Nihilism and the End of Law
Pt 2
All I can say is this: it looks as if we are all we have. Given what we know about ourselves, and each other, this is an extraordinarily unappetizing prospect; looking around the world, it appears that if all men are brothers, the ruling model is Cain and Abel. Neither reason, nor love, nor even terror, seems to have worked to make us "good," and worse than that, there is no reason why anything should. Only if ethics were something unspeakable by us could law be unnatural, and therefore unchallengeable. As things stand now, everything is up for grabs.
Nevertheless:
Napalming babies is bad.
Starving the poor is wicked.
Buying and selling each other is depraved.
Those who stood up and died resisting Hitler, Stalin, Amin, and Pol Pot-and General Custer too-have earned salvation.
Those who acquiesced deserve to be damned.
There is in the world such a thing as evil.
[All together now:] Sez who?
God help us.
What Leff said is fascinating, but what he failed to say is more fascinating still. If there is no ultimate evaluator, then there is no real distinction between good and evil. It follows that if evil is nonetheless real, then atheism-i.e., the idea of the nonexistence of that evaluator or standard of evaluation-is not only an extraordinarily unappetizing prospect, it is also fundamentally untrue. Because the reality of evil implies the reality of the evaluator who alone has the authority to establish the standard by which evil can deserve to be damned. When impeccable logic leads to self-contradiction, there must be a faulty premise. In this case the premise is that because God is dead, "it looks as if we are all we have." Why not reexamine the premise? Why not at least explain why you refuse to reexamine the premise?
By not asking that last question, Leff in effect placed the death of God in the place of God. In his system, the absence of a supernatural evaluator was a premise so far beyond question that it could not be doubted even when it pointed to a conclusion Leff desperately wanted to escape, even a conclusion he acknowledged to be false. If we know that totalitarian mass murder is evil, and that those who acquiesced in it deserve damnation, then we know something about that absolute evaluator as well. Leff offered no reason for protecting modernism's founding premise from the brilliant skeptical analysis that he directed at everything else.{1} To a theist this must seem indefensible, but Leff could not have done otherwise without ceasing to be a modernist. A system's ultimate premise is always beyond question; that is what it means to say that it is an ultimate premise.
The most interesting aspect of any argument is not what it explicitly states, but what it implicitly assumes. A rationalistic culture teaches us to think that truth is the product of a process of logical reasoning. When we are dealing with intermediate or detailed truths, which rest on more fundamental premises, this model is correct. The model breaks down, however, when we try to apply it to the fundamental premises themselves. This is because logic is a way of getting to conclusions from premises. By its very nature, a logical argument cannot justify the premises upon which it rests. When these premises are questioned, they have to be justified by a different logical argument, which rests upon different premises.
We may follow this process forever, and we will never encounter anything but another logical argument, which will itself be based upon premises. But then what is the ultimate premise, the Archimedean fulcrum on which intellect can sit and judge all the rest? If we try to answer that question by employing logic we lapse into the absurdity of circular reasoning. Reasoning has to start somewhere. Any attempt to justify the ultimate starting point necessarily fails, because it only establishes a different starting point. Hence, the really important step in any argument is apt to be the unexplained, unjustified, and often unstated starting point.
For example, take the rationalist philosopher who demands philosophical proofs of God's existence. From a humanistic standpoint, which finds its Archimedean point in the self-existent human mind, the demand is perfectly reasonable. But where did this mind come from, and why should we trust its philosophical ground rules? From a biblical theistic standpoint, human reason possesses a degree of reliability because God created it in His own image. When human reason denies its basis in creation, it becomes unreason. Those who have thought that they are wise in rejecting God end up as fools, carried along by every intellectual fad and approving every kind of hateful nonsense. Many people who live in modern times find this analysis confirmed every day by what they see on television and read in the newspapers. Then why is the biblical starting point out of the question for modernist intellectuals?
The primary answer is that modernist thinking assumes the validity of Darwinian evolution, which explains the origin of humans and other living systems by an entirely mechanistic process that excludes in principle any role for a Creator. In the word of the neo-Darwinist authority George Gaylord Simpson, the meaning of "evolution" is that "man is the result of a purposeless and natural process that did not have him in mind." For modernist intellectuals, belief in evolution in precisely this sense is equated with having a scientific outlook, which is to say, with being a modernist. The price for denying "science" is to be excluded from modernist discourse altogether. That is why "it looks as if we are all we have," even if the model for "we" is Cain and Abel.
In my book Darwin on Trial I explained that Darwinian theory finds its basis in the philosophy of scientific naturalism rather than in an unprejudiced examination of the evidence. In other words, the theory that is itself the most important supporting pillar for the modernist system is itself supported by that very system, in a classic example of circular reasoning. If that analysis is correct, then scientific naturalism itself is the product of a faith commitment rather than an irresistible inference from the facts provided by scientific investigation. In that event, the modernist impasse may be a problem of the mind that has sold itself into captivity. Can a way out of this captivity be found in "religion"?
Not if religious thinking itself accepts the ground rules of modernism. R. Kent Greenawalt, a University Professor at Columbia University, is a distinguished legal philosopher who has tried to justify a mild theism without directly challenging the modernist definition of rationality. In Greenawalt's words: "With some uncertainty and tentativeness, I hold religious convictions; but I find myself in a pervasively secular discipline." In the 1986 Cooley Lectures at the University of Michigan Law School, Greenawalt defends a limited role for religious convictions in a jurisprudential culture whose ruling paradigm, called "liberalism," is roughly identical to what I have been calling modernism.
Some legal philosophers say that liberalism implies the exclusion of religious considerations from public life. Their reasoning is that public decisions should be made on the basis of principles and arguments accessible to all persons. This basic principle implies that common sense and science must supply all the essential factual knowledge, and that standards of ethics and justice must come from secular philosophies that rest upon uncontroversial assumptions. For example, Cornell University philosophy professor David Lyons declares that to reject the idea of "a naturalistic and public conception of political morality . . . is to deny the essential spirit of democracy." In the same spirit, Yale Law School's Bruce Ackerman writes disparagingly of those who want to restrict abortions "on the basis of some conversation with the spirit world." According to this influential version of liberalism, people who want to make public policy on the basis of some private knowledge of God are fundamentally undemocratic, because they refuse to share a common base of discourse with their fellow citizens.
Responding to this "religion is for private life only" position, Greenawalt argues that in some circumstances citizens of a liberal/modernist state may rely upon their personal religious values in casting votes or framing arguments. Some religious citizens may have difficulty understanding why the argument even has to be made. All they have to do, after all, is invoke "the grand sez who" and then vote and argue as they like. Greenawalt concedes that citizens of a secular liberal state have a legal right to vote their religious convictions, but he is more concerned with when and whether they ought to exercise self-restraint in the interests of good citizenship. Model citizens do not do everything they are legally entitled to do. They do not, for example, advocate the legal subjugation of one race by another, or the establishment of a particular religion, even though such advocacy is constitutionally protected. Good citizens also decide how they will vote on rational grounds, as far as they are able. But according to modernist liberalism, religious beliefs are inherently nonrational. Does it follow that model citizens should leave their religious convictions at home (where they are relatively harmless), and base their votes and arguments concerning public questions on secular considerations only?
Greenawalt concedes that "legislation must be justified in terms of secular objectives." Nonetheless, "when people reasonably think that rational analysis and an acceptable rational secular morality cannot resolve critical questions of fact, fundamental questions of value, or the weighing of competing harms, they [may] appropriately rely on religious convictions that help them answer these questions." He assumes the modernist position that only secular reasoning can be completely rational, because he thinks that "a critical nonrational element" is always present in religious belief. The presence of such a nonrational element does not disqualify religious values from consideration in lawmaking, however. Because "rational secular morality" cannot conclusively decide such important value questions as how highly we should rate the preservation of fetal life, or how generously we should provide for the poor, legislators and judges as well as ordinary voters may with good conscience rely on their personal religious convictions to resolve such questions.
By implication, Greenawalt accepts the crucial modernist assumption that there exists a common secular rationality capable of resolving some important public issues without relying upon controversial and unprovable (i.e., nonrational) assumptions. Otherwise, the conceded distinction between "religious" and "rational secular" thinking would collapse. This is an extremely important concession: giving modernists the power to define rationality ensures that, even if "religion" is allowed a modest place in public discussion, God will continue to be effectively excluded. The reason lies in the very basis of modernist metaphysics. "Religious belief" is a real category to modernists; so is belief in fairies. All religions are equal-equally imaginary, that is. To modernists "God" is an idea in people's heads, not a reality outside of human subjectivity. As long as modernists make the rules, every godlet can undermine every theistic proposition at will by invoking the grand sez who. The culture will still be left to choose between an intolerable nihilism and continuing to chase the illusion of liberal rationalism.
At times Greenawalt seems to accept that illusion, but at other times he shows an awareness that it is an illusion. Here is how he explains his own understanding of rationality:
I confess to considerable uncertainty about where rationality ends; but among rational convictions I include those that are apparent to anyone with ordinary rational faculties or that can be demonstrated or persuasively argued on rational grounds. Beliefs that humans have greater ethical capacities than leaves, and that love is more productive of happiness than hate, can be rationally established. An irrational conviction is contrary to what can be established on rational grounds. A nonrational conviction, in my sense, is a conviction that is not irrational but that reaches beyond what rational grounds can settle.
When a philosopher defines his central concept only in terms of itself (rational propositions are those that appeal to rational people or that can be supported on rational grounds) it is a sure sign of confusion.{2} Moreover, a secular rationalism that can't resolve anything more controversial than that humans have more ethical capacity than leaves is useless. The point modernist rationalism has to establish, or assume, is that a common secular rationality exists which is capable in principle of resolving the issues that actually divide people. Examining the most famous recent example of such a system, the rights-based liberalism of John Rawls, Greenawalt clearly recognizes that this basic modernist assumption is false.
Recognizing that citizens in liberal societies have variant religious beliefs and ideas of the good, Rawls begins with premises that are widely shared by people who disagree on many fundamental questions. From these premises, he aspires to draw principles of justice whose acceptance allows political decisions to be made without reference to the fundamental religious and metaphysical beliefs that divide citizens. . . . Contrary to what Rawls supposes, he does not provide a theoretical basis for thinking that this ambition is either realizable or desirable.
But why then does Greenawalt build his defense of religious opinion on the assumption that this ambition is both realizable and desirable? The probable answer is that in these lectures he was addressing an audience of modernist liberal rationalists, and wanted to persuade them that even their own philosophical system had to concede at least some room for nonrational opinions on public questions, and therefore for religious opinion. Moreover, Greenawalt is a generous-minded person who understands that it is desirable to conduct public discussion on as ecumenical a basis as possible. However confused his notion of rationality may have been, his intention was to persuade his adversaries by meeting them on their own metaphysical territory.
Up to a point, this way of arguing is itself an act of good liberal citizenship. If a society is to be governed on the basis of consent rather than force, it is important that the laws make sense to as many citizens as possible. To that end, we should try to justify the laws on the least controversial basis that is available. That is why nowadays we defend Sunday closing laws (if at all) by the secular purpose of encouraging a general day of rest and recreation rather than the original purpose of honoring the Lord's Day or maximizing church attendance. In a more general sense, the courtesy we owe to fellow citizens argues for framing public questions in language that invites everyone to participate in the discussion on comfortable terms. It would be insensitive as well as ineffective, for example, for Christians to exhort their Jewish, Muslim, or agnostic neighbors about what Jesus would want us to do. On the other hand, Christians (or religious people in general) shouldn't be excluded from the political conversation either, as they would be if only agnostic opinions could count. Greenawalt's moderate and nuanced position about the proper role of religion in secular political discourse rightly addresses these questions of political good manners.
But good manners is one thing; giving away the authority to define rationality is something else altogether. Good citizens treat their neighbors' deeply held convictions with respect not because they are necessarily rational, but because they are deeply held. Standards for defining rationality are as controversial as any other assumptions. What Greenawalt accepts as "rationality" is actually the irrational assumption that we can get along very well without employing any controversial assumptions about the nature of ultimate reality. This assumption is the idol of rationalism, the faith commitment that holds the tribe together. We should perhaps treat the idol gently, because it is still very dear to many admirable people, but we should not bow down and worship it. For any genuine theist, ultimate reality must be God-not the unanchored, self-validating human mind.
Theists may be entering a time of great opportunity for affirming that understanding of reality, because the modernist idol's substance is dissolving a little more every day. In the twenty-first century, philosophy's task will be to rebuild a positive response to the human predicament that starts with the cause of that predicament, man's alienation from God. Before it can undertake the positive task, however, it must complete the critique of atheistic rationalism. On the scientific side, theists need to continue to expose the vulnerable philosophical assumptions that provide the only real support for the Darwinian theory of evolution. On the ethical and cultural side, they need to help the public as a whole to understand that the nihilism permeating contemporary life is the inevitable consequence of apostasy. King Lear's words provide the appropriate epitaph for modernism: "Nothing will come of nothing."
Secularized intellectuals have long been complacent in their apostasy because they were sure they weren't missing anything important in consigning God to the ashcan of history. They were happy to replace the Creator with a mindless evolutionary process that left humans free and responsible only to themselves. They complacently assumed that when their own reasoning power was removed from its grounding in the only ultimate reality, it could float, unsupported, on nothing at all. As modernist rationalism gives way in universities to its own natural child-postmodernist nihilism-modernists are learning very slowly what a bargain they have made. It isn't a bargain a society can live with indefinitely. |
