Lorenzo Zucca interviewed by Richard Marshall.
Lorenzo Zuccais a philosopher whose thoughts point right at the heart of some of the big issues facing Europe today. He thinks about fundamental legal rights in the context of Europe and the US, about rules and principles, about issues around privacy, about how fundamental legal rights connect to constitutional dilemmas, about Europe as the secular exception in the world, about why 1989 is more important than 9/11 in bringing religion to the world order, about why there's no sharp distinction between secular and religious arguments, about the distinction between aggressive and inclusive secularism, about Transcendental Monism, Spinoza, Immanent Metaphysical Monism and about striving to establish secular law. Start thinking bub...
3:AM:What made you become a philosopher? Is your preferred style lone brooding or dialogic arguing – or something else?
Lorenzo Zucca:I’ve had a philosophical attitude since my teenager years: I always preferred questions to answers, and I never looked at answers as written in stone. This attitude developed at the same time that my religious set of beliefs was weakening. God may be for many the answer to many existential questions. For me it was more the beginning of questioning rather than the end. Not that philosophy provides any better answers; but it provides for better questions. So for me philosophy is part of my personal secular awakening. It comes at a time where one’s curiosity is no longer satisfied with metaphors and parables, but requires a more muscular interrogation. Perhaps philosophy is just that: the equivalent to bodily fitness for the mind. It does not provide answers but it trains the mind to look for them and to discard the most implausible points. As a constant training of the mind, it is better done as a lone exercise. Dialogue is important but it can only take place after the training. So it is clear for me that philosophy begins as lone brooding and may become dialogic arguing at a later stage.
3:AM:You’ve investigated the notion of Fundamental legal rightsin the context of Europe and the USA. You understand them in terms of the constitutional status of individuals and as constitutional norms setting permissive rules, rather than principles don’t you? Can you explain this and say why it’s preferable to seeing them as principles?
LZ:I think it is very important to distinguish human rights from fundamental legal rights (FLR). Human rights refer to a political and philosophical movement that has its beginning with the French Revolution (at least in Europe). It is an attempt to moralize political regimes that have been until then highly reprehensible by setting moral standards that would have universal value, at least in theory. FLR are part of a different legal and political trend that has its root with the American Constitution and in particular its judicial interpretation. The experience was regarded as very successful and in the last two centuries it has been imitated by a great number of countries, especially starting with the end of WW2. Debates on human rights tend to focus primarily on the appropriate foundation of rights that men have by virtue of being human. Debates on FLR focus instead on the best way of protecting values that have already been entrenched in national (and international) constitutions. When we are shifting the debate from foundation to protection, we are moving from an exquisitely normative discussion to a much more empirically grounded inquiry. The fact that so many constitutions around the world entrench fundamental rights is a great success worth being studied as such. This study focuses more on the institutions that are in charge of delivering the protection and it is to a large extent an instrumental inquiry: how can fundamental rights be better protected? Which one is the best institution to do the protecting? But also: what are the limits of the constitutional protection of fundamental rights.
Here the fundamental character of legal rights can be separated from other normative questions. As a matter of law, some values have been entrenched and this entrenchment is a political decision. It means that there are some norms that protect something of ultimate importance for each individual. It does not really matter what is the exact list of the values protected by fundamental legal rights. What matters is that they have been selected for entrenchment and that they can be interpreted expansively so as to include many aspects of people’s life. Looking at various constitutional experiences across the Atlantic Ocean, and trying to go beyond the apparent differences in constitutional texts, it seemed to me possible to argue that fundamental legal rights are working together to protect the constitutional status of individuals. By that I mean that each person has a protected core of interests that he can vary by her own choice- the all set of actions covered by these FLR constitute a status that is inviolable: that is, no institution can impinge on the inner citadel protected by those fundamental rights. Another name for constitutional status is mini-sovereignty- so the idea is that no political sovereign has the power to enter the personal sovereign of individuals. Individuals have an immunity against it, and the political sovereign with its institutions has no power whatsoever to enter into that terrain.
So I regard FLR as rules that create a permissive space within the individual inner citadel, while erecting a wall against the intrusion of political powers. To this extent, I believe that FLRs are rules (however couched in broad moral sounding language) rather than principles. The first point to bear in mind here is that to me the distinction between rules and principles is just a matter of degree. Both are norms, rules happen to be more precise and detailed- principles are more general and more open to interpretation. But the two have the same nature, they just have a different forms. I therefore resist Dworkin’s distinction between rules and principles as if it was one of kind rather than degree. That distinction blurs legal practice and suggests that judges can always negotiate the boundaries of those principles in a constant exercise of balancing with other principles. On the one hand, this makes the wall of the inner citadel more porous and fragile, on the other hand it gives a great leeway of power to judges that are often tempted to interpret rights to suit their own political agenda. Typically, liberal judges will try to enflate the scope of rights, while conservatives will try to reduce its scope. There are many problems here that I can merely sketch.
The liberal strategy is internally problematic. For the more you stretch the scope of a legal right, the less will be its strength at the edges. Increase of scope, comes with dilution of strength: this is an illustration of what I mean by porous walls of the inner citadel. The conservative strategy presents external problems of legitimacy of judicial institutions: it is very difficult to try and restrict the scope of rights, since this requires the drawing of a number of distinctions between right holders or between important interests that are always going to look suspicious. Even when conservatives extend benefits they do it in a way that calls for scrutiny: like for example when they extend the benefits of freedom of religion to corporations.
In short, when FLRs are regarded as principles - this collapses the initial distinction I made between foundation and protection, or if you want between normative considerations and instrumental ones. So instead of focusing on how to make the best out of the existing constitution, one is pushed back to normative considerations as to what is the best possible value to defend in each case. Disagreement is fierce on these issues and it is very likely to polarize the debate rather than bring the whole society together under the same constititution.
3:AM:Why do you say we should look hard at the conflict of FLRs rather than just get on with the job of getting as many of them as we can into as many constitutions as we can? And why is it important to make the distinction between genuine FLR conflicts and utilitarian concerns?
LZ:Another important limit of FLR is that they can conflict one against another: the more you protect privacy, the less you allow for free speech. So let me go back to the previous scenario of liberal judges trying to expand the scope of rights; at first, most people will be thrilled with the idea of more freedom rather than less. But the more one extends the scopes of constitutional freedoms, the more one creates the possibility to impinge on each other’s freedom. What I’m trying to say is that the inner citadel protected by rights has a necessarily limited scope. So the idea is not to cram in as many rights one can into the constitutions, or to extend the inner citadel as much as possible. The idea for me is to find the most solid and robust architecture for the inner citadel. Sometimes there will be rights that clash one with another. So to avoid tensions that may make collapse the whole edifice one should look long and hard at the way in which rights stick together in a harmonious whole.
The job of political institutions is to create, promote and protect that space, that inner citadel, within which each one of us can flourish as well as one can. It is not so important to protect discreet interests to their stretching limit. Some societies will need more free speech, while other will need more privacy. The right recipe depends very much on social norms and social practices. The US for example is an atomized society where each person is very much concerned about the maximization of free speech, especially when this helps uncovering the immorality of politicians or famous personalities. Perhaps it is unfortunate that people are so eager to judge the private life of important people, since it is based on the false belief that a person with private integrity is likely to be a person of public integrity. But this is a belief very much ingrained in the American society, and the practice of fundamental rights has to track those fundamental beliefs in order to be widely accepted.
You can contrast the American idea of privacy with the German one. Some say that the former is liberty-based privacy, while the latter is dignitybased. The American idea is much more limited- it essentially applies within the physical space of one’s own four walls. Whatever one does in public, can be legitimately scrutinized and disapproved because one has decided to abandon the private space. The German idea is much more extensive because privacy protects some essential features of an individual’s personality whenever and wherever she is. Imagine privacy as a protective halo that one never abandons.
3:AM:Are FLRs linked to our moral rights or is it best to keep the two separate?
LZ:This brings me back to what I said at the beginning about rules and principles. It also refers to what I was saying before about privacy as liberty or dignity based. On one hand, it is obvious that FLRs are making reference to moral values. On the other, the way in which FLRs are practiced in each community depends on local concerns and practices that have very little in common with universal moral values.
More importantly, the fundamental character of legal rights is reached through political agreement and compromise rather than moral deliberation. It is true that there is scope for judicial interpretation that brings in more moral concerns, but at the same time the political constraints posed by the text are obvious and hard to circumvent, otherwise it would not be so difficult to re-interpret the right to bear arms in a way that minimizes the presence of weapons in a society. Why is that a fundamental right in the first place? The answer is contingent and historical: the decision was the fruit of a political compromise taken at a given point in time. It may not make sense now, but it still binds all the institutions of the country until the constitution is revised (a very hefty task).
I think that it is better to see FLRs as contributing to the construction of a strong constitutional regime where political power can be kept in check in the name of certain pre-agreed legal rights that together protect the status of each individual. The key idea here is that of checks and balances rather than rights as moral trumps. FLRs are legal constraints on the exercise of political power: they are a constant reminder that power can only be exercised efficiently if it is for the sake of protecting and promoting the space within which individuals can flourish. The way one draws the boundary between rights is not so much a moral reading of the constitution but a political reading of it. If political power wants to preserve a cohesive and orderly society then it should respect those legal constraints.
For this reason and for the reasons given above, I think that it is better to keep an appropriate distance between legal and moral rights, just as much as it is necessary to draw a clear distinction between FLRs and Human Rights.
3:AM:Is it your view that in any case of a genuine conflict of FLRs an adjudication of such a case will lead to an erosion of our FLRs? Is this what you mean when you say, for example, that ‘a loss of value is incurred’ when choosing between free speech and privacy?
LZ:Conflicts between free speech and privacy are not necessarily genuine conflicts of fundamental rights. In fact, most of them are just a matter of drawing the border between the one and the other. Genuine conflicts are made of a tougher fabric. They involve two norms that are incompossible: this means that one norm requires that a certain behavior be permitted, while the other denies that the same behavior is permitted. One way I use to illustrate genuine conflict is by reference to (Greek) tragedies: the time may come where a society is faced with two incommensurable goods (or evils) and a decision needs to be made between the two, but this inevitably involve the loss of something valuable. Think of Antigone who is caught between the norm of Thebes that prohibits the burial of traitors, and the religious norm that requires the burial of family members.
A clear example of a genuine conflict is that of Siamese twins Jody and Marie. Conjoined at birth, the twins present a number of malformations. It is not possible to keep them alive conjoined, they have to be separated or they will both die. However, if they get separated Mary will certainly die, since she does not have all the bodily organs working properly. Both individual is protected by a right to life: the question is- is it permissible to kill one in order to save another? Or is the right to life of Mary barring the separation, which inevitably leads to her death? Well in this case, which I regard as a genuine conflict or a tragedy, whichever decision is taken (including the decision not to do anything).
3:AM:There’s a great deal of anxiety at the moment regarding the surveillance state and the invasion of privacy via the expansion of technologies. What makes privacy a parade case of something that brings with it FLR conflicts?
LZ:Privacy is an all-encompassing catch-phrase. It can easily be stretched to stand for what liberals call negative freedom, that is, freedom from interference of the state. In this over-broad understanding, it represents the resistance to any form of state interference into private life.
Technologies make interference much easier and non-physical. The state (and individuals) can acquire and use personal data in a very easy way. Privacy in this context looks very much like a fig leaf. Everyone agrees that in theory it would be desirable to refrain from browsing personal data, but in practice all sorts of arguments from political expediency (e.g. fight against crime/terrorism) make the leaf fall.
I don’t think there is any conflict between FLRs in this case. The rise of the surveillance state is pointing to the perilous abandonment of the check and balances systems I was referring to before. The state takes itself to be legitimately justified in intruding into people’s life for the sake of preserving the safety of the society. But the point of FLRs, I suggested before, is to constrain the state to protect the overall safety of the society by protecting and promoting individual flourishing which can only take place within an inner citadel where everyone feels physically and psychologically safe.
So the ultimate problem of the surveillance state is that it is allegedly protecting collective safety by undermining individual safety. This is recipe for disaster both for the strength of the state and for the morale of its citizens. The infamous project of surveillance launched by Bush was not paraded as successful in the fight for terrorism and, what is worse, it undermined the trust of people in government.
3:AM:Why hasn’t appeal to FLR not been very effective as yet anyway to preventing this erosion of our privacy? Is this because our norms and habits haven’t adapted quickly enough to the threat?
LZ:Still, governments engage in these forms of control because they can. How to stop them? Certainly not with a moral argument from privacy: governments would fight against that by showing that vital security information have been acquired that way, and they are prepared to pay the cost of some unpopularity if this means increased security for all. I think the best argument is to show to political power that to engage in these activities will threaten the very existence of political institutions by undermining the basis of trust that political power enjoys with its citizens. In terms of FLRs, this requires for them to be protected as a whole that is constantly keeping in check political power. It is for example fundamental to protect whistle-blowers as strongly as possible, to look at them not as enemy of the system, but as the little boys who are shouting ‘the emperor is naked.’ Whistle blowers show that the state has no monopoly on data infiltration and usage. Either we develop a common code of respect for data—and technology is used to protect absolutely data of all type—or the state has to be prepared to see its own eagerness to control personal data backfire against institutions.
3:AM:Is it important that FLR issues are not harnessed to one particular legal system but that we must go beyond national borders to test them?
LZ:To a large extent, and in contrast with universalist human rights ideologies, FLRs are the product of a local constitutional experiment (the US Constitution) that happened to work very well. It is not clear that the experiment can be successfully extended to other countries, even when they are very close culturally. To see this, it suffices to look at the mixed reception of the introduction of FLRs in Britain through the Human Rights Act1998. The resistence is due chiefly to the belief that a parliamentary system that is working well, does not require to upset the balance of power between the legislative and the judiciary by giving more power to judges and more constraints on parliament.
However, constitutional regimes are constantly evolving and FLRs just happen to be the latest legal ‘technology’ to secure an appropriate balance between constitutional powers. To be sure, that balance can itself be abused by courts, and some fear the slow movement towards ‘juristocracy.’ I don’t think that fear is warranted, because judges are painfully aware of their lack of political legitimacy and do everything to avoid stepping on the toes of political representatives.
This happens even more evidently with international courts that deal with FLRs. The political balance between an international court and local government is always at risk of being upset, so international courts do all it takes to be as cautious as possible. They nevertheless single out cases in which national government are infringing rights. To have such a system of external control is a blessing for national governments. Or it should be seen as such. Unfortunately, national states led by the UK are being very critical of some international courts (in particular of the European Court of Human Rights).
The critique is largely political in the sense that national parties have to be seen to be strong against international institutions because there is a widespread fear of losing sovereignty. The reality is that national countries are indeed struggling to keep a strong international status- Britain in particular. Actual loss of international influence cannot be seen to be acquiesced by submitting to international or regional courts that tell you what is right and what is wrong to do to one’s own citizens.
But all this is just a myth. Regional courts bring minor correctives to bear on already functioning constitutional systems. Britain, for example, has been asked to give more weight to privacy, or to take into account the voice of some prisoners, or to monitor its policy of stop and search. These correctives should be regarded as welcome thinking points and spurs that keep the government awake and responsive to the interests of people on the ground. Moreover, they contribute to create an over-arching space of legal rights that include 48 European countries, thereby creating more stability for everyone rather than less. Of course, such a mega system makes mistakes and can be criticized. But the fact that it exists and that it assists national governments in making decisions that are respectful of basic values that can be accepted across many boundaries is a way of protecting the national state from itself and to police more effectively the stability of the regional system.
To be more objective, one should look at all the cases in which national judges use international and European case law to buttress their own opinions and challenge conventional ways of thinking from outside the national box. A glaring success of the ECHR case law is the US litigation concerning a Texas statute criminalizing homosexuality (Lawrence v Texas, 2005). The US court broke free from its precedent and invalidated the Texas statute because it was incompatible with constitutional values that are shared with a broader civilization. The US Supreme Court went on to cite the precedents of the ECHR and concluded that the right to sexual privacy in this case had to be protected.
The European space of legal rights is now a great success. Individuals are empowered with the possibility of asking governments to be heard before domestic courts. If domestic courts prove to be too slow to react then individuals can still seek a remedy to the ECHR (or the ECJ). This possibility reinforces the trust an individual has in its own national system, rather than not. To subject oneself to external control is a proof of strength and confidence. And so is the admission that national institutions can make mistakes or can be led to reconsider discrete situations in the light of an international decision.
It would be tragic if the UK decided to withdraw from the ECHR. Rather than proving the assertion of its sovereignty, it would send the opposite message. In a world where states have to play increasingly more together, it is a sign of great weakness to go solo and believe that it will be possible to withstand and be stronger alone rather than in a community of legal institutions that contribute to the political stability of a whole area.
3:AM:You’ve looked at secular Europe and contrasted its previous state of religious order and unity with its contemporary state of secular fragmentation and tried to put together a new secular legal-political framework for Europe. Has 9/11 been very important for the way this issue has to be approached now?
LZ:Europe is a secular exception in the world. Most political frameworks work on the assumption that religion plays a very important role in politics. The US President could not be elected without wearing on his (or her) sleeves his religiosity. This is the case notwithstanding the American wall of separation between Church and State. Not to speak for South America where religion is growing and thriving for lack of better political options. We all know how the Middle East, North and the rest of Africa work. Briefly, from a global perspective, Europe is an exception. It is an exception also because it used to be a staunchly religious space where it was impossible not to believe (in some places of the world this is still the case- so much so that identity is defined in terms of religious belief, and it is not possible to declare oneself a-religious. It would be like denying one’s own identity).
What happened to make Europe change so drastically? The most important historical event is undoubtedly the string of religious wars that turned Europe into a blood bath, in particular when they intensified during the thirty years war. Peace was negotiated at Westphalia in 1648, which introduced a system of nation state within which religious homogeneity would be engineered at the expenses of all religious minorities. The system of absolute monarchies established then took 140 years to collapse with the French Revolution in 1789 in favour of a national state that was even more aggressive in particular vis-à-vis the clergy, regarded as one of the unduly privileged classes. The national state and the catholic church were locked in a bitter dispute, which was only ended with the 1905 Loi de laïcité (laïcité statute).
From 1648 to 1948, it took three centuries to fundamentally re-shape the world order along secular values: liberty v equality. All this shattered with the fall of Berlin’s wall in 1989.
I regard 1989 as more important than 9/11 in bringing back religion to the world order. Once the division of the world along allegedly secular values collapsed, the way to re-draw boundaries and decision fell back on religious identity as the strongest form of cultural difference, at least in the eyes of the ruling west. 9/11 was just the first global stage to assert the change of picture. It is true that starting from this 9/11, religious voices became more prominent at the global level: they quickly understood that the political stakes were high; it was not about controlling national politics, but about shaping the international order along religious lines. Pope John Paul II, pushed by Joseph Ratzinger, started to push for the agenda of the Christian roots of Europe. Others jumped on the bandwagon, believing that strong identity can only be asserted in religious terms. The apex of this debate was reached with the European constitutional draft, in relation to the reference of Christian values in the preamble of the EU constitution. We know what happened: the still born constitution gave birth to a set of minor technocratic changes; religion as a political fuel is alive and well in the spirit of European people in particular when it comes to define Europeanness and otherness, which typically takes the form of Islam-as if we were back to the time of the Crusades.
It is true that immigration contributed to re-think the trajectory of secularization, i.e. the social process that leads to a decreasing role of religion in social and political institutions. Secularization is not necessarily linear and progressive as many people assumed until the very early nineties. What is very important here is also that there is no strict connection between secularization and secularism (i.e. the political and philosophical project that attempts to give a non-religious basis to political authority). A religious society can still very well understand the importance of political institutions working on the basis of secularism so as to make sure that religious diversity is protected and maximized, while religious conflict is reduced. In fact, even a theocratic regime is bound to recognize that it requires a modicum of secular rules to make agreement possible within the members of a homogeneous religious community. For if disagreement is endless and there is no authority that can settle the dispute, the community will require a secular rule to establish how to solve the conflict.
The point that I am trying to make is that in the last decade, the debate about secularism became detached from the sociological conditions of a society. Finally secularism can be interpreted as a political project that is aimed at harmony and peace within and between religious communities across the world.
3:AM:So is there really a conflict between law and religion – it might look like there’s more like collaboration between church and state (and true secularists don’t like that because it gives more weight to religious beliefs than non-religious beliefs) – isn’t that what secularists, such as Brian Leiterin his recent book, suggests?
LZ:Following from my previous point, I would dispute the title of ‘true secularist.’ If that means that a true secularist is attached to a vision of the world that sees religious and political institutions at loggerheads, then I would not want secularism to thrive. This kind of secularism is historically, legally and politically deficient. Brian Leiter was originally attached to such a view, but his mind changed considerably while writing his book on toleration. In any case, the view I’m rejecting is exemplified by the standard French position of strict laicite, which gave rise to the recent statute banning burquas in public streets. The French view is born out of a confusion: the original Loi de 1905 merely attempts to draw a legal boundary between Church and State, trying to solve the conflict between the two begun with the French Revolution. The statute does not say anything about the place of religion in the society, also because there is no way in which a political authority can coerce the society into being more or less religious. The level of religiousity can only be left to the people. However, French political elites managed to convince the population at large that the Loi de 1905 entailed a more general ban of religion in the public sphere. This ideological interpretation of laïcité suggests that religion can only be free in private, but in no way its symbols can be brought out in public.
Now you can see the germ of the French legislation banning the burqa in public streets. The confusion that lingers on in this debate has to do with the porous distinction between private and public. Is walking down the street a public act? Really? More importantly, to insist on the idea that religion is free in the private realm, and that people should strip themselves of religious clothes and symbols create an extra burden for religious people when compared to non-religious people. In other words, non-religious people are the model citizens while religious people have to behave as if they were non-religious when they step in the public sphere.
3:AM:How can a secular state not end up silencing religious voices if we prevent them being able to appeal to their ‘transcendental-metaphysics’? After all , that’s what makes religion so tricky for secularism isn’t it? If God says no to blood transfusions for my children how can I not be in conflict with the law if it commands me to ignore God? Basically, how can I be a proper European if that means in practice not having beliefs?
LZ:First of all, I would like to challenge the idea that religious people necessarily speaks with religious voices. There are many Christians, Muslims and Jews that are very happy to be secularist - i.e. to accept that political authority should speak with a voice that reaches out to every religious and non-religious person. Even simply to speak across religions, and settle dispute within religious communities, it may be necessary to adopt secular rules and secular institutions.
The second false assumption is that there is a sharp distinction between truly secular arguments and religious arguments. Secular ideas are always defined in relation to religious ones: thus ‘secular’ is often a negative property of that which is not religious. But then again, this implies that there is a stable definition of what qualifies a religious argument as well as a clear method to strip an argument from its religious garb. I find this disingenuous. Take for example, the principle of sanctity of life - it is used by religious and non-religious people in countless arguments on euthanasia, abortion etc… but who exactly holds the copy-right to the secular understanding of sanctity of life, given that it is a religious idea to begin with.
In this light, it is not possible to bracket metaphysical views out of the pictures. For a long time, this has been a key positions of liberals: since agreement about metaphysics is out of reach, then let us focus on political arguments [as if they came out of the blue]. But it is clear that every political argument, be it religious or non-religious in origin, is rooted in a set of controversial metaphysical assumptions. It is interesting to see that a coalition of religious and non-religious people is siding together against neo-Darwinian materialists on the ground that their metaphysical assumptions would be wrong and untenable. Science should be open to the idea that it may not have a solid basis for some metaphysical claims buried deep down in the evolutionary history. Likewise, liberals should acknowledge that their belief in secular values might not be grounded on any solid non-religious basis.
True, religion has to be doubted and criticized when it attempts to ground the superiority of its political judgments on metaphysics, trying to provide a cloak of respectability to political opinions. Many politicians of all stripes resort to this strategy to gain political points. But in this case, both religious institutions and religious people should insist that religion is not there to provide political legitimacy.
However, Religion can have a positive contribution to political societies in contributing to motivate people to behave according to values that sustain the whole society. On the other hand, religion must be criticized when it creates and promotes factions within a society. Religious values of brotherly love are constructive if they apply across the board to all the members of a society. The same value is problematic if one takes a restrictive understanding of brothers and sisters as representing only one’s own religious circle.
It is high time to bring back meaningful metaphysics to politics and ethics. Religion can play a role at this level as well: sophisticated theologians have been working on very subtle metaphysical systems that would have to be taken seriously by philosophers and scientists. Metaphysical ideas do not have an immediate impact on politics but they can important indirect results.
3:AM:Is it important not to view inclusive secularism as an ideology?
LZ:It is very important to distinguish aggressive secularism (i.e. French laïcité interpreted ideologically) from inclusive secularism - my brand of secularism the aim of which is to create and maintain a common political space within which religious and non-religious people can communicate and exchange ideas and arguments.
Aggressive secularism is an ideology on a par with many other religious and non-religious ideologies. As such, it cannot be the basis for a political agreement as to how define citizenship and belonging in a society.
Inclusive secularism aims to treat religious and non-religious people in a way that make them both feel part of the political society. It is, if you want, the pre-condition for cohabitation between religious and non-religious people as well as between religious communities. Religious freedom can only be realized in an inclusive secular framework where ALL religions can live and thrive one next to another. Of course, to do so, there must be at least a minimum core of rules that apply across the board, and these rules are clearly non-religious, meaning that they do not represent one or few religious communities only. Religious freedom is not truly protected where one religion (including the religion of aggressive secularism) is the only one that dictates the rules of the game for everyone.
3:AM:How do you propose we move from Inferno through to Paradise, to use the Dante-esque structure you use in your book? Is acknowledgement of diversity the key? And secular law the main vehicle for maximizing diversity and minimalising conflict?
LZ:Dante believed in Transcendental Monism as the vast majority of Christians did in the middle ages. This puts forward a metaphysical, an ethical and a political doctrine all at once. Indeed, theDivine Comedyprovides a grand fresco of life and death in Europe 14th century. Transcendental Metaphysical monism (TMM) is easy to understand - it is the idea that the whole of our reality before and after death is organized on the basis of one single idea- that of God - who is the supreme authority that rules the world from outside, since God is not present in the world but knows everything and can rule everything.
Transcendental Ethical monism flows directly from Metaphysical Monism. Good and Bad are defined by reference to the will of God. To be good is to follow the will of God as closely as possible. Interestingly, human beings are endowed with the possibility of doing evil, and this also explains why God would allow evil to be done against humans as a form of punishment.
Transcendental Political Monism is part of the same picture and flows from TMM. Perfect Justice can only be delivered by God in the afterworld where all the actions are evaluated by an omniscient Judge. People are therefore placed in eternity in the spot where they belong and where they have to endure eternal punishment (or privilege). This has a curious implication: the after-world is more ‘real’ in metaphysical, ethical and political terms than the world on earth. The latter is just chaos and disorder, and human beings can hardly make sense of their actions, not to mention their lives. Life is hell, an inferno on earth, Dante would suggest, echoing Sartre’s existential quip: l’enfer c’est les autres.
My position attempts to turn Dante’s grand picture upside down, while maintaining its basic structure. We need a metaphysical account, but it has to be immanent and not transcendental. Following Spinoza, I develop an Immanent Metaphysical Monism according to which reality can be explained by reference to a single principle from which everything flows. Spinozacalls it ‘Deus sive Natura,’ God or Nature. But crucially this God (or Nature) is present to the world in which we live. It is not remote or far away, something that is so distant that we cannot even attempt to make sense of it. This Immanent Metaphysical Monism is asking to think of the world in which we live as the sole single reality that human beings can make sense of. Afterlife or a transcendent dimension do not belong to this world and cannot be explained, nor can they provide meaningful information as to what ethical or political standards look like.
Secondly, IMM has close links with immanent Ethical monism: we live in a world ordered in virtue of natural laws; human beings, as any other living beings, are part of this world and are subject to natural laws. So in order to make sense of ethical requirements, we have to know what are the natural laws that regulate the place of human beings in the world, rather than postulating an independent domain of moral values that exercise its gravitational pull on human beings independently from natural laws. The normative domain (the domain of values), if it exists at all, is subject to all the natural laws that apply to all living beings. Ultimately, in fact, all moral laws could be explained by reference to natural laws. The problem lies in the fact that human beings have no easy way in which they can uncover the natural order (and causality) of the world because their cognitive faculties are limited. Thus, in order to motivate them to act in ways that strive to be compatible with the immanent order of nature, some moral fictions need to be put in place. Religion, for example, is a very efficient tool with which people can be motivated to do the right thing.
A secular Europe also try to sketch an Immanent Political Monism which explains the way in which people come together to organize a life in common and set up political institutions to maintain a certain degree of order and stability despite human irrationality due to the natural primacy of emotional reactions over rational reactions. Human beings come together and form political communities as a matter of necessity: they instinctively know that to form bonds is much more likely to serve their interest in survival and it is also likely to accrue one’s own control over the external world. Political institutions are thus created to protect those basic human interests and as long as they are capable of serving those interests, they protect their existence; if political institutions start behaving in a way that undermines those basic human interests, then they become exposed to failure and ultimately to extinction.
Thus to move from the Inferno of religious conflicts to a Paradise of peace and stability, one has to have a double account. On one hand, it needs a metaphysical account of reality that frees human beings from a transcendental dimension that has no place in this world. On the other, it needs a practical psychological account that is capable of motivating human beings in a way that strives towards a metaphysical order despite the human cognitive limitations that prevent a recognition of the order and promote immediate emotional reactions over rational conduct.
3:AM:Is it possible to create a really secular law out of what European states already use – given that they are indebted to Christianity? Wouldn’t it be fair to invite other religious inputs to the making of a secular law for Europe – and wouldn’t that ironically lead to greater influence of religions not less?
LZ:In light of what I have just said, I do believe that it is possible to strive towards a really secular law; to do so it is necessary to undertake a Copernican revolution with regards the understanding of the ‘concept of law.’ It is common to define human law as quintessentially prescriptive, and ultimately completely independent from descriptive laws, the laws of nature, which include the laws of human psychology. I believe on the contrary that we should re-establish a deep connection between descriptive and prescriptive laws. This is an insight present both in Spinoza’sTheologico-Political treaties, and in Montesquieu’s The Spirit of the Laws.
Truly secular laws are those that are grasping the existence of descriptive laws of nature as determining and shaping the creation of political institutions for the sake of human communities as a matter of natural necessity. In other words, truly secular laws are first and foremost descriptive laws of nature and of human nature. However, given the limitation of human nature, human societies also need prescriptive laws in order to make sure that human communities do not fall prey to their base emotional reactions but are motivated to act in a way that preserves a basic natural order, which include the order of human societies. Therefore truly secular laws are also those prescriptive laws that are successful in motivating human beings to act together towards the preservation of stability and peace. These second type of secular laws are of course subservient to the first type of truly secular laws. It is important to note at this point that truly secular prescriptive laws can make use of religious precepts for the sake of motivating people to act in ways that are coherent with the overarching natural order.
After all, secular law and secular states live off religious ideals and values. They would not be sustainable without them. Think of the obligation to obey the law: I don’t think there is a straightforward secular argument capable both of convincing a large chunk of the population and of motivating people to obey the law. Secular arguments in favour of the obligation to obey the law work on the premise that non-religious people have a recognizable interest in obeying the law. As soon as the practical interest disappears, then the obligation to obey the law becomes less stringent. If people were fully rational beings, then perhaps it would be possible to convince them that it is in their own interest to always follow the law in order to maintain a well-ordered society where everyone receives a fair share of advantages (an argument that Socrates could do - thereby being regarded as a fool by his disciples). This kind of argument is not capable of providing a strong enough motivation for the vast majority of people, who would happily break the law when the law is not to one’s own advantage and there are no big risks of being punished.
Capitalist societies bank on a strong protestant ethics to work efficiently, as Max Weberhas demonstrated. Protestant ethics provides the basis upon which the legal/political/economic system works. The idea is that respect of obligations is first and foremost a matter of private conscience, and there is no need to motivate people into obeying in a way that is compatible with the rules of the game. Thus religion or religious ethics always play an important role in motivating people to act in a way that is not merely informed by personal interest constructed in a narrow and emotional way.
Max Weber, just like Durkheim, Tocqueville and Montesquieu all owe a debt to Spinoza’s Immanent Metaphysical Monism. This is never fully acknowledged. The point here is that religion can be used to serve the highest legal and political goals of building human communities that are stable enough for each individual to thrive under the best possible conditions.
3:AM:And for the readers at 3:AM are there five books you could recommend to take us further into your philosophical world?
Dante, The Divine Comedy
Spinoza, Tractatus Theologico-Political
Montesquieu, The Spirit of the Laws
Max Weber, The Protestant Ethic and the Spirit of Capitalism
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