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.

Friday, August 22, 2014

More on RFRA and reason from Profs. Miller and Arkes

Prof. Arkes' response to Prof. Miller's recent Public Discourse essay ("Prof. Arkes and the Law") is up, as is Prof. Miller's rejoinder, "What Reason Can Know and What Government Should Legislate."  My own thoughts on the matters under discussion are very close to Prof. Miller's.  I continue to be puzzled by some of Prof. Arkes' (and others') criticisms of RFRA or of the arguments of the lawyers and judges whose have the jobs of interpreting and applying it.  If the point is simply that the RFRA regime reflects premises about "religion", "belief", etc. that connect imperfectly with the Truth, then I say, "sure, but so it goes." 

Here's a bit, from the rejoinder:

In my article, I argued that conferring on public officials a general power to inquire into moral or religious truths is dangerous because such people are no better than anyone else at sorting out true beliefs from false ones and they are just as likely as everyone else to think that ideas different from their own are unreasonable or perverse. Because of this, Arkes speculates that I may have “lost confidence that there is indeed a discipline of reason that may guide and restrain judges, as it guides and retrains everyone else.” Now, I have often said that I am an Aristotelian-Thomist in morals, and so there can be no doubt that I believe that reason can determine what is moral and what is immoral. Arkes’s question is helpful, however, because it highlights what I think is the central confusion in his position.

That is, Arkes consistently runs together what reason, in some abstract philosophical sense, can know, with what we can expect from the efforts at reasoning of particular human beings. The first is a question of whether certain sound arguments exist; the second is a question of how likely particular human beings are to discover and embrace these arguments. These are very different things. . . 

Read the whole thing(s).


Garnett, Rick | Permalink