[lit-ideas] Re: Religion & Public Reason
- From: Phil Enns <phil.enns@xxxxxxxxx>
- To: "Walter C. Okshevsky" <wokshevs@xxxxxx>
- Date: Thu, 16 Sep 2010 11:56:57 +0700
Walter O. wrote:
"I don't find the distinction between the laws of the land and
discourse on rights as neatly separable as Phil believes it is. On the
grounds of that distinction Phil recommends that people who believe
their rights are being violated should aim politically at changes in
legislation rather than engage in rights talk. But such a distinction
is otiose in cases where persons or groups maintain that the laws as
they stand, and the Constitution in its present form, support their
charges of rights violations. For example, religious parents of a
certain ilk at times find the curriculum of public schools to violate
Charter or Constitutional rights to freedom of religious exercise.
Whether the case involve the exclusion of the teaching of creationism
in science class, or the "simple exposure" of students to a variety of
lifestyles and religions deemed by the parents to be sinful, parents
go to court precisely because they believe the laws of the land
support their rights claim to religious exercise. They're not out to
change the laws of the land; they simply want their rights recognized
- rights possessed by all in a liberal democracy."
I think Walter is bringing up a slightly different scenario than was
being discussed earlier. Earlier we were discussing the case of
immigrants coming to Canada and feeling they had the right to practice
their religious and cultural beliefs, regardless of the laws of the
land. I argued that if they felt so strongly about this right, and
the current legal code denied them this right, then they should work
to change the laws of the land by engaging in the political process.
The scenario Walter brings up here is one where it appears the legal
code grants particular rights but people feel they are not being
allowed to exercise these rights. In Walter's scenario, I agree that
people should feel free to make use of the court system to ensure
themselves of their rights. But there is a considerable difference
between a right granted by a constitutional legal system and rights
people believe they have by virtue of ... well of something else. The
right people may think they have to practice honour killings is a very
different kind of right from that granted by the Canadian constitution
to practice religious beliefs free from government influence. The
latter right is granted by virtue of a legal system while the former
is asserted from within a cultural system.
If individuals living in Canada feel that they have rights which are
not granted by the Canadian legal system, then they should be
encouraged to engage in the political process to change that system.
If these individuals feel that their rights, as granted by the
Canadian legal system, are not being respected, then they should be
encouraged to consider using the court system. In short, it seems to
me that immigrants only need to be informed about the importance of
the laws of the land as well as their rights as granted by those laws.
I am not clear what would be added with lectures in political
philosophy.
Walter continues:
"We certainly don't want to equivocate on different senses of "law."
For Kant, obligations set by reason constitute moral imperatives that
have the form of law. But positive laws - i.e., corporate, criminal,
civil - are not themselves tokens of moral law though they require to
be in accordance with moral law (the Categorical Imperative for folks
like us) in order to be justifiable. The CI is the formal ground of
reason giving in that any reason contradicting the universality
condition is irrational and, as such, cannot be cogently legislated.
Phil implies that I fail to recognize the balance between reason
giving and lawfulness. But my ignorance appears to be in very fine
company as he also avers that Habermas and Rawls - two of the world's
better known regular irregular Kantian philosophers -also miss the
boat here."
Walter is, of course, in very good company with Habermas and Rawls.
The best I can do here is weakly claim that Kant argues something
different and that I think Kant is on to something important for
liberal democracies today.
I am not trying to equivocate on the law but rather suggest that moral
imperatives and positive laws differently draw on the same experience
and idea of lawfulness. They, as it were, bear a family resemblance
in that moral imperatives have the form of positive laws and positive
laws carry moral import, and both are bound together with the
imperative to obey. To be clear, I want to maintain the distinction
between moral imperatives and positive laws, since even Hobbes
acknowledged that individuals have the right to disobey some laws.
However, what both moral imperatives and positive laws necessarily
share is the experience and idea of lawfulness, the command to obey.
Moral imperatives do not depend on reasons for their form of law, as
though the claim 'Thou shalt not kill' requires specific reasons in
order to take on the form of an imperative. Someone who requires
reasons before they will acknowledge that rape is wrong is someone who
cannot recognize a moral imperative. Similarly, someone who requires
reasons before acknowledging specific positive laws is someone who
cannot recognize positive law. We, of course, give many reasons why
rape is wrong and we give many reasons why we have specific laws, but
the lawfulness of moral imperatives and positive law does not depend
on these reasons.
In my very lonely opinion, it is a bad idea to try and establish
foundations for moral imperatives and positive law, even if this
foundation is one of reason-giving.
Sincerely,
Phil Enns
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