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Religious Liberty or Religious License? Legal Schizophrenia and the Case against Exemptions

Tara Smith – Journal of Law and Politics (25 April 2017)



This paper seeks to demonstrate that religious exemptions are unjustified in theory and corrosive, in practice. By splintering the ultimate sovereignty of a legal system, they fracture its integrity and undermine its ability to fulfill its mission.

My analysis proceeds from the function of the legal system – which is the basis of the system’s authority – to show how the practice of granting standing permission for some people to violate generally applicable laws is inimical to that system’s efficacy and an abuse of its authority. The injection of conflicting directives to the officials charged to enforce the law (Go by the law; Go by those people’s consciences) necessarily subjectivizes the use of the government’s coercive power, since those officials have no principled means of deciding between the two directives. The tremendous proliferation of exemptions over the years testifies to the absence of an objective standard for governing this.

After establishing the central failings of exemptions, the paper takes up four specific arguments that are frequently offered in their defense: appeals to First Amendment text, the ideal of equality, the ideal of personal liberty, and the profound value of religious identity for many individuals. Careful examination demonstrates that none of these successfully justifies exemptions.

Finally, the paper considers the grounds on which differential application of generally sound law might ever be appropriate, finding an important difference between religiously based exemptions and other legitimately exceptional treatment.


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On 9/13/2013 at 9:16 AM, Boydstun said:

Robert Nozick (1938–2002)

2001 Interview


Reading Nozick – Essays on Anarchy, State, and Utopia

Jeffrey Paul, editor (1981)

This collection includes Nozick’s 1971 paper “On the Randian Argument” (which is also contained in Nozick’s own collection Socratic Puzzles and has been put online), and it includes the 1978 response “Nozick on the Randian Argument” by Douglas Den Uyl and Douglas Rasmussen.


The Cambridge Companion to Nozick’s Anarchy, State, and Utopia

Ralf Bader and John Meadowcroft, editors (2011)

More recently: ASU - An Advanced Guide --Lester Hunt (2015)

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Objectivism does not need academic recognition. If it does get it, all the better, if it doesn't get it, too bad. But philosophy is not made for discussions between professional philosophers. Objectivism was not designed in this purpose. Otherwise Ayn Rand would not have expressed her ideas that way, and she was perfectly aware of what she was doing.

Edited by gio

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I either agree or disagree, depending on what it would mean for a philosophy to ‘need’ something. Given what I take to be our individual yet shared long-term interests, we need it.

It is true that Objectivism was not created for the narrow purpose of discussion just between people who are paid to teach philosophy; it was created for general use by all people, who have a philosophy (my punctuation is correct). Insofar as it is in our best interest to live in a rational society, it is in our best interest that rational ideas be widely accepted. This implies that they should be widely understood, which in turn implies that they should be widely heard of. In light of the nature of contemporary civilization and culture, today’s academicians are the precursors to tomorrow’s intellectuals and academicians. Academicians are not the sole forces shaping future culture, but they are extremely important, and thus I cannot accept “too bad for you” as the proper response to any academic resistance. On the contrary, we “need” to redouble our efforts, to the extent that we can figure out how to do so. Which is not to deny that banging one’s head on the wall can cause headaches.

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23 February 2018, 7-10pm, APA Central, Palmer House, Chicago 

American Association for the Philosophic Study of Society Topic:

Arguments For and Against Liberalism

Chair: Shawn Klein (Arizona State University)

Speaker: Stephen Hicks (Rockford University)

Commentators: Jonathan Anomaly (University of Arizona) / Asborn Melkevik (Harvard University) / Kevin Vallier (Bowling Green State University)


Of related interest at the same APA Meeting:

The Promise of Lockean Tacit Consent Theory

Jeff Carroll (University of Virginia)

ABSTRACT - John Locke is strongly committed to both voluntarism and a consent theory of political obligation. John Simmons has defended both Locke’s voluntarism and Locke’s consent theory of political obligation as being true. Obviously, there have been very few express consenters. This means that Locke’s concept of tacit consent has to do most of the heavy lifting in generating political obligation. Simmons argues that it is not sufficiently strong. The implication is philosophical anarchism. I believe that tacit consent has spent more time in the gym than Simmons. Though mere residence does not qualify as tacitly consenting, a not too distant scenario in which individuals are presented the choice to “emigrate or stay and consent” and they opt to stay, I believe, would. By responding to Simmons’s critique of “emigrate or stay and consent” choice situations, I provide a Lockean path out of philosophical anarchism.


A Conventionalist Account of “Natural” Rights

Tristan Rogers (University of Arizona)

ABSTRACT - Hume observes in the Treatise that the “rules, by which properties, rights, and obligations are determin’d, have in them no marks of a natural origin, but many of artifice and contrivance” (p. 528). Consequently, when we talk of property as a natural right, it is difficult to do so without noticing things like easements, liabilities, zoning, licensing, etc. Call that the conventionalist challenge. Eric Mack, in a series of papers, attempts to mitigate the force of the conventionalist challenge in defending what he calls a natural right of property (Mack, “The Natural Right of Property,” 2010). This paper argues that Mack’s natural rights view does not successfully meet the conventionalist challenge, and further, that a suitably modified Humean conventionalist account can explain the conviction that we have rights without appealing to natural rights.


Edited by Boydstun

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On 6/26/2018 at 11:02 AM, Boydstun said:

The Journal of Ayn Rand Studies is in its eighteenth year of publication (Penn State University Press). It issues twice a year, July and December. I have all its issues, hardcopy, from its beginning. I’ve mentioned elsewhere on Objectivism Online an extensive review, in the July 2018 issue, of Harry Binswanger’s book How We Know. I notice also in this issue a paper “Egoism and Others” by Merlin Jetton, a long-time friend of mine.

In his contribution “Egoism and Others,” Jetton draws Rand’s ethical egoism as an extreme position, polar opposite the extreme altruistic ethics of Comte. That sketch seems right. But Jetton writes “Contra Rand, one can benefit others without self-sacrifice” (85). I don’t think that statement in itself is an exact representation of Rand. She characterizes voluntary productive, romantic, and esthetic relationships as benefitting both self and others. Jetton later tempers that statement on Rand, thankfully, in his addressing for example her ambitious essay “The Conflict of Mens’ Interests.”

Jetton conveys altruism as taking various forms. Rand’s notion of altruism, he correctly takes as entailing self-sacrifice. He maintains that Rand disdained altruism in any form and that this stance “may actually detract from a person’s self-interest” (85).

“Rand advocated self-interest all the time and typically treated acting for the interest of others as equivalent to self-sacrifice” (86). Correct.

Jetton concurs with Rand’s stance that one should not live for the sake of another. Contra Rand, he writes: “Acting for the sake of another is sometimes the rational thing to do” (87). I concur, and I concur that this is contra Rand (notwithstanding denials or fogging of this ascription to Rand by some sympathizers with Rand’s egoism).

Jetton observes that among our choices of action, there are ones “you might agree that anyone similarly disposed would have in such circumstances” (87). He dips into a work by Charles Larmore, a former professor of mine, in filling out this idea. From the reflective plane of regarding ourselves as responding to reasons and binding ourselves to reasons, Jetton goes on to gauge the morality of benefitting others in business, familial, fiduciary, governmental, and charitable relationships, marking up Rand’s pertinent words all along the way.

An additional basic frame of Rand’s ethical egoism I think would be worth examining in future examinations and assessments along the lines of Jetton’s present study is her proposition “Life is an end in itself.” This is a basic frame not only for her ethical egoism, but for her case for universal individual rights. And the latter, with their justification, could have fertile ramifications for treatment of others, even going beyond scope of the law.

Above topic split into thread:
"Egoism and Others" by Merlin Jetton

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“In the poem ‘Human’ (1903), Gorky says of the new man that he is lost ‘among the desserts of the universe . . . on the little piece of the earth’. Yet, ‘he is going bravely ahead! and higher! On the way to victories over all the secrets of the earth and sky’. . . .

“‘There was a cold wind outside, and an empty stretch of land under an empty sky” (Rand 1957, 15). The train encapsulates all the problems of a society that is living---and dying---due to the principles of collectivism. . . . The desert is the symbol of a hostile world in the novel: it is made obvious in the scene depicting the crash of the train at the Arizona desert [1160-61]. . . .

“. . . In ‘Human’, Gorky glorified the new type of human, who is a creator and whose major impulse is Thought. . . .

. . .

“But there is a great difference between Gorky’s Human and Rand’s ‘new human’. . . .”

JARS 18(2):326-27)

--From the paper in that Winter 2018 issue of JARS: “Ayn Rand’s ‘Integrated Man’ and Russian Nietzscheanism” by Anastasiya Vasilievna Grigorovskaya, who has a number of publications on Ayn Rand, in Russian, and who is working on the first doctoral thesis about Rand in Russia (Tyumen).

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Online now at JSTOR, print edition next month: Foundational Frames - Descartes and Rand / . . .

KEYWORDS: René Descartes, Étienne Gilson, Anthem, foundationalism, demonic skepticism, cogito, mind-body relation, sense-thought relation


Edited by Boydstun

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