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Why Tolerate Law?

44 Pages Posted: 7 Apr 2017 Last revised: 23 Apr 2017

Valeriano Diviacchi

Harvard Law School; New York University

Date Written: April 7, 2017

Abstract

This essay begins by an analysis of the fallacious logic, unsound premises, hidden premises, and inconsistent word meanings in Brian Leiter’s “Why Tolerate Religion”. It will then argue further that this question is essentially gloating because in Western Technological Society the law does not tolerate religion in any sense but a nominal one and most certainly not in any normative or pragmatic sense, the only senses that matter for either law or religion. Western Law has negated and displaced Western religion to become the only normative power in Western Civilization. Thus there is realistically nothing left to tolerate of Western religion with only law remaining with a monopoly on violence to enforce its norms. The realistic question that should be asked is why tolerate law qua law: what principled argument is there for tolerating law with its special monopoly on violence? If this special toleration for the law is really just a categorical demand unhinged from reason and evidence then by Leiter’s own reasoning, it is a religion with its own morality and demigods not entitled to this special toleration. Realistically, without Western law and Western religion giving each other special toleration as separate but equal communal normative powers, the former violent and the latter nonviolent, either is a tyrant willing to kill the innocent for power and there is no principled argument to tolerate either. This essay also examines the philosophy that is the foundation for modern philosophy of law giving it the delusion it ought to negate and displace Western religion. As Leiter describes, it is: the realistic “Dionysian” perspective on life of a Nietzsche that is life affirming compared to the life threatening perspectives of Plato, Socrates, the “crucified”, and the Stoics. Just as Leiter ignores the pragmatic significance of Dionysus being a god while the other four were human, Western law is ignoring the pragmatic importance of separate but equal religious normative power as a counterbalance to the by necessity violent normative power of law. Finally, given that Western religion has surrendered its normative power to law, this essay tries to lay a foundation for a new counterbalance: a naturalized existentialism based on the courage of a Camus or Kierkegaard and not on the cowardice of a Nietzsche. This essay argues the latter Nietzschean form of existentialism in philosophy of law is really a disguised form of Hegelian worship of the state — the ultimate enemy of a free and open society.

Keywords: philosophy of law, religion, toleration, why tolerate religion, existentialism, Nietzsche, jurisprudence

JEL Classification: KOO

Suggested Citation

Diviacchi, Valeriano, Why Tolerate Law? (April 7, 2017). Available at SSRN: https://ssrn.com/abstract=2948585

Valeriano Diviacchi (Contact Author)

Harvard Law School ( email )

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Cambridge, MA 02138
United States

New York University ( email )

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