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From the Bottom Up
From the Bottom Up
Selected Essays

Kent Greenawalt

3
3
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Library of Congress Cataloging-in-Publication Data

Names: Greenawalt, Kent.
Title: From the bottom up: selected essays / Kent Greenawalt.
Description: New York: Oxford University Press, [2016]
Identifiers: LCCN 2015041707 | ISBN 978–0–19–975616–2 (hardcover: alk. paper)
Subjects: LCSH: Law—Methodology. | Law—Philosophy. | Reasoning.
Classification: LCC K212. G74 2016 | DDC 340/.1—dc23 LC record available at
http://lccn.loc.gov/2015041707

9 8 7 6 5 4 3 2 1
Printed by Sheridan, USA
Contents

Introduction 1

PART I: BASES FOR LAW, INCLUDING PUBLIC REASONS, OTHER

POSSIBLE GROUNDS SUCH AS RELIGIOUS CONVICTIONS
AND NATURAL LAW; AND THE EDGES OF LAW

1 What Are Public Reasons? 15

2 On Religion and Politics in Liberal Democracies 27
3 Religion and Public Reasons: Making Laws and Evaluating
Candidates 43
4 How Persuasive Is Natural Law Theory? 59
5 Natural Law and Public Reasons 83
6 Hart’s Rule of Recognition and the United States 96
7 Too Thin and Too Rich: Distinguishing Features of Legal
Positivism 114

PART II: L AW AND OBJECTIVITY; ENFORCEMENT, UNDERSTANDING,

AND OBEDIENCE

8 Legal Enforcement of Morality 135

9 Law and Objectivity: How People Are Treated 149
10 How Empty Is the Idea of Equality? 184
11 “Prescriptive Equality”: Two Steps Forward 200
12 From the Bottom Up 221
13 Distinguishing Justifications from Excuses 254
14 Promise, Benefit, and Need: Ties that Bind Us to the Law 273

PART III: APPROACHING SOME KEY ISSUES ABOUT LAW AND

LIBERTY: CRIMINAL PROHIBITIONS, FREEDOM OF
EXPRESSION, AND FREEDOM OF RELIGION

15 Punishment 303
16 A Vice of Its Virtues: The Perils of Precision in Criminal
Codification, as Illustrated by Retreat, General Justification,
and Dangerous Utterances 320
vi Contents

17 “Clear and Present Danger” and Criminal Speech 337

18 Free Speech Justifications 356
19 Insults and Epithets: Are they Protected Speech? 387
20 Five Questions about Religion Judges Are Afraid to Ask 401
21 Religious Toleration and Claims of Conscience 437

Index 517
From the Bottom Up
Introduction

This collection of essays, previously published in various journals, covers

a wide range of topics, including political philosophy, legal philosophy,
standards of legal interpretation, and sensible approaches to such issues
as criminal law, freedom of speech, and freedom of religion. More specif-
ically, the essays concern such matters as public reason as a possibly nec-
essary basis for law; the extent to which religious convictions may figure
in law-​making; the persuasiveness of natural law and the possibility of
its being read as a version of, or alternative to, public reason; what really
distinguishes legal positivism from competing theories of law; discerning
the “rule of recognition” for the United States and what that shows about
the edges of law; to what extent laws should enforce moral norms, and
when claims of conscience may warrant exemptions from ordinary legal
requirements; how various grounds support observance of legal duties;
how one may distinguish justifications from excuses in criminal law and
what bases support criminal punishment; the underlying justifications
for freedom of speech; whether insults and epithets should be protected
speech; what questions judges should not ask, or must address, when
they consider religious claims; and how far “equality” is really an “empty”
concept or contains a degree of independent weight.
Various readers may understandably be much more interested in some
of these questions than others; but a common theme does connect much
of my scholarship, one that has become more apparent to me when gather-
ing these essays and reading reviews on which warrant publication. That
theme is captured by the book title. On virtually all questions, I resist
the idea that abstract categorization can really resolve difficult practical
questions about how people should act and what the law should provide.
The essays consistently suggest nuances and subtleties in the concepts
themselves, and the relevance of a range of considerations. These usually
obliterate the plausibility of simple, across the board, answers and often
reveal why the right course of action is genuinely contestable. Related
to this point is the importance of relying on individual and communal
experience, rather than supposing that abstract reason will do the job by
itself. This truth leads to the conclusion that even among liberal democ-
racies, differences in history, culture, and structures of government can
affect how various officials and citizens should be guided. In brief, much,

1
2 From the Bottom Up

much more depends on context than is often acknowledged by those

engaged in philosophical and legal reasoning.
Two particular aspects of the essay selection here are worth noting.
Many of the topics have been engaged in one form or another in books
I have written. I have not lifted chapters from these books, but some
of the essays treat succinctly matters that the books analyze in greater
depth. Others concern issues that none of the books really address.
Because this group of essays is being published shortly after Interpreting
the Constitution, my third volume on legal interpretation, I have avoided
replicating what is covered in its chapters. As a consequence, the essays
here do not treat in depth many of my views about freedom of speech
and religion, discussed in two lengthy chapters of this recently published
book. Largely for this reason the pieces here do not fully reflect the
degree to which I have devoted myself to various topics. They more fully
represent my stances on broader issues of political and legal philosophy
than on particular constitutional rights and competing strategies of con-
stitutional, statutory, and common law interpretation.
Another aspect is that, for most of the essays and articles, I have not
included many footnotes that delve into further complexities or qualifi-
cations, or provide more extensive citations. Readers who want to pursue
one or more of these topics in greater depth may do so partly by retriev-
ing the original pieces, though, of course, much scholarship has devel-
oped since many of these were published.

PART I BASES FOR LAW, INCLUDING PUBLIC REASONS, OTHER

POSSIBLE GROUNDS SUCH AS RELIGIOUS CONVICTIONS AND
NATURAL LAW; AND THE EDGES OF LAW

This part first addresses what has become a key issue in political philoso-
phy: should the laws in a liberal democracy rest only on public reasons,
that is, reasons supported by the basic premise of such democracies and
rationally shared by each citizen. The most obvious kind of reason that
is not public in this sense is a religious conviction of a particular faith or
individual. As a consequence, much of my discussion of this broad issue
concerns the possible place of religious convictions in our political life.
Among my many claims is that deciding what really count as “public
reasons” is itself far from simple, a truth well revealed by a focus on
natural law. That concept can be seen as a version of a public reason or
an alternative approach, or as combining aspects of, and alternatives to,
public reason.
The second broad subject in this part concerns the edges of law. What
counts as law and why. This is a general topic of legal philosophy. One
essay focuses on the particular idea of a “rule of recognition,” how that
might be seen as applying to the United States, and what this shows about
the difficulty of distinguishing underlying premises from the law that
 Introduction 3

flows from those premises. The second essay deals more generally with
legal positivism and its competitors, urging that the exact line of division
is far from clear and may not make a great deal of practical difference.

Public Recourse, Religious Convictions, Making Law, Interpreting

Law, and Evaluating Candidates
The first essay, “What Are Public Reasons?”, explores a question that
turns out to be critical for the place of public reasons in lawmaking, and
whether other reasons should be excluded from lawmaking. Among the
basic concepts is this: that public reason excludes ideas of the good, all
nonrational grounds, all comprehensive views, or any underlying assump-
tions not widely accepted by the public. I urge the serious obstacles to
each of these approaches taken alone, suggest that the line between pub-
lic and other reasons is hardly sharp, and that indeed what counts as
such a reason may depend on one’s position. What is a public reason for
a judge may vary from what would count for a legislator or citizen. All
this constitutes one basis not to exclude all other reasons. Although part
of this original essay covered natural law, that section is omitted here
because the subject is covered in the fifth essay.
The second essay, “On Religion and Politics in Liberal Democracies,”
directly addresses whether citizens, legislators, and judges may some-
times appropriately rely on religious grounds they find convincing. I urge
that this is most appropriate when public reason provides no answer, for
example regarding the status of higher nonhuman animals. I claim that
the constraints of public reason are greatest on judges, somewhat less on
legislators, and least on ordinary private citizens. I also assert, contro-
versially, that, especially for legislators, the constraints on appropriate
discourse may exceed those regarding on actual bases of decision. The
essay stresses the importance of the fact that any basic constraint of pub-
lic reason is not itself imposed by law, instead leaving it up to individuals
to determine what constitutes those reasons and whether to constrain
themselves. This makes too much depend on how an individual, who
may badly misconceive things, perceives the grounds of his convictions,
and of appropriate action. I here devote considerable attention to John
Rawls, and the development of his theory of public reason, challenging
his drawing of a sharp distinction between ordinary political issues, for
which citizens can rely on nonpublic reasons, and constitutional essen-
tials and basic matters of justice, which he believed should be resolved
only on public reasons. A general claim of the essay is that what are
appropriate bases for decisions about law can depend significantly on the
history, make-​up, and culture of a particular liberal democracy.
The third essay, “Religion and Public Reasons: Making Laws and
Evaluating Candidates,” first addresses public reasons as used by legisla-
tors and judges, and shows how what actually count as public reasons can
differ. It points out that even among public reasons, there can obviously
4 From the Bottom Up

be conflicts, and that public reason itself cannot always settle the com-
parative assignment of weight. Given this, it is impossible to expect citi-
zens and legislators to completely put aside their comprehensive views.
Public reason is radically incomplete on many issues.
When one turns to candidates for important public offices, their reli-
gious affiliations and convictions could make a difference for rational
voters; but were a candidate to explain fully his exact religious con-
victions, that could cause serious harms in terms of unfair prejudice.
Thus, in the United States, what makes the most sense practically is for
candidates to sketch how they see their religion and how it relates to
their political convictions, but provide neither an exhaustive exposure
of all the details nor a claim that their religion itself suits them ideally
for office.

Natural Law as a Basis for Human Law: An Alternative to, or

Version of, Public Reasons?
The next two essays address claims about natural law, how plausible they
are, how far they rest on the kinds of public reasons believed relevant for
law-​making, whether their fairly abstract basis and definitive categoriza-
tion represent a kind of universal rationality or are influenced by non-
universal culture, and how far they rest on religious convictions. The
second of these two pieces, “Natural Law and Public Reasons,” directly
addresses the relation of natural law ethics to public reason. It suggests
that some aspects of natural law theory fit more comfortably with mod-
ern views about public reason than do others. A more general point that
this illustrates is how hard it is to draw the line between ways of thinking
that do or don’t fit any accepted view of what should constitute a public
reason. Using debate over the status of stem cells as an illustration, I con-
clude that some natural law assertions are really hard to divorce from
religious convictions, a divorce that is asserted by leading modern natural
law scholars. In this essay, I also resist the conclusion that the positive
law of societies has nothing to do with public reason, rather concluding
that most, but not at all, specific legal issues can be resolved on the basis
of the kind of public reasons the law itself provides.
Although the second essay here relates more clearly to the preced-
ing treatments of public reasons, it seemed wise to first explore the
more basic questions about natural law. What does it contribute, are its
forms of reasoning universally valid, and what role may religious convic-
tions play in beliefs about natural law or specific conclusions? In “How
Persuasive is Natural Law Theory?” I concentrate on the work of John
Finnis, a leading (perhaps the leading) modern natural law scholar writ-
ing in English. On the sometimes debated question whether a human
law that violates natural law is really a “law,” I urge that the real concern
is whether such laws should be obeyed, and by whom, not whether they
are really “laws.”
 Introduction 5

On some basic questions, whether it is all right to kill innocent people

for no good reason, for example, I believe one can claim a kind of uni-
versal natural law, but on many other narrower questions, historical and
cultural context is important. Using three troubling examples, including
the acceptability of same-​sex relationships, I contend that natural law
reasoning is often too abstract and categorical, that there are limits to
what such reason can resolve, and that human experience needs to be
accorded considerable weight. The essay also claims that some particular
assertions made by natural lawyers are hard to defend by ordinary rea-
son, and may themselves rest significantly on religious convictions.

Lead Positivism—​Is Its Acceptance or Rejection Critical—​and

What Is the Rule of Recognition in the United States?
The two essays here are about legal rather than political philosophy,
insofar as that division is clear. The first, “Hart’s Rule of Recognition and
the United States,” addresses a specific issue about the nature of human
law made dominant in the work of H. L. A. Hart, whom I was fortunate
enough to have had as a tutor in my younger days. Basically the claim is
that all legal systems are based on some premises about what ultimately
counts as law and that the rest of the law derives from these. Thus, in
Great Britain it is assumed that Parliament can make law, and that judges
should follow precedents. These assumptions themselves are not autho-
rized by yet higher law, so they constitute parts of the ultimate rule of
recognition. Part of my thesis is that given the federal system, authori-
tative constitutions with possibilities of amendments, and the respec-
tive roles of different officials, discerning the ultimate rule for American
states is highly complex and has many features. One crucial complication
is the interpretive standards that judges use: an approach may be both
dominant on the present Supreme Court and not accepted as binding by
a particular justice. This suggests both that what a social scientist would
discern as part of the governing law may not be taken in that way by an
actual justice, and that the role of particular government officials may
affect what they take as binding. A further claim made in the essay is
that even if individual officials disagree about the ultimate rule and what
makes something part of the law, so long as they agree about what counts
as law, an actual system can function quite effectively. These various dif-
ficulties have an overall effect of casting doubt on how far any account of
a legal system can be completely conventional.
The second essay, “Too Thin and Too Rich: Distinguishing Features
of Legal Positivism,” tackles the question of what amounts to legal posi-
tivism and whether drawing the line between it and other approaches
is practically very important. Legal positivism, in a simple version, is a
theory that the law of a particular society is separate from moral judg-
ments. Competing theories generally assert that law and morality are
more closely intertwined. Just what counts as legal positivism is itself
6 From the Bottom Up

debatable, and some theorists who reject it assume a version that is not
accepted by others who consider themselves positivists. Urging both
that not all legal judgments can be divorced from moral judgments and
that many aspects of positive law are distinguishable from moral assess-
ments, I claim that trying to draw a precise line between legal positivism
and various competing theories is really impossible. Rather than debat-
ing whether legal positivism is a “sound” theory, the focus should be
on particular aspects about which it is debatable just how legal obliga-
tions should be assessed. For example, when existing law provides no
clear answer, should judges rely on community morality, their own moral
assessment, some assessment of other legal standards independent of any
moral judgment, or a combination of these. These are the kind of ques-
tions that really matter, not whether legal positivism in some form is
defensible.

PART II LAW AND OBJECTIVITY; ENFORCEMENT, UNDERSTANDING,

AND OBEDIENCE

This part deals with subjects that concern the application of human laws
to individuals and officials. It considers how far the law properly enforces
what is morally right to do, whether legal rules should be based on “objec-
tive,” general, factors rather than taking account of personal character-
istics and particular circumstances, and whether “equality” is really a
significant value for moral and legal choices. I then address what it means
for individuals and officials to comply with the laws. One essay uses an
analogue of informal institutions to clarify what is involved in perform-
ing duties and not violating them; this piece also explores complexities
about “meaning.” The next essay addresses issues that arise when persons
do not do what general standards, particularly those of the criminal law,
require, but are nonetheless not subject to punishment: when are they
justified; when are they excused; is there always a clear line? The final
piece of this part considers various claimed reasons why people should
comply with legal requirements, expressing skepticism that any theory
reaches all such duties.

What the Law Should or Should Not Take into Account

The “Legal Enforcement of Morality” addresses the question how far
the law should enforce what people morally should do. As with virtu-
ally all the other topics in this book, the claim is that there is no simple
answer to whether the law should require people to act in a way that is
morally right and that even narrow categorizations cannot provide deci-
sive answers by themselves. Clearly the law should forbid many acts that
harm others, but not every morally relevant harm, such as hurt feelings,
should count for legal restrictions. Sometimes the law should require acts
 Introduction 7

that benefit others; the failure of our laws to require a stranger to easily
rescue a drowning baby without any personal risk to himself is indefen-
sible in principle. The relevance of indirect harm to others depends on
multiple factors, such as the likelihood and importance of that harm.
When it comes to preventing people from harming themselves, those
making the laws of liberal democracies should be hesitant to override
individuals’ perceptions of what is good for them, but, as with seat belts
in cars, it can attempt to preclude irresponsible actions or failures to act.
And, contrary to John Stuart Mill’s approach, taxation may rightly be
used to discourage behavior, such as smoking cigarettes, that should not
be directly forbidden. If the basic claim for a prohibition is that an act
offends others or is seen by them as immoral, that should rarely suffice,
a conclusion that casts doubt on the typical ban on human beings having
non-​coercive sex with animals.
“Law and Objectivity” concentrates on how far laws do and should
take into account individual characteristics, perceptions, and cir-
cumstances, as compared with more general and objective standards.
Focusing mainly on what the criminal law contains, it argues that there
are multiple considerations appropriate for what one can expect of the
law itself, the officials who enforce it, and juries that assess violations.
These are not easily reducible to simple formulaic approaches. Although
most of the essay focuses on the arguable relevance of distinctive per-
sonal perceptions and characteristics, the last part addresses the use of
generalizations, for matters such as child custody and stop and frisk,
based on gender and race. Some uses of certain generalizations, such as
the relevance of a prospective parent’s age for adoption, are not really
controversial; others are much more troubling, as revealed to some
extent by recent controversies over police practices in city streets. Part,
but not all, of the concern is that unwarranted prejudices will supplant
any objective evaluations of probabilities. But as the discussion indi-
cates, even the use by private citizens and officials of objective prob-
abilities that are based on race and gender can create harms, some of
which should be avoided.
The following two essays, “How Empty is the Idea of Equality?” and
“Prescriptive Equality: Two Steps Forward,” concern the idea of equal-
ity as it figures in moral assessments and decisions and as it may also
matter in various legal contexts, such as sentencing. Both pieces are
essentially responses to claims that “equality” has little independent sig-
nificance. The basic idea here is that persons should be treated as they
deserve; of course, if two people deserve the same consequences they
should be treated equally, but “equality” adds nothing to what otherwise
is warranted. I contest this approach, in both its simple and somewhat
more subtle versions, arguing that equality can itself sometimes matter
for benefits or punishments persons should receive. I do not, however,
claim that this is always a major consideration; and when the individu-
als involved are not closely connected, for example when the issue is
8 From the Bottom Up

whether a precedent now seen as misguided should be followed, con-

cerns about “equal treatment” should not play a major role.

What Constitutes Compliance with Legal and Other Institutions

that Impose Duties, When Is Noncompliance Justified or Excused,
and What Bases Exist for a Duty to Obey Some or All Laws?
The first essay in this section, “From the Bottom Up,” explores the car-
rying out of informal instructions as a helpful analogy to understand the
force of individual instructions and general standards that create legal
duties. Given possible conflicts between more general purposes and more
specific guides, the relevance of changing circumstances, and differences
between an instructor’s intent and her listener’s reasonable understand-
ing, it is sometimes very difficult to come up with one definitive account
of what amounts to compliance or faithful performance. Various factors
are relevant, and it is crucial to be clear what perspective one is adopt-
ing. Accompanying these complications is the lack of a simple version
of “meaning”: one may refer to the intentions of the speaker, how a rea-
sonable outsider would understand her words, or how the person being
instructed best understood what was said.
“Distinguishing Justification from Excuses” delves into many of the
nuances found in circumstances in which a person does not warrant
negative treatment for failure to comply with the criminal law or other
imposed duties. There, is of course, a basic difference to be noted: a jus-
tification means that a person acted properly; an excuse, that we should
not blame him for his failure. However, in certain circumstances, the
theoretical line is not as clear as some have suggested. Notably, an action
may be appropriate based on reasonably perceived facts, though regret-
table as the actual facts turn out to be. People may also disagree about
whether certain permitted actions are really justified or only excusable
because of most people’s inclinations. An example of this is the right to
shoot anyone who breaks into one’s house, even in the absence of any
evident threat to one’s life. Given the various complexities in drawing a
precise line between the two categories, we should not regard it as wor-
risome that the criminal law fails to do so, though I do urge that some
instances of placement could be improved.
In “Promise, Benefit, and Need: Ties that Bind Us to the Law,” I ana-
lyze various philosophical accounts of why people should comply with
the law. The essay initially puts aside legal requirements that no one is
expected to obey—​such as speed limits of 55 mph on major highways on
which everyone is driving at 65 mph or higher. The three major theories
explored are promises (explicit or implicit) to obey, utilitarian reasons,
and a duty of fair play. I suggest that promises to obey are less common
then some have asserted and often less extensive in what they actually
imply, that basic utilitarian arguments support compliance sometimes
but not always, and that the duty of fair play, though it does cover various
 Introduction 9

circumstances not reached by promissory or utilitarian theories, does not

generate a general responsibility to comply with the law. In summary,
I urge that each of these theories does help explain why one should often
follow the law, and that they can function in a combination, but that
even taken together they do not establish a general duty to comply with
all laws. To be clear, the essay asserts not only that the duty to comply
is sometimes outweighed by other considerations, but also that on some
occasions it will have little or no force on its own.

PART III APPROACHING SOME KEY ISSUES ABOUT LAW AND

LIBERTY: CRIMINAL PROHIBITIONS, FREEDOM OF EXPRESSION,
AND FREEDOM OF RELIGION

Although some essays in this part relate closely to the theoretical analy-
sis in the prior parts, the focus here is more directly on how we should
determine what the law provides. This concerns statutory endeavors,
such as criminal codes and the Religious Freedom Restoration Act, con-
stitutional limits on government powers in the United States, and to a
lesser degree the content of common law. Some of the essays address
issues about judicial interpretation of open-​ended constitutional provi-
sions and statutes. The first two essays concern the appropriate bases for
criminal punishment and the dangers of trying to take complex multi-
factor considerations and reduce them to fairly simple formulations in a
criminal code. The next piece treats what should count as a “clear and
present danger” that allows treating what would otherwise be protected
speech as criminal behavior. The essay that follows is a broader explora-
tion of the force of various free speech justifications and how some apply
much more powerfully to some utterances than to others. I then turn
to the somewhat controversial topic of insults and epithets and when
these may appropriately be the basis of punishment or tort recovery. The
final papers deal with aspects of religion judges do, and should, avoid
in addressing claims under the religion clauses of the Constitution and
with possible exemptions from ordinary legal requirements that might
be grounded in religious convictions or broader claims of conscience.

Bases for Criminal Punishment and Excuses

“Punishment” explores a number of bases used to justify criminal pen-
alties. A notable division exists between the idea that violators simply
deserve punishment, a theory of retribution, and various utilitarian
notions that punishment can deter criminal actions, isolate those who
might again commit crimes and help to reform them, and also assist
those who have suffered to feel better. I urge that neither approach works
in isolation. People should not be criminally punished unless that will
help to accomplish some goal, but even if it would be useful, innocent
10 From the Bottom Up

persons should not be punished, and no one should be punished with

a severity far out of proportion to any crime he committed. Although
some nuances in authorized punishment are highly questionable, notably
strict liability that can carry a serious penalty, most major features of the
substantive law are consistent with the underlying justifications.
“A Vice of Its Virtues” explores in some detail certain problems with
attempts to codify broad bases for authoritative punishment and for jus-
tifying actions. The piece focuses on the Model Penal Code, parts of
whose commentary I had the privilege to work on, well after its adop-
tion. The three specific topics addressed are the right not to retreat,
general justifications, and dangerous utterances. Coming up with a few
examples that seem to be covered by the code’s language, I suggest that
the treatment that would entail is misguided. Although trying to codify
these subjects may be better than another alternative, and it is probably
impossible to dictate the correct outcome for all conceivable situations,
it is nonetheless helpful to be aware of these risks, and to consider the
possibilities of further development of some more general provisions of
a criminal code.

Freedom of Expression
“Clear and Present Danger and Criminal Speech” addresses situations
when otherwise protected speech can be punished and what qualifies
as potentially protected speech. Not every communication is actually
“speech” in the sense that matters for the First Amendment. If two peo-
ple plan a crime together or one directly urges the other in private to
kill someone for financial gain, this does not constitute relevant speech.
“Clear and present danger,” adopted by the Supreme Court as the test
for when otherwise genuine speech that may produce serious harms can
be punished, is a less than precise formulation. I explore such questions
as how soon must the feared harm likely occur, how serious need it be,
and does it matter what events must happen in the meantime for the
harm to occur? The essay is essentially an attempt to explore in some
detail a crucial constitutional standard for the range of speech that may
be punished as criminal.
“Free Speech Justifications” explores in some detail various claimed
bases for protecting speech. Resisting any claim that one single justifica-
tion protects speech and fails to cover other human activities, I urge that
a number of bases, including rights of autonomy and desirable social con-
sequences such as the discovery of truth, have roles to play and that their
comparative force varies with different forms of expression. The essay
also contends that the fact that various justifications for protected speech
and the press have some application to other human activities is not a
problem. It is the combination of reasons that warrants a special protec-
tion for speech, which is certainly a crucial aspect of liberal democracy,
although in some respects the best boundaries are arguable.
 Introduction 11

The next essay, “Insults and Epithets: Are They Protected Speech?”,
addresses one of those troublesome issues. How far should people be
protected when what they say is intended or highly likely to cause harm
to others. This is a particular kind of speech for which the United States
provides more protection than other liberal democracies. The essay con-
siders concerns about harm, such as violent responses, wounding the feel-
ings of listeners, and encouraging antagonism toward unpopular groups.
Given these concerns, people can reasonably disagree about just how far
such speech should be protected.

Protection of Religion
The last two essays deal with two particular topics involving the religion
clauses and statutory protections of religious practices. “Five Questions
About Religion Judges Are Afraid to Ask” explores various matters that
judges nearly always avoid, partly because their getting involved would
constitute an inappropriate connection of the state with religion. Most
obviously, they cannot determine whether a claim is not only sincere
but fundamentally accurate, or whether it necessarily conforms to the
doctrines of a person’s religious organization. They are also hesitant to
inquire deeply into actual sincerity and to judge the substantiality of a
burden. Finally, although they must often treat a claim as “religious” or
not, judges are understandably hesitant to try to come up with a defini-
tion of religion. In some depth, I defend the position that “religion” is not
susceptible to a clear definition but should for both legal and non-​legal
purposes depend on multiple factors. I also explore how judges might
best treat the other issues covered. Interestingly many of the subjects
in this essay also arise under the Religious Freedom Restoration Act.
The recent Hobby Lobby case interpreting that statute reveals how dif-
ficult it can be to discern a genuine “substantial burden” and how, with
extended exemptions, sincerity could also become a problem in some
settings, subjects I address in a recently published essay, “Hobby Lobby,
Its Flawed Interpretive Techniques and Standards of Application,” in The
Rise of Corporate Religious Liberty, edited by Micah Schwartzman, Chad
Flanders, and Zoë Robinson, pp. 125–​147 (New York: Oxford University
Press, 2015).
The final article, “Religious Toleration and Claims of Conscience,”
explores an issue that is now highly controversial, especially after the
Hobby Lobby case: when should those with religious convictions be
exempted from legal duties, particularly if those performing those duties
promote the rights of others or basic rights of equality? The essay explores
various reasons to recognize rights of conscience. In contrast to those
who claim that it is always or never appropriate to single out religious
claims, I urge that much depends on the particular subject involved. For
a draft law, nonreligious pacifists should be treated like religious ones; for
an exemption regarding how to kill animals for consumption, limiting
12 From the Bottom Up

exemptions from requirements to religious claims for special treatment

is appropriate. The essay explores in some depth concern about religious
exemptions and contraceptive use and same-​sex marriage. Because the
piece is recent and of fairly broad interest, I have not here deleted any
of its footnotes. The basic subjects of this chapter are explored in more
depth in my recently published book: Exemptions: Necessary, Misguided,
or Justified?
As noted throughout this Introduction, the essays published here face
a number of difficult, controversial issues about basic political and moral
judgments as they relate to law. Many of the essays also tackle particular
controversial questions about constitutional and other protections. My
fundamental theme is that simple answers are almost always less avail-
able than is asserted. We need to recognize complexities and how com-
binations of circumstances often figure.
Part I
BASES FOR LAW, INCLUDING PUBLIC
REASONS, OTHER POSSIBLE GROUNDS SUCH
AS RELIGIOUS CONVICTIONS AND NATURAL
LAW; AND THE EDGES OF LAW
Chapter 1

What Are Public Reasons?*

I. INTRODUCTION

The title of our symposium puts the question whether the idea of public
reasons is an achievement or failure. To answer that question, we need
a clear sense of what a theory of public reasons asserts, including the
kinds of reasons that count as public, and we need a way to evaluate the
theory’s success.
A theory of public reasons distinguishes between public reasons
and other reasons on which people rely. It claims that people in cer-
tain political settings should employ public reasons rather than some
broader range of reasons. Within a liberal democracy, the law can-
not compel people to restrict their discourse to public reasons; doing
so would violate their liberty of speech. Thus, someone who adheres
to public reasons does so mainly because of self-​restraint rather than
external coercion. However, people could develop a negative opinion
about officials who fail to rely on public reasons, and courts might
declare invalid laws that were evidently grounded mainly in nonpublic
reasons.
To evaluate the success of a theory of public reasons, we require a
fairly precise notion of what reasons count as public and of what settings
give rise to the constraints of public reasons.
We should be open to various nuances about these matters. For
some settings, we might believe that different individuals with dif-
ferent social roles should be subject to different standards. We might
conclude that at a PTA meeting, a school superintendent, a mem-
ber of the Board, and an ordinary parent do not lie under the same
constraints about appropriate reasons. We might also decide that the
reasons that count as public vary depending on the setting. Thus, a
reason that counts as public for a legislator or citizen might not be so
for a judge.
Finally, in thinking about the reasons people rely on to reach decisions
and the reasons they offer to explain or defend their positions, we might

* Previously published in Journal of Law, Philosophy and Culture, Vol. I, No. 1

(2007), pp. 79–​91.

15
16 From the Bottom Up

conclude that they should be more restrained in reasons they make pub-
lic for a general audience than in all reasons to which they give weight.1
That, indeed, is my own position about many settings in which officials
rely upon and expound reasons.
Although I discuss various settings for political decisions, my main
focus here is on what count as public reasons. When we try to figure
out just what reasons are public, we find formidable difficulties. In
the light of these difficulties of categorization, we might throw up our
hands and declare that a theory of public reasons must fail as a conse-
quence. Alternatively, we might hope that scholars, with greater work
and care, will eventually be able to say exactly what reasons count as
public, perhaps developing lines of division more complicated than those
yet offered. These contrasting attitudes of resignation and hope both
assume what has been a premise of most major discussions of public
reasons: namely, that we need to draw a line between public reasons and
nonpublic reasons, and that various reasons will fall on one side of the
line or the other. That premise is a part of the theory of John Rawls, who
has given us the best known and most completely developed account of
public reasons.2 The premise is also a part of other theories that claim
that reasons should be limited in the politics of liberal democracies.
Here, I comment on John Rawls’s theory, but partly because I have
responded to it in some detail elsewhere, 3 I consider a broader range of
approaches. I do not believe the viability of a theory about public reasons
stands or falls with the details of Rawls’s account.
Taking these theories as a kind of family, I question the premise of a
distinct line between public and nonpublic reasons. Perhaps, over a fairly
broad range, reasons are more or less public, rather than public or not. To
illustrate this point, and to show how difficult it can be to classify rea-
sons, I concentrate on the degree of publicness of natural law arguments.
If my account proves appealing, it will affect our view of people’s respon-
sibilities under a theory of public reasons, and may affect our sense of the
achievement or failure of the most persuasive theory of public reasons.

II. CRITERIA OF SUCCESS

Before embarking on my main topic, I say something about how to judge

the success or failure of a theory of public reasons. Observations about
effectiveness in practice and about acceptance are not going to help
very much.
Ideally, we might design two societies that were otherwise identical
but in only one of which an ideal of public reason was inculcated. We
could determine which society functioned more smoothly and more
justly. Success for a theory of public reasons would mean that the public
reasons society was better. Of course, no one can design human societies
in this way. Even if they could, evaluators might disagree about which
 What Are Public Reasons? 17

society was better. Suppose one society had both more conflict and more
justice than the other; which society would be better overall?
We are left with imperfect, highly debatable, generalizations about
how many societies have worked in the past, about strengths and weak-
nesses of present societies, including ours, and about likely directions in
the future. Room for disagreement is ample. Thus, some scholars believe
that explicitly religious politics could cause serious instability and resent-
ment in American society; others dissent, claiming that social conditions
differ radically from those at the time of the Protestant Reformation,
when religion proved such a source of conflict.
A different standard for judging success might be acceptance: Have
people been persuaded by a theory? By such a criterion, we might say
that the theory of a modest welfare state is a success and that full-​blown
socialist theory is a failure. Because many theories we now regard as
ridiculous have been accepted for centuries, and other theories we now
regard as nearly self-​evident, such as equality of the sexes in its modern
understanding, have taken a long, long time to win acceptance, we would
be foolish to equate acceptance with soundness. This is especially true
for public reasons theory, in its present form, since it is relatively novel.
At best, the degree of acceptance might give us a sense of whether people
would be willing and able to abide by constraints of public reason.
We must rely on the usual way to judge normative theories: their per-
suasiveness in light of reflections on how they do, or would, work in
practice and in light of criticisms leveled against them. If this is how we
must judge the achievement of an idea of public reasons, we can see the
importance of being clear about what reasons count as public.

III. WHAT REASONS ARE PUBLIC?

A theory of public reasons concerns the politics and law of liberal democ-
racies. The animating spirit is that people should not be coerced about
important matters on the basis of reasons they cannot be expected to
accept. Coercive laws, and perhaps other laws and policies, should be
grounded on reasons that all citizens can accept. This does not mean that
all citizens need agree with a law; people have different senses about the
weight of arguments, they evaluate facts differently, and their judgments
are clouded by self-​interest and bias. But each citizen should be able to
understand that the reasons that underlie a constitutional provision or a
law make sense from that citizen’s point of view. Some opaque citizens
may not recognize that the reasons are good ones, but they should do so.
How might a line between public and nonpublic reasons be drawn?
The four major candidates for what are not public reasons are “ideas of
the good,” grounds whose foundation is not rational, grounds that do not
enjoy wide public acceptance, and comprehensive views, including reli-
gious perspectives. How do self-​interest and preference figure in these
18 From the Bottom Up

divisions? Does a person have a public reason for a political result if the
result will serve his interests or preferences? I will deal summarily with
this complicated question.
On any political issue, an official or citizen might vote on the basis of
self-​interest or preference; but for many issues, that ground of decision
does not seem proper. Bored citizens and newspaper publishers should
not support capital punishment because executions spice up the news
and sell newspapers. But for some issues, everyone understands that each
person properly votes (largely) on the basis of self-​interest. If faculty and
students consider a proposed academic calendar change, all may sup-
pose that each voter, rather than trying to sum up benefits and harms
for everyone, should vote according to self-​interest. In that event, a vote
according to interest is certainly appropriate. Self-​interest becomes a
reason others can accept as a proper basis for a vote. However, if every-
body votes their own self-​interest, any one person’s self-​interest is not
really a reason for others to vote as he does. In this respect, self-​interest
does not resemble the typical public reason, which is a reason for others
to reach a similar conclusion.
I concentrate, in the present analysis, on laws and public polities for
which a straightforward assertion of self-​interest is not regarded as a
legitimate basis for a conclusion.

Ideas of the Good

Some writers have suggested that the liberal state should be neutral
between ideas of the good.4 If this principle is sound, a belief that a law
will reinforce a superior idea of the good over competitors is not a proper
ground within a liberal democracy.
This position about “ideas of the good” is sometimes mischaracterized
as a proposal that the government should not take a position about moral-
ity. Much of morality concerns how we should behave toward others, and
aspects of a morality toward others can be developed independent of
one’s stance about what is a good life. People who have strongly oppos-
ing understandings about how best to live can agree that we should not
kill innocent people or treat others with contempt. The claim that the
state should be neutral about the good life does not cover all of morality.
A person who makes that claim may consistently urge that the govern-
ment should support desirable, even controversial, positions about other-​
regarding morality. The state, to simplify, can take positions about moral
right, even if it cannot take positions about moral good.
Once this point is clarified, we notice that the principle of neutrality
about the good life leaves untouched many judgments of religious moral-
ity. When religious principles or authorities speak to how we should treat
others, without relying too heavily on what is a good life for us, neutral-
ity about the good life does not bar reliance on them. For example, the
restriction on ideas of the good life would not preclude an argument
 What Are Public Reasons? 19

that, because God loves each individual equally, we should respect one
another in our personal lives and try to provide equal opportunity in our
society. Because neutrality among ideas of the good does not cover many
religious beliefs about other-​regarding morality, a principle requiring
such neutrality cannot constitute the only limiting principle for public
reasons.
The principle of neutrality about the good faces at least three major
obstacles to acceptance even as one basis for declaring some reasons as
nonpublic.
Two of the obstacles derive from broad intuitions about proper gov-
ernment activities. First, we expect public schools to teach about ways to
have a fulfilling life that are not tied to treatment of others. We expect
them to teach the importance of physical and mental health, to stimulate
a broad appreciation of culture, to encourage the sense that a life of vital,
somewhat disciplined, activity is more enriching than passive indolence.
A neutrality theorist might try to avoid these examples in various
ways. He might claim that all the schools should be doing is instructing
about a range of possible lifestyles and about the means not to mess up
the life one has chosen. That response is inadequate. Schools are teach-
ing captive audiences that some forms of human life are better than
others. The neutrality advocate might respond that public schools are
overreaching, or should not even exist. He is most likely to say that neu-
trality about the good life is about how the state should treat adults, not
children.
An obstacle to accepting neutrality about the good life, as the prin-
ciple applies to adults, is state support of art and literature and of access
to aspects of nature, including parks and zoos. One might defend all
these as keeping as wide as possible the menu of choices for citizens;
but the state is selective in what it supports. It does not support equally
all forms of artistic endeavor and writing that might be unavailable if
left to the play of free market forces. Nor does it aim equally to afford
access to all varieties of nature. Insofar as the state’s efforts can be
rationalized, they assist forms of experiencing that might lose out in a
free market and that are especially enriching for citizens. If a neutrality
advocate does not conclude that state aid to the arts is indefensible, he
may draw a line between assistance and coercion, arguing that in its
coercive function, the state must remain neutral about the good life.
Perhaps the state can encourage people not to become alcoholics, liber-
tines, or couch potatoes, but it cannot use its coercive force to prevent
them from living these lives.
This distinction between coercive and noncoercive endeavors should
create doubt about the public reasons aspect of a principle concerning
neutrality about the good life. If the principle about the limits of coer-
cion is sound, does it really have to do with whether reasons are public or
not? What might be a good reason to provide clinics for alcoholics would
not be a good reason to forbid the sale of liquor. But is not this conclusion
20 From the Bottom Up

better seen as based on an overriding principle of liberty rather than on

a designation of reasons as not public? If the misery of a life of addiction
to alcohol can support taxes, expenditures, and subsidies, but not coer-
cion, that has less to do with the quality of the reason than a principle of
human freedom.
A third obstacle to accepting the neutrality approach as one concern-
ing public reasons connects to its foundations. Why should the state
remain neutral about the good life? Because citizens and officials are
unable to make judgments on this score? But do we not feel rather confi-
dent that the lives of people who are addicted to alcohol are not reward-
ing and that most of these lives could be better? Because principles of
liberal democracy demand neutrality? But why do they demand it?
One move is to say that respect for autonomy requires that the state
remain neutral, at least when coercion is in question. But this is to give
autonomy an overarching value in human life.5 That judgment may be
warranted, but the basis for neutrality among ways of living is then based
on a nonneutral judgment about what is most important in life. The
exclusion of coercion now would follow from one judgment about the
good life rather than resting on premises that themselves are neutral on
this score.

Rational Grounds
The idea that public reasons should be those based on rational grounds
seems initially more appealing than a principle about neutrality concern-
ing the good life. Perhaps the very notion of reasons implies rational force;
but I want here to distinguish from rational grounds those grounds that
are based on untutored intuition, faith, or particular traditions that are
not accessible in the right way to outsiders. Thus, a Christian who relies
on the New Testament for a political conclusion, and who thinks that
the truth of Christianity can be revealed by God’s grace but not estab-
lished by reasoned argument, will have an interpersonal reason but not
a public reason. The ground is one with universal application, although
non-​Christians will not recognize its force.6
Two difficulties with conceiving public reasons in this way concern
the meaning of rational grounds and the status of initial premises. For
grounds to be “rational,” must steps in reasoning be logically compelling
as in mathematics, or as objectively demonstrable as conclusions of sci-
ence, or is some looser notion of reasoned consideration appropriate? We
must assume the latter, since so little in moral and political judgment is
subject to rational demonstration in a stricter sense.
If conclusions must be based on rational grounds, what fundamental
premises are permissible starting points for evaluation? If no, or few,
normative premises can themselves be established rationally, is not the
whole project of reliance on rational grounds compromised by the need
to rely on nonrational premises? One response is that liberal democracy
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