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Rawls and a Shrinking Liberty of Conscience

Published online by Cambridge University Press:  05 August 2009

Andrew R. Murphy
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Extract

John Rawls claims that his system of political liberalism represents the “completion and extension” of liberty of conscience, a grand solution to the problem of religious diversity that accompanied liberalism's emergence in the early modern world. I argue that such a claim cannot withstand historical scrutiny, that Rawlsian liberalism instead represents a retreat from the commitments that drove liberal tolerationists. Rawls's political liberalism forces individuals with non-mainstream comprehensive doctrines either to change the doctrine to fit Rawls's conditions of publicity; to manufacture a “public” justification for comprehensively derived political stances; to seek to change the parameters of public debate through, for example, civil disobedience; or to advance comprehensively derived views only so long as public reasons follow in due course. The first two of these solutions run counter to the historical development of liberty of conscience, and the third fails due to Rawls's pervasive emphasis on stability. The fourth misrepresents the nature of moral reasoning and comprehensive doctrines themselves. In conclusion, I argue that underlying Rawls's liberalism is a belief-action split that has historically suppressed religious liberty and, more troubling, a type of repression that undermines the very notion of comprehensive doctrines.

Type
Research Article
Information
The Review of Politics , Volume 60 , Issue 2 , Spring 1998 , pp. 247 - 276
Copyright
Copyright © University of Notre Dame 1998

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References

1 Consider just two examples. William Prynne saw Independent church government as destroying Protestant unity, “a seminary of schismsÛ a floodgate to let in an inundation of all manner of heresies, errors, sects, religions, destructive opinions, libertinism and lawlessness among us ” (Prynne, , Twelve considerable and serious considerations touching church-government [London, 1644], p. 7).Google Scholar, If a magistrate could not coerce in matters of religion, the argument went, it was difficult to see how compulsion could be acceptable in any area of human endeavor: “ if liberty be granted in [heresy], we know no cause why men that can in such a handsome way pretend conscience for it, should be denied liberty to run into excess and riot” (Church of Scotland, A solemn testimony against toleration [Edinburgh, 1649], p. 7).Google Scholar

2 de Tocqueville, Alexis, Democracy in America, ed. Bradley, Phillips (New York: Vintage, [1848] 1945), vol. I, chap. 17, pp. 310–25.Google Scholar

3 See, for example, Bellah, Robert et al. , Habits of the Heart: Individualism and Commitment in American Life (New York: Harper and Row, 1985)Google Scholar; Maclntyre, Alasdair, After Virtue: A Study in Moral Theory (Notre Dame, IN: University of Notre Dame Press, 1981)Google Scholar; Lasch, Christopher, The Culture of Narcissism: American Life in an Age of Diminishing Expectations (New York: Norton, 1979)Google Scholar; Sandel, Michael J., Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982)Google Scholar; and Colson, Charles, Against the Night: Living in the New Dark Ages (Ann Arbor, MI: Servant, 1989).Google Scholar

4 For the more theoretical aspects of this issue, see Fowler, Robert Booth, Unconventional Partners: Religion and Liberal Culture in the United States (Grand Rapids, MI: Eerdmans, 1989)Google Scholar; Perry, Michael J., Love and Power: the Role of Religion and Morality in American Politics (New York: Oxford University Press, 1991)Google Scholar; Greenawalt, Kent, Religious Convictions and Political Choice (New York: Oxford University Press, 1988)Google Scholar; and the seminal study Christ and Culture by Niebuhr, H. Richard (New York: Harper and Brothers, 1951)Google Scholar. For more straightforwardly political treatments in the accommodationist mode, see Carter, Stephen L., The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (New York: Anchor/Doubleday, 1993)Google Scholar; Reed, Ralph, Politically Incorrect: The Emerging Faith Factor in American Politics (Dallas, TX: Word, 1994)Google Scholar; and Neuhaus, Richard John, The Naked Public Square: Religion and Democracy in America (Grand Rapids, MI: Eerdmans, 1984).Google Scholar

5 Rawls, , Political Liberalism (New York: Columbia University Press, 1993), p. 154, emphasis addedGoogle Scholar. Hereafter, I shall refer to Rawls' two main works parenthetically, as TOJ and PL (A Theory of Justice [Cambridge, MA: Harvard University Press, 1971]Google Scholar), and the “Introduction to the Paperback Edition” of Political Liberalism (New York: Columbia University Press, 1996)Google Scholar as IPE.

6 Clearly Rawls is attempting to broaden the notion of conscience in order to secure liberal freedoms, and we should not expect him wholly to echo the commitments of early modern thinkers. If his system requires repudiating basic arguments for liberty of conscience, however, his ambitious assertion must certainly be cast into doubt.

7 These two terms, religious toleration and liberty of conscience, are of course not necessarily synonymous. Many scholars note that “toleration” carries an inherent note of condescension or indulgence, while liberty of conscience refers more to a natural rights-type of prepolitical argument. Thus liberty of conscience is a far more expansive notion than toleration, and theoretically involves a claim of (natural or other) right as opposed to the mere “permission” often associated with toleration. In another respect, however, regardless of the claimed status of the right to free exercise of religion, arguments about such liberty are always situated in a political context and depend upon state acquiescence to come about.

For some general discussions, see Adeney, W.F., “Toleration”, in Encyclopedia of Religion and Ethics, ed. Hastings, James (New York: Charles Scribner's Sons, 1925), 12: 360–69Google Scholar; Bury, J. B., A History of Freedom of Thought (Oxford: Oxford University Press, 1913), p. 72Google Scholar; Cranston, Maurice, “Toleration”, in The Encyclopedia of Philosophy, ed. Edwards, Paul (New York: Macmillan, 1967), 8:143–46Google Scholar; and Horton, John, “Toleration”, in The Blackwell Encyclopedia of Political Thought, ed. Miller, David (Oxford: Basil Blackwell, 1991).Google Scholar

8 Toleration as necessary for human development is echoed by David A. J. Richards, who asserts that “conscience and the social contract rest … on an underlying political ideal of the moral sovereignty of the people.” He also suggests Rawls's reasoning from the original position: “Each person would reasonably demand [the inalienable right to conscience] as a protection of freedom and rationality, the highest-order good”. See Richards, , Toleration and the Constitution (New York: Oxford University Press, 1986), pp. 98,101.Google Scholar

9 Dunn, , “‘Bright Enough for all our Purposes’: John Locke's Conception of a Civilized Society”, Notes and Records of the Royal Society of London 43 (1989): 136;CrossRefGoogle ScholarAshcraft, , Revolutionary Politics and Locke's ‘Two Treatises of Government’ (Princeton: Princeton University Press, 1986), p. 9.Google Scholar

10 Here Rawls echoes Madison inFederalist, No. 10. A commitment to political liberty, along with a proper understanding of the workings of the human mind, makes diverse conceptions of the good a fact of social life. As Madison put it, “As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed” (The Federalist Papers, ed. Rossiter, Clinton [New York, 1961], p. 78).Google Scholar

11 Rawls often vacillates between posing the overlapping consensus as an ideal (PL, 154) and using it as a descriptive term. On balance, though, his account seems to indicate that Rawls thinks that an overlapping consensus, if an imperfect one, obtains in mature liberal democracies.

12 Public reason is analogous to Bruce Ackerman's “Neutrality Principle”. As Ackerman puts it, “nobody has the right to vindicate political authority by asserting a privileged insight into the moral universe which is denied the rest of us” (Social Justice in the Liberal State [New Haven and London: Yale University Press, 1980], pp. 10–11).Google Scholar

13 Rawls has since attempted to downplay the significance of this quotation (IPE, lv-lvi note 31), denying that it represents “an argument for a right to abortion in the first trimester” (lv). Nothing in his disclaimer, however, alters the substance of the argument of this essay.

14 E. A. Goemer accuses Rawlsian liberals of insisting on just this transformation, the adoption of “rationalistic liberal ethics”, in his critique of Eamonn Callan's version of liberal political education. See “Forcing the Free to be Correctly Free”, Review of Politics 58 (1996): 38Google Scholar; Callan, , “Political Liberalism and Political Education”, Review of Politics 58 (1996): 5–33.Google Scholar

15 Taylor, , Theologike ekletike (London, 1647), chap. 13Google Scholar; Walwyn, , The compassionate Samaritan (London, 1644), “Reason 1”Google Scholar; A prediction of Mr. Edwards his conversion and recantation (London, 1646), 3–4Google Scholar; [Overton, ], A remonstrance of many thousand citizens (London, 1646)Google Scholar. See also The ancient bounds, or liberty of conscience (London, 1645), chap. 6.Google Scholar

16 Twelve weighty queries of great concernment (London, 1646), p. 3.Google Scholar

17 Religion's peace (London, [1614] 1646Google Scholar), reprinted in Tractson Liberty of Conscience and Persecution, 1614–1661, ed. Edward B. Underbill (London, 1846), p. 17.

18 Buckingham, , A short discourse on the reasonableness of men's having a religion (London, 1685), p. 20.Google Scholar

19 A discourse of toleration (London, 1691), p. 6Google Scholar. For further examples of this point see, The plea of the harmless oppressed, against the cruel oppressor (London, 1688), pp. 1–2Google Scholar; The great case of toleration stated (London, 1688), p. 4.Google Scholar

20 An expedient for peace (London, 1688), p. 3.Google Scholar

21 Locke, , Letter Concerning Toleration, ed. Tully, James (Indianapolis: Hackett, [1689] 1983), p. 27.Google Scholar

22 Ibid., p. 46.

23 ‘To Lord Arlington” (1669), Works (A Collection of the Works of William Penn, 2 vols [London, 1726]), I:153Google Scholar; also reprinted in PWP (The Papers of William Penn [5 vols.], ed. Mary Maples Dunn, Richard S. Dunn, Richard A. Ryerson, Scott M. Wilds; asst. editor Jean R. Soderlund [Philadelphia: University of Pennsylvania Press, 1981–1986]), I: 89–97. See also “Narrative of the sufferings of Quakers in the Isle of Ely” PWP, I: 225.Google Scholar

24 The Great Case of Liberty of Conscience (1670), Works, I: 444, 452Google Scholar.

25 A brief examination and state of liberty spiritual (1681), Works, II: 697Google Scholar.

26 In Some free reflections upon occasion of the public discourse (London, 1687)Google Scholar, Penn argues that we can only hold convictions by “sensible proof, or rational demonstration” (p. 5) [this, for him, would include revelation]. See also, finally, Penn's appropriately-titled The reasonableness of toleration (London, 1687), pp. 9–11Google Scholar, for a concise synthesis of this “reasonability” and its relation to the points made in this paragraph.

27 The term is Nicholas Wolterstorff's. See his “Locke's Philosophy of Religion”, in The Cambridge Companion to Locke, ed. Chappell, Vere (New York: Cambridge University Press, 1994)CrossRefGoogle Scholar. I thank Kevin den Dulk for bringing this citation and Wolterstorff's terminology to my attention.

28 See Sandel, , Liberalism and the Limits of Justice, p. 163Google Scholar; more generally, pp. 154–64. Sandel's more specific critique of Rawls on this issue is found in “Freedom of Conscience or Freedom of Choice?” in Articles of Faith, Articles of Peace: The Religious Liberty Clauses and the American Public Philosophy, ed. Hunter, James Davison and Guiness, Os (Washington, DC: Brookings Institution, 1990), pp. 74–92.Google Scholar

29 I should add that, in my own view, although Rawls's terminology of pleasing and desiring is oblique in these passages, he does not conceive of comprehensive doctrines on the purely market metaphor imputed to him by Sandel. Even the example of conversion (PL, 30) does not prove Sandel's charge, since conversion operates on a persuasion model. Instead, the importance of choice in conceptions of the good seems, for Rawls, to involve safeguarding the working of the human mind and the fact of reasonable pluralism in the social and political realms. Rawls focuses on the political manifestations of belief, at which level the language of choice seems apt.

30 I distinguish this definition of manufacturing reasons from the individual who states outright his or her comprehensively derived position, and then proceeds to provide public reasons for the same position. This course of action would fall under Rawls's “proviso”, what I call option 4, and I discuss it in turn.

31 It seems likely that, as Kenneth A. Strike suggests, political liberals' unwillingness or inability to distinguish between the content of comprehensive doctrines—taking instead the more drastic step of barring all from public debate—contributes to the likelihood of this dissembling. Rawls and others perhaps evince too much fear about the likely impact of comprehensive doctrines in politics (which, after all, are all around us in actual political debates), and underestimate the ability of individuals with different comprehensive doctrines to engage in what Strike calls “argumentative reciprocity”. As Strike further argues, such a dialogic approach to moral and religious rhetoric in political debate would distinguish (as Rawls apparently does not) between “arguing from the perspective of a comprehensive doctrine and seeking to advantage its adherents”. Without endorsing his approach in toto, I am inclined also to agree with Strike that such a context-based, dialogic approach to finding an emergent overlapping consensus, rather than insisting upon a strictly freestanding (putatively existing) one, better respects freedom of conscience. See Strike, , “Must Liberal Citizens Be Reasonable?” Review of Politics 58 (1996): 41–51.Google Scholar

32 Toleration justified (London, 1645), p. 5.Google Scholar

33 [Burthogge, Richard], Prudential reasons for repealing the penal laws against all recusancy, and for a general toleration (London, 1687), p. 5.Google Scholar

34 “To the council and senate of the city of Embden” (1674), Works, I: 610Google Scholar; for the inner nature of religion see No Cross, No Crown (1668), Works, I: 272–440, esp. chap. 6.Google Scholar

35 Letter Concerning Toleration, p. 27.

36 See also Busher, Religions peace [Underhill, , Tracts on Liberty of Conscience, 22Google Scholar]; Walwyn, , A whisper in the ear of Mr. Thomas Edwards, minister (London, 1646), p. 5Google Scholar; The plea of the harmless oppressed, p. 9; A discourse of Toleration, p. 6; Paston, , A discourse of penal laws in matters of religion (London, 1688), pp. 32–33.Google Scholar

37 I thank Sam Nelson for suggesting this possibility to me.

38 Rawls emphasizes in the “Introduction to the Paperback Edition” that “stability” refers always to “stability for the right reasons”, that is, citizens acting from a conception of justice and not merely participating in modus vivendi arrangements (IPE, xxxix–xliii).

39 This circular and hypothetical Rawlsian speculation appears in the “Introduction to the Paperback edition”. There, Rawls admits that “I do not know whether the Abolitionists and King ever fulfilled the proviso. But whether they did or not, they could have. And, had they known the idea of public reason and shared its ideal, they would have” (iii, n. 27). This puzzling statement seems to boil down to the claim that if the Abolitionists and King had agreed with Rawls (“known the idea of public reason and shared its ideal”), they would have agreed with Rawls (“fulfilled the proviso”).

40 Given that for Rawls “the constitution is not what the Court says it is Û it is what the people acting constitutionally through the other branches eventually allow the Court to say it is” (PL, 237), we are left wondering to what exactly Rawls thinks King was appealing.

41 One might also wonder whether Rawls considers the United States to be “stable for the right reasons” even in 1998, given the expansive criteria for such a designation—public financing of elections, a “decent distribution of income”, “society as employer of last resort”, and basic health care for all citizens—he lays out in the Introduction to the Paperback Edition of Political Liberalism (IPE, lvi–lvii).

42 The parable of tares and wheat was also used by, inter alia, [Robinson, Henry], Liberty of conscience (London, 1644), p. 55Google Scholar; and [Overton, ], The arraignment of Mr. Persecution (London, 1645), p. 24.Google Scholar

43 For the renunciation of force, see Jesus' response to Peter's assault on the High Priest's servant, Matthew 26:52; and his rebuke of James and John for their suggestion to call down heavenly fire on the Samaritan village, Luke 9:54–55. For the otherworldliness of Christ's kingdom, see John 6:15 and 18:36; and, more generally, the injunction to preach and convert (not coerce) in Jesus' Great Commission, Matthew 28:19–20 and Mark 16:15–20. These Scriptures appear repeatedly in the tolerationist literature: see, for just several examples, Saltmarsh, John, Dawnings of light (London, 1646), chap. 2Google Scholar; John the Baptist, forerunner of Christ Jesus, or, a necessity for liberty of conscience (London, 1644), chaps. 1–5, 7, 8, 13–15Google Scholar; [Robinson, ], Liberty of conscience, passim.Google Scholar

44 See Romans 15:1–2, II Timothy 2:24–26,1 Corinthians 1:10; Ephesians 4. These Scriptures are cited in Bloudy tenent, pt. 1; Saltmarsh, , A new quaere (London, 1646)Google Scholar; Dawnings of light, p. 4ff; [Robinson], Liberty of conscience; Vernon, John, The swords abuse asserted (London, 1648), p. 10.Google Scholar

45 [Rous, Francis], The ancient bounds, or liberty of conscience, “A light to the work”, pp. 30–31.Google Scholar

46 Busher, , Religion's peace, p. 8Google Scholar; [Rous, ], Ancient bounds, p. 15Google Scholar; Twelve queries, no. 7.

47 “Suppose Jesus Christ himself should come again personally, and live amongst us upon earth, I would very fain be assured, how he might be free of being persecuted, and crucified again, according to the principles of such government, if he should either work miracles, or teach, or speak anything besides the rule of man's inventions” ([Robinson, ], Liberty of Conscience, p. 43).Google Scholar

48 The only truly “secular” justification offered for toleration was the argument about prosperity and trade, that persecution harmed the nation's civil interest and ability to enjoy the benefits of all citizens' labors. (Often such authors pointed to the prosperity of the Low Countries as a way of making this point.) See, e.g., Vemon, John, The swords abuse asserted (London, 1648), p. 14Google Scholar; Goodwin, John, Truth and innocency triumphing together (London, 1648), pp. 40, 54Google Scholar; Toleration justified (London, 1645), p. 6Google Scholar; Musgrave, John, The conscience pleading for its own liberty (London, 1647), pp. 13–14.Google Scholar This line of argument was hardly the most prominent used by early modern tolerationists, however.

49 Antitolerationists, for their part, did not object in the least to the use of religious imagery and rhetoric in public debate: they simply had adifferent religious imagery and rhetoric.

50 Perry, , Morality, Politics, and the Law: A Bicentennial Essay (New York: Oxford University Press, 1988), pp. 72–73.Google Scholar

51 In Hutchinson, Thomas, ed., The History of the Colony and Province of Massachusetts-bay, 3 vols. (Cambridge, MA: Harvard University Press, [1756–1758], 1936), II: 132.Google Scholar

52 Hobbes, , Elements of Law, ed. Tonnies, Ferdinand (New York: Barnes and Noble, [1650] 1969), p. 114.Google Scholar

53 Hobbes, , Leviathan, ed. Curley, Edwin (Indianapolis: Hackett, [1651] 1994), p. 300.Google Scholar

54 Hobbes, , Leviathan, p. 300.Google Scholar

55 Especially, that is, when we consider the emphasis Rawls places on stability and security (see above, option 3).

56 Divine Observations (London, 1645), p. 5.Google Scholar

57 Winstanley, , Fire in the Bush (1650), in The Works of Gerrard Winstanley, ed. Sabine, George H. (New York: Russell and Russell, 1965), p. 469.Google Scholar

58 Great Case, Works, I: 445Google Scholar (emphasis added).

59 A Persuasive to Moderation (1686), Works, II: 729Google Scholar (emphasis added).

60 Of course we must remember that the Court upheld the Pennsylvania Sunday closing law in Braunfield, making clear that direct or indirect burdens in and of themselves would not be determinative in deciding the legality of a statute. This led to the free exercise “balancing” process, in which the state had to establish compelling interest and show that its proposed course represented the least possible infringement of religious exercise.

61 For a helpful overview of the evolution of religion clause jurisprudence, see Flowers, Ronald B., The Godless Court? Supreme Court Decisions on Church-State Relationships (Louisville, KY: Westminster/John Knox Press, 1994).Google Scholar

62 Again, Ackerman echoes Rawls's liberal reasoning: one might accept the Neutrality Principle on grounds of skepticism, support for the freedom to experiment with different conceptions of the good, an independent affirmation of “autonomous deliberation” (Social Justice, p. 11), or a concern about the corrupting influence of political power. As with Rawls's three examples, all of Ackerman's possible grounds are, broadly speaking, liberal.

63 For the historical development of progressively more expansive notions of liberty, see Schochet, Gordon J., “From Persecution to ‘Toleration’”Google Scholar; and Webb, R. K., “From Toleration to Religious Liberty”, both in Liberty Secured? Britain Before and After 1688, ed. Jones, J.R. (Stanford: Stanford University Press, 1992).Google Scholar

64 See Kirby, Ethyn Williams, “The Quakers' Efforts to Secure Civil and Religious Liberty, 1660–96”, Journal of Modern History 7 (1935): 401–421.CrossRefGoogle Scholar

65 The Religious Freedom Restoration Act reinstated the compelling government interest-least possible infringement standard in free exercise issues. Although the act was recently struck down by the Supreme Court, its passage by overwhelming majorities in both houses of the U. S. Congress demonstrates the broad support the act commanded. For a fuller explication, see Flowers, Godless Court.

66 Larmore, , Patterns of Moral Complexity (Cambridge: Cambridge University Press, 1987), esp. pp. 69–77CrossRefGoogle Scholar; Shklar, , Ordinary Vices (Cambridge, MA: Harvard University Press, 1984)Google Scholar; “The Liberalism of Fear”, in Liberalism and the Moral Life, ed. Rosenblum, Nancy (Cambridge, MA: Harvard University Press, 1989), pp. 21–38.CrossRefGoogle Scholar

67 See, e.g., Rorty, , Contingency, Irony, Solidarity (Cambridge: Cambridge University Press, 1989).CrossRefGoogle Scholar