Does Jurisprudence Require a Method to Be Rational?

Does Jurisprudence Require a Method to Be Rational? In Numerous recent court cases in the United States, claims to religious freedom have been thought to be in tension with norms of equal citizenship. For instance, in Elane Photography v. Willock (2014), a wedding photographer refused to serve same-sex clients on the grounds that doing so would violate her religious convictions about marriage. In Zubik v. Burwell (2016), the Little Sisters of the Poor, an order of Roman Catholic nuns, sued the federal government over health care requirements for their employees. Although religious nonprofits could apply to be exempted from the Affordable Care Act’s contraception mandate and their employees given alternative options for coverage by the insurance company, the sisters argued that the very act of requesting the exemption implicated them in their employees’ violation of Catholic teaching. These and similar cases raise difficult questions about how far religious accommodation can go without shading into legally sanctioned religious favoritism and discrimination. Is it possible to protect religious freedom without undercutting a commitment to equality? If so, how ought courts reach decisions in such cases? In Religious Freedom in an Egalitarian Age, Nelson Tebbe offers a series of thoughtful interventions into such disputes, focusing specifically on cases that appear to pit free exercise against LGBT and reproductive rights. The book’s central thesis is that what might seem to be intractable legal conflicts of fundamental rights can in fact be resolved: “Matters are not so complex that considerations of law and political morality cannot generate solutions that are defensible” (5). In this regard Tebbe conceives of his book as a response to a range of thinkers he characterizes as “skeptics.” These, on Tebbe’s telling, comprise a broad church and include, inter alia, religious traditionalists, critical legal scholars who point to the difficulty of defining “religion,” and theorists who argue that religious freedom makes sense only on theological grounds. What the skeptics have in common, on Tebbe’s analysis, is the view that “the law is inherently or necessarily patternless” (5)—that is, that there is no rational (nonarbitrary) way of resolving conflicts of the kind alluded to above. Against the skeptical view, Tebbe defends what he characterizes as “an alternative method for thinking about religious freedom and civil rights,” which he calls social coherence (8). This is the approach, used by ordinary people in everyday life, of reasoning by analogy to familiar situations and with reference to settled convictions and trusted abstract principles. Coherence is a nonfoundational, pragmatic approach that involves shuttling back and forth between new situations and what one already believes, adjusting one’s thinking as needed. (Tebbe’s approach takes for granted that legal interpretation involves normative thinking: “Interpreting ambiguous provisions involves considering how they should be understood” [9].) To the extent that it is possible to hammer out a coherent understanding of the relation among the various pieces of one’s thought and experience, it can be said “that the solution is warranted”; “Nothing more is needed to show that an outcome is not ad hoc or conclusory” (9). Such an approach provides both an account of how it is possible to work through complicated constitutional questions in a reasoned way and, Tebbe argues, a “substantive component” (8)—that is, a way forward in seeking solutions to these questions. Tebbe takes on the skeptical challenge by extrapolating four basic principles from US jurisprudence: (1) avoiding harm to others, (2) fairness to others, (3) freedom of association, and (4) government nonendorsement—and then applying them to contemporary cases involving religious freedom and equality in the contexts of (a) public accommodations, (b) employment discrimination, (c) public officials, and (d) government subsidies. A central dimension of the appeal of Tebbe’s approach is its claim that there is “common ground” on which contending parties can negotiate settlements to problems of religious freedom and social equality. The promise is not that they will reach agreement, but rather that the coercion that is a necessary feature of law and politics will have been mediated by an exchange of reasons accessible, even if not persuasive, to the parties to the dispute. “Over time the hope is that governing with reasons can promote a more lasting unity not only because citizens who experience government regulation can understand why their arguments have been rejected but also because they know that their arguments matter and someday may prevail” (199). At a time of apparently increasing polarization, the ideal of social coherence is especially attractive, reassuring us that common ground exists and disagreements need not always prove irresolvable. Tebbe’s book aspires to offer both a description and nonskeptical interpretation of what is already going on in American jurisprudence and a method for resolving legal problems. As a description, it aspires to account for the possibility of disagreement (without succumbing to skepticism about the possibility that there is what Ronald Dworkin called a “right answer”), but at the level of method, it seeks to move beyond impasses. Social coherence, according to Tebbe, “gives actors guidance on how to think about resolving even complex questions about new situations,” but it also “accounts for what many constitutional actors are already doing” (45). Herein, however, lies a tension: the more closely social coherence approximates an apt description of moral and jurisprudential reasoning as such, the less likely it will be to yield normative guidance. It is of course clear that a rational solution to conflict requires an interpretation of the conflict that views it as susceptible to reason—as something more than a clash of incommensurable values or competing interests. However, it does not follow that a nonskeptical description of the debate will yield a method for resolving disputes. It is, in other words, possible to recognize that reasons can feature meaningfully in disputes while remaining agnostic about whether these disputes will ever be resolved rationally. Conversely, it is occasionally possible to resolve a dispute without aid of a general, transportable method. The best response to the skeptical claim that rational solutions in some or another domain are impossible is simply to put forward a rational solution—even one will do the trick—and in this respect Tebbe’s book offers a promising rejoinder (or rather, a number of them). Of course, critics may take issue with his proposed solutions, but to the extent that what ensues is an exchange of reasons, Tebbe’s anti-skeptical stance would itself appear to have been vindicated. It is not, however, necessary to claim for this anti-skeptical stance the status of a generalized method, and it is here, I would argue, that Tebbe’s argument is at its weakest: coherence seems to be a necessary but insufficient dimension of legal reasoning, just as it is in the moral and political cases from which Tebbe borrows the model. Indeed, it is precisely the fact of coherent but mutually incompatible rationales that typically gives rise to the need for judicial intervention. How, then, ought we—or the courts—evaluate opposing but coherent positions? Tebbe’s answer is: “We should examine the judgments that support each of them and see which set is stronger (or whether some other combination of judgments is more compelling than either)” (35). What Tebbe says here seems correct, but it is hardly a method in the ordinary sense of the term. That is, it is not an impartial procedure that, if consistently followed, will yield the same conclusions. To be sure, Tebbe is clear that the “coherence method” does not “pretend to determine unique answers to pressing substantive questions”; however, he does think that it is “clarifying” in the sense of reducing the range of matters about which the parties might disagree and bringing them closer to a rationally defensible resolution (8). I want to suggest, by contrast, that it belongs to the very character of moral and legal reasoning that a method in this latter sense will prove elusive. This is because different people can agree as to the relevance of the reasons they bring to bear in a debate—and so be rational—without agreeing on how these reasons relate to the conclusions that ought to be reached on their basis. As Stanley Cavell has pointed out, in moral cases, unlike in scientific or mathematical debates, it is sometimes possible to acknowledge the relevance of an objection without withdrawing or modifying the claim to which the objection is relevant. “Suppose,” Cavell writes, “it is just characteristic of moral arguments that the rationality of the antagonists is not dependent on an agreement’s emerging between them, that there is such a thing as rational disagreement about a conclusion” (Cavell 1979, 254). What we seek in disputed cases is not simply greater coherence—coherence can take many forms—but a sense of relative importance: an insight into which concerns or values matter more than others and so are decisive. This is not itself something that can be shown using reasons; rather, it is a matter of coming to see a situation in a certain light. The philosopher John McDowell has noted that, in attempting to convey the significance of a circumstance, “one exploits contrivances similar to those one exploits in other areas where the task is to back up the injunction ‘See it like this’: helpful juxtapositions of cases, descriptions with carefully chosen terms and carefully placed emphasis, and the like” (McDowell 1998, 85). He writes: “No such contrivances can be guaranteed success, in the sense that failure would show irrationality on the part of the audience. That, together with the importance of rhetorical skills to their successful deployment, sets them apart from the sorts of thing we typically regard as paradigms of argument. But these seem insufficient grounds for concluding that they are appeals to passion as opposed to reason” (85–86). As Wittgenstein once wrote, “At the end of reasons comes persuasion” (Wittgenstein 1969, §612). This is not a concession to irrationalism, decisionism, or skepticism but rather an appreciation of the way argument works in these situations: a successful argument adduces reasons but also brings others to see these reasons as decisive. Take, for instance, the matter of precedents, which Tebbe views as critical to any resolution suitable for a given political community like the United States. While it is easy to agree that actors within a common-law tradition should strive for coherence with precedents, the question remains as to when a settled case constitutes a relevant precedent, what precisely the lesson to be learned is, and how it bears on the case at hand. Just as agreement on the importance of analogy to moral reasoning does not shed light on how such analogies should be drawn, so too a recognition of the authority of precedent in general does not answer the question of which cases should provide us with our interpretive bearings. Should the question of accommodation for religious actors, like Elane Photography, who object to serving same-sex clients be approached by analogy with cases involving gender, race, or disability based discrimination, or by analogy with situations involving “conscience clause” laws protecting doctors who object on theological grounds to performing certain medical procedures (117)? Tebbe skillfully defends the aptness of the comparison with other civil rights laws. But while I find myself largely persuaded by Tebbe’s conclusions on this point, I doubt that this is a result of something called “the method of social coherence,” which can be detached from the particulars of the analysis in question. To put this another way: in attributing the force of his arguments to an impartial method, Tebbe is perhaps too modest. If, in moral and legal cases, agreements about the relevance of reasons do not automatically issue in agreements in conclusions—if, in other words, conclusions are something for which actors must accept responsibility—then one can be skeptical about the possibility of a method without being a skeptic in Tebbe’s sense of an irrationalist. Jurisprudence need not require a method in order to be rational. REFERENCES Cavell Stanley. 1979. The Claim of Reason: Wittgenstein, Skepticism, Morality, and Tragedy . New York: Oxford University Press. McDowell John. 1998. Mind, Value, and Reality . Cambridge, MA: Harvard University Press. Wittgenstein Ludwig. 1969. On Certainty . Edited by G.E.M. Anscombe and G.H. von Wright. New York: Harper Torchbooks. © The Author(s) 2018. Published by Oxford University Press on behalf of the American Academy of Religion. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of the American Academy of Religion Oxford University Press

Does Jurisprudence Require a Method to Be Rational?

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© The Author(s) 2018. Published by Oxford University Press on behalf of the American Academy of Religion. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.
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Abstract

In Numerous recent court cases in the United States, claims to religious freedom have been thought to be in tension with norms of equal citizenship. For instance, in Elane Photography v. Willock (2014), a wedding photographer refused to serve same-sex clients on the grounds that doing so would violate her religious convictions about marriage. In Zubik v. Burwell (2016), the Little Sisters of the Poor, an order of Roman Catholic nuns, sued the federal government over health care requirements for their employees. Although religious nonprofits could apply to be exempted from the Affordable Care Act’s contraception mandate and their employees given alternative options for coverage by the insurance company, the sisters argued that the very act of requesting the exemption implicated them in their employees’ violation of Catholic teaching. These and similar cases raise difficult questions about how far religious accommodation can go without shading into legally sanctioned religious favoritism and discrimination. Is it possible to protect religious freedom without undercutting a commitment to equality? If so, how ought courts reach decisions in such cases? In Religious Freedom in an Egalitarian Age, Nelson Tebbe offers a series of thoughtful interventions into such disputes, focusing specifically on cases that appear to pit free exercise against LGBT and reproductive rights. The book’s central thesis is that what might seem to be intractable legal conflicts of fundamental rights can in fact be resolved: “Matters are not so complex that considerations of law and political morality cannot generate solutions that are defensible” (5). In this regard Tebbe conceives of his book as a response to a range of thinkers he characterizes as “skeptics.” These, on Tebbe’s telling, comprise a broad church and include, inter alia, religious traditionalists, critical legal scholars who point to the difficulty of defining “religion,” and theorists who argue that religious freedom makes sense only on theological grounds. What the skeptics have in common, on Tebbe’s analysis, is the view that “the law is inherently or necessarily patternless” (5)—that is, that there is no rational (nonarbitrary) way of resolving conflicts of the kind alluded to above. Against the skeptical view, Tebbe defends what he characterizes as “an alternative method for thinking about religious freedom and civil rights,” which he calls social coherence (8). This is the approach, used by ordinary people in everyday life, of reasoning by analogy to familiar situations and with reference to settled convictions and trusted abstract principles. Coherence is a nonfoundational, pragmatic approach that involves shuttling back and forth between new situations and what one already believes, adjusting one’s thinking as needed. (Tebbe’s approach takes for granted that legal interpretation involves normative thinking: “Interpreting ambiguous provisions involves considering how they should be understood” [9].) To the extent that it is possible to hammer out a coherent understanding of the relation among the various pieces of one’s thought and experience, it can be said “that the solution is warranted”; “Nothing more is needed to show that an outcome is not ad hoc or conclusory” (9). Such an approach provides both an account of how it is possible to work through complicated constitutional questions in a reasoned way and, Tebbe argues, a “substantive component” (8)—that is, a way forward in seeking solutions to these questions. Tebbe takes on the skeptical challenge by extrapolating four basic principles from US jurisprudence: (1) avoiding harm to others, (2) fairness to others, (3) freedom of association, and (4) government nonendorsement—and then applying them to contemporary cases involving religious freedom and equality in the contexts of (a) public accommodations, (b) employment discrimination, (c) public officials, and (d) government subsidies. A central dimension of the appeal of Tebbe’s approach is its claim that there is “common ground” on which contending parties can negotiate settlements to problems of religious freedom and social equality. The promise is not that they will reach agreement, but rather that the coercion that is a necessary feature of law and politics will have been mediated by an exchange of reasons accessible, even if not persuasive, to the parties to the dispute. “Over time the hope is that governing with reasons can promote a more lasting unity not only because citizens who experience government regulation can understand why their arguments have been rejected but also because they know that their arguments matter and someday may prevail” (199). At a time of apparently increasing polarization, the ideal of social coherence is especially attractive, reassuring us that common ground exists and disagreements need not always prove irresolvable. Tebbe’s book aspires to offer both a description and nonskeptical interpretation of what is already going on in American jurisprudence and a method for resolving legal problems. As a description, it aspires to account for the possibility of disagreement (without succumbing to skepticism about the possibility that there is what Ronald Dworkin called a “right answer”), but at the level of method, it seeks to move beyond impasses. Social coherence, according to Tebbe, “gives actors guidance on how to think about resolving even complex questions about new situations,” but it also “accounts for what many constitutional actors are already doing” (45). Herein, however, lies a tension: the more closely social coherence approximates an apt description of moral and jurisprudential reasoning as such, the less likely it will be to yield normative guidance. It is of course clear that a rational solution to conflict requires an interpretation of the conflict that views it as susceptible to reason—as something more than a clash of incommensurable values or competing interests. However, it does not follow that a nonskeptical description of the debate will yield a method for resolving disputes. It is, in other words, possible to recognize that reasons can feature meaningfully in disputes while remaining agnostic about whether these disputes will ever be resolved rationally. Conversely, it is occasionally possible to resolve a dispute without aid of a general, transportable method. The best response to the skeptical claim that rational solutions in some or another domain are impossible is simply to put forward a rational solution—even one will do the trick—and in this respect Tebbe’s book offers a promising rejoinder (or rather, a number of them). Of course, critics may take issue with his proposed solutions, but to the extent that what ensues is an exchange of reasons, Tebbe’s anti-skeptical stance would itself appear to have been vindicated. It is not, however, necessary to claim for this anti-skeptical stance the status of a generalized method, and it is here, I would argue, that Tebbe’s argument is at its weakest: coherence seems to be a necessary but insufficient dimension of legal reasoning, just as it is in the moral and political cases from which Tebbe borrows the model. Indeed, it is precisely the fact of coherent but mutually incompatible rationales that typically gives rise to the need for judicial intervention. How, then, ought we—or the courts—evaluate opposing but coherent positions? Tebbe’s answer is: “We should examine the judgments that support each of them and see which set is stronger (or whether some other combination of judgments is more compelling than either)” (35). What Tebbe says here seems correct, but it is hardly a method in the ordinary sense of the term. That is, it is not an impartial procedure that, if consistently followed, will yield the same conclusions. To be sure, Tebbe is clear that the “coherence method” does not “pretend to determine unique answers to pressing substantive questions”; however, he does think that it is “clarifying” in the sense of reducing the range of matters about which the parties might disagree and bringing them closer to a rationally defensible resolution (8). I want to suggest, by contrast, that it belongs to the very character of moral and legal reasoning that a method in this latter sense will prove elusive. This is because different people can agree as to the relevance of the reasons they bring to bear in a debate—and so be rational—without agreeing on how these reasons relate to the conclusions that ought to be reached on their basis. As Stanley Cavell has pointed out, in moral cases, unlike in scientific or mathematical debates, it is sometimes possible to acknowledge the relevance of an objection without withdrawing or modifying the claim to which the objection is relevant. “Suppose,” Cavell writes, “it is just characteristic of moral arguments that the rationality of the antagonists is not dependent on an agreement’s emerging between them, that there is such a thing as rational disagreement about a conclusion” (Cavell 1979, 254). What we seek in disputed cases is not simply greater coherence—coherence can take many forms—but a sense of relative importance: an insight into which concerns or values matter more than others and so are decisive. This is not itself something that can be shown using reasons; rather, it is a matter of coming to see a situation in a certain light. The philosopher John McDowell has noted that, in attempting to convey the significance of a circumstance, “one exploits contrivances similar to those one exploits in other areas where the task is to back up the injunction ‘See it like this’: helpful juxtapositions of cases, descriptions with carefully chosen terms and carefully placed emphasis, and the like” (McDowell 1998, 85). He writes: “No such contrivances can be guaranteed success, in the sense that failure would show irrationality on the part of the audience. That, together with the importance of rhetorical skills to their successful deployment, sets them apart from the sorts of thing we typically regard as paradigms of argument. But these seem insufficient grounds for concluding that they are appeals to passion as opposed to reason” (85–86). As Wittgenstein once wrote, “At the end of reasons comes persuasion” (Wittgenstein 1969, §612). This is not a concession to irrationalism, decisionism, or skepticism but rather an appreciation of the way argument works in these situations: a successful argument adduces reasons but also brings others to see these reasons as decisive. Take, for instance, the matter of precedents, which Tebbe views as critical to any resolution suitable for a given political community like the United States. While it is easy to agree that actors within a common-law tradition should strive for coherence with precedents, the question remains as to when a settled case constitutes a relevant precedent, what precisely the lesson to be learned is, and how it bears on the case at hand. Just as agreement on the importance of analogy to moral reasoning does not shed light on how such analogies should be drawn, so too a recognition of the authority of precedent in general does not answer the question of which cases should provide us with our interpretive bearings. Should the question of accommodation for religious actors, like Elane Photography, who object to serving same-sex clients be approached by analogy with cases involving gender, race, or disability based discrimination, or by analogy with situations involving “conscience clause” laws protecting doctors who object on theological grounds to performing certain medical procedures (117)? Tebbe skillfully defends the aptness of the comparison with other civil rights laws. But while I find myself largely persuaded by Tebbe’s conclusions on this point, I doubt that this is a result of something called “the method of social coherence,” which can be detached from the particulars of the analysis in question. To put this another way: in attributing the force of his arguments to an impartial method, Tebbe is perhaps too modest. If, in moral and legal cases, agreements about the relevance of reasons do not automatically issue in agreements in conclusions—if, in other words, conclusions are something for which actors must accept responsibility—then one can be skeptical about the possibility of a method without being a skeptic in Tebbe’s sense of an irrationalist. Jurisprudence need not require a method in order to be rational. REFERENCES Cavell Stanley. 1979. The Claim of Reason: Wittgenstein, Skepticism, Morality, and Tragedy . New York: Oxford University Press. McDowell John. 1998. Mind, Value, and Reality . Cambridge, MA: Harvard University Press. Wittgenstein Ludwig. 1969. On Certainty . Edited by G.E.M. Anscombe and G.H. von Wright. New York: Harper Torchbooks. © The Author(s) 2018. Published by Oxford University Press on behalf of the American Academy of Religion. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.

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Journal of the American Academy of ReligionOxford University Press

Published: Mar 1, 2018

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