(1) Based on an understanding of Jewish doctrine, the government bans the consumption of shellfish.
(2) Based on an understanding of Kant’s Categorical Imperative, the government bans useful research on shellfish to avoid cruelty to animals.
(3) Based on an understanding of general judeo-christian morals, the government bans bigamy.
Is there some general principle that would make the first law illegitimate, but the rest legitimate? If there is one, is there more than one such principle?
[Obviously it is insufficient to say that sectarian lawmaking is bad. You need to show why legislating based on sectarian morality is worse than legislating based on secular and religious-but-nonsectarian morality. And keep in mind that your principle must allow for the third law!]
Simply put, legislation should be based on non-supernatural and demonstrable arguments. The impetus of the rule might even be religious, but the argument for it cannot be. That’s just like the case where a theorem might come from a dream, but the proof had better be valid.
I’ll assume that the case you think would be made for your first item is that God forbids us to eat shellfish, so they should be banned for everyone. Here no one is getting hurt (except the shellfish) so there is no argument for this rule. If there was evidence that shellfish were inherently harmful, that would be something else.
I’m not sure of the argument against experimenting on shellfish based on the categorical imperative. I have no problem with research on any creature as primitive, and would reject the notion that shellfish and apes are in the same class. But at least that argument would be based on some verifiable premises. The weighting we give to the arguments determines our position, but there is nothing supernatural involved.
For the third one, I’d have a hard time justifying this ban based on judeo-christian principles, given that it was explicitly allowed by the Bible. In this case while those arguing that this should be banned for supernatural reasons ( the later Bible) would be on my side, I’d reject those arguments in favor of non-supernatural ones, which I think exist.
As they are stated. You would say both 1 and 3 are invalid, in a country which has stated opposition to establishment of religion. In the real world, the powers that be would (and indeed have) come up with a secular reason for banning bigamy (and assorted other prohibitions that clear have a basis in Judeo-Christian morality) , that would be hard to do for shellfish.
I am confused by your mention of what the basis for each law is.
I thought the principle was that a law could be passed that had the effect of furthering a religious interest as long as it also had a legitimate secular purpose. Thus if you could come up with some legitimate secular reason to ban shellfish, then you could ban shellfish, even if it furthered kosher law.
I don’t know of any way of deciding what is a legitimate secular purpose other than consensus. I guess the decision point in passing these kinds of laws is if you can convince people who do not share your religion that the other effects of the law are enough to justify its passage.
Maybe you could argue that harvesting shellfish is a bad idea, like has been done with ivory.
Is that what you meant? Maybe I don’t grok the question.
Some conceivable principles are based on legislative intent, so I felt it was important to lay out a hypothetical intent for each law. As Voyager demonstrates, some principles will ignore the actual intent.
I believe that is an accurate statement of current US Constitutional law on the subject, but I’m no expert.
Well, the challenge is to craft a principle that allows for a seemingly non-secular law (anti-bigamy) but does not allow for sectarian laws. As you suggest, perhaps one way to do that is to look only at the conceivable secular rationales for even those laws with an actual non-secular intent. But as I hope will be illustrated upon Voyager’s return, I’m not sure that principle holds up under scrutiny.
I’m just hoping to discuss these principles and see if they hold up under examination.
In the future, I hope people will view basing laws on religious works with as much disdain as I view basing anything on the categorical imperative.
But seriously, religion ain’t all bad.
But seriously, I don’t think anyone has argued that one shouldn’t base laws on religion. Religion informs people’s worldview; it would certainly help delineate the form society should take. I have absolutely no problem with someone saying that we should do X because their religion says so, just so long as I am just as free to say their religion is a terrible basis for free government.
Bigamy often (though not always, of course) involves deception, which leads to harm of people. So it can be legitimate for a government to prohibit it, to avoid that harm. Likewise, it’s at least arguable that shellfish can feel pain, in which case you have to weigh the benefit gained from the research against the suffering caused to the animals, and again it’s a moral issue. Nobody is harmed by the eating of shrimp, though, so it’s not a moral issue.
When you get governments meddling with issues unrelated to morality, you end up with absurdities like gay marriage bans. Gay marriage harms nobody, therefore it’s not immoral, therefore it should not be prohibited by law.
Kant’s Categorical Imperative is on the surface pretty unrelated to shell fish.
Under one formulation of the CI, Kant states that we ought to treat people as ends in themselves, and not as mere means. But given that shell fish are not people, and do not share sufficient qualities of personhood with people, it is not a plausible direct inference.
Under that view, you still need to fill in the gaps creatively with what is permitted by humans, rather than trying to claim shell-fish protection can somehow be deterministically derived from the principle.
The other approach - might be to suggest that a different CI formulation may allow a different ansnwer: “Act only according to that maxim whereby you can at the same time will that it should become a universal law.”
But again we have the same problem. This is a question of the bounds of action-reason for agents. The agents still need to have the content for their views.
Finally, Kant himself thought that animal cruelty was not permitted by the duty to oneself not to erode our common humanity or something close to that. Whether he thought research into shell fish would qualify as an expression of denigration of moral agency I highly doubt it. I think it’s safe to say he had more in mind gratuitous cruelty to sentient mammals.
I’m not sure that it is. It is, however, a clear reason for a moral rule, but not one we have to accept. I mentioned that I took your point to be shellfish are banned because of the Biblical prohibition, and I did mention that if there were valid health reasons for banning them, that would be different. My point is not that we should do everything that the Bible bans, but that we should consider the argument “God told us to” to be invalid. Same goes for any other supernatural explanation. We’d hardly want to pass a law about stepping on cracks to keep us from breaking our mothers’ backs, would we?
I believe that when determining the constitutionality of a law that looks non-secular, the courts examine the debate and the validity of the non-secular justification. If, in your first example, those arguing for it quoted the Bible a lot, that might indicate that the non-secular intent was paramount. If they ignored the mass of nutritionists who felt shellfish were not harmful, and only called a fringe of Jewish and Muslim ones who thought it was, that might do that also. (The analogy to laws fostering creationism should be clear.) A debate about bigamy, on the other hand, would probably feature sociologists talking about its harmful effects.
I’m not following your definition of morality. Can you define it for us? Seems like gay marriage is exactly the sort of thing that falls within the category of legislating morality.
As to the consumption of shellfish, the secular arguments for doing so are as plausible as those for the second law. One could argue its better for biodiversity not to scrape up the sea floor, or that the risk of food borne illness is too high with them, or, indeed, the exact same justification you offered for the second law.
What makes a belief in the immorality of eating shellfish supernatural but not a belief in the categorical imperative, if as you concede, both are faith-based? Aren’t all claims to objective morality equally “supernatural” in the sense you’re using it? The one true morality is every bit as unfalsifiable and existing outside reality as God.
Additionally, if there are valid health reasons for one, do you conclude that there is no way to distinguish one from two and three?
I’ve told you their basis, but left unsaid other conceivable bases. If you ask only about non-secular intent, you cannot distinguish them because I’ve told you their actual intents. If try to distinguish based on other conceivable intents, you cannot distinguish them because all three have conceivable secular intents. Hence, the challenge–the answer clearly must go deeper than secular vs. non-secular intent.
In the thought experiment I’ve offered, they based the law on their (perhaps flawed) general understanding of judeo-christian morality.
Morality is that which discourages harm and encourages benefit. A lot of people lately have been trying to redefine it to mean “doing what I tell you to do”, but I’m not particularly fond of such folks, and see no reason to accomodate their redefinition of a perfectly good word.
Yes, pretty much. All morality is faith-based, to put it another way.
That’s why I mentioned consensus as the only way to establish what morality should be enshrined into law. (Subject to the limits imposed by the Constitution, and we require a higher level of consensus to amend that.)
But there is no real difference between laws against bigamy and laws against eating shellfish. If you can convince enough people to vote for you on an anti-shellfish platform, and/or convince enough people to add an anti-shellfish amendment to the Constitution, then you can pass the Anti-Lobster Act of 2009.
And it doesn’t really matter if you can establish the secular reason for it as “valid”. If people buy it, you are golden. If you argue that shellfish is high in cholesterol, so it should be banned, and everyone agrees and votes for you (and amends the Constitution as necessary), then that anti-lobster law is just a legitimate as laws against murder. Government derives its just authority from the consent of the governed. If enough of the governed consent, have at it.
Same for bigamy laws. If enough people say it is “bad for children”, or “too confusing for inheritance”, or “exploits women”, or whatever, then your only chance is to argue that the Constitution says bigamy is OK (or doesn’t say it isn’t OK).
So, in that sense it doesn’t matter if the categorical imperative is “valid” and the laws of kosher aren’t. Get enough people to agree with you, and everything’s fine.
The Founding Fathers dealt with this with the idea that there was a universal morality, that all humans would agree on. It’s called natural law. Ultimately, I suspect that most people arguing in favor of laws that the majority doesn’t accept tend to depend on it.
In the example, the reason for not eating shellfish was that a supernatural entity supposedly said not to, with no justification given or needed. The reason for the ban is supernatural, not the ban itself.
I think I would agree that claims of “objective” morality are supernatural at heart, except in some rare cases, perhaps. Whether the one true morality is unfalsifiable or not depends on the metric you use to evaluate it. If you say it is right because it is right, and ignore contradictions, then it is unfalsifiable (and trivial, in a sense.) If you are allowed to evaluate it, you might find deficiencies showing it is not
One would be stronger, actually, being fact based instead of philosophically based. So 1 and 2 would be secular, but not 3 still.
But non-secular intent by itself doesn’t invalidate the reasons for a rule. That a person is against murder only because the prohibition is in the Ten Commandments doesn’t mean it isn’t valid due to other, secular, reasons. Creationism fails not only because it is religion based, but mostly because the statements about it being a reasonable hypothesis are not true.
Like I said, that doesn’t invalidate bigamy.
I think the bottom line here is that we have to ask if the law was reasonable without any knowledge of Judeo-Christian or any other morality.