I cannot possibly do justice to these comments. Let me make just a few points in response to some of them, trying to group them thematically:
1. I think it important, at least for purposes of the subject of my blog on faith-based morality, to confine "religion" to theism. There are important nontheistic religions, such as Buddhism, and systems of thought, such as Communism in its heyday, that occupy the same position in the minds and emotions of adherents that religion does. In the United States, however, most religious people are theists, and the issue of religion in public policy is about theistic religion in public policy.
2. I am not an agnostic, if by that is meant (and this is the sense I have of the term, though it may be an idiosyncratic sense) someone who is perplexed as to whether or not there is a God; who regards this as an interesting question to which he happens not to have the answer. I am someone who simply doesn’t feel the presence of God in my life. That I think is the typical state of the nonreligious person, and corresponds to what I assume is the feeling of a eunuch about sex. The eunuch knows that sex is important to many people, but he doesn’t have any feeling of that importance. Sex doesn’t exist for him. God doesn’t exist for me. That doesn’t mean that He doesn’t exist. My understanding of Nietzsche’s dictum that "God is dead" is not that it is a metaphysical statement, a statement of atheist doctrine, but that it is a statement that God is as if dead, to educated Europeans of Nietzsche’s era. I think that whether or not God is dead for one depends on upbringing and temperament, but not on arguments.
3. A fascinating question about religion and public policy that I did not address is what actual difference the religiosity of the American people makes to American law. If you look at a nation, such as Denmark (or indeed at almost any European nation west of Poland) or Japan and other east Asian nations, in which the Gallup Poll records very low levels of religious belief, you will see that their legal systems are very much like ours so far as substantive principles are concerned. What is true about the United States is that certain issues agitate our legal system for religious reasons, such as abortion, stem-cell research, gay marriage, pornography, prayer in the public schools, public recognition of the Ten Commandments, financial support of parochial schools (as by means of a voucher system), the teaching of evolution. Yet as a result of the Supreme Court’s rather heavy-handed enforcement of the Constitution, most of these issues when they get into court as so often they do are resolved as they would be by the ordinary political processes in more secular nations. The startling result is that the most salient difference, so far as the intersection of religion and public policy is concerned, between the United States and the more secular nations is that many of them have established churches! (Hume favored established churches because he thought they would deaden religion belief. He was right, at least in the Western European context.)
4. I really do take the view–this is closely related to point 2 above–that the sort of political discussion in which political philosophers, law professors, and other intellectuals engage is neither educative nor edifying; I also think it is largely inconsequential, and I am grateful for that fact. I think that what moves people in deciding between candidates and platforms and so on certainly includes facts (such as the collapse of communism–a tremendous fact), as well as a variety of "nonrational" factors, such as whom you like to hang out with–I think that’s extremely important in the choice of a political party to affiliate with. When a brilliant philosopher like Rawls gets down to the policy level and talks about abortion and campaign financing and the like, you recognize a perfectly conventional liberal and you begin to wonder whether his philosophy isn’t just elaborate window dressing for standard left liberalism.
5. I think that people are smart about their own interests and can also make fairly reliable judgments about the character and leadership abilities of political candidates, but that they are hopeless when it comes to understanding domestic or foreign policy issues of even average difficulty. I think this is true in all democracies. But I don’t think it’s anything to despair about. The government is run by a governing class consisting largely of professional politicians, civil servants, big shots from the private sector who take temporary jobs as senior appointed officials, and lobbyists and other representatives of interest groups. This class understands the issues. If it screws up badly, as it often does because of the intrinsic uncertainties of governance, it is punished in elections. In effect the people have a veto over their rulers, and this serves as an important constraint on runaway self-interest, exploitation, and corruption by our rulers. I do not think we would do better to have a government run by academics, which is the implicit model of government held by political philosophers, law professors, and the like. Would we really have done better over the last half century with Presidents Stevenson, Humphrey, a second-term Carter, Mondale, and Dukakis? And haven’t the universities, in their overwhelmingly liberal orientation (in most fields relating to public policy), forgotten John Stuart Mill’s dictum that ideas become flabby and stale when they are not exposed to vigorous challenge?
6. Finally, I can’t resist responding to the two commenters who asked me to identify the principal misconceptions of first-year law students. There are two, and they are closely related. The first is the idea that the law exists somewhere, in a book presumably (or, to be modern, in an electronic database), and that what you learn in law school is how to find the book, and that what law professors do, to justify making you sit in class for three years, is hide the book from you. The second misconception is that legal reasoning is something special, subtle, esoteric, which will enable you once you have learned it to answer a question in a way that would make no sense to a lay person. In other words–and this is what joins the misconceptions–law is a mystery.
But what law really is is a tool that law school shows you how to use. It is a rhetoric, a vocabulary, a tradition, a set of rules and conventions, which you can use to achieve practical results, which are the only results worth having. So if you’re a judge–which sounds like something special, something far removed from the real world of nonlawyers, but is not, or should not be–you are given problems that you try to solve in a way that will be realistic, having regard for the issues at stake, the relevant moral values of your society, the interest in providing guidance for the future, the goals behind applicable rules or standards, the value of a certain kind of neutrality or impersonality, and perhaps other considerations both particular to the case at hand and systemic. You should be able to explain your decision in a way that would make sense to a lay person, but need not convince him, because the conventional legal materials of decision are often indeterminate when applied to a case that has reached the appellate level, and then the decision will reflect values or experiences of the judge that are not universally held in the society, although presumably the decision will fall within some general range of reasonableness or acceptability.
In short, it should be possible to explain everything in law in perfectly simple, everyday, common sense terms. That should be the law student’s, the lawyer’s, and the judge’s creed.
I’ve gone on long enough, it’s late, and I’ll stop. Tomorrow I’ll discuss why it is, in my opinion, a mistake for American courts to cite as precedent decisions by courts in foreign countries.
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