their political preferences without having to defend them in debate with their intellectual superiors.I agree with this populist critique by Posner of the rhetoric of many liberals. Democracy is often based on instinctual decisions that can't even be voiced in acceptable academic rhetoric or motives.

    More importantly, if you really believe in a pluralistic society, you can't demand agreement on philosophical principles to enact policies, since we inevitably have people coming at politics from views of the world that can't be easily integrated in some idealized national discussion.

    Instead, democracy in our country depends on silent acts. When we vote, we don't have to justify our decision; we won't silently and anonymously. When juries make decisions, they don't have to publish a justification. They just vote yes or no on guilt or liability.

    That right to silence should be respected and questioning the motives behind the enactment of a policy is dangerous territory for liberals to play. It is far more fruitful to argue over the negative effects of the policy, since that factual appeal to voters is the core of democracy, while questioning voters or legislators right to act on their beliefs is fundamentally anti-democratic.

    Failing to make this distinction is probably a core of the problem for liberals on "social issues." It's one thing to argue for the bad effects of criminalizing abortion or preventing gay marriage — even reasonable pro-life and anti-gay voters can respect a counter-argument and might even listen. But when you declare the belief system that motivates them to vote that way to be illegitimate, this just encourages resentment and anger.

    I strongly argue that progressives should continue fighting hard to enact pro-choice and pro-gay policies, but I think this discussion highlights why pro-choice and pro-gay court decisions are so counterproductive in leading to rage in social conservative circles.

    A court decision is not a vote which social conservatives have lost, where they have to accept the silent verdict of the ballot box. Instead, they have to accept a written argument that declares their values outside acceptable constitutional thought and reasoning. In this way, courts are the political space most like the academic venue that Posner notes is antithetical to our democratic values.

    So disagreements with liberal social decisions get fused with anti-elitist rage, creating a toxic populist cocktail that usually hurts liberal social causes. The passage of DOMA in 1996, following the Hawaii court decision on gay marriage, and the passage this year of the slew of state constitutional amendments banning gay marriage this year, following Lawrence and the Mass Supreme Court decision, just highlight this dynamic.

    It's not that intellectual debate should not influence politics; it inevitably will, since such debate is one thing that influences people. But Posner's point is that most such debate is built on a scaffold of inherent prejudices, values and morality that cannot be ignored and should not be delegitimized. Trying to decide social issues in court inherently is an attempt to do the latter. The answer is that progressives should continue to argue and fight vigorously for their values in the cultural and political sphere, but should abandon anti-democratic attempts to use courts to short-circuit the political debate on those social issues.

    Reply
  50. seth edenbaum

    Happy new year, Nathan.
    Democracy is not amoral -and a process can not be 'ignorant' (but that's a quibble)- democracy is sloppy. Posner, and Leiter, base their arguments more than anything on a form of intellectual snobbery that posits an unbridgeable gap between the truly enlightened and the great unwashed. They both then posit mechanisms, Leiter science and Posner the market, as self regulating systems to simplify and 'govern' in those ways that people can not be expected to.
    This is crap.
    As I said in my comments, the basis of secularism is Jews arguing with Protestants over Catholics. There must be a common language if there is to be communication. It is that shockingly simple. And never mind their claims to atheism, neither Posner nor Leiter seem capable of self doubt, and that inability- or the choice to think it unnecessary- is a basic tenet of simple faith.

    For all my annoyance at his 'liberal' fuzzyheadedness, Jack Balkin is right. There is are such things as high politics and low politics. I won't credit him with my conversion, since this is the way I was raised to think. But rather than simply define one or the other I refer again to the sloppiness of the thing politics itself. We try to communicate with each other in a common language (without which there would be no communication) That language is changing, the definition of words change. People change.
    For a time the intelligence of self styled intellectuals seemed to be in advance of the mental life of the people. This was never really the case, in fact the relationship is always reciprocal, but it seemed to fit the bill.

    Now we live in the age of the angry peasant and the rump intelligencia, and both rely on the empty mechanism of cheap faith. But people are not simple machines, and self-styled geniuses should remember that Shakespeare was not an intellectual but an entertainer. He kept the groundlings happy, and how many Ph.D's are derived from his efforts?
    The middle ground is banality, but also resilience. How to tell one from the other? That's a question that Posner and Leiter and how many others I've read over the past years, choose to ignore. And in ignoring complexity they ignore the world and their responsibility to it.

    Reply

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