Nussbaum on Liberty of Conscience

by Harry on June 10, 2008

I was lucky enough to see Martha Nussbaum give a lecture in Chicago a couple of weeks ago, based on her new book Liberty of Conscience: In Defence of America’s Tradition of Religious Equality (UK). I confess to having been a bit skeptical prior to the lecture. I always like reading Nussbaum’s work, and she’s a great speaker, but I’m not riveted by the topic, still less by historical investigations in philosophy, and am always put off by having the name of a country in the title (or subtitle) of a work of philosophy. The talk (and now the book) convinced me that I should be more open on all counts. She gave a fascinating account of the thought of Roger Williams, the founder of the colony of Rhode Island, and made a very convincing case that his arguments for freedom of religion anticipate, variously, two of Kant’s formulations of the Categorical Imperative, Rawls’s idea of the overlapping consensus, and Locke’s sharp claim (in the Letter) that the magistrate has responsibility for secular matters, but not for care of the soul. “Anticipation” must be the wrong word in at least Locke’s and Rawls’s cases, because she convincingly argued that Locke must have been aware of Williams’s arguments, and, although she did not argue this, it is reasonable to assume that Rawls was too. She also argued that Williams’s theory of religious equality is superior to Locke’s theory of toleration on several grounds, including that it does not depend on Protestant premises, that it is more extensive (Williams, weirdly enough, believed that not only pagans, but even atheists (whom he called “anti-Christians”) could be decent people), and that it is more demanding: his argument does not merely support a stricture against persecution (which Williams termed “soul rape”) as Locke’s does, but a stricture against establishment. All this, and the guy sailed back and forth between England and the colonies, learned numerous languages, including Indian languages, and spent months at a time living with Indians. Finally, in the book, she makes a strong case for that Williams’s principle of religious equality is not parochial, but has a great deal to say to other democratic cultures: it’s been enough to get me to examine (but not necessarily to reject) my casual antidisestablishmentarianism in the UK context. Despite having about a million things to do, I’m now half way through the book which is as good, and as interesting, as the lecture promised. Highly recommended.



Stuart 06.10.08 at 1:21 pm

How can you misspell antidisestablishmentarianism?


harry b 06.10.08 at 1:33 pm

Corrected. Mistyped, rather than mispelled. (My typing is worse than my spelling, which is quite an achievement).


Patrick S. O'Donnell 06.10.08 at 1:40 pm

While not freely accessible online, Kent Greenawalt had a nice review of Nussbaum’s book in The New York Review of Books: “Where Shall the Preaching Stop?” Vol. 55, Number 8 · May 15, 2008. The exchange of letters that followed, however, is available online:


John Emerson 06.10.08 at 1:47 pm

If religion is a good thing, it should be disestablished; if bad, it should be established. I say that it should be established and corrupted.


robertdfeinman 06.10.08 at 2:10 pm

Nussbaum’s argument can be reduced to a very simple statement. Since this statement is a) counter to the fundamental principles under which the US was established and b) assumes the conclusion as a premise she has to obfuscate it with lots of irrelevant historical data.

What she is arguing for is that a certain subset of the mythologies that the people of the world have created should be given special status in the public sphere, especially in the US and other western democracies.

The reason that this should be done is because these particular mythologies are “true” and thus, deserve to be heard and supported by government.

Point a) is misinterpreted to mean that government should support religion impartially rather than not at all. The extension to allowing, say, Wiccan beliefs is necessary so that her preferred monotheistic choice can get an airing. What the founders had in mind was that government should steer clear of religion, not be impartial. It doesn’t matter what Roger Williams actually thought or said, he didn’t write the constitution. The constitution was designed to avoid having government take sides in religious disputes or force certain religions to follow government policies.

The founders were looking at English history, especially Henry VIII and the Roundheads and didn’t want to see a repeat of this sort of civil war or pressure on religious groups to take political positions.

Point b) implicitly assumes the existence of a supernatural being and therefore promoting discussions of this axiom is a legitimate public purpose. Nussbaum realizes the weakness of this claim so she is willing to allow non-believers to have their say as well. She “knows” that her personal beliefs are “true” and is willing to permit a bit of “error” in the public sphere to dampen criticism of her stance. But why stop at this framework? Why not allow flat-earth believers, or those who think the tooth fairy exists equal access to the public sphere via government support? Should we teach the “debate” over these two myths in school? Should we insist that candidates for public office state their position on such matters just as we have over their support of monotheistic religion? Article VI of the constitution says “…no religious test shall ever be required as a qualification to any office or public trust under the United States.”

Technically there is no demand for a religious test, but because of the pressure of the religious right there is a de facto test. In fact most people demand that the candidate announce a belief in Christianity, with a slight exemption for Judaism and more less willingness to support Muslims. Nussbaum may not realize it, but she is supporting more of this type of religious inflected government, not less.

The oath of office for president says: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” There is no mention of religion, yet it is expected that the oath will be taken upon a Bible. Placing one’s hand on a book does not ensure that one will follow one’s pledge, but those who believe in supernaturalism think that the fear of divine punishment will make the person taking the oath more truthful. Once again, Nussbaum wants to see more of this type of intrusion of a preferred mythology in government. Perhaps instead of focusing on Roger Williams she should study the religious wars that plagued Europe for hundreds of years and consider if her ability to proselytize through government is worth the risk.


matt 06.10.08 at 2:30 pm

My impression (reinforced by reading Greenawalt’s very nice review and the letters following it- thanks for that link, Patrick) is that it’s quite unlikely that Rawls had any significant direct knowledge of Williams’ views, at least more than one who had a reasonably good but not specialist’s knowledge of US history. It seems his letters had some impact in the US and his book in England but that they are hard to read and rarely read after the early 1800s.

More substantively, when I heard Nussbaum present the book at Penn (a few months before its publication) I thought she over-stated the case for religiously based exceptions to neutral laws, making cases that might be good matters of policy out to be matters of justice. One example that came up was whether Sikhs ought to be exempt from helmet laws relating to motorcycles, at least in countries like the US or Canada. Nussbaum wanted to assimilate these cases to ones about Mounties in Canada wearing particular head-gear though they seemed to me to be fundamentally different- in the Mountie case the issue is about access to roles of public authority and respect and not primarily about public safety. In the motorcycle case the issue is about public safety or health and there is no disrespect presented to one who cannot, because of his or her religion, not follow the law any more than there is to someone who just doesn’t like helmets. Additionally, in the motorcycle case, at least in countries like the US or Canada, there are lots of other options other than riding a motorcycle so someone who cannot comply with the law isn’t significantly disadvantaged. Since all laws disadvantage some people the mere fact that someone is disadvantaged by a law isn’t enough. Probably this problem isn’t a deep on for her book, but at least in the version she presented there wasn’t a clear answer to this sort of situation or apparent awareness of the different sorts of cases. That seemed a real weakness to me.


Thoman Pelham-Holles, Duke of Newcastle 06.10.08 at 3:01 pm

I say that it should be established and corrupted.

“I’m for the Church of England because it’s established, damn you. And if you can get your damned religion established, then I’ll be for that too.”


harry b 06.10.08 at 3:08 pm

Have you read the book, robert? Your account of her argument is eccentric. No time now to respond in detail but, for example, she depends on the importance of the personal search for meaning, not on the truth of any religious or non-religious claims.

Why should the US constitution and the original intent of its authors have any special authority in this debate, by the way? (As opposed to their arguments having the as much authority as their soundness warrants, which of course they do).


Thom Brooks 06.10.08 at 3:22 pm

I absolutely loved the book. My review appeared in the UK’s Times Higher Education and can be found online here:

There is also an interesting interview with Bill Moyers on the book here:


robertdfeinman 06.10.08 at 3:33 pm

I haven’t read the book (there are lots of foolish books I don’t read), but I saw her interviewed on Moyers where she had a chance to explain her thesis clearly.

In addition I’ve read many other things she has written that have appeared in the opinion magazines. If you think she is talking about the “personal search for meaning” then you haven’t been paying attention to her personal religious conversion history. In fact “personal search for meaning” seems only to be of concern to those who subscribe to various supernatural beliefs.

I suggest you try reading some of the ways unbelievers structure their lives without “meaning”. Many deny that even asking “what is the meaning of life” is a useful question. They focus instead on what they can do with their lives, since it’s the only chance they will have.

The religious assume that they were put on earth for a purpose and that discovering this purpose will reveal the “meaning of life”, but if evolution is just a series of random events then so is your existence. Random events don’t have a purpose. Getting people to realize that they have implicit assumptions from which they deduce conclusions is always the hardest task.

You may think my take on her views is “eccentric”, but I claim she is (once again) promoting belief over non-belief and this has been one of her tasks for a long time. I think everyone else is missing the point. I guess it all depends on what you take as your personal axioms.


"Q" the Enchanter 06.10.08 at 3:49 pm

“I say that [religion] should be established and corrupted.”

You can’t have one without the other.


harry b 06.10.08 at 3:56 pm

Thanks Robert; I missed the Moyers interview, and I am going simply from her talk and her book, which I take to be canonical. Your take seemed eccentric just because it has no bearing on what she said in her talk or in her book.

I am an unbeliever myself, of course, and have spent the last 30 years talking to unbelievers about how they structure their lives and reading about the diverse ways in which they… well, one natural way of putting what reflective and emotionally integrated people do is “search for meaning”. The idea that only the religious do this is something I thought only religious entrepreneurs of the worst sort put about.


leederick 06.10.08 at 3:56 pm

…she depends on the importance of the personal search for meaning, not on the truth of any religious or non-religious claims.

I don’t think she does, because her entire argument is on the basis that religious ideas are more important than other sorts of ideas (and she is arguing for religious freedom, not any more general sort of freedom of ideas and behaviour). Religious forms of ideas are given protection non-religious ideas aren’t. This puts us in a situation where, for example, religiously inspired vegetarianism is treated differently to vegetarianism for other reasons. And if you say you want Saturday off work because it’s your religion, then you’re on far stronger ground than if you just intend to use it to personally look for meaning.

Now why is this the case, if she doesn’t think there’s something special about religion? I think she can only think religion deserves protection because it has some truth value, that she can’t think of a good way to articulate. She doesn’t think any specific doctrine is ‘true’, but she thinks religion is ‘true’ is some vague sense. But that’s wrong, and that’s why the US tradition and the Free Exercise Clause are absolutely poisonous.


geo 06.10.08 at 3:58 pm

Harry: “I always like reading Nussbaum’s work”



SamChevre 06.10.08 at 9:16 pm

The constitution was designed to avoid having government … force certain religions to follow government policies.

And if we could have THAT, the “Religious Right” would have more than they have ever asked for.


George 06.11.08 at 1:34 pm

Atheists can be decent people? What a condescending prick!


Picador 06.11.08 at 2:08 pm

From Thom Brooks’ review:

It would have been very helpful to know precisely how we should respond to those who do not accept that all forms of religious belief and worship should be treated equally, especially where these beliefs deny the separation of state and religion regarding this challenge.

Yes, it certainly would, especially in the American context, where Nussbaum appears to be acting primarily as an apologist for the Christian Dominionists who are currently taking over the state apparatus.

I understand that you guys over in the UK have your panties in a twist over the largely theoretical problem of Sharia law, but in the US (which is Nussbaum’s actual subject), the problem is far from theoretical. I don’t think you’d have this much patience for her equivocations if your PM and his cabinet were all Islamic fundamentalists, whereas that’s exactly the situation the US has been in for the last 8 years.


robertdfeinman 06.11.08 at 2:26 pm

Just for the record Nussbaum converted to Judaism from her original protestant upbringing.

I’ve never understood how one can be completely in sync with the idea that one’s religions is the only “true” one and then go shopping for one more to one’s liking. The figures in the US for how many people change denominations are amazing, I think it is about 40%.

Such contradictory behavior is one of the signs that I take to mean that religious belief is much more casual than polls indicate. If you go to church once a year are you religious or just showing up for family, tradition or cultural reasons?

In depth studies of actual religious attitudes would be useful. I know they are tried all the time, but they suffer from various methodological failings the most important being “social desirability” bias. People won’t admit to thoughts or actions which are generally frowned upon.

The noise from the religious right may be the death rattle of a dying movement, unfortunately it still has many adherents in congress and the courts, or at least those who are intimidated by the movement.


harry b 06.11.08 at 3:08 pm

Wow, picador, and here we all are, being forced to pray in our public schools, fiverting huge amounts of tax revenues to support evangelical churches, being imprisoned for being proclaimed atheists. (And if you think they are all true believers, well, I suspect that you are as taken in as some of their more naive supporters).


harry b 06.11.08 at 3:21 pm

robert — most changes in denominations are within the same basic religious framework, and among Protestants at least do not signify any substantial change in belief. I read that 95% of those who leave the Amish become Old Order Mennonite, for example.

Have you never experienced a change in a fundamental belief? You believe X, but then, over time, you begin to doubt X, suspecting that there are reasons to believe Y, or just find yourself drawn to believing Y (which implies not-X), and eventually, you abandon belief in X. It doesn’t seem so odd to me, or anything like shopping. Are you saying that you don’t understand anyone who ever changes a fundamental and important belief in adulthood?


lindsey 06.11.08 at 3:44 pm

I’ve never understood how one can be completely in sync with the idea that one’s religions is the only “true” one and then go shopping for one more to one’s liking.

Couldn’t that be a sign that a person does in fact have some sort of deeper conviction? Remaining with the same denomination you were raised doesn’t signify depth of belief (though it could signify a laziness in weighing and examining the faith you were raised in –obviously, not always). Changing to a different denomination (instead of just a different church), usually signifies a disagreement over doctrine, which (if you bother to change denominations) is not an insignificant disagreement (at least in the believer’s mind). To come to that point, you’d have to have cared enough to examine and consider the doctrine you were raised to believe, and at some point realize that you can’t accept some specific belief to be right. Granted that’s not always the reason, but for some (or possibly many), it is.


Righteous Bubba 06.11.08 at 4:14 pm

I’ve never understood how one can be completely in sync with the idea that one’s religions is the only “true” one and then go shopping for one more to one’s liking.

Codeine is not the only opiate at the drug store, neither is it the most thrilling.


robertdfeinman 06.11.08 at 6:48 pm

A random quote to illustrate my point, I think Pew has more detailed information on the larger topic.

According to a landmark study, as many as 600,000 Hispanics in this country leave the Catholic Church every year in favor of Protestant evangelical churches.

Notice as well that the majority of US Catholics ignore one or more prohibitions on birth control or abortion or pre-marital sex or on other fundamental precepts of the church. Studies have shown that people justify their selective adherence to dogma by a variety of means and ignore the cogitative dissonance involved.

Daniel Dennett has discussed this partial adherence as meaning that people have a “belief in belief”, but don’t really believe too much themselves. Sometimes they are fairly explicit about it: “I’m sending my child for religious training because it is good for them, (even though I’m not a real believer myself).”

Atheists sometime make the reverse argument (also a form of elitism), “the unwashed masses need religion since they aren’t bright/educated/self-reliant enough to stand the truth.”


Ozzie Maland 06.11.08 at 9:37 pm

Leo Tolstoy’s book, _The Kingdom of God Is Within You_, raises a question about whether a religious belief in not paying taxes is within the penumbra of religious freedom. The following excerpts from the book imo reflect a divergence on this issue between two Quaker leaders in the 1840s:

Ch. 1 .. William Lloyd Garrison took part in a discussion on the means of
suppressing war in the Society for the Establishment of Peace
among Men, which existed in 1838 in America. .. Garrison
thereupon composed and laid before the society a declaration,
which was signed at the time–in 1838–by many members.
“Hence we deem it unlawful to bear arms, and we cannot hold any
office which imposes on its incumbent the obligation to compel
men to do right on pain of imprisonment or death. We therefore
voluntarily exclude ourselves from every legislative and
judicial body, and repudiate all human politics, worldly
honors, and stations of authority. .. We shall submit to every
ordinance and every requirement of government, except such as
are contrary to the commands of the Gospel, and in no case
resist the operation of law, except by meekly submitting to the
penalty of disobedience.

[I, Ozzie Maland, take it from the above that the senior Garrison agreed with Christ about rendering taxes to Caesar.]

Adin Ballou, who had taken part in the labors of Garrison the father,
and had devoted fifty years of his life to advocating, both orally
and in print, the doctrine of nonresistance.. I [Tolstoy writes] wrote to
Ballou, and he answered me and sent me his works. Here is the
summary of some extracts from them: .. And here is a version of Ballou’s catechism composed for his flock:

Q. Can he voluntarily give money to aid a government resting on
military force, capital punishment, and violence in general?

A. No, unless the money is destined for some special object,
right in itself, and good both in aim and means.

Q. Can he pay taxes to such a government?

A. No; he ought not voluntarily to pay taxes, but he ought not
to resist the collecting of taxes. A tax is levied by the
government, and is exacted independently of the will of the
subject. It is impossible to resist it without having recourse
to violence of some kind. Since the Christian cannot employ
violence, he is obliged to offer his property at once to the
loss by violence inflicted on it by the authorities.

Ballou is obviously torn apart by the question, and my imputing an anti-tax-paying position to him is somewhat unfair. Am I too unfair? But assume for the moment that there are two positions, one being anti-tax-paying. Hasn’t there been a consensual validation of society’s collecting taxes even from those having a contrary religious belief? From there, arguably, we can also support society’s restraints on polygamy and other deviations from norm that are so subversive of values shared by virtually everyone as to validate restrictions. (Is circularity in such matters avoidable?)

Aloha ~~~ Ozzie Maland ~~~ San Diego

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