Monday again – student letter day.  To answer the writer’s question, I’ve borrowed from my chapter “The Strange Second Life of Confessional States,” in Paul R. Dehart and Carson Holloway, Reason, Revelation, and the Civic Order: Political Philosophy and the Claims of Faith (2014).

Question:

“Since you do not believe it is possible to be ‘neutral’ between religion and irreligion, do you think we should endorse religion – that we should have a confessional state?”

Reply:

In asking whether we should have a confessional state, I think you are assuming that at present we don’t have a confessional state.  If we use the term “religion” broadly enough to include any system of life and belief, then I think that we do.  The liberal state may not admit that it has any convictions, but this does not mean that does not have any.  It may claim like John Rawls that it suspends judgment among all “comprehensive doctrines,” but this does not mean that it suspends it.

You are viewing the alternatives this way:

Confessional state: The government acts on the basis of a set of moral and religious assumptions.

Non-confessional state: The government suspends judgment about moral and religious matters.

By contrast, I maintain that all states are confessional in the sense that they operate on the basis of some view of the world, or some alliance of such views.  But the differences among the different kinds of confessional state are deeply important.  I view the alternatives this way:

Type I confessional state:   The convictional basis of the state is neither declared nor coerced.

Type II confessional state:  The convictional basis of the state is declared but not coerced.

Type III confessional state:  The convictional basis of the state is coerced but not declared.

Type IV confessional state: The convictional basis of the state is both declared and coerced.

Not even a Type I state, if there could be such a thing, would be religiously neutral.  To say that the state should neither declare nor enforce its convictions is to imply that those religions that want it to do so are — at least to this extent — simply wrong.  That is not a suspension of judgment; it is a judgment.

England under Henry VIII and China under Mao Zedong were Type IV confessional states.  The fundamental convictions underlying state policy were explicitly acknowledged and solemnly avowed— in the former case, the Protestantism of the Church of England, in the latter case, the eschatology of the Communist Man forming under the Dictatorship of the Proletariat.  Moreover, these confessions were enforced.  I certainly do not say that the two states were equally rigorous.  Henry’s was no picnic but Mao’s was infinitely harsher.

Though claiming to seek a non-confessional state, liberalism seeks a Type III confessional state.  Under its influence, the state increasingly attempts to coerce the consciences of those who follow non-liberal systems of life and belief, even while pretending to be neutral.  To be sure, such a state is not transparently or coherently confessional, in the sense of solemnly avowing its true commitments.  Yet it is not without solemn avowals.  It is an opaque and incoherent confessional state, solemnly avowing that its discriminatory acts are required by its determination not to discriminate.

At the time of its founding, the American republic was a Type II confessional state, for although it frankly declared its commitments, it declined to compel belief in them.  The convictional basis of the state is most clearly expressed not in our founding legal document, the Constitution, but in our founding political document, the Declaration of Independence.  Not only did it identify commitments to natural law and natural rights, but it went on to identify their source, for it said that “the laws of Nature” were the laws of “Nature’s God.” This confession was fairly ecumenical.  Though most of the Founders were Protestants, the Declaration did not go so far as to identify Nature’s God with God as Protestants understood Him.  It went only so far as to privilege systems of life and belief that shared a view of God that was creational, monotheistic, moral in the sense of the Ten Commandments, and providential, with a high view of the inviolable worth of every human being.

The Founders, having a higher view of the possibilities of human reason than, say, the followers of John Rawls, considered the truth of these principles to be accessible to all men of good will, even apart from the biblical revelation from which they drew them.  In their view, it may be reasonable to expect some people to reject the laws of Nature and Nature’s God.  But it is not reasonable to reject them.

Tomorrow:  A Dialogue on Natural Law, Part 10 of 10

“Man can be defined as an animal that makes dogmas.  As he piles doctrine on doctrine and conclusion on conclusion in the formation of some tremendous scheme of philosophy and religion, he is, in the only legitimate sense of which the expression is capable, becoming more and more human.  When he drops one doctrine after another in a refined skepticism, when he declines to tie himself to a system, when he says that he has outgrown definitions, when he says that he disbelieves in finality, when, in his own imagination, he sits as God, holding no form of creed but contemplating all, then he is by that very process sinking slowly backwards into the vagueness of the vagrant animals and the unconsciousness of the grass.  Trees have no dogmas.  Turnips are singularly broad-minded.”

-- G.K. Chesterton, Heretics

Tomorrow:  Should We Have a Confessional State?

Still, it bothers me that natural law theory is so religious.  You talk about God "ordaining" the natural law.

Funny that you should say that.  All too often natural law thinkers are accused of not being religious enough.

Why?

Some Christians -- a minority, but a majority in some circles -- say that the only place to find moral truth is in the word of God, and that natural law tradition denies this.  They argue that the natural law tradition puts much too much confidence in the capacity of fallen man to know the moral truth.  They worry that the first people to use the expression "natural law" were the Stoics, who were pagans.  Finally, they suspect that the God of natural law is not the God of the Bible, but the God of Deism -- a distant Creator who designed the universe, wound it up, set it running, then went away.

If I were a Christian, I might find those arguments plausible myself.  How do you answer them?

Where do you want me to start?

With the first one.  Since you're a Christian, why not just rely on the Bible?

For several reasons, but the best one is that the Bible itself testifies to the reality of the natural law.

Does it actually mention natural law?

It doesn't use the term "natural law," but it alludes to all the ways the law is inscribed on human nature.  For example, St. Paul mentions the witness of deep conscience when he writes, "When Gentiles who have not the law [of Moses] do by nature what the law requires, ... [t]hey show that what the law requires is written on their hearts, while their conscience also bears witness and their conflicting thoughts accuse or perhaps excuse them" (Romans 2:14-15).  He captures the discipline of natural consequences in the formula, "Do not be deceived; God is not mocked, for whatever a man sows, that he will also reap" (Galatians 6:7).  The Bible is big on the witness of design -- design in general, design in us.  And it's remarkable that when the apostles are speaking to pagans, they don't begin with scripture, but with what the pagans know already -- for instance their longing for an "unknown god," which implies knowledge that none of their deities are adequate (Acts 17:22-23).

Comment on the second criticism -- how did you put it? -- that natural law thinkers put too much confidence in the capacity of fallen man to know moral truth.

In his letter to the Christians in Rome, St. Paul doesn't blame the pagans for not having the truth about God and His moral requirements, but for suppressing and neglecting it (Romans 1:18-19).  In the Proverbs, the complaint made about "fools" is not primarily that they lack knowledge but that they despise it (for example Proverbs 1:7, 1:32, 15:14.).  In other words, atheism and moral obtuseness are not primarily an intellectual flaw; their most important ingredient is obstinacy.  The natural law tradition does not deny these things.  It recognizes error, it recognizes obstinacy, and it recognizes self-deception.

What about the third criticism, that natural law is just a baptized pagan theory?

It's true that the first philosophers to use the term "natural law" were pagans, but the biblical testimony to its reality came earlier still.  Besides, if God has made some things plain through to the natural mind, wouldn't you expect the pagan philosophers to notice them?  Of course their theories needed correction at many points, but that has been done.

If they were talking about the things we "can't not know," then why would they need correction?

The moral basics are one thing; the best way to describe them is another.  It's only the former that we can't not know.  Getting the latter right has taken centuries.  The work is far from done, and our stubborn wills resist its completion.

The fourth criticism, then -- that the God of natural law is different from the God of Scripture.

No, it's an incomplete picture of the same one.  Nature proclaims its Creator; Scripture tells you who He is.  Nature shows you the results of His deeds in creation; Scripture tells you the results of His deeds in history.  Nature manifests to you His moral requirements; Scripture tells you what to do about the fact that you don't measure up to them.  Scripture is more important because it tells you the plan of salvation, but not even Scripture makes nature superfluous.  It presupposes that you already have natural knowledge.

A Dialogue on Natural Law, Part 10

Maybe natural law doesn't spell the end of democracy, but surely it spells the end of tolerance.

What do you mean?

Just what I said.  If there really is a natural moral law, then tolerance goes out the window.

You think everyone ought to be tolerant, is that it?

Yes.  And so do you -- or you ought to.  And you know it.

I do.  But consider.  You've just said that the duty of tolerance is both right for all, and known, or at least knowable, to all.  But to say that is to call it a natural law.

Trivially, yes.  But for all I know, it's the only one.

It can't be the only one.  Consider again.  You don't think we should tolerate everything, do you?

No, I suppose not.

But without the rest of morality, how do you know what should be tolerated and what shouldn't be?

But if we should only tolerate what is morally right, then the virtue of tolerance is redundant.

I didn't say we should tolerate only what's morally right.

Pardon me, but you did.  You said that the measure of what should be tolerated is the moral law.

That doesn't mean we should tolerate only what's morally right.  Some moral wrongs must be tolerated because suppressing them would require further moral wrongs.  Wrong does not become right just because it is committed to prevent a wrong.

Give me an example.

Here is an old, old example from the days when the Christian faith was supported by the state.  No parents, it was argued, should refuse to let their children be baptized.  The question arose whether the children of obstinate parents should be baptized against their parents' wills.  But the answer was no.  Doing so would violate the natural authority of parents to teach their children, which is itself ordained by God in the natural law.  The wrong of parental obstinacy was tolerated because suppressing it would require moral wrong on the part of official busybodies.

You're insufferable.  Even your tolerance is moralistic.

In a sense, certainly.  But you are a moralist, too.  You became one the moment you said that one ought to practice tolerance.

But the other party may disagree with your morality. 

Of course, but I can't help that.  Any way of deciding what to tolerate is some way of deciding what to tolerate.  The other party may disagree with yours.

No.  Tolerance requires being fair to both moral views.

What if the two sides have different views of fairness?  To be fair to different views of fairness you have to implement some view of fairness.

No.  Fairness requires moral neutrality.

What do you mean by moral neutrality?

I mean suspending moral judgment.

If you really suspended moral judgment, you couldn't judge what to tolerate.  You couldn't even judge whether to tolerate.  Tolerance requires practicing moral judgment, not suspending it.

I don't mean suspending moral judgment.  I mean giving equal standing to every moral point of view.

That merely gives higher standing to the opinion that morals are relative to point of view.

I don't mean giving equal standing to every moral point of view.  I mean seeking moral common ground.

I believe in the moral common ground too, but there is only one moral common ground, and that is the natural law itself -- common by virtue of our shared human nature.  What you mean by common ground is something different.  You want a way of making a decision without taking sides.  That's impossible.

Of course it's possible to suspend judgment.  The tolerant solution to the abortion controversy, for example, is that the state should refuse to take sides, letting people make up their own minds.

What you call letting people make up their own minds about the issue is taking sides on the issue.  You are siding with those who want the killing to be permitted, against those who want it to be forbidden.

But I'm neither pro-abortion nor anti-abortion.  I'm pro-choice.

The cause of legalized abortion is no more "pro-choice" than the cause of legalized slavery.  Although it facilitates certain choices, it makes others impossible.  To "choose" to abort the child is to deny him the choice to live, and to "choose" to legalize killing him is to deny his defenders the choice to protect him by law.  The issue is not whether to allow a choice, but which choices to allow.

I still think your approach is authoritarian.

The only thing authoritarian in these debates is your so-called neutrality.

How could neutrality be authoritarian?

It is authoritarian because it is a facade.  Neutralism is a method of ramming a particular moral judgment into law by pretending that it is not a moral judgment.

A Dialogue on Natural Law, Part 9

Passed on by a friend, and used by permission of the writer, with my thanks.  Here's the book.

Tomorrow:  A Dialogue on Natural Law, Part 8 of 10