Divine Rights and Human Rights

That’s the title of a short piece I have over at Law and Liberty, concerning the transformation of the concept of religious freedom from a hybrid divine/human right to an entirely human right. From the beginning (and do see the Mansfield essay, which is about a good deal more than my own):

The eminent political theorist Harvey Mansfield once wrote that the “religious question” is the crucial one for the modern age, because it concerns the ultimate repository of authority and control. Is it human or is it divine?

“All pre-modern regimes,” said Mansfield, “are more or less based on divine right, on appeal to a principle that says men do not control themselves, that they are controlled by a higher power.”

The modern project, by contrast, is centrally concerned with liberation from that higher power:

“For if men cannot act effectively on their own, they will have to return to divine right, notwithstanding the objections that philosophers might propose. Liberation leads to reform. Liberation is not merely skeptical or negative; it is positive and progressive.”

One of the ways that modernity has answered this challenge is by appropriating “religion” and transforming it from a duty that one owes a creator to a duty that one owes to oneself. In law, one sees this transformation clearly in the standard that is conventionally applied by American courts to requests for religious exemptions from general laws, in which sincerity, individual commitment, or personal conviction are alone sufficient to bring a claim (though they are not sufficient to prevail).

That way of perceiving and understanding religion certainly mitigates certain dangers. It locates authority when it comes to religion solely in the individual, thereby removing all authority from the state. The state is disabled from judging in matters of religion both for epistemic and non-establishment reasons.

Furthermore, religion, as a legal category, becomes accessible to more and more Americans, irrespective of what they may believe. That is precisely what happened in the mid-20th century, as the “duty to the Creator” conception of religion was relaxed in favor of a conception locating all authority over religious questions in the individual conscience.

But this revision may also lead to problems, as religion steadily becomes dissociated from any power external to the individual believer. Law, of course, is responsive to and reflective of more general cultural movements, understandings, and programs, and a short post of this kind is no place to document those changes. But the transformation of religion from a divine phenomenon to a human one was brought home to me in reading the “Religion” section of the New York Times Book Review a few weeks ago. Four books about “religion” were reviewed—all favorably. Every one of them reflected this transformation.

Happy Easter


Anastasis, San Marco, Venice

To those who celebrate today, a very Happy Easter. Christus resurrexit!

Merry Christmas


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To all who celebrate, best wishes for a joyful holiday.

Happy Easter

A Happy Easter to all who celebrate. Christ is Risen.

Happy Easter

To all who celebrate, a very Happy Easter. Christ is Risen.


Three Things that Aren’t on Enough Church-State Syllabi

Since it’s the start of the school year, I thought I would begin my 30 day blogging career with “Three Things That Aren’t on Enough Church-State Syllabi.”  The idea is to help students understand that current efforts to give religion a more prominent place in the public square have deep roots.  They aren’t merely a throw-back to a repressive Puritan era or the result of foreign influences arriving with 19th century Catholic immigrants.  Rather, they are part of the mainstream of America political thought since the founding.

 Syllabus Supplement, Part I – The aptly named Theophilus Parsons.

 Think of Parsons as a James Madison counterpart in Massachusetts – really smart and politically crafty.  While Madison led the charge to defeat Virginia’s otherwise popular proposal for a general assessment to support religion in 1785, Parsons had helped ram through the Massachusetts 1780 constitutional provision requiring public support for Protestant ministers, despite not actually having the votes.  In course after course, students read Madison’s ringing words from the Memorial and Remonstrance calling the use of religion “as an engine of Civil policy” an “unhallowed perversion of the means of salvation.”

 An interesting, and quite different, perspective can be found in Chief Justice Parsons’ opinion in Barnes v. Falmouth (1810):  “The object of a free civil government is the promotion and security of the happiness of the citizens.  These effects cannot be produced, but by the knowledge and practice of our moral duties….  Civil government…is extremely defective, and unless it could derive assistance from some superior power, whose laws extend to the temper and disposition of the human heart, and before whom no offense is secret, wretched indeed would be the state of man….  On these principles, tested by the experience of mankind, and by the reflections of reason, the people of Massachusetts, in the frame of their government, adopted and patronized a religion, which by its benign and energetic influences, might cooperate with human institutions, to promote and serve the happiness of the citizens….”

On a somewhat more topical note, Parsons had little sympathy for exemption-seekers, arguing that, since it was only a tax and did not require church attendance, objectors “mistake a man’s conscience for his money….”

                                                                                                Don Drakeman




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