Religious liberty is not a trump card that wins every time, but interference with clergy-penitent privilege will do no good and may produce real harm.
Overcoming the Dilemma of Religious Liberty
To have one’s book, much less one’s first book, reviewed by a scholar of the stature of Steven Grosby is no small honor. Whatever Professor Grosby’s ultimate judgment of the work, it is flattering that he would take the time to read it.
Still, it is curious that that time yielded a review in which my book’s treatment of liberalism—a ten-page section—is somehow secondary to its larger point, viz., the problem of religious liberty is a perennial tension between divine law and human law, and that natural law can serve to mediate that conflict. Grosby, on the other hand, avers that I “fram[e]” the book’s argument “by indicting liberalism.” This is “shoddy,” to Grosby, because it treats liberalism “as if it were a coherent doctrine.” Not really. While I do argue that “liberalism by itself is inadequate to address the problem of religious liberty, which is the problem of competing laws,” the small liberalism section of the book in fact makes a much larger claim: liberalism, in any conceivable variety, can’t overcome the dilemma of religious liberty mentioned above. If there is a problem with my claim concerning liberalism, and I admit that it is a bold one, a critic would need only show how one of the varieties of liberalism either has historically or could conceptually serve adequately to address the problem of religious liberty.
Due in part to this preoccupation with liberalism, Professor Grosby’s review treats only minimally the real meat of the book, which is an examination of the development of natural law in each of the Abrahamic faiths and, to a lesser extent, an exploration of how that natural law could be used to advance religious liberty. In the sole paragraph that did address these four chapters, Grosby judged the chapter on the Christian source, Tertullian, to be “the most interesting…because it is unexpected in a discussion of natural law and religious freedom.” Interesting is in the eye of the beholder, but I was surprised that it was so unexpected: Tertullian explicitly called it a “human right (humani iuris)” as well as a “privilege of nature (naturalis potestatis)” that one should “worship according to his own convictions” (Ad Scapulem ii.1-2). (For my part, I had thought that pulling the rabbit of natural law and religious freedom out of the hat of medieval Muslim commentary on Aristotle’s Rhetoric would be less expected.)
More baffling, however, is Professor Grosby’s allegation that I seem “to be unaware of the ambiguities” in the many ways in which natural law is understood. In Chapter One’s section “Natural Law,” I first acknowledge that natural law is “notoriously slippery,” then explain what I mean by natural law as “mediating law” (Aquinas’ “linking ‘eternal reason’ to the ends and actions of human beings,” see Summa Theologica I-II.q.92.a.2.co). Finally, and most importantly, I explicitly adopt Monsignor Robert Sokolowski’s and Francis Slade’s definition of natural law as “the ontological priority of ends over purposes.” If this is ambiguity (or yet more thickly, oblivion to ambiguity), I confess I don’t know what clarity would look like. It is not every man’s natural law, it is this version of natural law that the book addresses and employs.
A final, but crucial, misunderstanding between Professor Grosby and the text of the book is found in his criticism of my use of the categories of reason and revelation. Grosby finds this delineation equally ambiguous; indeed, “[i]t would be better if the distinction were not entertained at all.” The reason for this judgment “will be obvious to anyone familiar with the ‘religious’ texts of the Mishnah and Talmud.” But Professor Grosby here slips between “revelation” and the much broader “religion” without justification. Yes, the religious machinations of the Sanhedrin certainly entail reason, as do authoritative (and religious) Christian councils as well as the (also religious) Islamic juristic tools of ijma’ and qiyas (consensus and analogical reason, respectively). But these go beyond revelation itself. And in fact, this is precisely my point: the reasoning that is used in interpreting divine law and revelation must be tethered to something greater than revelation itself. Likewise, the faculty that is used in crafting human law must be tethered to something greater than human reason, even as it is rarely considered liberal, in any version of liberalism, to tether it to revelation or divine law itself. (Tethering human law to a broader religious tradition is another question, one I do not address in the book but which, for what it’s worth, seems to me to be possible in a liberal society.)
I am, however, indebted to Professor Grosby for pointing out a distinction I do not treat, which is that “between the morality of substantive ends and a morality of procedure and institutional relations,” the latter of which is indeed, as he writes, “crucial for liberty” and which my book does not address. I did not intend to “ignore” the distinction, though I can hardly blame the reader for noting that effect. Rather, it seemed that articulating and defending a particular conception of natural law, explaining why that concept of natural law was necessary for thinking about religious liberty, then expounding it in Greek, Jewish, Islamic, and Christian historical contexts was already quite a large bite for a relatively slim book. Procedure will have to wait for its day in court.