A full copy of this essay with all parts is available in Academia and in the Social Sciences Research Network: Essay in response to “Why Tolerate Religion” essay by law professor Brian Leiter
Initially when I started reading Brian Leiter’s “Why Tolerate Religion”, my first impression was that I had found one of the rarest types of lawyers especially of the academic type: one with a sense of humor. As I continued, my impression of dark humor changed to his being factious, then he was gloating, but finally I was forced to conclude he was serious. The timid, cowardly, and fainthearted response by the American religious and legal culture in essence lamely trying to justify nonexistent toleration, “special” or otherwise, worsened the tragedy of his question and answer. In Western Technological Society, the law does not tolerate religion in any sense but a nominal one and most certainly not in any normative or pragmatic sense, the only senses that matter for either law or religion. Western Law has negated and displaced Western religion to become the only normative power in Western Civilization. The realistic question that should be asked is why tolerate law qua law: what principled argument is there for tolerating law with its special monopoly on violence? If this special toleration for the law is really just a categorical demand unhinged from reason and evidence then by Leiter’s own reasoning, it is a religion with its own morality and demigods not entitled to this special toleration. Realistically, without Western law and Western religion giving each other special toleration as separate but equal communal normative powers, the former violent and the latter nonviolent, either is a tyrant willing to kill the innocent for power and there is no principled argument to tolerate either.
“There are some ideas so absurd that only an intellectual could believe them.”
― George Orwell
I. PROLOGUE / THE NATURE OF THE QUESTIONS
Having grown up lower working class in which the only source of hope in life was through religion, and then working my way up through military service eventually into Harvard Law School, and then 25 years of solo-attorney trial practice in the miserable trenches of the American system of injustice, I am fully aware of the power and weaknesses of both religion and law. For all but a small minority of humanity, the existential question we should ask of law and religion is why we tolerate either. Neither should have the audacity to question the other’s communal authority to which neither is rationally entitled. This reality should be undisputed in Western so-called “Realist” philosophy of law and jurisprudence that supposedly recognizes two separate but equal normative powers: the law is law and not morality; morality is morality and not law. Despite such existential and legal reality, a philosopher of law Brian Leiter gives fallacious answers that have little connection to reality to his question “why tolerate religion” while assuming that tolerating law is a given.
In asking his question, as easily could be predicted, as is true of most academics’ myopic view of life, though Leiter and his school of philosophy readily make distinctions as needed between different word meanings, wordgames, legal systems, laws, rules, philosophies of law, philosophies, moralities, obligations, principles, and much more, to him and to Western Law, they consider all religions the same and assume they can be lumped into a bound variable called “religion” they can judge and give value as the law deems necessary in its wisdom. Then, using popular cliches lacking any philosophy of language, he gives the existential attributes or values of this bound variable “religion” to be: “categorical demands that are unhinged from reason and evidence”. Amazingly, despite philosophy of law having spent more than a hundred years unsuccessfully arguing about whether “law” is a universal, in a few pages he has no problem telling us not only the ontology of religion but doing so while leaving out its most important attribute: a communal social construct just as is law.
While Leiter digitally compresses the nature of religion to its supposed essence in order to contemplate toleration, he cannot be bothered to define and tell us in any analytic sense what he means by “tolerate”.
Based on Leiter’s ontology of religion, faulty logic, hidden premises, and a confusion of word meanings as necessary to reach his predetermined answer — an exemplification of jurisprudence at work — the answer to his question was also readily predictable. He answers that as a matter of noblesse oblige within “limits of religious toleration” as decided also by law, the law should not grant religion qua religion any special toleration or protection but simply place it alongside any other toleration the law in its wisdom decides to give to matters or liberty of “conscience”. If and how this answer is to be enforced on society and pontificating on what “liberty of conscience” entails is left for another day.
The timid, cowardly, and fainthearted response by the American religious establishment to this Why Tolerate Religion essay is consistent with all of their other surrenders of the past hundred years to the power of law — that is supposed to be its equal in power — thus indicating the question and the answer to be facetious and gloating at best. In Western Technological Society, the law does not tolerate religion specially or in anyway; instead, as a secular religion with its own irrational disguised morality and demigods, law has negated and displaced religion to become the only normative power in Western Civilization. Realistically, in the law’s path of displacement are all other moralities or matters of conscience with the intent being to have law reach perfection as a power no longer existing as a means but as an end in itself. As admitted in some of Leiter’s other essays, this path is not governed by naturalized analytical thought but by elitist sympathies pretending to be Nietzschean existentialism that are really a Hegelian world view — the ultimate enemy to any existentialist free and open society.
Leiter’s question raises serious questions about the power of law that should be asked by both nonreligious and religious. Why is law allowed to pretend there is a universal thing such has “law” with nonlegal obligations — disguised morality — making categorical demands less “unhinged” from reason and evidence than the morality of a thing called “religion”? How is it that modern Western law, itself a creation from the forge of Western Religion’s power struggle within itself and with secular power to live on this earth with Christian morality but not of this earth, has the audacity to question its toleration of what is supposed to be its normative equal while Western religion lacks the courage to ask likewise of its creation? How is it that Western religion, Western Civilization’s communal attempt to give not only metaphysical but physical meaning to the fire of time and space in which humanity burns, has become subservient to the secular religion of law created by a minority to force their power upon the majority through a monopoly on violence? How is it that philosophy of law though neither rational, analytic, nor scientific is allowed to continue to pretend it is all three? How is it that for modern American law school intelligentsia, elitists such as Nietzsche and their cowardly version of the existentialist view on reality, individual human life, and open society have greater value for philosophy of law as motivators then the courageous version of existentialism of an Albert Camus or Soren Kierkegaard or even of nihilism? Is it time for existentialism to step out of the shadows and create its own philosophy of law? Why tolerate law?
The answer to the last question will turn out to be relatively straightforward: there is no principled basis to tolerate law qua law but only because the law tolerates religion and vice-a-versa. If the reciprocity does not exist, no one has any obligation to tolerate either. Without such reciprocity, the dominant one is a tyrant, either a legal one in the Roman dictatorship sense or an illegal one — it does not matter, a tyrant is a tyrant to whom we owe no rational obligation to tolerate.
To contemplate these questions and to lay a foundation for an existentialist philosophy of law, one must first understand the elitist and mostly delusional history of modern philosophy of law and associated jurisprudence and the fork-in-the-road duality of existentialism in modern technological society that separates hoi polloi from those in its Orwellian Inner and Outer Parties such as Leiter and his colleagues. In order to understand how the law has gotten to powerful position of being able to question its tolerance of religion without expecting a reciprocal question from religion and of the significance of such power, one must have a clear realist not Realist understanding of modern philosophy of law, the history of Western Civilization, and of the particular elitist school of existentialism hidden in modern law and modern Western academia pretending to deny the pragmatic value of all morality but its own — including its fraudulent wordgame pretending that its “nonlegal obligation” has a meaning other than morality. Such an understanding must not be solely an academic understanding intended to stand and be judged solely for its aesthetic value as is the case with most academic nonscientific work including all schools of philosophy of law but must be a pragmatic one.