Respecting an Establishment of Religion
A striking feature of minimally well-functioning legal systems is their ability to decide cases which turn on morally contested concepts. A natural lawyer, for whom there is an intimate connection between law and morality, may view this as proof of an underlying moral consensus which obtains despite the superficial appearance of moral disagreement It is more plausible, I suggest, to view this facility in terms of the legal positivist insight that law is a mechanism for social control and regulation, which operates despite the lack of moral consensus. In the present climate, there can be few concepts more contested than that of religion. On the one hand, the barbarians are at the gate, in the form of the “new atheists,” such as Richard Dawkins, Daniel Dennett and Sam Harris, whose increasingly raucous diatribes against religion weigh down newspaper columns and websites. On the other, messianic zanies of all persuasions seem determined to fulfil scriptural prophecies of Apocalypse. Both sides hold wildly differing views on the nature of religious belief which in turn diverge dramatically from mainstream views. Nevertheless, in the context of this chapter, I will examine a few instances, where it seems to me that the American legal system is able to work reasonably well despite the profound disagreement that bedevils American society over issues of religion and spirituality. This is all the more striking given that some of the cases involve Americans’ peculiarly infantile attitude to drugs and alcohol.
Richard Hamilton, 'Respecting an Establishment of Religion', in Philip Andrew Quadrio and Carrol Besseling (eds), Politics and Religion in the New Century: philosophical reflections, Sydney University Press, The University of Sydney, NSW, Australia, 2009
The author's pre-published chapter is available for download.
Politics and Religion in the New Century: philosophical reflections is available from Libraries Australia at: http://trove.nla.gov.au/work/31807310?selectedversion=NBD44463117