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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)

Abstract

Quote

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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Addendum of mine to my article on Descartes/Rand

Kant argued against Descartes’ view that the existence of one’s mind is more immediately and more certainly known than the existence of one’s body.[1] Kant cast out Descartes’ view that the mind is a thinking substance.[2] Because Kant rejected also Descartes’ ontological proof for the existence of God,[3] Descartes’ first philosophy collapses. Metaphysical arguments to rational necessity of the existence of God or immortality of the soul are all cases of reason flapping its wings in a vacuum, by the lights of Kant. The THE CRITIQUE OF PURE REASON (KrV) contains Kant’s case for a more limited scope for effective theoretical reason: stay within the bounds of possible sensory experience.

Kant accepted, as had Descartes and Aquinas before him, some notion that ‘I think’ entails ‘I am’. Then again, with Rand’s mature philosophy, acknowledgment that ‘Existence exists’ entails existence of one who acknowledges. For Kant, contra Descartes, ‘I think’ does not mean I think with a mental substance,[4] radically distinct from body; and thinking of my body and of bodies outside me is as certain as the circumstance that I think and that I exist as a thinking thing.[5] Kant had a role for ‘I think’ basic to his transcendental idealism, and such is not the role it had in the first philosophy of Descartes. Let me call Kant’s the “company-role” of ‘I think’.

“The ‘I think’ must be capable of accompanying all my presentations; for otherwise something would be presented to me that could not be thought at all—which is equivalent to saying that the presentation either would be impossible, or at least would be nothing to me.”[6] (B131–32)

Kant’s ‘I think’ is utterly dependent on there being rational judgments it attends. ‘I think’ is not premier of knowing, contra Descartes. Neither it nor the ‘cogito sum’ containing it nor join of the ‘cogito sum’ to the premise of divine, absolute perfection amount to an adequate foundation of all human cognition.[7] 

We might object, however, to Kant’s reasoning in the quoted passage. In early development we each had been perceiving and investigating and coordinating without any ability to reflect and realize of those episodes ‘I am having’ or ‘I am doing’, let alone ‘I am thinking’. It might be countered for Kant, in our current context of cognitive developmental psychology, that to each such episode adults around the infant or toddler can attach ‘He is having’ or ‘She is doing’ and that grown older the former little one could say of filmed early episodes ‘I was seeing’, ‘I was searching’, and so forth. The objection remains, for those remarks would be merely as from outside and pronounced on the little person, not by that person as he or she perceived, investigated, and coordinated. That such episodes occur without first-person capability to reflect and realize ‘I am having’ or ‘I am doing’ means that, notwithstanding the important fact of the company-role of ‘I think’ for all mature, discursive human cognition, it is not a necessary condition for the possibility of all human cognition in the apriori way Kant argued at B131–32. Kant’s argument there ignores the existential fact that discursive thought has a genesis from and an alliance with prelinguistic thought in early development. When Kant does discuss the pertinent infant development, in his anthropology lectures,[8] he foists the necessity argued in B131–32 off on all that development.

The company-role of ‘I think’ (as well as ‘I am having’ and ‘I am doing’) is a necessity for adult human cognition, though not for the ultimate reason and not with the type of ultimate necessity given it by Kant. And self-reflection is not a necessity for one’s earliest stage of cognition. The necessity of the company-role of ‘I think’ and its precursors ‘I am having’ and ‘I am doing’ is most basically biological, not transcendental. Without adult capability for some self-reflection, and its precursors in development, there will have been no capability for language, thence not yet human cognition in such a species. 

Conceptual necessities are from the life of mind situated in larger life situated in the world. Conceptual necessities do not require Kant’s conceit of generative mind as ultimate origin of temporal and spatial organization in sensory experience and objective world nor Kant’s conceit of generative mind as base origin of its own fundamental concepts as forms with which the world as known shall be. Necessary conditions on the possibility of experience and cognition are in my view rightly seen as situated within biological necessities, not within Kant’s supposed, wider transcendental necessities.[9] Organicism in human consciousness—with its unities, roles, interdependencies, and self-generations—is offspring of and sign of the biological nature of consciousness. Kant saw it rather the other way around.[10] As with any other body, the body of a physical organism is in his view an object standing in spatial, temporal, and causal connections whose source of necessity is the transcendental synthetic unity of apperception.[11] Organic unities of organisms, according to Kant, are to be seen as if they were designed by a cosmic intelligence, keeping in mind that those unities are projections of the unities of our own reason, which is to say organic unities of organisms are to be understood as if sourced (and as in fact divinely sourced) in organic unities of intelligence.[12]

~~~~~~~~

The ‘I’ of Kant’s company-role ‘I think’ is a unified conceptual maker of coherence from variety in the ‘I’s world of perception.[13] As Béatrice Longuenesse observes: Because the causal relation is among the organizing principles constituting the coherence-making self that must be able to accompany any sensory experience it has, we have in Kant’s company-role ‘I think’ a post in Kant’s fence against Hume’s skepticism concerning necessary connection between distinct perceived events.[14] 

~~~~~~~~

NOTES

[1] Kant 1781(A) and 1787(B): A366–80, B274–79.

[2] A343–47 B401–6, A348–51, B407–8, B416–22. Rand, and I with her, replace substance of Aristotle or of Descartes with entity, and we would count the mind and the self as an entity, notwithstanding the special ways in which one knows one’s own mind and self.

[3] A592–603, B620–31.

[4] But see Heidegger 1953, 318–21/304–7.

[5] Kant, KrV B270–79.

[6] Also B137–39, B157–-58n, A341–43, B399–401, A347 B405, A354–55, A397- 402, B422–23n, B428–32, A848 B876; 1798, 7:127–28.

[7] Kitcher 2011, 57–62, 116–17, 193–97.

[8] Kant 1798, 7:128-29.

[9] Cf. Criticism of Kant, on possible origins of necessity in synthetic apriori judgments, by Gottlob Ernst Schulze 1792, 142–45.

[10] Mensch 2013, 99–109, 113–24, 130–45, 153–54.

[11] Kant, KrV A22–36 B37–53, B131–69, B232–34, A189–211 B235–56.

[12] A317–18 B374, B425, A686–704 B714–32.

[13] A67 B92, A107–8, A113–14, A119, A124–25, B129–39, A199–202 B244–47, A214–18 B261–65, A228–30 B281–82, A234–35 B286–87, A255-56 B311, A401–2; see also Kitcher 2011, 138–41, 144–50, 193–97.

[14] Longuenesse 2008, 15–16; see also Kitcher 2011, 152–57, 170–73; Allison 2008, 107–12, 204–5.

 

REFERENCES

Allison, H. E. 2008. Custom and Reason in Hume – A Kantian Reading of the First Book of the Treatise. New York: Oxford University Press.

Heidegger, M. 1953 [1927]. Being and Time. 7th ed. J. Stambaugh and D. J. Schmidt, translators, 2010. Albany: State University of New York Press.

Kant, I. 1781, 1787. Critique of Pure Reason. W. S. Pluhar, translator. 1996. Indianapolis: Hackett Publishing.

——. 1798. Anthropology from a Pragmatic Point of View. In Immanuel Kant – Anthropology, History, and Education. G. Zöller and R. B. Louden, editors, 2007. G. Zöller, translator. Cambridge: Cambridge University Press.

Kitcher, P. 2011. Kant’s Thinker. New York. Oxford University Press.

Longuenesse, B. 2008. Kant’s “I Think” versus Descartes’ “I Am a Thing that Thinks.” In Kant and the Early Moderns. D. Garber and B. Longuenesse, editors. Princeton: Princeton University Press.

Mensch, J. 2013. Kant’s Organicism – Epigenesis and the Development of Critical Philosophy. Chicago: The University of Chicago Press.

Schulze, G. E. 1792. Aenesidemus. In Between Kant and Hegel – Texts in the Development of Post-Kantian Idealism. G. di Giovanni and H. S. Harris, translators, 2000. 2nd ed. Indianapolis: Hackett.

Edited by Boydstun

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