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Spring 2014

Religious Liberty and the Tragic Approach to Legal Theory

book cover imageThe Tragedy of Religious Freedom
by Marc O. DeGirolami.
Harvard University Press, 2013.
Hardcover, 320 pages, $45.

Elizabeth Corey

This is a brilliant and profoundly conservative book. Its argument, though not simple, is clearly stated for the attentive reader. One likely misunderstanding, however, must be disposed of at the outset: author and St. John’s University law professor Marc DeGirolami is emphatically not using the word tragedy in its commonly accepted modern sense. He thus does not argue that religious freedom is in decline, or that there is something “sad” about the predicament of religious believers in the modern world. Instead, he employs the word “tragedy” to designate something subtler, something much more in line with the intractable conflicts one observes in ancient tragedy.

The book’s argument proceeds as follows. Many modern scholars of religious liberty, whom DeGirolami terms “monists” for their desire to arrive at a unifying principle of explanation, see their essential task as finding or discovering the one master value by which all religious liberty disputes can be explained and future cases decided. Thus does Martha Nussbaum prioritize the value of equality and Douglas Laycock the idea of neutrality. The author designates thinkers like these (and there are many others) “comic” theorists.

Drawing on an ancient and medieval notion of comedy, DeGirolami explains that the essential impetus of such comic theory consists in its pursuit of a systematic and elegant explanation of law. The implicit assumption is that theory can guide a kind of movement, both social and intellectual, from chaos to order, from disarray to harmony. Ronald Dworkin has put it quite candidly: this kind of theorizing aims at “happy endings.”

The polar opposite of this is the skeptical approach. Skeptics doubt that one can find any guiding principles for adjudicating religious liberty disputes at all. Paradoxically, these skeptics actually resemble the comic theorists in their belief that the ultimate aim of theory “must be a full systematization of the social and legal practice of religious liberty by recourse to a principle or value.” But unlike the comic theorists, they consider such an achievement impossible. From the skeptical perspective, therefore, the best approach to religious liberty disputes is to act on the basis of “gut feelings” or to “muddle through,” using ad hoc pragmatic judgments.

DeGirolami suggests an alternative way of thinking about the conflicts inherent in religious liberty jurisprudence. He calls this the “tragic” approach. It shares with the extreme skeptics a doubt about the efficacy of theory as a magic bullet for solving real-world disputes. But it also agrees with the comic monist assumption that abstractions—equality, neutrality, noncoercion—are not empty of meaning but rather can be emblems of important values that law aims to protect.

Tragedy in the ancient sense, observes DeGirolami, moves not from joy to sorrow but from “struggle to unresolved struggle.” Its essence lies in recognizing fundamentally competing goods and the consequent realization that the conflict between them is permanent. Thus in Aeschylus’ Agamemnon, for example, Clytemnestra can never be at peace with Agamemnon’s sacrifice of their daughter, even as Agamemnon understands his civic duty as king to require the terrible deed. Both characters act on their respective notions of good, which are partial and incomplete. Both, in taking the action they do, fail to recognize and value something else of great importance.

In just this way, DeGirolami points out that the pursuit of a single value necessarily sacrifices the other goods that have not been chosen. For those egalitarian theorists who prize equality, conscience is without value “if it is not equally distributed.” Liberty, likewise, is “only fair if it is true to equal liberty,” and accommodation is valuable only if it “seems required by equality.” One begins to see that a somewhat arbitrary master value dictates the way all other competing values are ranked—if indeed they are ranked at all.

The advantage of the tragic approach to legal theory is that it does not rank values, but rather sees that all of them may well be more or less important, depending on the circumstances. The method of tragedy and history, as DeGirolami explains it, thus consists of five central assumptions, which the author details carefully in the book. First, the values of religious liberty, taken as a whole, are “incompatible and incommensurable.” Second, radical skepticism is inadequate. Third, in keeping with the tragic view, loss and sacrifice are intimately and inextricably part of legal theorizing about religious liberty. Fourth, the best approach to adjudicating these disputes is through “modest movement,” not radical change of either a conservative or liberal variety. Fifth, and finally, courts should use “doctrinal and social history as guides to legal change.” Taken as a whole, this is a method or approach to the law, not yet another monist theory.

As DeGirolami himself admits, he is not so much setting out a new paradigm as describing what judges actually do in practice. This is often quite far removed from what certain legal theorists think judges ought to do. But in some respects it is not so different from what Supreme Court Justice Stephen Breyer, no conservative himself, has described as the judge’s task: to consider the language of a statute, the history surrounding it, tradition, precedent, purpose, and consequences. Of course Breyer places great weight on purpose and consequences, seeing these as ways of ensuring satisfactory dispositions of cases. DeGirolami offers little discussion of such hypothetical outcomes. And Breyer notably omits the emphasis on loss and sacrifice that DeGirolami thinks we must face and accept in coming to terms with the complexity of religious liberty issues. But both would probably agree that in thinking about law one must aim at a full and nuanced vision of human experience, not a vision that has been artificially constrained by the lens of a single, all-important value.

The book as a whole stands as a persuasive application of the insights of Michael Oakeshott, although DeGirolami does not make much explicit mention of Oakeshott. Indeed, an appropriate subtitle for the book might read: “Against Legal Rationalism.” Oakeshott famously argued that people—especially elites in politics and academics—are driven to systematize human experience, to formulate precepts that promise regularity and consistency, and to prefer a neatly constructed ideology to the messiness of actual human relations in politics, law, or any other field. This is just what takes place among the “comic” theorists, who desire elegance and theoretical parsimony at the expense of truth and lived experience.

However, Oakeshott, DeGirolami, and others like them show that this desire tends to result in a Procrustean bed, where all that does not fit the favored theory is either ignored or explained away. It is a reduction of human experience that promotes a false idea of (and hope for) coherence. Stuart Hampshire has made a similar point in a way that supports the arguments of both DeGirolami and Oakeshott. Morality’s sources, writes Hampshire, lie “in conflict, in the divided soul and between contrary claims, and . . . there is no rational path that leads from these conflicts to harmony and to an assured solution.”

Because law embodies diverse moral goods, it must inevitably acknowledge that these goods may often compete with each other and that some will be prioritized at the expense of others. This is indeed a kind of tragedy, but there is no way around it. DeGirolami goes so far as to say that it is built into the structure of the First Amendment. He reminds us of the inherent tensions between prohibition of government interference in religious practice (the Free Exercise clause) and proscription of government sponsorship of religion (the Establishment clause). The conflicting imperatives of these two clauses have, as the Supreme Court has repeatedly recognized, contributed to “an internal, intrinsic, and ineradicable pressure.” No comic, monist theory can successfully reconcile these competing imperatives under one master value.

The book merits a much more in-depth treatment than I can give it here. But perhaps what is most striking about it is its appreciation for theory—indeed, the whole work is an assessment of the value of theorizing—that is simultaneously grounded in the concrete and particular: case law. At once philosophical and practical, this book is a must-read for anyone who cares about religious freedom. 

Elizabeth Corey is Associate Professor of Political Science in the Honors College at Baylor University.

Posted: April 13, 2014

The twentieth-century conservative is concerned, first of all, with the regeneration of the spirit and character—with the perennial problem of the inner order of the soul, the restoration of the ethical understanding, and the religious sanction upon which any life worth living is founded. This is conservatism at the highest.

Russell Kirk

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