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Abstract:
Public reason's default position is not atheism or agnosticism about the dependence of everything on a transcendent Creator. On the contrary, there is good reason to judge that there is such a transcendent cause, capable of communicating with intelligent creatures, that one of the world's religions may be essentially true and others substantially truer than atheism, and that there is a human or natural right to immunity from coercion in religious inquiry, belief (or unbelief, precisely as such), and practice so far as is compatible with public order, that is with the rights of others, public peace and public morality. Contrary to the arguments of legal theorists such as Dworkin, Eisgruber and Sager, and the "mystery" passage in Planned Parenthood v. Casey, the right to religious freedom should not be regarded as a mere instance of a general right to choose one's lifestyle and ethical beliefs or passionate choices. At the same time, any religious beliefs or practices which deny or overlook that right to religious liberty, and which encourage or license intimidation in relation to religious belief or in the name of religion, are not immune from coercive defensive measures where necessary for the protection of the rights of others or of the other aspects of public order. Such measures discriminate amongst religions justifiably.

Religion, religious liberty, discrimination between religions, public reason

Abstract:
'Public reason' in Rawls's stipulated usage signifies propositions that can legitimately be used in deliberating on and deciding fundamental issues of political life and legislation because they are propositions which all citizens may reasonably be expected to endorse: their use is therefore fair (respects the moral principle of reciprocity) and preserves the public peace which is at risk from contests between comprehensive doctrines, contests exemplified by wars of religion. This attractive set of suggestions is ruined by irresoluable ambiguities, truncation of reason's resources and of public discourse just when they are most needed, and incipient capitulation to some radical injustices. But public reason may nonetheless be an opportune phrase for conveying the gist of four permanently valid theses in the classical political thought that develops from Socrates/Plato to Aquinas and beyond. That tradition has been significantly modified by recognition that a human right to immunity of religious beliefs and acts from coercion extends - precisely by reason of the importance of finding and adhering to the truth about the divine source of reality and value - to mistaken as well as correct religious beliefs and practices. That immunity is subject to limitations necessary to preserve public order; likewise, a religion's legitimacy as a source of reasons for public actions is dependent on its willingness to foster genuine public discourse. Analogously, a political or legal philosophy's rational warrant is dependent on the compatibility of its theses with the worth of authentic discourse and the support they give to institutions, including the rule of law, which favour such discourse. Habermas's account of discourse ethics fails by overlooking some truths about discourse, truth and friendship that Plato made clear in Gorgias. And (the rule of) law, too, is most adequately understood as a product and articulation of public reason.

public reason, freedom of religious belief and practice, legal philosophy, Habermas, discourse ethics, rule of law

Abstract:
Linking theses of Plato, Wittgenstein and Weber, section I argues that identification of central cases and settling of focal meanings depend upon the theorist's purpose(s) and, in the case of theory about human affairs - theory adequately attentive to the four irreducible orders in which human persons live and act - upon the purposes for which we intelligibly and intelligently act. Among these purposes, primacy (centrality) is to be accorded (by acknowledgement, not fiat) to purposes which are, as best the theorist can judge, reasonable and fit to be adopted by anyone, the theorist included. Section II defends the reasonableness (and hence entitlement to universal assent) of practical and moral judgments, against Michael Perry's ultimately nihilist claims that egoism's challenge to moral normativity has gone unanswered and that reason for A does not entail reason for anyone else. Section III takes up Steven Smith's suggestion that such subjectivism is encouraged by the talk in Natural Law and Natural Rights of pursuing goods, talk which (he argues) is individualistic and neglectful of (other) persons, inimical to an understanding of friendship, and impotent in the face of egoism. Here as elsewhere the key is to grasp that understanding any basic or intrinsic human good is to understand it as good for anyone like me and thus - since I instantiate and embody a universal, viz. human being - as a good common to (good for) anyone and everyone. Section IV argues that common good (which includes respect for human rights, and the Rule of Law) gives reason for exercise and acceptance of authority, and for allegiance, even (and in a sense, especially) in time of breakdown. Section V argues that natural law theory is no more dependent on affirming God's existence than any other theory is, in any of the four orders of theory, but equally that it is not safe for atheists. For, like any other sound theory, it suggests and is consistent with questions and answers about its grounds, in this case about the source of its normativity and of the human nature that its normative universals presuppose and affirm; and the answers are those argued for, too abstemiously, in the last chapter of NLNR and, more adequately, in the equivalent chapter of Aquinas.

Abstract:
This address at the Hart Centenary Conference in Cambridge in July 2007 reflects on foundational elements in Hart's method in legal philosophy. It argues that his understanding of what it is to adopt an internal point of view was flawed by (a) inattention to the difference between descriptive history (or biography or detection) and descriptive general theory of human affairs, (b) inattention to practical reason as argument from premises, some factual but others normative (evaluative) in their content, and (c) relative inattention to the deliberations of law-makers as distinct from subjects of the law. These flaws contributed to a concept or theory of law that so truncated its account of the juridical, and of the sources of legal reasoning, that it could provide little or no guidance in situations of legal difficulty. The paper suggests that these flaws result, to some significant extent, from the skeptical doubts about morality evident particularly in his later work. All this has implications for the kind of approach to law and legal theory often self-described as positivist.

Abstract:
The question whether government and law can discriminate between different religious faiths (or their adherents as such) is given a resounding answer by a unanimous Grand Chamber (seventeen judges) of the European Court of Human Rights in Refah Partisi (No. 2) v Turkey (2003), upholding the dissolution of the largest political party in Turkey's legislature on the ground that, as a dominant member of the governing coalition, it intended to introduce sharia law either for everyone or as part of a plural system of laws for citizens of different faiths. For sharia, the court held, is inherently (and even if adopted democratically and without threats of force) incompatible with the European Convention on Human Rights and the conceptions of democracy and the rule of law which the Convention enshrines. Refah in turn grounds the same Court's decision in Sahin v Turkey (2005), upholding the prohibition of the wearing of head scarves in universities in Turkey. And Sahin is, inconspicuously but clearly enough, at the foundation of the House of Lords' decision in R (Begum) v Denbigh High School Governors [2006] UKHL 15, [2007] 1 AC 100. The present paper, written for a volume of essays on extreme speech and democracy, argues that despite its unpersuasive reasoning (in which essential premises such as those displayed in Sahin and Refah are never sufficiently articulated), Begum was rightly decided, and that - especially in relation to immigration - it is not extremist, or a case of extreme speech, to propose discrimination analogous to that endorsed by the Strasbourg Court in those cases.

Justified discrimination, religion, faiths, shariah, immigration, speech, Begum, Refah Partisi, human rights litigation

Abstract:
This paper explores some ways in which law is rightly both universal and particular. Individual and social identity is partly a consequence of, as well as a basis for, self-determination by free choice. Moreover, in the deliberation that precedes free choice, establishing and maintaining identity should often figure as an opportunity, a good in itself. Dworkin's "integrity", linked as it is to the "personification" of a specific political community, witnesses to this. One important consequence of and basis for self-determination is marriage, and the ascent from family to state is made generally feasible by sharing of language in all its nuance. The proper jurisdiction of law is public good, and political parentalism is unsound. But Dworkin's contention that laws made for public good on the basis of specific conceptions of human good are denials of equality of concern and respect is mistaken; the varying arguments he has used to defend it are unsound. Equally unsound is Raz's contention that to seek to require immigrant groups to assimilate, e.g. linguistically, is insulting. A policy of requiring assimilation need not be motivated by any disrespect for immigrant cultures, but may seek merely to avert the social evils attendant on e.g. absence of common language, evils well identified by Raz himself. And laws predicated on the judgment that some immigrant culture is inferior in ways that directly or indirectly threaten public good may be as respectful of the members of that culture as justice and humanity require. Raz's support for liberal multiculturalism does not cohere with his support for national self-determination, and by neglecting the possibility and desirability of justly discriminating on cultural grounds against certain would-be immigrants fails to reply to the (hypo)thesis that the political culture he calls liberalism is self-destructing.

Abstract:
This essay, a version of which will appear in volume 54 (2009) of the American Journal of Jurisprudence, was conceived as an invited contribution to a projected volume on Twentieth Century political philosophers. It offers first a sketch (by a student and colleague) of H.L.A. Hart's life; second an account of the political philosophy which he explicitly articulated in The Concept of Law (1961), and of its relation to the main currents of Oxford political philosophy in the 1950s; and thirdly an exposition and critical assessment of the normative political theory deployed, to widespread acclaim, in his Law, Liberty & Morality (1963).

Abstract:
It is an aspect of political liberty, and thus of our common good, that we must accept the risk that some of our fellow citizens, being left at liberty, will abuse that liberty and do us harm, leaving us to ex post redress. Justice does not require that we accept the same level of risk from non-citizens. Authority to exclude and expel non-citizens (non-nationals, foreigners, aliens), and to detain them pending, and in order to effect, their removal from the national territory, is an instrumental aspect of the common good. Governmental powers, even the most basic, can atrophy unless understood as rooted in constitutional principles which, like competing constitutional principles such as equality before the law or liberty of movement and association, are aspects of the nation's common good. Inattention to the place of the expulsion power in a web of principles of reciprocity, trust, and differential obligation to accept risk, together with inexplicable neglect of both conventional and statutorily mandated norms of statutory interpretation, led to a thoroughly mistaken set of judgments in the leading case, A v. Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68, decided by an almost uniquely large Appellate Committee of the House of Lords. All nine Law Lords overlooked their duty to interpret the statutory provision so far as possible as compatible with the Human Rights Act 1998 before declaring it incompatible. Even apart from that duty under HRA s. 3, there was available but unconsidered a reasonable interpretation such that the power to detain alien terrorist suspects had as its ongoing precondition a purpose, manifested in bona fide efforts, to deport them and to secure whatever arrangements with foreign governments might be necessary to make deportation lawful under the Chahal doctrine about real risk of torture or degrading treatment. The majority's arguments from irrationality and discrimination are manifestly unsound once the statute is interpreted as it should have been.

Abstract:
This working paper for a conference, held at the Cambridge Centre for Public Law in January 2008, between the Court of Appeal's judgment in Bancoult (No. 2) and the hearing of the appeal in July 2008, argues that the Court of Appeal judgments err in their handling of (a) the context and purport of the Colonial Laws Validity Act 1865, (b) the location of the Crown in the undivided realm comprising the United Kingdom and its Overseas Territories (a matter mishandled by the majority of the Lords in Quark Fishing (2006), (c) the common good legitimately in view in the making of the prerogative legislation - regulating immigration to the British Indian Ocean Territory - overturned in Bancoult (No. 2).

Abstract:
This address to a philosophical conference on truth and faith in ethics engages in an extended critique of the account of truth in Bernard Williams, Truth and Truthfulness: an essay in genealogy (Princeton University Press, 2002). For any jurisprudential, moral or political theory that affirms natural law needs to respond first to sceptical denials that reason can discover any truths about what ends all human individuals or groups ought to pursue. But any such theory also needs to make clear how it differs from, even when it coincides in moral judgment with, bodies of moral teaching self-identified as part of a divine revelation addressed to everyone. It also needs to show how truths of natural law provide grounds for rejecting, as well as for accepting, particular human claims to be the bearer of such a universal revelation. Parts I to III below address these issues through a critical examination of some contemporary philosophizing which, while acknowledging the warranted universality of the predicate “is true,” withhold that predicate from the principles of practical reason. Parts IV and V address another aspect of universality and particularity about which natural law theory needs to get clear: how the moral norms of natural law, properly as universal as human nature and the community of all people and peoples, nonetheless warrant strong loyalty to specific communities, above all one’s country and one’s marital family.

ethics, natural law, universality, particularity, revelation, reason, loyalty

Abstract:
This paper, written for a special issue of The Monist 91 (2008) on marriage, offers a fundamental account of marriage as a basic human good and institution, with some reflections on the moral and social implications of the good’s exigencies (requirements), not least its heterosexual character.

marriage, intrinsic good, basic human good, sexuality, divorce, natural law

Abstract:
This address to a conference in Princeton on religious liberty in the contemporary situation engages in a critical review of the main thesis of Christopher Eisgruber and Lawrence Sager, Religious Freedom & the Constitution (Harvard UP, 2007), that religion is not “a … category of human experience that demands special benefits and/or necessitates special restrictions,” or any “special immunity for religiously motivated conduct.” Against this position it is argued that natural religion of the form manifested in the New York Regents’ prayer outlawed by the US Supreme Court in Engel v Vitale (1962) is not to be put on the same constitutional level as (or below) other human passionate interests or even conscience. The paper considers inter alia the Indian and the European Convention provisions on religious liberty.

religious liberty, free exercise, liberty, religion, freedom of religion

Abstract:
This review article, now published in the National Catholic Bioethics Quarterly, Spring 2009, focuses on several themes in the two volumes, posthumously selected, edited and published by a daughter and son-in-law, of G.E.M. Anscombe’s philosophical and philosophical/theological essays. Of first importance is her philosophical explication and defence of the spirituality of human life, as manifested in even the simplest act such as pointing to something as an example of colour rather than of shape. With that is connected her defence of freedom of choice in face of scientistic doubts. Then there is the question of the proper interpretation of her famous thesis about the dependence of the moral ought on divine law; and the question whether or how she applied her epoch-making explication of intention in her own treatment of moral questions. The review also discusses the progress of her thought about contraception to an understanding of the relation between sex and the good of marriage itself; and her thoughts about the rational preambles to religious faith.

Anscombe, faith, Catholic philosophy

Abstract:
This casenote on R (Purdy) v Director of Public Prosecutions [2009] UKHL 45, argues that the very last decision of the Appeal Committee of the House of Lords was an ill judged, constitutionally unsound intervention in the execution and maintenance of a legislative public policy soundly conceived for the protection of the vulnerable (and for the upholding of a vital element of public morality). The right to private life cannot reasonably be taken to have the implications for prosecution policies that the Lords attributed to it.