Steven D. Smith’s The Disenchantment of Secular Discourse is an important book.1 I will be offering a point or two of criticism. That, however, takes nothing away from my judgment that Smith’s book is an intellectually imaginative and compelling analysis of an important public issue.
The issue is this: it is said in many quarters today that our public discourse on matters of political morality is confused, superficial, and sterile. Sound bites crowd out genuine debate. Why is this? Among the answers offered commonly is that it is the fault of the media and of poor schooling. In recent years, a number of writers have added that it is the fault of religion intruding itself into the public domain, especially religion in conservative forms.
Without denying that these diagnoses have some merit, Smith argues for the bold thesis that, in many cases, the unsatisfactory character of our public discourse is not the result of the intrusion of religion into the debate but the result of the exclusion of religion by the insistence that public discourse employ a purely secular vocabulary. Articulate discussion of certain fundamental moral issues eludes the capabilities of such a vocabulary. Smith develops his argument by close analysis, documented thoroughly, of four areas of confused debate.
One of those areas, discussed in the chapter that he calls “Trafficking in Harm,” seems to me not to fit his argument. That there is confusion here is undeniable, but I do not see that the confusion to which he points has anything to do with the proscription of religious considerations.
In his essay “On Liberty,” John Stuart Mill introduced what has come to be called the harm principle. The principle holds that “the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is . . . to prevent harm to others.” Mill’s affirmation of the principle was not the result of disinterested philosophical reflection on his part. He was opposed deeply to what he regarded as the excessive paternalism of British nineteenth-century society; the principle was a central component in his opposition. The principle has continued to be deployed for that purpose ever since.
The principle, upon first hearing, has considerable appeal. If what I am doing does not harm anybody other than perhaps myself, then surely I should be free to do it. The fact that it does harm somebody other than myself is not, all by itself, a reason for society or government to stop me; life would be a horror if we tried to prevent all harming of others. But this much at least can be agreed, said Mill: if my action harms at most myself, then nobody is “warranted” in trying to stop me. Smith notes that by now the harm principle has sunk deep into how students, professors, lawyers and judges think about the law.
The harm principle is subject to attack on many fronts. Smith concentrates on the problems that emerge when we ask what is meant by “harm.” Let me give a glimpse of the problems that Smith unearths. One way of defining “harm” would be in terms of pain and pleasure: I harm you if I inflict pain on you or deprive you of some pleasure. A rather more common way of defining “harm” has been in terms of preferences or interests: I harm you if I act in such a way as to frustrate some preference or interest on your part. Suppose we define it in this latter way.
There are people in our society who are deeply distressed by the availability of pornography; they prefer strongly that there be no pornography, none at all. Not only are they distressed by the availability of pornography on magazine stands; they are distressed by the fact that people spend their time watching pornographic movies in their homes. Their preference on this point is frustrated. They are harmed. Some of them take the argument farther. They do not accept the claim made often that watching pornographic movies has no influence on the viewer beyond the two-hour duration of the movie. It influences how the viewer thinks, how he imagines, how he talks; it takes him away from more worthwhile activities. And that has an effect on other people; it harms them. In short, it turns out that in this explanation of “harm,” the principle is no protection whatsoever against paternalism.
Legal philosopher Joel Feinberg has worked harder than anyone else to explain “harm” in such a way that the principle yields what he regards as the right results; he wants the principle to yield the result, for example, that citizens should be free to “enjoy” pornography in private. Smith follows his argument at some length, into ever more intricate definitions of “harm.” Eventually we find Feinbergsaying that my action harms you if and only if it wrongs you. And as to what it is to wrong someone, this is what he says: “any indefensible invasion of another’s interest (excepting of course the sick and wicked ones) is a wrong.”
We can all agree that if my invasion of your interest is indeed indefensible, then I should not do it. But now all the work is being done by the concept of “being wronged” – along with the concept of “being indefensible.” The concept of “harm” has fallen by the way.
The lesson Smith draws from Feinberg’s struggle to explain the harm principle in such a way that it permits the actions Feinberg thinks should be permitted and forbids those he thinks should not be permitted is that either the concept of “harm” will no longer be doing any work, or it will have been defined in so arcanea way that whatever intuitive appeal the principle possessed originally has been lost. I think he is right about this. The principle, in my judgment, should be discarded. But I do not see that a proscription on religious vocabulary plays any role in the confusion that Smith traces. The situation is not that the harm principle would prove defensible if we could employ religious vocabulary in explaining and defending it. It is a non-starter.
Let me now summarize briefly Smith’s argument for the other three areas of moral and legal discourse that he discusses. The first in his order of treatment is the issue of physician-assisted suicide. The U.S. Supreme Court has interpreted the Constitution as guaranteeing to terminally ill patients the right to have life-support systems withdrawn if that is clearly their choice. By contrast, the Court has interpreted the Constitution as not giving terminally ill patients the right to physician-assisted suicide – by the administration of some death-inducing medication, for example. A few states permit physician-assisted suicide under stringent conditions, but citizens do not have a constitutional right to the assistance of a physician in committing suicide.
What is the relevant difference? When life-support systems are withdrawn from a terminally ill patient, physician and patient expect the imminent death of the patient. When a large dose of morphine is administered to someone who wantsto terminate his life, physician and patient expect the imminent death of the subject. What is the rationale for holding that citizens have a constitutional right to the ending of one’s life in the former way and not to the ending of one’s life in the latter way?
A suggestion that comes to mind at once is that, in the former case, the physician lets the patient die, whereas in the latter case, the physician kills the patient, and that this marks a morally significant difference. Some of the lower courts inthe U.S. found this distinction between “letting die” and “killing” either unacceptably vague or of no legal significance. The U.S. Supreme Court disagreed, and rested its declaration that citizens have a constitutional right to the removal of life-support systems but not to assisted suicide on the distinction. The Court rightly felt it incumbent upon itself to go beyond merely employing the distinction to explaining it and elucidating its relevance. It said that when a physician withdraws life-support systems, his doing so does not cause the patient’s death; the patient dies of some natural cause. And he does not intend to bring about the patient’s death; he intends to respect the patient’s wishes and to shorten his suffering. Smith has no difficulty in showing that these explanations prove untenable.
But if you and I can see that these explanations of the letting die/ killing distinction and its significance will not do, why did the Court not see that? Why would they base their decision on a distinction whose explanation is patently untenable? Smith’s interesting suggestion is that what leads many of us, including the members of the U.S. Supreme Court, to think the distinction between “letting die” and “killing” is morally significant is an idea hovering in the background that the Court never brought to the surface. Smith does find it coming to the surface in a lowercourt decision. It is the idea of allowing nature to take its course and of the normative importance of doing so. In withdrawing life-support systems, one allows nature to take its course; assisting someone to commit suicide is not allowing nature to take its course.
This suggestion on Smith’s part invites the question: if the rationale for employing the distinction between “letting die” and “killing” is the conviction that allowing nature to take its course has normative significance, why did the Court not say that? Why did they instead talk about cause and intent? “Why should it be so difficult for seasoned judges to explain their fundamental normative premises, to us and perhaps to themselves as well?”
Smith’s answer is that in modern “secular” understandings of nature, it makes no sense to suppose that the course of nature has normative significance. It makes sense only on older understandings of nature, Jewish-Christian or Aristotelian. Smith describes what is going on here as “smuggling.” The Court was smuggling that older idea into its reasoning. Some of the lower courts were aware at least dimly that this is what they were doing. Unlike the Supreme Court, they employed the idea explicitly. They did not, however, articulate it. Articulation of the idea would have required the introduction of theological and/ or metaphysical considerations. But that is forbidden to the courts.
Next in Smith’s order of treatment is his discussion of jurisprudence concerning the free exercise and establishment clauses of the First Amendment. Smith quotes one writer, Stephen Gey, as saying that one “of the few things constitutional scholars of every stripe seem to agree about is the proposition that the Court’s Establishment Clause jurisprudence is an incoherent mess.” Some writers attribute this incoherence to ineptitude on the part of the courts. Smith argues that the problem goes deeper. In a purely secular framework it is difficult if not impossible to justify the special treatment given to religion by the Bill of Rights, and difficult if not impossible to justify the special treatment given to the church by the case-law tradition of church-state separation.
Smith gives a brief version of the long tradition of “Two Rules” thinking in the West, according to which God’s rule of humankind takes one form in the church and another in the state, with each of these having a distinct jurisdiction, the church over “spiritual” affairs and the state over “secular” affairs. When traditional writers spoke of the liberty of the church, libertas ecclesiae, it was this way of thinking that they had in mind. Smith also tells the story of the rather episodic recognition of freedom of conscience. He concludes,
By the time Jefferson and Madison took their places on the historical stage, therefore, the tradition of honoring – and sometimes fighting or even dying for – separation of church and state and freedom of conscience was already centuries old. Jefferson and Madison and their fellow citizens in turn accepted that inheritance and developed it in their own distinctive ways. (124)
Smith argues then that between Madison and us, the word “secular” changed its meaning, so that no longer did it refer to this temporal existence of ours, this being understood theologically by the medieval and Reformation writers, but to away of thinking that excludes all reference to God or any other form of transcendence. If one insists then that legal reasoning and public discourse be secular in this second sense, one must expect that what will happen is what in fact has been happening in jurisprudence and legal theory: the tradition of church-state separation is eroded to the point where the church is regarded as one voluntary association among others, to be treated in the same way as the others. And no longer is the free exercise of religion regarded as calling for special mention but as a species of freedom of speech. Smith says that any secular thinker who still wants to preserve some trace of church-state separation and some trace of special treatment for religion is simply smuggling those ideas into the discussion.
While I think that Smith’s diagnosis of the incoherence of free exercise and establishment clause jurisprudence is correct, I myself would tell the story that leads up to Madison and Jefferson a bit differently. The Two Rules tradition pre-supposed that, within a given political jurisdiction, virtually all subjects of the state were also members of the church. Hence it was that church and state were distinguished not as two distinct communities but as two authority structures over one community. The religious fragmentation of Europe by the Reformation had the consequence that, by the time of Madison and Jefferson, this way of thinking was simply no longer possible. Add to this the fact that in the late 1700s, the distinction between natural and revealed religion was everywhere in the air. Thus it is that the First Amendment talks about religion, not about the church.
Madison contended in the Memorial and Remonstrance that “it is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him” (as quoted by Smith, 125). He explained that the “Religion then of every man must be left to the conviction and conscience of every man.” The thought is that every person has a natural duty to worship God according to his own conscience; accordingly, he must be accorded the civil right to do so. This is along way from the Two Rule jurisdictional way of thinking that the traditional idea of separation of church and state presupposed. That idea has already lost its underpinnings. What must be noted, however, is that Madison’s rationale for the free exercise and establishment clauses does continue the tradition in one important respect: it is an explicitly theological rationale. If one proscribes that and all other theological rationales, the two clauses seem just wrongheaded. That is how they seem to contemporary secular thinkers.
The last in Smith’s order of treatment is his diagnosis of the confused and generally unsatisfactory discourse on human rights. He begins by reviewing Carl Becker ’s caustic charge, in his now-famous Heavenly City of the Eighteenth Century Philosophers, that the philosophers of the Enlightenment never succeeded in unifying their scientistic, anti-religious, view of nature with their moral convictions. Smith asks whether this was accidental on their part or whether “the new, scientific worldview had rendered ideas like justice and morality anachronistic[.]” To answer this question, he turns to Martha Nussbaum’s so-called capabilities account of human rights. He has no difficulty in showing that Nussbaum has no way of accounting for why it is that each and every human being has a right to the development of the ten basic capabilities that she lists, and no way of accounting for the human dignity to which she appeals. Smith charges her with smuggling these ideas into her discourse.
Here I wish that Smith had been bolder in his argument. Nussbaum’s attempt to account for human rights and dignity is one of the least satisfactory on offer. Granted that Nussbaum’s secular account will not do, what we as readers want to know is whether there are other secular accounts of human rights that are successful; if not, we want to know why that is. In my own Justice: Rights and Wrongs, I argued for the strong theses that no extant secular account is successful and that there are reasons for thinking it unlikely that there ever will be any that is successful.
Let us review. Smith has taken note of the incoherence and superficiality that pervades our public discourse in three important areas of political and social morality; in each case he argues that an important source of the incoherence and superficiality is the insistence that public discourse be conducted in purely secular terms. I think he is right about this – though I would emphasize more than he does that this insistence works rather differently in the three areas.
In the discussion concerning physician-assisted suicide and the removal of life-support systems, the idea that the course of nature has a normative significance continues to exert its influence within avowedly secular discourse, even though it is hard to see how one could articulate and defend that idea without resorting to theological and metaphysical considerations. Is it right to say that secularists are smuggling this idea into the discussion? Perhaps. In the discussion concerning freedom of religion and concerning church-state separation, something very nearly the opposite is taking place: secularists argue for eliminating the special treatment of religion implied by the religion clauses of the First Amendment and for rejecting the libertas ecclesiae embedded in the case-law tradition of church-state separation. Here there is no smuggling. The role of secularism in the discussion concerning human rights is different again: theorists have been trying without success to develop secular accounts of human rights. I am reluctant to say that this lack of success means that they are smuggling the idea of human rights into the discourse. Oftentimes, theorists find themselves in the situation of not being able to give a satisfactory account of one and another phenomenon. To continue to believe, nonetheless, that the phenomenon is real, is not to engage in the illicit act of smuggling; it is to do what one ought to do in that situation.
What is the solution? Open up the conversation, says Smith. Allow those who believe that some issue is best thought of in theological terms to develop their thought in public. Allow those who believe the issue should be thought of in purely secular terms to develop their thought in public. Encourage them to talk to eachother. Public discourse is impoverished, says Smith,
because the constraints of secular rationalism prevent us from openly presenting, examining, and debating the sources and substance of our most fundamental normative commitments. Unable to acknowledge its deeper, determining strata, our discourse is condemned to superficiality (211).
I agree, though I think that the principle of “let the thousand flowers bloom” has to be qualified when it comes to the reasoning and the discourse of the judiciary.
But let us not be utopian concerning the prospects for public discourse should such opening up occur. We can expect that our discourse will be more substantial, more probing, if the restrictions are removed. But we must expect that it will also become more conflictual. Then again, it is hard to see how it could be more conflictual than it is at present.