Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Tuesday, October 17, 2017

Chapman and Hortwitz review Tebbe's "Religious Freedom in an Egalitarian Age"

My friend and longtime collaborator, Prof. Nelson Tebbe, has written a much-noticed bookReligious Freedom in an Egalitarian Age.  (Congrats!)  I read today two respectful, admiring, but critical reviews -- one by Paul Horwitz and the other by Nathan Chapman - both are recommended.  (To be clear:  There are other reviews out there too -- read them as well!)  Here's a bit from Paul:

. . . Despite its focus on reasoned elaboration, a certain magical thinking drives this book, with its relentless mixture of is and ought. “We should insist both that current conflicts between religious freedom and equality law are intricate and that they are not intractable,” Tebbe writes. “Justified solutions can and must be found.” Readers may rightly worry about words like “should” and “must.” That we face urgent problems is no guarantee that we can find a way to “diminish or dissolve the apparent tension between peace and justice” in this area. But Tebbe wants lasting solutions; and though he insists that his book “is not a recipe for the end of disagreement,” he advocates a method, and a set of outcomes, that will “shape civil rights law and religious freedom guarantees into the future.” Like the warring camps at our law and religion roundtable, he wants to set the terms of engagement and treat certain “settlements” as final. The losers should not only “understand why their arguments have been rejected,” but accept defeat with good cheer.

That seems unlikely . . .

And, from Nathan:

. . . Receiving and giving reasons for moral judgment calls for openness, hard work, smarts, and, above all, good faith. It entails living within a moral community, or overlapping moral communities, that give life to moral habits and render moral reasoning coherent. Tebbe rightly resists reducing moral reasoning to nothing more than an act of individual will. Unfortunately, as discussed more fully below, the way he applies social coherence to mediate the conflict between religious liberty and equality seems to verify, rather than to challenge, the skeptics’ view that religious liberty jurisprudence is inevitably personal value preferences all the way down.

The book is best understood as an application of one version of Rawlsianism to an array of legal questions arising from a clash between Progressivism and the view that Progressive norms should not always override religious liberty. The reader will encounter a helpful tour through a variety of challenging legal cases and a number of novel proposals for solving vexing doctrinal puzzles. . . .



Garnett, Rick | Permalink