Thursday, November 26, 2009

Freedom of Religion Necessarily Means a Right to Sin According to Special, Not Necessarily General Revelation

I knew Tom Van Dyke would leave an apt comment on my post on Rights, God and the Fundamentalist Fallacy.

He writes:

Further, I think the first tablet of the 10 Commandments is "special" revelation and doesn't count. [Freedom of religious conscience as "Freedom to sin" does not obtain.]

Natural law arguments, "general" revelation, don't need the Bible be derived. When the Bible agrees with reason in natural law arguments [James Wilson and many or most in the Founding era believed they were always in harmony], that doesn't make the arguments "theocratic," i.e., beyond reason, and rejected out of hand.

This covers a key point I often stress. "The laws of Nature and Nature's God" -- the metaphysical grounding for America's Founding ideals -- is not shorthand for what's written in the Bible, but rather what's discovered by reason. The Christian natural lawyers, as TVD pointed out, believed the two wouldn't contradict one another because they ultimately derived from the same source.

But because the Founders were trying to take sectarian disputes out of politics, they had to leave those parts of special revelation that couldn't be confirmed by general revelation (natural law) out of politics. Hence America's was founded on the proposition that the second tablet is a proper source of public law (because it's part of the natural law) but not the first.

Jews, Christians, Muslims, Unitarians, Hindus could all agree on the norms in the second tablet (don't murder, don't steal, don't bear false witness) but the first tablet as part of "the Law" is what puts them at their throats in the political-theological wars. It was the first tablet as Law that got Servetus burned at the stake in Calvin's Geneva. Currently it's the first tablet as Law that limits the Christians' freedom to convert Muslims under Sharia.

So whereas the American Founding doesn't stand for the proposition that men necessarily have a right to sin according to general revelation (the natural law that all good men of all religious faiths could determine from reason) it does stand for the proposition that men have a right to sin according to special revelation. It has to; you cannot get religious liberty for all or even between Trinitarians and non non-Trinitarians without it.

Not every, perhaps not even most unitarians of the Founding era were free wheeling Jeffersonian Epicurians. Some were quite pious and they thought Trinitarianism a grave sin -- a violation of the First Commandment; worshipping Jesus as a false god takes glory away from the Father.

And again whether our natural rights are limited to what the natural law permits is another, much harder proposition to tackle. I noted Randy Barnett's article arguing natural rights are not limited by what natural law ethics permit. For the opposite point of view see Philip Hamburger's article on the matter.

Finally, to drive the point home, here is a classic post by Eugene Volokh that shows how obvious it is that granting religious liberty to Hindus -- something all "key Founders" in principle believed in, even if they didn't get a chance to see the results -- necessarily means giving them a right to break parts of special revelation (i.e., the Bible):

Say that a few Hindus are hired as teachers in a public school district; and that some people start to complain. Hindus, they point out, routinely and unabashedly violate three of the Ten Commandments (they worship other Gods, they create images of their Gods, and they don't observe the Sabbath). What's more, the Hindus would therefore be bad role models for children: Some kids, seeing the teachers' example, might be drawn towards Hinduism; and other kids, seeing some nearby authority figures who aren't Christian, might have their belief in Christianity undermined -- and of course the results of that would be truly dire, since they would jeopardize the children's salvation. Therefore, the people argue, the school must refuse to hire Hindu schoolteachers.

My guess is that such an argument would be pretty broadly condemned, even by many conservatives and Christians (and for that matter conservative Jews and members of other religions; I focus on Christians here simply because their views are especially salient in American public debates). Religious freedom, those people would point out, means (among other things) that we tolerate religious differences, and that we don't discriminate against people in government employment just because of their religious beliefs.

We may earnestly believe that they're wrong -- whether they're non-Christians, heretics, apostates, agnostics, atheists, or what have you. We may believe that they'll go to Hell for their errors (though we may sincerely regret that). We may want our children not to make these errors. But we ought not legally punish people, or deny them access to jobs and other government benefits, because of their violations of certain religious laws, even some of the laws in the Ten Commandments. (I'm sure that some people don't take such a tolerant view, but I believe that many conservative Christians would quite sincerely endorse it -- I certainly know some such people personally.)

Of course, this hasn't always been so: Historically, religious discrimination, intolerance, and persecution has been the rule rather than the exception; and even in the U.S., various groups -- Catholics, Jews, atheists, and others -- have in the past faced substantial governmental discrimination, though generally less than in other countries of the time. But today, the general view, again, seemingly shared by a broad range of people, including many devout, conservative Christians, is that toleration is the more just approach. And, in particular, this means that

1. People's failure to obey religious laws -- even three of the Ten Commandments -- is not by itself reason enough to punish them, or deny them equal access to government benefits.

2. The risk that others will follow this bad example is also not reason enough to punish the violators of religious laws (here, the Hindus), even if we sincerely believe that following the example will lead to eternal damnation.

3. Some religious laws, including some of the Ten Commandments, are matters to be enforced not by man but by God.

I should note, according to the First Amendment and (private anti-discrimination law theory) Hindu Americans are entitled to more than just toleration but a "right" to be a practicing Hindu.

As Volokh noted, Hindus and other sects didn't always, in practice, have equal rights in America (mainly at the state and local level). But the rhetoric of every "key Founder" suggests Hindus had an unalienable natural right to be practicing Hindus, even though such clearly breaks God's law in special revelation.


Phil Johnson said...

If we could be a little existential in our thinking about the Founding generation we might see that each one of them was a product of his own experience.
I think those men must have been deeply in touch with the fabric of their society; so much so that they could only spoke as the body of We The People--whatever else might have been going on in their own minds. That's why they were in such prominent positions of leadership.
It was the custom of our forefathers to show respect for those that spoke most clearly on their behalf as a People.

Tom Van Dyke said...

I think you make a great case here per the Hindus, Jon.

You write elsewhere:

I wonder Tom, how Wilson's comments that law traces upward necessarily doesn't put him on the side of a presumption of liberty.

I see Wilson's thoughts as entirely consistent with for instance, the libertarian orthodox Christianity of Jim Babka or perhaps even KOI. It could be that Wilson's concept of rights being unenumerable is limited to do only those things that would pass Aristotelian-Thomistic test of naturalness.


is considering suicide here, but his larger argument seems to be natural law, and specifically promulgated under God's authority.

The key phrase, "Liberty not license" is one that weaves through the Founding era's thought and rhetoric.

Another point I've been meaning to get to is that "un-enumerable" is not synonymous with "unlimited," and I think you put your finger on my problem with Randy Barnett's distinction of natural right and natural law.

It's a valid distinction, but how valid it was for the Founders is a different question. Even for a great legal mind like James Wilson, it seems to be a distinction without a difference, and I recall he writes that all law attempts to divine "the will of God."

Jonathan Rowe said...

I think you'll like Hamburger's article better than Barnett's. It's something to take it slowly.

I don't know if Barnett ever did a live debate against Hamburger; I do know he has with Robbie George a number of times.

The Georgetown forum debate I think features it archived. I always knew I was going to get to it. It's becoming more timely.

King of Ireland said...

Jon stated:

"This covers a key point I often stress. "The laws of Nature and Nature's God" -- the metaphysical grounding for America's Founding ideals -- is not shorthand for what's written in the Bible, but rather what's discovered by reason."

Amos would disagree and gives some compelling reasons why. He says this is a Christian saying from pre-Aquinas. You have any evidence he is wrong?

King of Ireland said...

If I have time this weekend I will post on the highlights of his argument and you can comment.

Jonathan Rowe said...


To the extent that "laws of Nature and Nature's God was used in Christendom pre-Aquinas, ONLY reflects how Aristotle and and noble pagan Greco-Roman sources were incorporated into Christendom before Aquinas. I think someone brought up Tertullian (ca. 160 – ca. 220 A.D.). From what I know he loved Seneca and was totally imbibed in the noble paganism of Greco-Roman Stoicism.

If there is any kind of Christianity that forms the "political theology" basis of the DOI, it's that kind that embraces its noble pagan Greco-Roman roots that was incorporated into Christendom, NOT Francis Schaeffer's Sola Scriptura that wants to purify orthodox Christianity from those influences.

How does Amos deal with that issue?

King of Ireland said...


I am not sure how deals with it but I am assuming from the circles he walks in that he is religious right. If so I would imagen he would want to avoid that issue. I would if I was him. As far as it concerns my position it does not matter where it originated. JRB and I went back and forth on this last summer. I want some Greek sources that advocate the worth of the individual let alone grounding it as inalienable because of man being made in the image of god. This gets deeply theological from here.

King of Ireland said...

Rational Christianity enhances Greek thought. I would even say takes it to the next level.

King of Ireland said...
This comment has been removed by the author.
Tom Van Dyke said...

I want some Greek sources that advocate the worth of the individual let alone grounding it as inalienable because of man being made in the image of god.


Anonymous said...

“Human nature…could be reduced to and treated as a readily available biological or social material. This ultimately means making freedom self-defining and a phenomenon creative of itself and its values. Indeed, when all is said and done man would not even have a nature, he would be his own personal life-project. Man would be nothing more than his own freedom!”