Martha Nussbaum is a foremost American philosopher with a strong interest in Us constitutional law and free time of religion who recently published a book on "Liberty of Conscience: In Defense of America's Tradition of Religious Equality". She has recently been promoting the tradition of religious accommodation she finds in American legal and political history to Europe (for example at the Unseld Lecture at the University of Tübingen June 2010). But is it as easy as she thinks to take her righteous American message to a European audience? Or does she need to some some homework first on properly comprehension Europe's circumstances and history?
Nussbaum argues that i) the world is difficult and deep and people's transcendental striving to understand the meaning of life should be respected; 2) this 'conscience' is a fragile capability that is very vulnerable to external destruction and oppression by state institutions; 3) fairness requires treating citizens equally and that means the state should actively ensure people's effective free time of conscience by development sure that by religious habitancy do not face undue burdens for keeping their beliefs. Following Roger Williams - founder of Rhode Island and the American tradition of religious pluralism - Nussbaum characterises state restrictions on practising one's religion as 'imprisonment' and laws requiring one to go along with an official religion as 'soul-rape'.
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What does this mean? Nussbaum interprets equal security of the liberty of conscience to want states to 'accommodate' the requirements of separate religions (unless there is a compelling presume of state or disagreement with other core rights). Accommodationism means that Quakers can claim exemption from compulsory troops service, since it would place excessive and unequal burdens on them, given the centrality of their beliefs about pacifism in their lives. Similarly, members of religions with non-standard religious holidays cannot be required to work on them; religions that want extra dress, sacramental drug use, animal sacrifice, etc. Will all get extra exemptions from general laws.
Bringing this tradition to Europe, Nussbaum argues that American accommodationism is the right way to go, and particularly criticises the established (national) churches that are still tasteless in Europe. She argues that even in a weak form they still subordinate members of non-majority groups ('soul-rape').
In response I have 3 main points: 1) that the American doesn't nothing else but understand the European situation; 2) that liberty of conscience can be seen as a strong presume for restricting liberty of religion; 3) that equal liberty of conscience requires equal treatment of non-religious and religious claims straight through better general laws rather than extra accommodations.
1) The American liberal tradition that brought about the accommodationist interpretation of the 1st Amendment security (which is not the only way that American legal scholars clarify it!) industrialized in the context of competition between religions who each view they were right. Even now American atheists only estimate between 5-16% (depending on whether you take self-professed atheists only or also those without a professed religion). But in Western and Northern Europe the infamous 'secularisation thesis' nothing else but happened: we have seen a transition from a state majority religion (a la Westphalia) to polities with an absolute majority of non-religious citizens. Although many European states still have a formal religious establishment, our societies are overwhelmingly secular; in discrepancy America is formally secular but has an overwhelmingly religious (Christian) society. That the Us president has to be a Christian seems very strange to us.
That discrepancy is primary because our contemporary religious tensions are not nothing else but between say Islam and Christianity, but between religious piety and secularism. What European states are struggling to get to grips with is an influx of habitancy who claim to nothing else but care about religion (although it is true that if they were Christian our cultural background might make it slightly easier to understand them). To the secular man living in a secular society, religion is hard to distinguish from culture, and claims about the transcendent go right over our heads. To us the very characterisation of conscience as private transcendental striving seems rather closer to protestant ideas of the character of religion (naturally preeminent in American history) than an anthropologist's 'culture-neutral' understanding. In addition, Nussbaum's framework presupposes religions to have a obvious organisational form (basically Christian analogous churches) to bring these legal claims effectively, which is again easier for some religions than others (like Daoism). Thus the idea that personal transcendental struggle, organised in church-like groups, is a excellent kind of performance that should get some kind of extra rights, privileges or resources seems rather fishy to the European liberal and not very equal at all.
2) Furthermore, in the European context we are far more aware than Nussbaum appears to be of how fragile conscience is, not only to state oppression but also to oppression and subordination by house and community. habitancy retell to each other, not only to the state. Much of our scepticism of the new waves of religiosity is therefore nothing else but implicated with the position of vulnerable 'members' (particularly women and children, but sometimes - with 'religions' like Scientology - everyone). We take the state's role in protecting liberty of conscience to sometimes want actively protecting habitancy from religion (e.g. By development sure everyone nothing else but has the effective free time and resources to leave their religious community) in order for the free time to practise one's religion to have any credibility and legitimacy. (Of policy this position can blur into a secular prejudice against religions one doesn't understand, as apparent in e.g. Debates about the headscarf and women's rights. The Usa also provides some prima facie evidence, in its successful store for religion, that religious upbringing in a pluralist environment is not necessarily all-determining, although it seems obvious that it can still be quite traumatising, though Nussbaum prefers 'character-building'.)
3) ultimately the European liberal finds it very difficult to understand the Us accommodationist position as liberal. nothing else but this whether privileges members of religions or treats them as if they were disabled. It privileges them by giving extra exemptions, from general laws that go against their principles, which are not ready to lowly citizens who might still find the law appalling. Quakers get out of troops assistance automatically but the rest of us have to demonstrate independently a coherent sophisticated 'personal theology' that satisfies a troops retell panel (sounds as demanding as a PhD defence!). It seems to treat them as disabled by interpreting general laws as particularly burdening them (like the current set up of our public converyance system places singular burdens on those without majority-standard bodily capacities). The European liberal does not see accommodationism as the right solution on whether perspective.
The European liberal doesn't think the contents of a person's beliefs to be appropriate matter for a court to value - they have sufficient issue with the relatively easy concepts of motive and intention. In general the state should stay out of people's heads and law courts in singular don't seem to have the relevant expertise in science of mind or theology that would make them an effective or fair instrument for such tests.
We care about system and persons - not singular religions - and our general laws should reflect that. If anyone can show give good arguments against their general reasonableness, we should change those parts of the law, not grant that singular man a extra exemption. John Locke proposed a principle of state neutrality that remains influential: If Latin is legal in schools, it should be legal in church. The European liberal simply inverses this principle to add that if Latin is legal in church, it should be legal in schools. E.g. If the sacramental use of peyote is to be permitted for anyone, a way must be found to make its legalisation a matter of a generally accessible principle i.e. ready to all who wish to use it in a sacramental rather than recreational setting, without added exam of personal beliefs. The religious can thus be seen as pioneers whose sophisticated theology comes to the assistance of testing bad laws and generating new liberal principles, rather than as the foundation for a divisive identity politics.
Considering religions as disabilities, the European liberal sees accommodationism as potentially stigmatising, since the state identifies a man by their religious identity and the extra burdens they bear. It is also gives an odd impression of religions, as something that just happens to you (like being hit by a truck and losing your legs), but also primary to the private (so society shouldn't try to cure you but cater to your new extra needs). But leaving that contentious issue of free will and religion aside, it is nothing else but far better to try to amend the failings of our public infrastructure towards a more universally accessible produce (as we are now belatedly doing with our bodily infrastructure in response to the legitimate challenges of the physically disabled). Accommodationism, which is strongly associated with judicial interpretation, would therefore be a last resort, after trying changes to general laws (and constitutions) with the pleasing democratic legitimacy that entails.
Nussbaum's response
i) How does Nussbaum sass to these concerns? Not well. She first accuses Europe of having 'majority-blindness' in that the legitimate demands of members of the majority religion are imperceptible because already integrated into the institutions of the state. Even Denmark apparently, where only 4% of the habitancy goes to church regularly, is to Nussbaum a majority Christian country because habitancy still have church weddings and funerals. This nothing else but is not an sufficient response to the empirical fact that most citizens in W. Europe don't give a sh*t about religion and are nothing else but baffled by those who do. Even Turkey is going straight through the same phenomenon, with pious Anatolians sweeping into Istanbul and upsetting the political mainstream's secular identity.
ii) Nussbaum then switches from religion to ethnicity in a troublingly simplistic way and accuses Europe of being in the grip of an anti-immigrant reaction of fear and disgust, of having a "complacent love of homogeneity that is scared of real difference". nothing else but some of the populist reaction to immigrants in Europe has had that character (although a up-to-date Gallup poll suggests that in many European countries, Islamic citizens nothing else but have more faith in their governments than the median citizen), but then her whole conference about religion - and its extra transcendental capability and centrality in the lives of habitancy goes out of the window. At points like this, Nussbaum's basic (American liberal) concern that members of minority groups need group ownership associated to group beliefs to protect them from discrimination and lack of respectful toleration by majorities bears a troubling resemblance to the rhetoric of those arguing for security from religious defamation. (But only the rhetoric, of course. Nussbaum doesn't think free time of speech is any less foremost than religious freedom.)
iii) On changing laws rather than granting accommodations, Nussbaum simply says that it is impracticable. Although when she is talking about disability she takes it for granted that we can and should redesign our public architecture towards universal design, and can changing a few laws be any more complicated or expensive than that?
Conclusion
I think before trying to propose us guidance Nussbaum has to recognise that Europe has a separate association to liberalism and religion than her American tradition. Since she claims to be a 'political liberal', committed to finding an overlapping political consensus rather than development unabridged claims based on a controversial religious doctrine (i.e. Us liberalism), she would do well to take a harder look at the separate components ready in European liberalism for an overlapping consensus on the security of equal liberty of conscience. It will necessarily take a separate form from America's: less religious, less sweeping, and less accommodationist.
Martha Nussbaum Instructs Europe on What Religious freedom RequiresRecommend : todays world news headlines
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