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Obedience and Freedom

It’s probably fair to say that most people today regard obedience and freedom as antonyms, and that obedience is regarded as the bad side of that duality. We might even say that we are free just insofar as we obey no one, except perhaps ourselves or our own will. Going further, obedience seems like the kind of orientation to the world that depends upon there being unquestionably rightful authority, but perhaps we don’t regard authority, any authority, in that way any longer–as having unquestionably right claims on us. Sometimes obedience is thought to be a kind of mindless servility or rote submission, though older conceptions of obedience incorporated an important element of free choice. Is it then not obedience if one chooses to submit oneself to the authority whom one obeys? Again, that position would assume that choice and obedience are necessarily antagonists, but the structures of authority to which one might voluntarily submit oneself might actually make one more free to achieve certain objectives than one would be without the submission (think here of the structures of excellence in sports or writing or some other practice).

Ok, enough already. I raise all this in light of an interesting new book by Jacob Phillips, Obedience is Freedom (Polity Press). The abstract is below, and here is an interesting review of the book that came out a few months back.

The virtue of obedience is seen as outdated today, if not downright toxic – and yet, are we any freer than our forebears?

In this provocative work, Jacob Phillips argues not. Many feel unable to speak freely, their opinions policed by the implicit or explicit threat of coercion. Impending ecological disaster is the ultimate threat to our freedoms and wellbeing, and living in a disenchanted cosmos leaves people enslaved to nihilistic whim. Phillips shows that the antiquated notion of obedience to the moral law contains forgotten dimensions, which can be a source of freedom from these contemporary fetters. These dimensions of obedience – such as loyalty, discipline and order – protect people from falling prey to the subtle forms of coercion, control and domination of twenty-first-century life.

Fusing literary insight with philosophical discussion and cultural critique, Phillips demonstrates that in obedience lies the path to true freedom.

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Walsh on Juridical Post-liberalism and Ius

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Kevin C. Walsh (Catholic University of America School of Law) submitted the following paper for Workshop 1, on the general themes of the conference, which we are delighted to publish here:

I have three goals with this set of brief reflections for our first session on “Liberalism’s Limits: Religious Exemptions and Hate Speech.” One is to suggest the possibility of a smooth transition to a form of juridical post-liberalism in societies rooted historically in political liberalism. A second is to sketch out a few distinctions that will be helpful for us in analyzing particular questions of law and right related to religious exemptions and hate speech. The third is to offer a couple of suggestions about the potential practical utility of attending to these broader theoretical considerations. Those suggestions relate to the question of how to understand the role of dignitary harm in law, a matter that sometimes arises at the intersection of religious exemptions and hate speech.

I. Overcoming liberalism through transformation from within the juridical domain

When things are coming apart, it is natural to consider what endures. We are thinking about the limits of political liberalism because it looks like liberal polities are coming apart. We are interested in how to understand and to navigate whatever change it is that we are going through. In considering the limits of liberalism in connection with religious exemptions and hate speech, I focus first on the possibility of overcoming liberalism through transformation from within the juridical domain. Are there ways that faithful (in the sense of loyal, oath-bound) participants in a liberal society’s legal justice system not only may operate entirely without reliance on foundational premises of political liberalism, but also may actively reframe those elements of the legal justice system in its practical operation that push toward reliance on such premises?

To answer this, we first need a working understanding of political liberalism. This way we can know what we are asking lawyers and judges to do without. For this, I will draw on Leo Strauss, who wrote: “If we may call liberalism that political doctrine which regards as the fundamental political fact the rights as distinguished from the duties of man, and which identifies the function of the state with the protection or the safeguarding of those rights, we must say that the founder of liberalism was Hobbes.” [1]

From this formulation, we can isolate two Fs of political liberalism. First is the Fundamental Political Fact of individual rights as distinguished from duties, with rights taking priority over duties. Second is the Function of the State as the protecting or safeguarding of each individual’s individual rights. [2]

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Pojanowski on Authenticity and Free Speech

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Jeffrey Pojanowski (Notre Dame) submitted the following paper for Workshop 1, on the general themes of the conference, which we are delighted to publish here:

Consider two very different works of art. The first is the 1943 Norman Rockwell painting, Freedom of Speech. There, a workman in a New England town hall stands resolute amid his nattier neighbors, preparing to say his piece. The painting’s model was the Arlington, Vermont farmer, Jim Edgerton, the sole dissenter to the town selectmen’s decision to build a new school. This painting, one in a series commemorating Roosevelt’s “Four Freedoms,” links freedom of speech with republican self-governance, deliberation about a shared good, and an idea of equality that elevates the dignity of the common man to the plane of his more aristocratic fellow citizens. Edgerton’s mien is reminiscent of Lincoln.

The second is a 2002 Joseph Frederick banner, 14-feet-long and emblazoned with the message “BONG HiTS 4 JESUS.” This banner, which the Juneau, Alaska high school senior created just before he displayed it at an Olympic torch parade, was, in the words of its creator, “just nonsense meant to attract television cameras.” The Supreme Court of the United States explained that this message, displayed at a school-sponsored event, could be reasonably understood as advocating illegal drug use, but it was “plainly not a case about political debate over the criminalization of drug use or possession.” Over a vigorous dissent, the Court held that the First Amendment did not prohibit Frederick’s school from disciplining Frederick. Frederick’s claim links free speech with a bare right of self-expression, even if the message that the autonomous self seeks to assert is admittedly “nonsense.” Frederick is reminiscent of Cartman.

Frederick could be forgiven for thinking he could prevail, which he did before the Court of Appeals. The Supreme Court has interpreted the First Amendment as protecting lying about military honors, virtual child pornography, and crush films (don’t google the term). Now, this protective agnosticism in the Court’s doctrine need not reflect a deep skepticism about truth or beauty; it could flow from a sincere interpretation of the Constitution’s positive-law strictures or reflect prudential worries about empowering government to limit speech. There are many threads in American free speech jurisprudence and culture. Even so, one of the more vibrant ones is the notion that expression is good for its own sake, is self-constituting, and that interferences with, or even judgments about, such autonomous expression in the name of standards outside the self are unjustified and tyrannical.

This thread in jurisprudence and culture has given rise to powerful post-liberal critiques of free speech. Neutrality, the argument goes, is impossible because it presupposes this postmodern celebration of standard-less self-assertion and substantively demands its enforcement through law and culture. Alternatively, even if it does not share such premises, it is no defense against that worldview’s imperialistic designs. To invoke Fr. Richard John Neuhaus’s “law”: “Where orthodoxy is optional, orthodoxy will sooner or later be proscribed.” This debate about the compatibility of liberal legal forms like free speech protections and non-liberal culture is challenging, fascinating, and important, and I am hesitant to claim I have anything important to add, especially through short-form scholarship. Rather, I would like to suggest that even those who celebrate—or regard as irreversible—modernity’s departure from more fixed, prescriptive ways should pause before drawing a straight line from liberal individualism to free speech libertarianism. (A caveat: I am operating here primarily at the level of normative argument, not legal doctrine. I don’t claim, and am not qualified to claim, to offer an argument about the best reading of the First Amendment and/or its subsequent implementing doctrines.)

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Ekins on Some Features of Liberalism in a Censorious Age

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Richard Ekins (Oxford) submitted the following paper for Workshop 1, on the general themes of the conference, which we are delighted to publish here:

Some features of liberalism in a censorious age 

The nominal promise of liberalism is political fairness and, relatedly, social peace, in which persons with different religious, moral, political, and philosophical commitments will be free to live as they please. The promise is illusory insofar as one cannot coherently exclude questions about the good from public life, including from (deliberation about) the exercise of public power. And in fact, we do not live in a golden age of freedom of conscience or freedom of speech. On the contrary, we live in an increasingly censorious age, as Jonathan Sumption puts it,[1] in which uniformity of thought or opinion is sought by way of abuse of dissenters in the press or social media, or by direct public (legal) action. This short paper reflects on some developments within liberalism, understood loosely as a tradition of political thought and practice, which may help explain the censorious temper of our times and the way in which religion and hate speech are understood.

In one influential form, political liberalism aims to bracket questions about what is truly worth acting for – questions that involve controversial substantive commitments – and instead to ground law and government on thin propositions that are fair to all comers. For Ronald Dworkin, the fundamental principle of political morality is that government should show equal concern and respect to all persons. This requirement, he says, rules out public actions that entail or presuppose the judgement that some way of life is vicious or debased and/or that some moral choices are truly better than others. Public actions of this kind, Dworkin maintains, fail to show equal concern and respect.  

This line of argument forms a main element in the jurisprudence of contempt,[2] in which a court or jurist reasons that to act on moral grounds is to act unfairly, in a way that is incompatible with the respect for persons and the freedom that equality demands they enjoy. Judicial review of legislation is justified, on this view, in order to police majoritarian legislatures, who are otherwise tempted to act unfairly, double-counting the preferences of some citizens about how others are to live, and/or reducing others to the status of second-class citizens by rejecting their commitments. The argument is unpersuasive because one cannot avoid the need for moral judgement in lawmaking and governing and to act for what one sincerely takes to be the good, including the good of the person one limits or punishes, in no way involves contempt for those who think otherwise.[3] Further, the argument wrongly frames the reasons on which a legislature acts as preferences, which have a place in collective action only insofar as fairness permits. The aim is to disbar political unfairness; the effect, even if the proscription were applied evenly,[4] would be to prevent justice.  

What is important to note, I think, is (a) the reduction of reasons to preferences and (b) the claim that in acting on (controversial) moral reasons one displays contempt for others. The upshot is that political liberalism is primed to see moral action as an insult or an unfair abuse of process. It is no surprise then that the moral significance of intention is often lost from view, with actions sometimes branded discrimination or harassment regardless of the intentions on which the person acted, per the premise that our actions are often sub-rational with real motivations hidden from us. [5] It is thus easy to frame those with whom one disagrees, or fears, as irrational and in need of correction. 

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“Traditionalism Rising” at the Volokh Conspiracy This Week

At Eugene’s kind invitation, I’ll have several posts this week at the Volokh Conspiracy excerpting and summarizing my new article, Traditionalism Rising. The first post is here, defining traditionalism and locating it in the Court’s 2021 term cases. Here’s a bit:

The piece builds on and extends a larger project about constitutional traditionalism developed in earlier papers (here and here), as well as in a broader research program, The Tradition Project, that my colleague (and Volokh co-conspirator) Mark Movsesian and I have pursued over several years at our Center for Law and Religion. I’ve been a dedicated reader of the Volokh Conspiracy since I was a law prof pup, so it is a pleasure for me to contribute something.

My posts will: (1) define traditionalism and locate it in the Supreme Court’s work this past term; (2) compare traditionalism and originalism, particularly what the paper calls “liquidated originalism”; (3) address traditionalism’s “level of generality” problem, the problem how to select the operative tradition; (4) offer several justifications for traditionalism; (5) consider the problem of traditionalism’s politics. Most of the material is excerpted or summarized from the article, but I invite readers to look at the piece for the full-dress argument. I welcome reactions to the paper, which is still a draft.

What is traditionalism? When people hear the word tradition connected to law, they sometimes think of judicial restraint, or deference, or minimalism (or “Burkeanism”), or some vaguer injunction to “go slow” or respect stare decisis and the interests served by it. Or they may think of approaches to particular clauses or parts of the Constitution—to the Due Process Clause, for example, or to Justice Frankfurter’s “tradition” approach to inherent executive power.

Traditionalism is different from all of these. Traditionalism is a unified approach to determining constitutional meaning and constitutional law with two central elements: (1) concrete practices, rather than principles, ideas, judicial precedents, legal rules, and so on, as the determinants of constitutional meaning and law; and (2) the endurance of those practices as a composite of their age, longevity, and density, evidence for which includes the practice’s use before, during, and after enactment of a constitutional provision.

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Delsol, “The Insurrection of Particularities, Or, How the Universal Comes Undone”

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” with our longtime partner, Università di Roma LUMSA. The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers.

The distinguished political historian and philosopher, Chantal Delsol, gave a keynote address for the conference. We are delighted to publish her talk here. The address is in French, and I link to the original below. With Professor Delsol’s permission, I have translated it for our English speaking readers (the footnotes remain in the original).

Chantal Delsol’s original piece in French can be found hereDownload

The Insurrection of Particularities, Or, How the Universal Comes Undone

Rome, July 8, 2022

Chantal Delsol

1.

On October 18, 2017, the French National Assembly adopted the State Law on Religious Neutrality. Article 11 provides that an accommodation for reasons of religion may be granted if 5 criteria are satisfied: the request is serious; the requested accommodation respects the equality of men and women, as well as the principle of religious neutrality of the State; the accommodation is not excessively constraining; and the requester has actively participated in finding a solution. By the same token, there will be no accommodation with respect to the obligation of all employees of the State to work with their faces uncovered and without wearing any religious sign.

One sees here the extent to which the legislator struggles to preserve as far as possible State neutrality tied to secularism, without actually achieving it, and doing so less and less. We are today on a kind of slope, which is the subject of our conference today: that which was accorded an exception more and more becomes the rule. The Quebecois speak of “reasonable accommodations,” to underline well that one should not surpass the limits of good sense. The example is cited in France of the authorization given for prayer in the streets which stops traffic. So, too, laws forbidding the scheduling of exams for students during the holidays of various religions, which made one journalist say, “soon only February 29 will be left to schedule exams.” The question is in fact posed about the diversity and plurality of exemptions, but that is only a subsidiary question consequent on others. These concessions, which raise a vision of equality solely constituted of privileges, interrogate our vision of the universal, and finally our way of being a society.

Our societies appear more and more to be aggregations of minorities disparate in every respect (they may be social, sexual, religious, or cultural, etc.). And everything happens as if the goal of governments is nothing more than to establish equality among these groups, which, always claiming and becoming indignant about not obtaining enough, monopolize public space. At this point, leaving behind Tocqueville who feared a tyranny of the majority, we could, as Philippe Raynaud put it, [1] fall into a tyranny of minorities.

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The Spirit of Capitalism With No Protestant Ethic

A little something for Labor Day:

“The peculiarity of this philosophy of avarice appears to be the ideal of the honest man of recognized credit, and above all the idea of a duty of the individual toward the increase of his capital, which is assumed as an end in itself. Truly what is here preached is not simply a means of making one’s way in the world, but a peculiar ethic. The infraction of its rules is treated not as foolishness but as forgetfulness of duty. That is the essence of the matter. It is not mere business astuteness, that sort of thing is common enough, it is an ethos. This is the quality which interests us.”

This passage, from Chapter 2 of the renowned sociologist Max Weber’s famous tract, “The Protestant Ethic and the Spirit of Capitalism,” illustrates one of the principal themes of the work: to discern the relationship between the Calvinism that was so influential in the United States and the capitalist “work ethic” that was once so important in the country’s self-understanding.

Here is a new book that considers the fate of this association in a very different time–one where Calvinism and the Protestant “ethos” more generally is in decline (though the book perhaps disputes this premise), and what that might mean for our orientation toward work generally: Saving the Protestant Ethic: Creative Class-Evangelicalism and the Crisis of Work, by Andrew Lynn (OUP).

Protestant orientations to work and economics have shaped wider American culture for several centuries. But not all strands of American Protestantism have elevated secular work to the highest echelons of spiritual significance. This book surveys the efforts of a religious movement within White Protestant fundamentalism and its Neo-Evangelical successors to “make work matter to God.”

Today, bearing the name the “Faith and Work movement,” this effort puts on display the creative capacities of religious and lay leaders to adapt a faith system to the changing social-economic conditions of advanced capitalism. Building from the insights and theory of Max Weber, Andrew Lynn draws on archival research and interviews with movement leaders to survey and assess the surging number of new organizations, books, conferences, worship songs, seminary classes, vocational programming, and study groups promoting classically Protestant and Calvinist ideas of work and vocation . He traces these efforts back to early-twentieth-century business leaders and theologically trained leaders who saw a desperate need to foster a new “work ethic” among religious laity entering into professional, managerial, and creative class work.

Leaders interviewed for the study recount the challenges of rerouting energies that were previously steered toward inward spirituality, cultural separatism, and proselytization. Through these interviews, Saving the Protestant Ethic captures ongoing in-group tensions and creative adaptation among American Evangelicals as they navigate changing class and political dynamics that shape American society.

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“Traditionalism Rising”

The title of my new draft paper, developing work I’ve been at for the last 3-4 years, incorporating some of the decisions from this term, and setting out some justifications for this method of doing constitutional law. Here is the abstract:

Constitutional traditionalism is rising. From due process to free speech, religious liberty, the right to keep and bear arms, and more, the Court made clear in its 2021 term that it will follow a method that is guided by “tradition.”

This paper is in part an exercise in naming: the Court’s 2021 body of work is, in fact, thoroughly traditionalist. It is therefore a propitious moment to explain just what traditionalism entails. After summarizing the basic features of traditionalism in some of my prior work and identifying them in the Court’s 2021 term decisions, this paper situates these recent examples of traditionalism within this larger, longstanding interpretive method. Contrary to many claims, there is little that is entirely new or unexpected, other than the Court’s more explicit embrace of traditionalism this term than in the past. The paper then distinguishes traditionalism from originalism, focusing especially on what some originalists have called “liquidation.” Finally, it raises and considers one comparatively straightforward and two more difficult problems for traditionalism: (a) the problem of selecting the operative “level of generality” for any tradition; (b) the problem of tradition’s moral justification, offering possibilities based on the connection between enduring practices and (1) human desires, (2) virtues or legal excellences, or (3) natural law determinations; and (c) the problem of traditionalism’s politics.

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Public Law and Private Law

One of my summer projects–still hatching–concerns the idea of “drift” in what is regarded as prototypically “public” and “private” law. That is, the tendency of what was regarded as public law to be privatized, and the tendency of private law to become a matter of public concern. For example, law and religion is traditionally understood as public law in its constitutional dimensions–the law that concerns the state’s relationship to the citizenry respecting religious questions. But there are also features of law and religion that may be considered private law: contractual arrangements based on religious law, for example, and others. Of course, the categories of public and private have been famously attacked by legal realists and their descendants as empty formalisms. In more recent years, however, scholars coming from a variety of perspectives have revived and defended the distinction. In tort law, for example, John Goldberg and Benjamin Zipursky have done so in their book (and prior work), Recognizing Wrongs, and others as well in what is called the “new private law” perspective.

From his own distinctive, Kantian perspective, so has the eminent private law theorist Ernest J. Weinrib. Here is an important new book on themes he has been developing for many years, and which go very much to the private/public division: Reciprocal Freedom: Private Law and Public Right (OUP).

Reciprocal Freedom elucidates the relationship between private law and the state, presenting reciprocal freedom as the normative idea underlying a legal order in which private law occupies a distinctive place. Weinrib develops a set of interconnected conceptions of private law, corrective justice, rights, ownership, the role of legal institutions, distributive justice, the relationship of constitutional rights to private law, and the rule of law.

The book is explicitly Kantian in inspiration; it presents a non-instrumental account of law that is geared to the juridical character of the modern liberal state. Combining legal and philosophical analysis, it offers a sequenced and legally informed argument for understanding law as necessary to our co-existence as free beings.

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Essays on Law and Religion in the British Commonwealth Nations

The British Commonwealth is an association of countries that share a connection to the British Empire, often as former colonies. The common law of these countries all has this common root or family resemblance, and is therefore in many ways similar, notwithstanding specific national differences that have developed with independence from the Empire. Here is a new book concerning the law and religion doctrine of these nations: Law and Religion in the Commonwealth: The Evolution of Caselaw (Bloomsbury), edited by Renae Barker, Paul Babie, and Neil Foster.

This book examines law and religion from the perspective of its case law.

Each chapter focuses on a specific case from a Commonwealth jurisdiction, examining the history and impact of the case, both within the originating jurisdiction and its wider global context.

The book contains chapters from leading and emerging scholars from across the Commonwealth, including from the United Kingdom, Canada, Australia, Pakistan, Malaysia, India and Nigeria.

The cases are divided into four sections covering:
– Foundational Questions in Law and Religion
– Freedom of Religion around the Commonwealth
– Religion and state relations around the Commonwealth
– Rights, Relationships and Religion around the Commonwealth.

Like religion itself, the case law covers a wide spectrum of life. This diversity is reflected in the cases covered in this book, which include:
– Titular Roman Catholic Archbishop of Kuala Lumpur v Home Minister on the use of the Muslim name for God by non-Muslims in Malaysia
– The Church of the New Faith v Commissioner of Pay-roll Tax (Vic) which determined the meaning of religion in Australia
– Eweida v UK which clarified the application of Article 9 of the European Convention on Human Rights
– R v Big M Drug Mart on the individual protections of religious freedom under the Canadian Charter of Rights.

The book examines how legal disputes involving religion are among the most contested in the courts and shows that in these cases, passions run high and the outcomes can have significant consequences for all involved.