Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, June 27, 2011

The Pluralism of Law and Religion

I want to echo the comments from others about the interesting Law and Religion Roundtable at Northwestern. Thanks again to Rick Garnett, Paul Horwitz, and Nelson Tebbe for organizing the roundtable and to Andy Koppelman for his generous hospitality. I was struck by the number of important books in law and religion that are in the pipeline and were presented by Brian Leiter, Andy Koppelman, John Inazu, Kathleen Brady, and our own Marc DeGirolami, all of whom are tackling issues--such as toleration, secularism, and tragedy--in law and religion beyond mere constitutional doctrine. Adam Samaha from Chicago also presented a superb set of readings he's assembled for a course in law and religion.

Following on Marc's point about the remarkable pluralism (that's the sanguine term, as Marc says) of views in the field, an offhand thought is that in law and religion, perhaps more than in most fields, the tradition-dependent character (to use Alasdair MacIntyre's term) of one's commitments is squarely on display, whether one is an egalitarian liberal, a Thomist Catholic, an evangelical Protestant, or whatever. So maybe we can set aside our fundamental disagreements when we're talking about the UCC, but that's virtually impossible when we're talking about God, religion, conscience, and toleration--when the quest for a view from nowhere is an idle project. As MacIntyre puts it in Whose Justice? Which Rationality? (p. 346):

The fact that liberalism does not provide a neutral tradition-independent ground from which a verdict may be passed upon the rival claims of conflicting traditions in respect of practical rationality and justice, but turns itself to be just one more such tradition...provides the strongest reason that we can actually have for asserting that there is no such neutral ground, that there is no place for appeals to a practical-rationality-as-such or a justice-as-such to which all rational persons would by their very rationality be compelled to give their allegiance. There is instead only the practical-rationality-of-this-or-that-tradition and the justice-of-this-or-that tradition.


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How is one able to identify "practical rationality" or "justice" in sundry traditions if there is only "this-or-that-tradition" or "justice-of-this-or-that tradition? The concepts of practical reason and justice are not, as both Aristotle and Plato respectively could attest, tradition or culturally specific, although that does not preclude them being instantiated, manifested or articulated in tradition- or culturally-specific ways (a distinction captured in part by the difference between the notions of concept and conception). Paradigms of rationality involving, say, logical forms of reasoning, are not tradition-bound, whilst other forms of rationality may be exemplified more or less in specific traditions at one time or another (Jonardon Ganeri gives the examples of the modeling reason by game theory and the Jaina notion of the rationality of reconciliation), but that does not prevent these traditions or cultures from adopting forms found elsewhere, nor from refining or evolving their notions of rationality (or justice, for that matter).

The questions and problems addressed through practical rationality and justice transcend traditions and cultures, although their specific manner of address may differ: our ability to identify these differences is in no small measure owing to the concepts of practical rationality and justice themselves.

The notion of fundamental principles that are fact-insensitive and principles that are fact-sensitive (the former being logically prior to the latter) as argued by G.A. Cohen may be relevant as well.

Belief in and commitment to the value of democracy, human rights and international law, among other things (and as examples of what Kwame Anthony Appiah terms 'rooted cosmopolitanism,' pluralism being intrinsic to such cosmopolitanism), are evidence of individuals within different traditions relying on methods and conceptions of reason and understandings of justice to arrive at common and consensual conclusions. Public reasoning is, fortunately, ubiquitous in the modern world, as is public reasoning about justice, and such reason reveals the ability of individuals and groups to transcend in one way and in some degree or another the traditions in which they've been socialized. It is that which allows us to pick out this-or-that aspect, feature or practice of tradition for criticism or censure (traditions as worldviews, however, and for several reasons, cannot be assessed in toto as rational or irrational...for their function as 'narrative' sources of collective identity and the like are indispensable).

Justice is concerned with both intimate or local and more impersonal or universal obligations or duties, yet another reason it makes little sense, or it is at least misleading, to say that there is "only the practical-rationality-of-this-or-that-tradition and the justice-of-this-or-that tradition."

Individuals from any and all traditions are capable of playing the role of Adam Smith's "impartial spectator," that is, viewing themselves as far as possible from the vantage point of other people (made possible though the exercise of empathy), a practice that enables us to, in some measure, get outside, as it were, our own traditions. Traditions may encourage or facilitate what Amartya Sen terms "positional objectivity," but that does not rule out, as he notes, the value or possibility of "transpositional objectivity" (the 'view from nowhere').

Posted by: Patrick S. O'Donnell | Jun 28, 2011 2:57:26 AM