Opposing Laws with Religious Reasons

Abstract

According to public reason liberals, laws, policies, and political institutions need to be justifiable to those who are subject to them. This entails that the reasons given in favor of a political arrangement are normatively relevant for all sufficiently idealized citizens. These reasons are public reasons. Since political deliberation is intimately connected with the resulting law or policy, the view often also incorporates a moral duty for citizens not to rely on nonpublic reasoning in the public political forum. According to virtually all proponents of such deliberative public reason requirements, these demands are symmetrical.1 If there is a moral duty to give public reasons in favor of a law or a policy, those who are opposed to the proposal will always have a corresponding duty to provide public reasons against it. This position has yet to be put to critical scrutiny. In this paper, I reject it. I argue that there is a class of cases where the public-reason-giving requirement should be relaxed for some participants in the public political forum—cases where the public-reason-giving requirements should be asymmetric. A person opposing an “invasive law” is under no obligation to give public reasons. A proponent of the law is. It is morally acceptable to provide only nonpublic reasons against invasive laws, but not in favor of them. To explicate the benefits of this asymmetric view of public reason, I apply it to the public debates around European so-called “burqa bans.” Empirical research suggests that some niqab wearers believe that they have a religious obligation to cover their faces. Assuming some degree of noncompliance to the norms of public reason under nonideal circumstances, a subset of these women will not be prepared to give public reasons against the bans. On the symmetric view of public reason, they would be excluded from the public political forum. Those niqab wearers who are willing to give public reasons are susceptible to another cost. If they believe that the religious reasons against banning the niqab are what truly motivates their opposition, they have to “split themselves.” They are unable to debate as their full selves when defending their comprehensive practice. I do not intend to offer a comprehensive account of burqa bans or the question of religious clothing. Instead, the niqab case merely serves as a way of making the advantages of the asymmetric view explicit. Further, this article will only briefly address the question of whether public reason liberalism is preferable to perfectionist liberalisms, or non-liberal ways of justifying state power. However, the view presented here incorporates some worries from public-reason sceptics, and so it may appear superior to the standard view also for someone who does not share some of the fundamental commitments. I will begin by outlining how the public-reason-giving requirements are traditionally understood (1), after which I present the main features of the asymmetric view (2). I then show how the view functions by discussing it against the debate around burqa bans (3), concluding that the view is less costly than symmetric views of public reason (4). Finally, I defend the view against a series of objections, concluding that it is a distinct and plausible implication of commitments that public reason liberals typically already hold (5). Public reason liberalism is a multifaceted theory. A central idea is that an individual citizen should not be coerced with reasons that she does not appreciate the normative relevance of. Public reason can, therefore, serve as a common currency of disagreement.2 It is possible to narrowly construct public reason as a way of determining whether a law is legitimate or not. If the law could be justified with public reasons, it is legitimate—even if those reasons were not presented in the debate leading up to the law. I leave aside the question of public reason as a criterion for legitimacy. Here, I use public reason in a slightly different sense—focusing on the public deliberation before the law. This is a key feature, at least of the standard accounts of public reason liberalism. The idea is that when we deliberate in public—as citizens—on which political action to take, we should not appeal only to controversial metaphysical doctrines or our own conceptions of the good. Instead, we should appeal to a set of reasons that all (sufficiently idealised) citizens could be expected to endorse or share.3 One way of understanding this type of requirement is that citizens should have a common way of constructing arguments, derived from their shared understanding of the public life of a liberal democracy.4 Citizens do not have to appeal to public reason around the dinner table, in the church, or in other private associations. However, when the deliberation is undertaken in the “public political forum,” citizens should be willing to show that the laws that they “advocate and vote for can be supported by the political values of public reason.”5 In these cases, there is a moral “public-reason-giving requirement.”6 I will not offer an account of where the line between “public” and “non-public” reasons should be drawn. For my purposes, it suffices to assume that regardless of whether public reasons should be understood as accessible, or shareable, religious reasons drawing solely on divine sources are not public.7 I will also accept John Rawls's “wide view,” the idea that citizens are allowed to give nonpublic reasons, provided that we also provide public reasons “in due course.”8 An important debate among public reason liberals concerns the appropriate scope of public reason. On the widely accepted narrow view,9 held by theorists such as Rawls, Barry,10 and Scanlon,11 we need to give public reasons only when we discuss questions concerning the “basic structure of society.”12 The broad view, on the other hand, demands public reasons for debates over all (or most) political questions. Jonathan Quong defends the broad view by arguing that relaxing the duty to give public reason outside the basic structure makes public reason liberalism objectionable, since some political questions then can be “decided by appeal to perfectionist considerations.”13 Thus, Quong presses, if we are worried about perfectionism, why should we allow it on some levels and not on others? Quong concludes that we have no reasons for accepting the narrow view. The idea is that it would be desirable to have public reasons for all laws. I will not take a position on whether the narrow or broad view of public reason is correct. But there are cases where the two views converge. When a question is a part of the basic structure of society, all public reason liberals agree that we should be prepared to give public reasons. However, narrow view theorists have previously failed to incorporate an essential distinction in their theories. If it is true that we should give public reasons for a certain set of laws, it does not entail that it would not be more worrying to justify some laws within this set non-publicly than others. It does not follow from the claim Thus, it is possible to accept (1) without accepting (2) and (3). To my knowledge, all consensus public reason views accept (3), regardless if we are for or against a law, we should give public reasons.15 For instance, Quong argues that citizens should offer “one another” arguments that meet the public reason standard, in other words that citizens on both sides of a political dispute need to give public reasons.16 Call this the symmetric view of public reason. In this article, I will reject (2) and (3). On (2), I will argue that there are cases that are uncontroversially nontrivial—henceforth paradigmatic cases. Interfering legislation in these cases is ceteris paribus more worrying than legislation in other areas. From this, I derive my rejection of (3).17 The successful opposition to an interfering paradigmatic-case law would serve to avoid interference in paradigmatic cases. When reasoning about these laws, it would not be as troubling to oppose them for perfectionist or comprehensive reasons as it would be to advocate them for those reasons. Indeed, as I shall argue, it might even be desirable to allow non-public reasoning when opposing such laws. I propose that it is morally unacceptable not to provide public reasons in favor of laws that interfere in paradigmatic cases, while it is only desirable to give public reasons against these laws. This is an asymmetric public-reason-giving requirement that entails that someone opposing a law that would interfere with her life plan can defend it with whatever arguments she sees fit. On the symmetric view, she would have to be restrained in the public political forum.18 There have been previous asymmetric views outside of the standard consensus paradigm of public reason liberalism (the view that holds that citizens must appeal to reasons that all reasonable citizens share in public deliberation). Convergence theorists argue that a law can be justified to different citizens for different reasons.19 According to the convergence view, any reason can be used as a “defeater,” because all citizens need to agree to the all-things-considered justifiability of a law.20 This seems to imply that citizens can veto laws with whatever reasons they see fit.21 The idea I am defending here is weaker. I argue that all reasons can be used against a law in public deliberation, not that doing so automatically renders that law publicly unjustified. However, the insight of the convergence theorists about the difference between imposing laws and opposing laws should be important also for the consensus view. In fact—even if no one has made this argument before it seems perfectly consistent with the fundamental ideas underpinning public reason, especially for those views that are concerned with avoiding unjustified coercion. Consensus theorists have thus far overlooked the fact that it seems morally objectionable to only be prepared to accept a certain kind of justification or response when forcing someone else to perform or not perform an act Φ. The asymmetric view incorporates a presumption in favor of noninterference in paradigmatic cases. Interference, here, is merely the absence of being forced to Φ or not to Φ. This is broadly consistent with the standard, Berlinian, negative concept of liberty, the idea that “I am normally said to be free to the degree to which no man or body of men interferes with my activity.”22 To work out the details of the asymmetric view, it is, therefore, useful to consider Berlin's view in some more detail. To Berlin, interference could be more abstract than someone being physically prevented from Φ-ing. A human-made act restricting options that a person has no desire to pursue also counts as interference. Noninterference is not about the realization of particular desires, but about the “actual doors that are open.” Not being interfered with is having “a range of objectively open possibilities, whether these are desired or not.”23 A standard objection to this view is that not all instances of interference are equally troubling. Indeed, perhaps some types of interference have nothing to do with freedom at all. As Charles Taylor puts this challenge: by installing an extra traffic light on a street, the instances of interference would increase since cars would be stopped more often. However, according to Taylor, this does not mean that people are less free after the traffic light is installed. The question should not be understood as a “trade-off” between freedom and child protection or road safety. Instead, “we are reluctant to speak here of a loss of liberty at all.”24 The extent of my freedom seems to depend on (a) how many possibilities are open to me (…); (b) how easy or difficult each of these possibilities is to actualize; (c) how important in my plan of life, given my character and circumstances, these possibilities are when compared with each other; (d) how far they are closed and opened by deliberate human acts; (e) what value not merely the agent, but the general sentiment of the society in which he lives, puts on the various possibilities.25 The basic premise of the asymmetric view is in line with this claim: trivial instances of interference cannot be given the same weight as nontrivial ones. And, conversely, it is possible to identify a set of cases that are uncontroversially “non-trivial”. To remain faithful to the ideals of public reason liberalism, this set cannot be moralized or drawn from any one conception of the good. The uncontroversially nontrivial set of freedoms needs to have a definition that is reasonably acceptable from all moral points of view. Luckily, there are resources from within Berlin's framework to draw up the boundaries for the set. Take Berlin's (c); nontrivial freedoms are those that have special importance for people's life plans. Everyone will want to live their lives in a certain way. In order to pursue a life plan, whatever it is, we must be free to make certain choices. Some of these choices are crucial in order to pursue a given life plan, they are paradigmatically fundamental choices (PFCs). The set of PFCs include things covered by things such as freedom of the person, conscience, and belief,26 and it includes choices necessary for life plans in the ordinary sense of the world, such as forming a family, having fulfilling interests, and a meaningful occupation. To reiterate, whatever life plan we have, there is a corresponding set of choices that we need to be able to make to pursue it. If the ability to make these choices is essential for the life plan, our freedom to make them needs to be unconstrained for the life plan to be available. For instance, if we want to live a Christian life, we need to be free to go to the church, if we want to have a large family, we need to be free to have many children, and so on. Given that everyone has an interest in developing and following their own life plan, we should expect a strong justification for limiting a person's freedom to pursue their chosen way of life. There is a presumption in favor of being free to make PFCs ourselves.27 Correspondingly, it seems equally plausible that the justificatory demands for the person defending their own PFCs are less strict. A higher threshold is required for allowing Anna to interfere with Ben's PFC than for Ben stopping Anna from doing so.28 But not all life plans are equally important. It is implausible to hold that a life plan that includes the PFC to drive against the direction of the traffic or murdering people has equal value as, say, being free to make choices necessary for forming a family. The reason for this is that these life plans impose on other peoples' life plans. To account for this, there is no presumption in favor of being free to pursue PFCs that impose on other people's life plans. Since the central idea is that we should be free to make choices for our life plans ourselves, life plans that make other ways of life impossible, or significantly more difficult, can be disregarded. The presumption in favor of noninterference in paradigmatic cases implies that we should be as free as possible to make PFCs ourselves. This does not mean that interferences are always wrong. The claim is weaker: an interference with non-imposing PFCs needs to be justified, and an opposition to said interference does not have the same justificatory demands. There is a specific class of political rules that always interfere with PFCs. Suppose that under conditions of no rule it was possible to make the PFC and that the rule makes it impossible, or significantly more difficult to do so. These rules I call invasive laws. Examples include things like banning certain types of clothing and restricting women's access to the workforce. Some might object that societies adhering to public reason liberalism would never implement invasive laws. Any plausible balance of public reasons, they might say, would decisively come down against such legislation, and so the question of how we should deal with these cases would never arise. In response, however, it is important to note that not all invasive laws would be unjustified or unjust, and consequently they could be implemented or defended in public reason liberal states. While there is an overlap between invasive laws and laws infringing on “rights,” it is not necessary for a law to restrict a right to be invasive. Some people's preferred ways of life might require them being free to pursue PFCs such as using recreational drugs, going fox hunting, or marrying several partners. It is far from clear that these activities are typically captured by our systems of rights or that public reason liberalism necessarily would come down in favor of allowing them. Still, laws restricting these choices are on my definition invasive. From this, it is possible to distinguish two positions within a single debate. It would be morally unacceptable not to have public reasons in favor of invasive laws, but morally permissible to give only nonpublic reasons against them. In the former instance, the requirements are strict, in the latter, they are only baseline requirements (cognitively undemanding things such as being prepared to take our opponents seriously). In many areas of politics and public policy, rules are made that do not significantly interfere with PFCs. In these cases, public-reason-giving requirements remain symmetrical. Whether we should give public reasons in these cases only depends on if we accept the narrow or the broad view. Since there would be many basic structure laws that would count as invasive, both narrow and broad views could, however, successfully incorporate the asymmetric view. T1, IMPLEMENT: It is possible to propose a bill that implements L. T2, LIFT: It is possible to propose a bill that lifts L. Only one outcome of LIFT and IMPLEMENT, respectively, interferes in paradigmatic cases. If LIFT was passed at T2, peoples' options would increase. If not, they would still be restricted. Conversely, the opposite is true for IMPLEMENT at T1. On the symmetric view of public reason, this would not matter for the distribution of public-reason-giving-requirements. They would be strict for everyone: T1 implement invasive law T2 lift invasive law Against Strict Strict For Strict Strict The main difference between symmetric public reason views and the asymmetric view I am proposing here is the rejection of this claim. Instead of assigning the requirements symmetrically, they would be distributed in the following way: T1 implement invasive law T2 lift invasive law Against Baseline Strict For Strict Baseline Those advocating the positions that oppose the paradigmatic-case interference would be under baseline duties such as taking their opponents seriously. Their opponents would be under strict requirements. The asymmetric view is consistent with what arguably is the standard justification of public reason: we want to avoid being coerced based on reasons that we do not accept the normative relevance of.29 Not implementing an invasive law would not be coercive. And lifting an invasive law would not be coercive. So, on the standard view, what reasons do we have for demanding only a certain kind of justification for not interfering with someone else? Standard versions of public reason, therefore, seem to have strong reasons internal to their theoretical framework for accepting the asymmetric view, even if they have yet to consider this possibility. It is, therefore, puzzling that asymmetric requirements among consensus theorists so far are missing from the literature. However, it is possible to justify public reason liberalism without appealing to the specialness of coercion. I will argue that regardless of what our basis for public reason is, it would be preferable to have an asymmetric view. The reason is that it would ensure that public reason views are less costly. The view will be applied to the question of European burqa bans to illustrate this.30 To consider the asymmetric view against the burqa ban backdrop, we first need to establish that wearing the niqab is a PFC and that a ban against doing so, restricting this choice, would thus be invasive. The choice to wear the niqab is a PFC if it is essential for one or several life plans. That is, if it is a choice that we need to be able to freely make in order to pursue the life plans. Empirical evidence suggests that this is true. Wearers describe it as an important part of their “lifestyle.” They typically see it as a fundamental part of their identity, culture, or religion.31 Hence, if the choice to wear the niqab is a PFC, a law against doing so would be invasive. Under conditions of no law, it would be possible to make the PFC, when the law is introduced it is no longer possible. Someone deciding to wear the niqab despite the law will be interfered with and possibly fined. Over the French burqa ban's first 5 years 1 623 police stops were made, with 1 546 fines given out.32 A possible worry is that the empirical research is flawed, that women are forced to wear the niqab. If so, the PFC to wear the niqab is not essential since it is not made freely. Then, a ban against the niqab, it could be argued, would increase the number of choices available to some women. While the empirical studies are so far underwhelmingly few and the sample sizes are small, the current best evidence suggests that European women are—in fact—freely and willingly choosing to wear the niqab. In her qualitative studies, Eva Brems has found that “there is no evidence, in either France or Belgium, of pressure from husbands or relatives to wear a face veil; while there is recorded pressure from husbands and relatives to not wear a face veil.”33 Wearers generally do not accept the argument that the niqab represents an unequal gender structure or oppression. In interviews, a typical answer is “I totally refute the argument which claims that wearing the niqab is a submission to man.”34 Studies from Denmark, England, and the Netherlands draw similar conclusions.35 Even if it were true that many women were forced to wear the niqab, it is not necessarily the case that it would change the evaluation. First, the potential PFC of wearing a niqab is limited, someone who finds after careful deliberation that she genuinely wants to wear the niqab cannot do so. Hence, this should at least be given some weight, and the pontentially increased freedom of niqab wearers (who now freely could decide what to wear) would at least have to be balanced against the increased interference with the potential PFCs of those not currently wearing the niqab. More importantly, since it has been argued, but not proven, that people are forced to wear the niqab, finding empirical evidence would be a sound public reason in favor of a ban. Allowing nonpublic reasoning against the ban would ensure that those who are freely choosing to wear the niqab could still use religious reasoning when opposing the ban. This seems generalizable so that if many people are forced to Φ, there are strong public reasons for making it illegal, and we should not be as worried if a few people use nonpublic reasoning to defend Φ. Having established that bans against wearing niqabs are invasive, I will show how the asymmetric view would change the costliness of public reason. EUROPEAN NIQAB WEARERS: Aisha and Betty have both freely chosen to wear the niqab. To them, being free to make this choice is an integral part of their respective life plan. It is essential for their religious commitments and their cultural identities. The citizenry in their country debates a ban against niqabs. Aisha and Betty are both opposed to the law, but their reasons differ. Aisha believes that a ban would restrict liberal religious freedoms and that it would not respect her as a citizen. However, her main reasons against the ban are based on her reading of religious texts. Betty shares this latter reason. She believes that a ban would make the legislation of their country incompatible with religious truths, since for her, wearing the veil is a religious obligation. She is unwilling to comply with the norms of public reason. In public, the only justification she wants to use for defending her practice is nonpublic. Not exempting Aisha and Betty from public-reason-giving requirements would come with exclusion and agential costs, discussed in turn. In passing, Rawls—the most notable proponent of the symmetric view—discusses cases where public reason arguments defeat religious views. As an example, he argues that a Roman Catholic might oppose a pro-abortion law but still “recognize the right as belonging to legitimate law enacted in accordance with legitimate political institutions and public reason.”36 The case should not worry us, Rawls claims, since Catholics “need not themselves exercise the right to abortion.” While this is true for abortion laws, it is not for any regulation going against someone's religious ideals. Rawls fails to address the inevitable follow-up question: what about laws where citizens do need to alter their way of life to oblige with them? At least, symmetric views of public reason would ensure that niqab wearers are not interfered with for reasons that they do not accept the normative relevance of. This is one of the main reasons why public reason liberalism would be preferable to perfectionist liberalisms. Suppose for instance that Charlotte is a liberal perfectionist who believes “[t]he full face veil must be prohibited even if it is worn voluntarily. This is indeed an infringement of the person's dignity but also of dignity as a matter of principle, generally speaking. This is an insult to the conception of the human person and the woman.”37 On this version of liberal perfectionism, it would not be a problem to impose a ban on Aisha and Betty, based on a conception of human dignity that they (presumably) do not to share. They would be coerced based on a reason that they do not consider normatively relevant. It is possible to imagine justifications for bans against covering the face that meet the demands of public reason.38 The final version of the French law, after initially being explicitly targeted at Muslim niqab wearers, did not rely on comprehensive claims or references to the niqab. Instead, it merely stated that no one was allowed to “wear clothing intended to conceal their face” in public.39 The justification was altered, now the ban was (among other things) said to protect peace and security, and the conditions necessary for living together.40 At least security would on many views be accepted as an uncontroversial primary good and a public reason. The value of security is normatively relevant for all (sufficiently idealized) citizens. Suppose that Betty would want to make the following argument: (i) the best interpretation of Islam says that women should cover the face, (ii) the laws of our society should be compatible with the best interpretation of Islam; therefore, (iii) we should legally permit covering the face in public.41 Neither (i) nor (ii) are reasons that all sufficiently idealized citizens could be expected to endorse or share. Hence, on the symmetric view of public reason, Betty would not be morally permitted to participate in the political deliberation in the public forum, unless she was prepared to change her argument. Call this the exclusion cost.42 Why exclusion? Even if the public-reason-giving requirements are not legally enforced, they hold power over individuals' behavior. They could still be strictly enforced in the sense that violators are met with strong disapproval, leading individuals to refraining from acting as they otherwise would.43 To assume otherwise would make it difficult to see the relevance of discussing moral duties at all. The exclusion that citizens face is thus about having their views not taken seriously by their fellow citizens, and being excluded from the set of people that are listened to when legislation is crafted. Adherents of the symmetric view could bite the bullet here. They might say that since Betty is unwilling to provide public reasons for her practice, she should not be morally allowed to defend it in public. Instead, she should leave the defending of the freedom to wear the niqab to Aisha, who is willing to give public reasons against the ban. In the remote possibility where neither Aisha—nor anyone else—can give public reasons, opponents of the asymmetric view would be happy to have found a case where public reason is conclusive. The niqab should be banned. However, if so, it would be banned without taking the voices of those defending the practice into account. In other words, biting the bullet potentially comes with massive costs of exclusion. If this is an unwanted implication, we have tentative reasons for accepting an asymmetric view of public reason. The agential cost of public reason is the cost that individuals bear when they are involved in public reason giving. While there could be several agential costs, I will focus on the standard dualism critique of public reason. The idea is that religious citizens having to engage in public reasoning are subject to a specific harm: their identities are threatened. Citizens of faith cannot deliberate as their full selves.44 The thought is that public reason theorists fail to recognize how central to one's identity religion often is. To “bracket” religious convictions, it is argued, is to “annihilate” essential “aspects of one's very self.”45 The asymmetric view would ensure that this cost is eliminated in paradigmatic cases. When certain, central, practices are at stake, citizens can debate as their full selves, and their identities are thereby better protected. The asymmetric view does not, however, e