“Religious Arguments in the Law” or “Reasoning in God’s Presence”


Vic Fleischer had a really interesting post on religion and tax policy over at a Conglomerate that shouldn’t be lost in all of the Disney noise. He writes:

There is no question that one needs a theory of distributive justice to form a complete picture of tax policy. Some people may derive that theory from religious faith, others from philosophy. I have no problem with those who derive their preferences from religious faith. As a matter of scholarly discourse, I find it more useful to concentrate on the philosophy side. And even within philosophy, convincing others that one approach is better than another feels to me like trying to convert someone to another faith. As a tax policy scholar, I have no comparative advantage here.

Implicitly I’m arguing that traditional tools of tax policy, including public finance economics, can sometimes lead us to demonstrably right and wrong answers about the design of a tax system. I am a skeptic about the ability of law professors to convince anyone that the top marginal rate should be 35% by appealing to Rawls OR the Bible. But I do I have a lot of faith, so to speak, in tax law scholarship and economics to speak to the proper design of the system.

There is a lot of stuff going on in these sentences. First, Vic’s argument seems a bit confused about the nature of normative reasoning. In good economic fashion, he seems to be suggesting that theories of distributive justice are a kind of preference. (E.g. “I have no problem with those who derive their preferences from religious faith.”) This, it seems to me, is fundamentally mistaken. Kaplow and Shavell aggressively pursued this line of thinking in Fairness versus Welfare, and I think that when they stray from positive economic analysis into the realm of normative argument their results are a rather dismal failure. (In my opinion, Jules Coleman offers the most trenchant criticisms in his review The Grounds of Welfare, 112 Yale. L. J. 1511 (2003)). Their failure, however, does not come because normative argument is useless, but rather because they made bad normative arguments. In a nutshell, the problem with their approach is that distributive justice is not simply an input into a personal utility function. It is also a claim about the nature of moral reality, and as such it has a truth value independent of whether or not any particular person prefers it or not.

The second interesting issue in this passage is Vic’s implicit argument that the usefulness of a particular form of discourse hinges on its ability to persuade those who disagree. Hence, he prefers philosophy to religion — presumably because philosophy is marginally more persuasive than religion — and “tax law scholarship and economics” to both. Interestingly, it seems to be precisely because he doesn’t regard philosophy as all that much more persuasive than religion — “I am a skeptic about the ability . . . to convince anyone . . . by appealing to Rawls OR the Bible.” — that he doesn’t see religious discussions of tax law as presenting a particular challenge to reason. (More on this in a minute.) Obviously, there is something to be said for the idea that one ought to gauge the value of an argument on the basis of how persuasive people find it. But this should hardly be our only — or even our dominant criteria — for assessing the value of a particular sort of argument. First, one can learn a great deal by reading arguments that one ultimately does not find persuasive. I don’t find Kaplow & Shavell persuasive. I do find them very enlightening, and I would be much the poorer if they had not written their book. Furthermore, arguments that one disagrees with are useful in informing one about how others think. You are likely to get a more nuanced feeling for world-view of the other guy by reading sophisticated versions of his arguments rather than what one might find summarized in the pages of the New York Times. Finally, I suspect that for many arguments — particularly arguments about social or political matters — the extent to which a set of arguments is persuasive has as much to do with the temperament of interlocutors as it does with anything else. I tend to find that good economic arguments will change my mind. I have a good friend — an intelligent and thoughtful person — for whom such arguments do nothing, and although I am inclined to write most of his objections off as economic illiteracy, this is hardly fair on my part. Likewise, I find that I will change my mind in the face of good theological arguments. Vic’s reaction is apparently otherwise. I suspect, however, that this ultimately tells us much more about my disposition or Vic’s disposition than it does about the abstract merits of economics or theology.

The final interesting point — at least for purposes of this already too-long post — is one that Vic raised earlier in his post, namely whether or not religious arguments represent a basic challenge to rationality. As I understand it, this objection to religious arguments, when cashed out in a concise form, goes something like this:

1. Faith is belief in the absence of reasons for belief.

2. Believers grant authority to particular religious texts on the basis of faith.

3. Religious arguments about tax law (or other legal issues) consist of deductions from religious texts.

4. Granting authority to religious texts is irrational. (1&2)

5. Therefore, religious arguments about tax law (or other legal issues) is irrational.

If this argument is sound there are at least two potential problems with religious arguments. (For the record, I don’t think that it is sound in large part because I reject 1, but that is an issue for another day.) First, such arguments simply won’t be persuasive to non-believers because they reject the authority of the religious texts. Second, such arguments constitute an abdication of independent moral judgment that is ethically and politically troubling. I think that both of these concerns are mistaken, because I actually doubt that most religious arguments are really attempts to deduce conclusions from religiously established premises. Consider, for example, those who make arguments about the ethics of this or that legal rule on the basis of the Bible. What one will rapidly find is that the Bible is a very complicated book that consists mainly of stories. The meaning of these stories is contestable, and there are lots of them to choose from. Furthermore, it is by no means obvious that the Bible adopts a single, coherent approach to issues of ethics or morality. (I certainly do not believe that it does.) In other words, far from providing clear, authoritative answers to complex moral issues, in many ways the Bible simply recapitulates the old debates between duty and consequences, justice and mercy, in a different language. I don’t want to suggest that religious arguments are simply carbon copies of secular arguments translated into another language. The language can shift and change. Thinking about a policy question in religious terms — in religious language if you will — is going to change how one thinks about it. For this reason, religious arguments — if they are well done — are valuable even for non-believers, because they give one a new way of working through old issues. Aside from the difference that such religious thinking can make in terms of substantive outcomes, it also has value for the believer. By invoking religious texts and stories, the believer invites God into the conversation. The point is not necessarily for him to step in as the final arbiter of the dispute. Rather, it is a way of having the discussion in his presence. Cf. Isaiah 1:18 (“Come now, and let us reason together, saith the Lord”). It is important to realize, however, that one is having a discussion. Religious thought is not an abdication of reason or discussion; it is simply reasoning and discussion by other means.

(If you are interested in more of my meanderings on this subject, check out my post “Is God an Ethicist?”, written in a more explicitly theological line.)

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3 Responses

  1. Will Baude says:

    Great post, Nate. One thing. You write: “It is also a claim about the nature of moral reality, and as such it has a truth value independent of whether or not any particular person prefers it or not.”

    You agree, I hope, that this too is a claim about the nature of moral reality– and as such, whether it has an independent truth value at all depends on whose views about the nature of moral reality (the subjectivists, the logical positivists, the Kantians, those of a particular theology, the relativists, etc.) are correct?

  2. Vic Fleischer says:

    Great post, Nate.

    While I have your ear, does LDS have anything unique or interesting to say with respect to the design of tax systems? One student asked about this in the workshop, and we didn’t know.

  3. Nate Oman says:

    Will: I would agree with you to the extent that how we assess the truth of moral theories will depend on the meta-theory that we adopt as to morality. My point, however, is that one cannot assume that distributive justice is a matter of preferences without some substantial moral theory explaining why this is so, and such a meta-theory cannot be explained by as a preference without falling into circularity. At some point normative argument has to be…well…normative.

    Vic: To my knowledge, no LDS writers have tried to cash out the implications of LDS theology for tax law. What you do have among Mormons is tithing, which is the payment of one tenth of one’s “increase” to the Church. There are two potential issues here:

    1. Tithing is not progressive. I suppose that some Mormon or another might make an argument by analogy here to taxes, but I don’t recall seeing. Interestingly, the issue of regressive religious donations shows up in — I believe — the Talmud. The Torah states that everyone made equal donations to the creation of the tabranacle. The sages — being smart guys — picked up on the fact that this was regressive, placing a greater burden on the poor than the rich. They provided an apologia for the rule by arguing that equal donations meant that all of the people had an equal claim to “ownership” of the tabranacle, and therefore the rich couldn’t claim a greater interst in it. This is a sort of inversion of the classic arguments for property qualifications in voting, ie those that pay the most for the government should have the most say in its actions.

    2. The second issue with tithing is that the rule is quite vague and the Church has steadfastly refused to provide any elaboration on it. Hence, there is no official position on whether one should tithe gross or net income, or how it is that income should be realized for tithing purposes. All of these issues are left between the individual and God. The Church conducts “tithing settlements” each year where the leader of a local congregation meets with an individual privately and asks them if they are full tithe payer. The individual says yes or no, but the leader makes no independent inquiry into this statement. In LDS sermons the simplicity of the tithing rule, and its reliance on “the spirit of the law” rather than a set of inticate rules is frequently cited as a virtue, showing the superiority of God’s ways to man’s ways. There might be some deeper point there for tax policy, but I am too ignorant about the subject to figure out what it might be.