In a book review on the New York Times online Opinionator page, Stanley Fish offers specious objections to the following item of political wisdom:
So it’s O.K. to argue that a proposed piece of legislation will benefit the economy, or improve the nation’s health, or strengthen national security; but it’s not O.K. to argue that a proposed piece of legislation should be passed because it comports with a verse from the book of Genesis or corresponds to the will of God.
He goes on to explain this classical liberal viewpoint in a way that is essentially correct, but tendentious in its wording:
behind it is a form of intellectual/political apartheid known as the private/public distinction: matters that pertain to the spirit and to salvation are the province of religion and are to be settled by religious reasons; matters that pertain to the good order and prosperity of civil society are the province of democratically elected representatives and are to be settled by secular reasons. As John Locke put it in 1689 (“A Letter Concerning Toleration”), the “care of men’s souls” is the responsibility of the church while to the civil magistrate belongs the care of “outward things such as money, land, houses, furniture and the like”; it is his responsibility to secure for everyone, of whatever denomination or belief, “the just possession of these things belonging to this life.”
A neat division, to be sure, which has the effect (not, I think, intended by Locke) of honoring religion by kicking it upstairs and out of sight. If the business of everyday life — commerce, science, medicine, law, agriculture, education, foreign policy, etc. — can be assigned to secular institutions employing secular reasons to justify actions, what is left to religious institutions and religious reasons is a private area of contemplation and worship, an area that can be safely and properly ignored when there are “real” decisions to be made. Let those who remain captives of ancient superstitions and fairy tales have their churches, chapels, synagogues, mosques, rituals and liturgical mumbo-jumbo; just don’t confuse the (pseudo)knowledge they traffic in with the knowledge needed to solve the world’s problems.
Note the use of words such as "apartheid", not to mention the scare quotes around "real", to signal Fish's distaste for this line of reasoning. And then there's the dripping sarcasm of the final sentence that I've quoted. Fish is antagonistic to the classical liberal tradition based on the work of philosophers such as Locke, Mill, and Rawls. Like Steven D. Smith, the author of the forthcoming book that he's reviewing, Fish thinks that it leads to an impoverishment of politics.
I disagree strongly. This tradition is worth defending. That's why I'm writing a book about it: specifically about what it offer on freedom of religion.
What Fish leaves out of his discussion is the historical context of Locke's proposal to separate the roles of church and state. There's the whole wretched history of persecution, torture, burnings at the stake, large-scale dislocation, and cruel warfare. Particularly in the 16th and 17th centuries, in response to the Protestant Reformation, the European states took it upon themselves to decide which religion was correct, and to use fire and sword in long-term, relentless, yet ultimately futile, efforts to impose their respective notions of "correct" doctrine and ritual.
It was not for nothing that radical thinkers such as Locke and Spinoza turned to new ideas of freedom of religion, mutual tolerance, and the separation of church and state. The state is a poor judge of which church or sect, if any, is correct; its efforts to impose its theological judgments are often futile; and they can lead to endless horrible, largely unpredictable ramifications. The point isn't so much that religion should be private - not in the strict sense of not being discussed in public fora - but that the state should not form a form a view as to which religion is correct, and then seek to impose it on non-believers. Nor should it persecute the followers of a religion that it objects to on theological grounds. The rest of us who are not the state can argue and persuade as much as we like, whether in private or public, but we cannot use political coercion.
None of this is based on any fancy metaphysics, just on historical experience and good sense. We can see that the state does a reasonable job of deterring violence and theft, maintaining a property regime, and even providing a welfare system; but it does a horrible job when it goes on the frolic of deciding and imposing the "correct" religious views.
In attacking the Lockean approach to separation of church and state, Fish totally misunderstands the notorious fact/value distinction, which is not the same as the distinction between empirical and logical, or the distinction between natural and supernatural. He alludes to Hume's observation that reasons for action cannot arise from facts alone, in the absence of values or desires (I will use the word "values", where Hume refers to "desires", but we both refer to human psychological structures of pro-attitudes, hopes, fears, preferences, and so on). Without values, Hume thought, we cannot be motivated - and in that sense do not have reasons - to act in any particular way. More specifically, we cannot be motivated to develop certain traits or dispositions of character; or to attempt to instil them in growing children; or to support certain moral norms and oppose others; or to vote for certain laws and policies.
What Fish does not appear to have noticed is that this issue of motivation does not apply only to facts about the natural world. It applies equally to truths of logic, such as "If the truth of proposition P entails the truth of proposition Q, and proposition P is true, then proposition Q is true." It also applies to any truths that might exist about a supernatural world or supernatural beings. If we learn that a certain god hates us eating shellfish, that alone cannot motivate us to avoid eating shellfish. We must also desire to please this god, or we must fear its wrath, or hope that its plan for the world will come to pass, or whatever. Somewhere along the line, our values must be involved or the supernatural fact will not motivate us.
Thus, even if some religious sect has access to truths about the will of certain gods, that cannot help us decide how to act in the absence of values - i.e., of fears, hopes, preferences, and so on. Even a true body of religious doctrines about supernatural beings and their various powers, proclivities, etc., cannot give us guidance by itself.
In that sense, even a true religion is in exactly the same position as science.
It might, of course, go without saying that I wish to avoid being tortured with fire forever if I act in a certain way, but it might also go without saying that I wish to avoid infection with a painful and debilitating disease if I act in a certain way. True religious claims about the powers, wishes, etc., of a god might combine with very obvious values to give me guidance as to how I ought to act, but so might true empirical claims about the worldly consequences of my actions. Either combination might lead me to support certain social norms or certain legislative innovations. But my values are always involved, whether in combination with natural or supernatural facts.
Fish is correct that the state acts on certain values when it enacts laws forbidding (say) murder and rape, or seeking to avoid economic ruin for its population. E.g., most of the people in any population fear being killed or raped, most people enjoy peace and economic prosperity, most of us fear poverty and hunger, and so on. These are well-recognised values that are shared by almost all people, religious or not, and the state has various mechanisms (notably the criminal justice system and the tax-transfer system) that have at least some positive effect in the domain of such worldly values. Thus, as a matter of practicality, the state has a positive role to play in providing and protecting widely-valued this-worldly things.
Conversely, if the state attempts to provide or protect spiritual salvation, nirvana, moksa, or any of the other grand goals of the various religions, it generally makes a mess of it. As Charles Taylor rightly points out in A Secular Age, these goals are supposed to be obtained through deep personal transformations, and they involve ways of living that are supposed to transcend our ordinary concepts of human flourishing - which involve living in ways that satisfy species-typical worldly values. The state is not well equipped to decide which of these transcendent goals, if any, is the correct one to seek. Its major agencies, such as those operating within the criminal justice and tax-transfer systems, are not well designed for producing the required inner transformations. If the state attempts to ensure that the "right" transformative beliefs and practices are adopted in the territory where it has power, this will be experienced as tyrannical by those who disagree, and if it pushes hard the cost in human lives and human happiness is likely to be immense.
When Locke and his followers seek to confine the state to a wordly role, they make arguments such as these. They do not claim that the state's actions are value free, merely that there are good reasons for the state to act solely on those values which relate to the things of this world. That leaves the various churches and sects to offer ways of achieving salvation, moksa, rightness with God, or whatever it might be, to whichever people can be induced to value those things. The set of values that the state acts upon may be relatively thin, compared to the various sets of values that are offered by the religions, though it need not always be like that, since religions can tell us to renounce many of our worldly values. And even if state power is confined to promoting only a thin set of values, that is not a bad thing. By not imposing any one set of "thick" religious values, and one set of practices that can supposedly be used to obtain them, the state allows all the others to co-exist. That's usually a good bargain, even for the religious. (I leave aside the likelihood that moksa, spiritual salvation, nirvana, rightness with God, and so on, are illusory. Despite Fish's sarcasm, the liberal arguments simply do not turn on this.)
The arguments developed by liberals since Locke's time are to do with the clumsiness of the state's powers, historical experience, and the practical need to accept reasonable social pluralism ("reasonable" because, at least beyond a certain point, we need not tolerate the intolerant). They do not depend at any stage on a naive denial of the fact/value distinction. What Fish really needs is not an argument that slanders liberals for an imagined meta-ethical naivety. He needs something more gritty and practical, an argument as to why we now live in an era when it is wise to trust the state to decide which religion is correct, and then legislate accordingly. I'd love to see that argument.
Thanks for taking the time to write this full critique. There was so much to say, but I copped out and instead just Tweeted something sarcastic.
So did I! (Except for the Tweeted part.) So much Fishery, so little time.
The thing that concerns me in all these discussions is that religion is politics. Politics with an ace in the holy, but still politics. Religion states and enforces rules of conduct for its participants; in other words, it allocates exercises and abuses power. That is politics.
Why not distinguish between a) any legislator's motivating reason for voting in favor of some law, and b)the law itself / that law's content as law? This distinction makes it possible to think both that a) no law, as the law it is, should impose religion; but, b) in terms of public debate, nothing need be excluded (as a supposed reason for the law). I don't want to sacrifice fully open debate as the price to pay for a secular legal system, and you shouldn't either. Generally, it is almost always better if people's real reasons for action are not sublimated; better to know what you are up against, so that when you get down to the hard business of democracy--convincing the guy next to you to change his mind--you might succeed.
Anyway, apologies if I've misread you. The reason I take it that you seek to limit public debate in some ways is because, as I read the provided Fish excerpt, I regard Fish to simply be objecting to advance limits on public debate. Possibly, however, you think Fish is suggesting that laws, as the laws they are, properly may have religious content (of the sort that necessarily involves imposing religion). That would be a position worth arguing against (although probably not in a way that suggested the importance of limiting debate).
*Shameless self-plug*- Also, if you're writing a book on freedom of religion, I hope you'll consider reading my own contribution to the topic- a soon-to-be-published essay on First Amendment law in the Ohio State Law Journal. As legal argument, it probably won't interest you; but I think I contributed something originally philosophical to a proper understanding of the value(s) at stake (vel non) in concerns over "free exercise of religion." Of course, I would think that...
This was great, Fish seems to really be on a confusion-spewing role lately and I'm glad you took him down so nicely. He has a pretty strange definition of "secular reasoning"- I assume this isn't common as a way of defining the parameters of liberal secularism these days??
His idea of secular reason reminds me of the economists/sociologists/historians/political scientists who maintained they were really doing "value-free science" even when giving political policy advice- maybe it's a case of Fish taking those old pronouncements at face value? I discussed it a bit on my blog as well...
A problem I see with your proposal (after a superficial look at it) is that a) the "motivation" for proposing a law, leaving aside the proposition that every day is election day, is that it is utterly dependent on my opinion of the lawmaker and her morality, such as it may be.
Laws, all of them, impose morals, which is exactly what religion does. So the distinction between them is the degree of self-righteousness they profess, as far as I can see.
I don't at all seek to limit debate. I just want to make overt what seems to me an obvious if generally overlooked attribute of every religion: Its political nature. To say that we must have this law because (my) god demands it is utterly unacceptable. I see absolutely no reason whatever to give a rat's *ss about what strikes you as holy or godly.
Michael, I don't think Fish is merely defending free speech (he doesn't even like the concept of free speech).
I definitely defend free speech: people can put forward whatever jurisprudential principles they like (and I am free to disagree and to argue that the legislature should not act on their proposed principles). As I understand Fish (and bearing in mind that this is not the first time he has spoken on the subject), he actually denies that legislators should confine themselves to dealing with things of this world. I.e., he denies that legislators should adopt anything like the Millian harm principle or the Lockean analysis of religious tolerance. That seems to be pretty clear, because he seems clear that he actually disagrees with Locke. He's not just defending the freedom of people to argue for a different view, either in general or on a specific occasion.
If you send me a pdf of the article when it's published, I'll certainly look at it. For the moment, I don't have access to online academic journals. I may have when I sort something out in my new location, but for now there are lots of constraints on what material I can get hold of easily.
If the religious (or any other group) want want to put forth a law with such and such motivation, they in my view ought to have the right. But they ought not to have the right to have that motivation taken with deference; democracy should involve the openness to debate the premisses, too. Think of the line "Well, maybe we can get from here to there in a way that we both agree on." Of course, there's the danger that people will simply not agree to work together; but (despite our reputation as a sometimes uncooperative animal) I think with other principles eventually agreement will take hold - in a way it is a process to help homogenize things in a *good* way.
Life is too short to spend very much time assessing Stanley Fish, but maybe I should've said that I fully recognize that the man has an unfortunate skeptical/anti-liberal/post-modernist bent. (I wind up criticizing Fish on this score in my own work.) And that's evident here: Fish only defends something like free speech (he is concerned about what is "o.k. to argue") given his view that every supposed value is the equal of every other. Where there are good reasons for unconstrained debate, I hope we can agree that this is a pretty bad one. My concern is just to avoid going too far in criticizing Fish; I hope there is nothing in being a good liberal that denies its being "o.k. to argue" anything.
Anyway, I'm not criticizing you here; I'm clarifying my own view. After your last comment, I doubt that we are actually disagreed.
Well, in the context of what I've read before and the overall context of the article, I think he's arguing about what sort of arguments it is legitimate for the state to act upon. Nobody in the classical liberal tradition disputes that is should be legally okay to argue all sorts of crazy things as bases for state action. The question is what sorts of things you can argue in the legitimate expectation that the state will place weight on them, and what sorts of arguments are "not okay" in the sense that you shouldn't have any such legitimate expectation.
But sure, if he was just saying that it should continue to be lawful to argue that the state should act in conformity to a holy text then I'd actually agree with him. From what I know of Fish's views, Smith's views, and what Fish says in the article as a whole, including his disagreement with Locke, I think that would be a very charitable interpretation indeed. The trouble is that Fish uses this expression "ok", which could mean almost anything. If it means "should be lawful" then he's correct. But surely he must mean something like "in conformity with good ethico-legal principles governing what considerations should move the state to act". The overall context seems to clarify this. After all, this was what Locke was talking about - good ethico-legal principles governing state actions - not about what it is lawful to say. It is also what the classical liberal tradition is all about: e.g., Mill advocated the harm principle, but he never said that advocating different principles should be unlawful.
But yes, we probably do agree on what the principles actually are, as opposed to what Fish is trying to say.
Incidentally, if your concern is to avoid a sort of bad intent or aspiration on the part of some of the arguers (i.e., an intent or hope on their part that the state will give certain sorts of religious ends or values weight), what (kind of) rule or policy would you recommend in light of that concern? Would it just be a rule preventing enforcement of any laws (or 'laws') which in their own terms imposed religion? (The sort of rule I would support.)
But then, as long as we have this rule (and aren't concerned about losing it), why particularly care very much that any arguer has some bad intent or aspiration more than we care about anyone who, in public debate, professes a view we think false or silly? I'm not actually sure that I would agree that there is something extra bad about a person in a public debate who thinks their religious (as opposed to just any other objectionable) reason deserves respect.
Would you particularly feel oppressed by a law which had a prefectly adequate non-religious justification but which, in the event, only became a law because most legislator's acted on a religious reason in voting for it (and also had concomitant hopes and intentions of the sort to which you object)? I don't think I would. Maybe you'd feel differently, and maybe that's a case that shows we have some differences on some of this, although we agree on a lot.
If the law can be justified on some independent basis that I agree with, I don't have any reason to feel oppressed by the law itself, or to wish the law had not been enacted. Say the law is justified by the Millian harm principle, but some legislators voted for it because it enforces the content of a Bible verse - and others did so after consulting an astrologer. The fact remains that the law is justified by the harm principle. I have reasons for supporting it and for not seeking its repeal.
But none of that is a reason to stop enjoining legislators to follow the harm principle (or whatever principle is justifiable), and to stop relying on astrologers or holy books.
Good piece, good comments. Fish’s relativism extends to jurisprudence. He sees no reason why a religious justification should be inferior to a secular justification. But as Russell points out, the only valid justification for law in a pluralistic society must be one that is somehow universal, common to us all, grounded in a reality that most of us agree on – like avoidance of harm. A religious justification is by necessity particular rather than universal, given the multiplicity of religion. There are no compelling intellectual reasons for everyone to accept it. It does not belong to shared reality. While it would be perfectly OK for an individual legislator to hold religious reasons for supporting a given law, and to publicly argue from a religious perspective, the only justification that a pluralistic public sphere would be compelled to accept is a secular one. In the absence of a secular justification, a religious one is insufficient.
Fish is a classic sophist who loves the sound of his own contrarianism. In addition to shifting the meaning of words, his M.O. often includes constructing a straw man -- some extreme claim supposedly at work in conventional thinking that he can then demolish. In this piece, it's the following: "This is the cul de sac Enlightenment philosophy traps itself in when it renounces metaphysical foundations in favor of the 'pure' investigation of 'observable facts.' It must somehow bootstrap or engineer itself back up to meaning and the possibility of justified judgment, but it has deliberately jettisoned the resources that would enable it do so." That's a cartoon description of Enlightenment reason; it confuses suspending judgment about some questions with "deliberately jettisoning" metaphysical commitments altogether.
Likewise, Fish's use of the term "OK," which Professor Blackford rightly critiques, isn't just convenient vagueness but another straw man: It confuses liberal arguments against Bible-based public policy positions with some alleged attack on the right of religious people to invoke the Bible in public debate. In that respect, Fish's position is of a piece with the whining constantly heard from the religious right about the horrible repression / oppression it's always suffering at the hands of liberal America, as if not winning a political argument is the same as not having been allowed to try.
Finally, as Professor Blackford notes, all this rests on Fish's unwillingness to describe what society would look like if whatever he's claiming here were put into practice. Put another way: So what if the Enlightenment is a "cul-de-sac," if the main road is a constant stream of armies marching off to fight religious wars? A cul-de-sac is exactly where you should want to build in that case.
One possible fault of the secular state being uninvolved in religion is the obvious enormous *subversive* power unchecked religious fundamentalism ceaselessly seeks to attain. If the state is toothless in defending these very core values, it is a failed experiment. Many people will prefer the decisiveness of a veiled dictatorship over perpetual stalemate where definitive ethical stances are desired.
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