A Response to Nicholas Wolterstorff

It is an honor to have The Disenchantment of Secular Discourse reviewed by a person and scholar of the stature of Nicholas Wolterstorff – and a relief to see that the review is generally favorable. Wolterstorff presents the principal arguments of the book succinctly and sympathetically and offers some perceptive criticisms. These criticisms prompt me to attempt not a rebuttal, but rather a few clarifications.

The overall thesis of the book, as Wolterstorff explains, is that the secular constraints that prevail in legal and academic contexts, and to some extent in moregeneral public discourse, operate to screen out many of our deeper normative com-mitments. All too often, the result is a public discourse that is superficial, sterile, and contrived. Nonetheless we manage to have public discussions and make political decisions, in part by “smuggling” in values and views that we are constrained to keep largely hidden (even, sometimes, from ourselves). Much of this smuggling occurs, the book suggests, under the auspices of two venerable conceptual families– not the Corleone and Tattaglia families, but rather the autonomy-liberty-freedom family and the equality-neutrality-reciprocity family. These distinguished families are engaged in valuable and legitimate business, I suggest, but they also support a good deal of more illicit activity. Much of the book studies these smuggling activities in several major areas of public controversy, such as the “right to die” and religious freedom, and attempts to illuminate the discursive distortions and contortions that such smuggling can produce.

Wolterstorff, it seems, agrees with the general diagnosis. His review, however, prompts me to acknowledge the limitations of “smuggling” as a central metaphor. That metaphor calls attention to the ways in which suspect beliefs and commitments are imported illicitly into public discussions. But in reality the book is concerned not only with how modern discourse brings in particular beliefs and commitments, but also with how the discourse attempts to keep these beliefs and commitments out – thereby making it necessary to sneak them into public deliberations under cover of the darkness that foggy concepts like “freedom” and “equality” can provide. The book is concerned, in other words, with the often-tacit processes both of inclusion and exclusion. Rather than “smuggling,” therefore, a more adequate (though a bit Milquetoast) metaphor might have been something like “filtering.” Or, instead of talking about smugglers, I might have talked about, say, “gatekeepers.”

A two-way metaphor might have made it clearer how I think the chapter criticizing the harm principle (“Trafficking in Harm”) fits into the overall project. The chapter argues that the harm principle is “a hollow vessel, alluring and even irresistible but (or because) without any intrinsic content into which adept advocates can pour whatever substantive views and values they happen to favor” (72), and my analysis tries to show how consummate craftsmen like John Stuart Mill and Joel Fineberg have designed and refined the principle to exclude considerations they disfavor, and to carry the normative considerations they want to convey. Wolterstorff appears to agree with this analysis, but he doubts that “a proscription on religious vocabulary plays any role in [this] confusion.” And he suggests that the principle would not become defensible even if a religious vocabulary could be employed.

For the most part, I agree. I think the harm principle is vital to the overall story of the book, but not because the principle operates officially or inherently to exclude religious convictions – I do not believe it excludes anything inherently – or because the principle could be rendered respectable and upright by getting religion. My suggestion, rather, is that the harm principle in fact has been a leading and powerful device by which secularists (Mill, Feinberg, and many, many others) have excluded religious considerations from public decision-making in practice, while letting in their own preferred and more secular considerations. Indeed, Mill’s introduction to On Liberty suggests that traditional religion was for him a principal target of the harm principle. Still, insofar as I described the harm principle as “an immensely effective vehicle for … smuggling,” Wolterstorff’s reservations lead me to think my description was slightly misdirected. The harm principle has been not so much a vehicle for smuggling considerations into debate, perhaps, as a device for keeping disfavored considerations – including religious considerations – out. Something like a “gatekeeper” metaphor might have been more adequate to make this point.¹

In a similar way, Wolterstorff is mostly correct to notice that in trying to dissolve long-standing commitments to religious freedom into other constitutional values such as equality or freedom of speech, contemporary secular thinkers like Larry Sager and Chris Eisgruber are not smuggling so much as they are excluding. They are excluding (or at least omitting to notice) the classical religious rationales that gave rise to the commitments to religious freedom in the first place, and then concluding – plausibly enough, on their secular assumptions – that there is no very good reason to regard religion per se as deserving of special treatment under the law. Once again, a “filter” or “gatekeeper” metaphor might have been more apt.

I hedge by saying that Wolterstorff is mostly correct, however, in part because even thinkers like Sager and Eisgruber sometimes betray a lingering attachment –one that does not sit easily with their own secular premises – to the notion that religion is somehow deserving of special constitutional treatment. Is this a bit of residual, unconscious smuggling? And of course the broader legal and political culture retains a commitment to religious freedom, even though the classical religious rationales are disfavored officially and more contemporary secular rationales provide frail justification. In this way, the classical rationales seem to exercise influence even yet – but surreptitiously. So it seems that both exclusion and smuggling are going on.

Two other points made in Wolterstorff’s review warrant brief responses. While acknowledging that Madison and Jefferson employed explicitly theological rationales to justify religious freedom, Wolterstorff argues that the older, classical ways of thinking were no longer possible once Christendom broke down into a cacophony of competing religions and churches. He may well be right, but I am not quite ready to concede the point. A few scholars – John Garvey is a leading example –continue to offer religious rationales for religious freedom.² And a few others –especially Richard Garnett in a forthcoming book – are attempting to resuscitate the more classical commitment to freedom of the church. It is a challenging project, I think, largely for the reason Wolterstorff suggests – namely, rampant religious pluralism. Still, the view deserves a careful hearing.

Commenting on a different chapter (“The Heavenly City of the Secular Philosophers”), Wolterstorff agrees with my criticisms of Martha Nussbaum’s “capabilities approach” to issues of human rights and human dignity, but he suggests that Nussbaum’s account is “one of the least satisfactory on offer.” Again, he maybe right. I do not feel competent to make comparative assessments; I judged that Nussbaum’s account was worthy of examination largely because of her prominence in the legal academy. (Here is what may be a confession: I actually wrote the bulk of this chapter years ago, after listening to a lecture Nussbaum gave at Notre Dame. Dissatisfied with her presentation, and struck by the similarities between her approach and the one described in Carl Becker’s short classic, I went to my office the next day and wrote up what is now the core of Chapter 5.) If my analysis of Nussbaum leads readers to reflect on Wolterstorff’s more comprehensive treatment of the subject in Justice: Rights and Wrongs, the chapter will have done a valuable service.

As I hope this response makes clear, the areas of convergence between Wolterstorff and me are much more extensive than the disagreements. So it seems to me at least. And I take comfort in the observation.

1. The relation between the harm principle and secularism in fact may be more substantial and complicated than this limited discussion suggests. My own suspicion is that the harm principle attempts to provide a secular substitute for the classic Christian dualism distinguishing between the spiritual and temporal domains, or between the “two kingdoms.” This dualism, discussed at some length in chapter 4 of the book, sought to delineate a realm of life that was outside the jurisdiction of the state. That kind of jurisdictional dualism is difficult to translate into modern secular discourse; its disappearance leaves a vacuum that the harm principle attempts to fill. I offer this observation as a hypothesis, however; the historical and functional connections between the harm principle and the exclusion of Christian dualistic thinking from secular discourse are not developed in the book.
2. John H. Garvey, What Are Freedoms For? (Cambridge, MA: Harvard University Press, 1996),42-57.