Conscience for Me, But Not for Thee
As a current law student at Yale, I was intrigued to read Ben Weingarten’s recent piece in The Federalist, “Allah and Man at Yale,” decrying Yale Law School’s decision to accept a significant gift for the creation of a new “Center for Islamic Law and Civilization.” My disagreements with Weingarten’s piece run deep. Not only do I strongly dispute Weingarten’s characterization of the new Islamic law center as a specter of “Islamic supremacism,” but the article reflects a dangerously widespread tendency of conservatives (including many Christians) to embrace ideological inconsistency where Islam and religious liberty are concerned.
(As a brief prefatory note, there are over a dozen “centers” at Yale Law School already, the vast majority of which are never encountered in daily student life. If anything, the creation of yet another program is more a testament to the proliferation of academic bureaucracy than anything else.)
The main problem with Weingarten’s argument, however runs far deeper—and in order to understand why, a brief detour into the history of legal philosophy is required.
Academic legal philosophy is dominated by a school of thought known as legal positivism, which sharply contrasts with the view that legal principles emerge from natural law or divine revelation. Legal positivism, often associated with the philosophers H.L.A. Hart and Hans Kelsen, teaches that law is exclusively a set of rules created and perpetuated by the current political sovereign. Opponents of positivism contend that behavioral duties arise from higher moral values: there are spaces in life where a secular political state ought not penetrate. These are the same arguments raised in defense of religious exemptions from general laws (including the Obamacare contraceptive coverage mandate), and they are arguments common to both the Judeo-Christian and Islamic religious traditions. If Muslim Student Association chapters are hotbeds of incipient subversion, as Weingarten hints, why are InterVarsity Christian Fellowship chapters exempt from the same scrutiny? Both organizations share the notion that one’s moral duties do not begin or end with civil government.
The case for a pluralistic public square characterized by religious freedom—more specifically, one allowing for the possibility of “conscience claims” acknowledging authority sources beyond the state—depends on ideological consistency. To be sure, many Islamic thinkers harbor great disdain for the American pluralistic ethos. That is an uneasy reality which defenders of genuine intellectual diversity must, however, be willing to accept. Those who hold radical or subversive views—including, for example, Christian Reconstructionists, who favor the imposition of Old Testament civil law in contemporary America—have an equal right to speak alongside those whose speech falls more in line with mainstream values. To advocate otherwise is to endorse blunt majoritarianism: society’s largest religious group sets the rules, and smaller groups lacking political clout ought to put up or shut up. Arguing from a mindset of conscience for me, but not for thee simply hands ammunition to the opponents of conscience-based exemptions.
The true social conflict is not between East and West, but between those who favor a robust ideological pluralism and those who prefer a “naked public square” devoid of religious content. The Founding Fathers espoused the former view: consider George Washington’s words when seeking employees for his Mount Vernon estate. “If they are good workmen, they may be Mahometans, Jews or Christian of any sect, or they may be atheists.”
Where theories of law are concerned, the average contemporary evangelical has more in common with conservative Muslims than with America’s left-leaning coastal types: the traditional conservative view of law is rooted in principles transcending cultures and transcending the majority’s will. The Constitution’s counter-majoritarian features (e.g. freedom of speech, religion, and assembly for individuals and marginal groups) reflect this. Undoubtedly, there are areas of sharp divergence between classical Judeo-Christian and classical Islamic approaches to legal thought, particularly regarding the extent of rights protections and the integration between ecclesiastical and political authority structures: understanding core areas of common ground, however, may prove fruitful as violence continues to rage in the Middle East.
It also bears brief mention that Weingarten’s piece also treats all Muslims and Muslim groups as homogeneous, reflecting a tendency to speak in broad strokes that would be deemed laughably inaccurate in another context. All Republicans do not support Donald Trump’s vision for America; all Christians do not support a return to Levitical law; all Muslims do not support the rise of a totalitarian caliphate.
In short, whatever impact the new Center has—and it will likely be largely inconsequential, given the vast scope of Yale Law School’s projects—will probably be positive. Given the increasing tendency in public life to treat religion as merely a curiosity, I am optimistic that Yale’s new Islamic law center may offer a constructive counterpoint to that trend: if anything, it provides an opportunity for legal scholars to take religion- and conscience-based claims seriously.
Conservatives and Christians do not “sow the seeds of our own destruction,” as Weingarten puts it, by engaging seriously with controversial ideas, but rather by compromising fundamental principles through inconsistency. And where issues of religious liberty in the public square are concerned, people of sincere faith ought to build bridges rather than burn them.
Image courtesy of Sharon Schoepe.