Eugene Volokh is a Machiavellianist but sometimes he has good arguments. This time he has a good one. In his latest blog he tries to answer the question whether laws are illegitimate if they are inspired by religious motives. His answer is no and he is right about that.
Imagine that the government enacts a law that murder is prohibited – inspired by the bible. It would be stupid to oppose this law, only because the government is inspired by religion. Imagine someone shouting: “This is a law inspired by religion; therefore, it is bad. Murder should be legal. Morover, it should be compulsory. Everybody should be forced to commit a murder as soon as she is 18 years old.”
So when is a law based on religion wrong? It’s very simple. One has to adopt the Heaven position to discover which laws are bad, whether or not they are based on religion.
The Heaven Position
Imagine that you are a smart spirit, like the one conceived by Plato, and you are going to be born soon, but you have no knowledge of where. You are in a debating room and you debate and negotiate with the other future inhabitants of the world. Which laws should there be? In this position you sign a social contract that binds everybody.
Just as in John Rawls’s experiment, you have no knowledge as to what particular properties you will have in the actual world. You don’t know which person you will be. Rawls would also say that you have no knowledge of your future conception of good.
What you certainly will know about the future is that everybody’s capacity to know the truth will be limited. Again, as in Rawls’ experiment, you are allowed to have any general knowledge you might want. You know something about human psychology, about group dynamics and about how politics works.
You know that most humans value life either above all other values, or as a necessary precondition to satisfying one’s conception of good, since death would prevent most of us from realizing our plans. But we value life because we have a survival instinct.
Besides life, we have fundamental biological and psychological needs (biopsyx).
For instance we need physical freedom in order to find food, shelter and sexual partners. We would suffer unbearably if we were tied to a table for the rest of our lives, even if our hostage taker would make our lives longer than normal, by technological means. (That means that we strive for longer lives in combination with a minimal satisfaction of certain needs.)
We want political freedom for the same reason. When we want a right to vote, we assume that the result of the conflicting interest will elect a government that would take measures to lengthen our lives and to satisfy our biopsyx. We want that the laws put limits to the freedom of others, to avoid that they shorten our lives, or prevent us from satisfying our biopsyx.
Let’s consider some practical examples. Looking at the prohibition of murder it is evident that it makes our lives longer. Many of the human rights make our lives longer and guarantee the satisfaction of biopsyx.
What about a prohibition of homosexuality? When two homosexuals have fun with each other that does not have any effect on the length of my life. And it does not affect any other biopsyx. Moreover, the homosexuals satisfy their biopsyx. Therefore we should oppose laws that prohibit homosexuality. In fact the government does not have any right to enact such laws.
I know that many laws do not evidently lengthen/shorten lives or promote/restrict the satisfaction of biopsyx. Take for instance a law deciding that we should pay 10% taxes. Would 11% or 9% lengthen more lives and enable more people to satisfy their biopsyx? That might be impossible to calculate. But imagine that one produces a scientifically evidence that 9% increases the average life expectancy by 5 years. That would make the 10% law illegitimate. When uncertain, the law is binding.
Do I mean utilitarianism? Yes, but utilitarianism with limits. In the Heaven position we would chose to limit what the laws can do. Imagine that one proves scientifically that if everybody raped your four-year-old child, the society killed your wife, tortured you for the rest of your life and shared your possessions amongst themselves, that would increase the life expectancy of the rest by 10 years. Would a law allowing such things to happen be legitimate? That depends on the risks you would be prepared to take in the Heaven position. Maybe you are prepared to take the risk if the law affects only one family. But you would not take the risk if the law affected 25% of the families.
To avoid taking such undesirable utilitarian decisions, we do the same as Ulysses did, when asking the seamen to bind him to the mast and fill their years with wax, to avoid sirens; we put some minimal rights in a constitution and sign international human rights treaties. This is exactly what we would do in the Heaven position, we would put some rules in the contract we sign, limiting the power of the government to enact certain laws.
In short, it is irrelevant whether religion inspires government to enact certain laws. What is relevant is whether or not these laws would be acceptable to us in the Heaven position. If we don’t know, then the laws are binding. If in the Heaven position we would not sign a contract that would contain such laws, then the laws are illegitimate.
Moreover, when the sum of all laws violates the contract evidently and grossly, we are free to revolt, like the people did in Eastern Europe and in the Arab countries now.