Powerful emotion and pursuit of self-interest have many times led people to break the law with the belief that they are doing so with sound moral reasons. This study is a comprehensive philosophical and legal analysis of the gray area in which the foundations of law and morality clash. This objective book views these oblique circumstances from two perspectives: that of the person who faces a possible conflict between the claims of morality and law and must choose whether or not (...) to obey the penal code; and that of the people who make and uphold laws and must decide whether to treat someone with a moral claim to disobey differently from ordinary lawbreakers. In examining the extent of the obligations owed by citizens to their government, Greenawalt concentrates on the possible existence of a single source of obligation that reaches all citizens and all laws. He also discusses techniques of amelioration of punishment for conscientious lawbreakers, asking how far legal systems should go to accomodate individuals who break the law for reason of conscience. Drawing from numerous examples of conflicts between law and morality, Greenawalt illustrates in detail the positions and predicaments of potential lawbreakers and lawmakers alike. (shrink)

How far may Americans properly rely on their religious beliefs when they make and defend political decisions? For example, are ordinary citizens or legislators doing something wrong when they consciously allow their decisions respecting abortion laws to be determined by their religious views? Despite its intense contemporary relevance, the full dimensions of this issue have until now not been thoroughly examined. Religious Convictions and Political Choice represents the first attempt to fill this gap. Beginning with an account of the basic (...) premises of our liberal democracy, Greenawalt moves to a comparison between rational secular grounds of decision and grounds based on religious convictions. He discusses particular issues such as animal rights and abortion, showing how religious convictions can bear on an individual's decisions about them, and inquires whether reliance on such convictions is compatible with liberal democratic premises. In conclusion, he argues that citizens cannot be expected to rely exclusively on rational, secular grounds. (shrink)

Within democratic societies, a deep division exists over the nature of community and the grounds for political life. Should the political order be neutral between competing conceptions of the good life or should it be based on some such conception? This book addresses one crucial set of problems raised by this division: What bases should officials and citizens employ in reaching political decisions and justifying their positions? Should they feel free to rely on whatever grounds seem otherwise persuasive to them, (...) like religious convictions, or should they restrict themselves to "public reasons," reasons that are shared within the society or arise from the premises of liberal democracy? Kent Greenawalt argues that fundamental premises of liberal democracy alone do not provides answers to these questions, that much depends on historical and cultural contexts. After examining past and current practices and attitudes in the United States, he offers concrete suggestions for appropriate principles relevant to American society today. This incisive and timely analysis by one of our leading legal philosophers should attract a wide and diverse readership of scholars, practitioners, and concerned citizens. (shrink)

Editors provide a substantive introduction to the history and theories of perfectionism and neutrality, expertly contextualizing the essays and making the collection accessible.

This is a paperback reprint of a book published in 1989. In this comprehensive treatise Greenawalt explores the three-way relationship between the idea of freedom of speech, the law of crimes, and the many uses of language. He begins by considering free speech as a political principle, and after a thorough and incisive analysis of the justifications commonly advanced for freedom of speech, looks at the kinds of communications to which the principle of free speech applies. He then turns to (...) an examination of communications for which criminal liability is fixed. Focusing on threats and solicitations to crime, he attempts to determine whether liability for such communications seriously conflicts with freedom of speech. He then goes on to develop the significance of his conclusions for American constitutional law. (shrink)

These matched essays constitute an extremely valuable contribution on the place of religious ideas in our country’s political life. Robert Audi defends an “exclusivist” position: participants in political life fulfill the responsibilities of liberal citizenship best if they support only measures justified on secular grounds. Nicholas Wolterstorff argues for an “inclusivist” position: citizens and legislators are encouraged to rely on whatever sources, including religious ones, they find convincing.

In modern times the idea of the objectivity of law has been undermined by skepticism about legal institutions, disbelief in ideals of unbiased evaluation, and a conviction that language is indeterminate. Greenawalt here considers the validity of such skepticism, examining such questions as: whether the law as it exists provides determinate answers to legal problems; whether the law should treat people in an "objective way," according to abstract rules, general categories, and external consequences; and how far the law is anchored (...) in something external to itself, such as social morality, political justice, or economic efficiency. In the process he illuminates the development of jurisprudence in the English-speaking world over the last fifty years, assessing the contributions of many important movements. (shrink)

This essay explores the implications of H.L.A. Hart's rule of recognition for identifying ultimate standards of law in the United States. The effort reveals that these standards are much more complex than is commonly supposed. Not all of the federal constitution is part of the “ultimate” rule of recognition, and much else must be included in that rule. The analysis uncovers many possibilities for how ultimate standards relate to derivative standards that are omitted or barely hinted at in Hart's account. (...) Some of these possibilities pose genuine difficulty for Hart's basic theory and help illuminate the relation of conventional and normative elements in an adequate account of law, a subject addressed in the final section of the essay. (shrink)

This chapter presents a fictional scenario wherein a distant planet will be settled by humans in the year 2094. The deputy administrator for the settlement project invites proposals on the establishment of qualifications for the settlers and the principles of government and justice under which they will live. Five proposals are sent from various religious and political associations. A report is released thereafter stating which proposal was chosen and for what reasons. The report rejects two proposals, one from a religious (...) group that professes enforcement of one particular religious belief. The other was from a political group that advocates strong anti-religious actions. The remaining three proposals exhibit the basic principles of liberal democracies. However, one proposal is rejected because its proponent is a religious church and the report worries about a possible preferred position for that church and for their ways of understanding social issues, in contrast to the highly diverse nature of the settlers. The two remaining proposals came from a coalition of diverse religious believers, and from a coalition composed of groups from diverse racial, political, and religious backgrounds. The report finally chose the last proposal as the proponent provides a wider spectrum of interest and social sectors. (shrink)

The question 'Why should I obey the law?' introduces a contemporary puzzle that is as old as philosophy itself. The puzzle is especially troublesome if we think of cases in which breaking the law is not otherwise wrongful, and in which the chances of getting caught are negligible. Philosophers from Socrates to H.L.A. Hart have struggled to give reasoned support to the idea that we do have a general moral duty to obey the law but, more recently, the greater number (...) of learned voices has expressed doubt that there is any such duty, at least as traditionally conceived. (shrink)

This chapter contains sections titled: Legal Enforcement of Moral Norms against Causing Harm Legal Requirements to Perform Acts That Benefit Others Requirements to Refrain from Acts that Cause Indirect Harm to Others Requirements to Refrain from Actions That Hurt Oneself Requirements to Refrain from Acts That Offend Others Requirements to Refrain from Acts Others Believe Are Immoral References.

As Kent Greenwalt's second volume on aspects of legal interpretation, this book analyzes statutory and common law interpretation and compares the two. In respect to statutory interpretation, it first asks whether judges are "faithful agents" of the legislature or "independent cooperative partners." It concludes that the obvious answer is that neither simple categorization really fits-that the function of judges involves a combination of roles. The next issue addressed is whether the intent of those in authority matters for interpreting the kinds (...) of instructions contained in statutes. At the general level, the answer is "yes." This answer follows even if one thinks interpretation should concentrate on the understanding of readers, because readers themselves would treat intentions as part of the relevant context of the language of statutes. It would take some special reasons, such as constitutional structure or unreliability, to discount actual intents of legislators and use of legislative history. The book argues that none of these special reasons are convincing. On the question whether judges should focus on the language of specific provision or overall purpose, both are relevant, and purpose should become more important as time passes. In an analysis of various other features of statutory interpretation, the book claims that presidential signing statements should not have weight, that subsequent legislative actions short of new statutes should only occasionally carry importance, that "canons of interpretation," such as the rule of lenity, can provide some, limited, guidance, and that there are special reasons for courts to adhere to precedents in statutory cases, but these should not yield any absolute rule. A chapter on administrative interpretation of statutes claims that the standards agencies apply should differ to a degree from those of courts and that judicial deference to those interpretations is ordinarily warranted. The book's second part, on common law interpretation, considers the force of precedents, resisting any simple dichotomy between holding and dictum. It also defends the use of reasoning by analogy, not only in the initial stages thinking about a problem, but also in respect to some final justifications for decisions. An examination of the place of rules, principles, and policies argues that all three are relevant in common law interpretation; and shows that common law interpretation is not reducible to any formula. A final chapter compares statutory and common law interpretation, similarities and differences, how each can affect the other, and the significance of having a legal system in which they both play prominent roles. (shrink)

Analyzing the problems of decision making in the preceding chapter, the question posed here is “why would someone challenge grounds on which someone else makes political decisions?” Various answers are provided: intrinsic inadequacy, unfairness and danger to social harmony, stability, or progress. On the other hand, the chapter asks: what are the grounds that may be appropriately relied upon for political decisions? The chapter proposes realist, shared social and authority grounds. Realism asserts that moral claims are subject to predicates of (...) truth and falsity, that they are objectively correct or incorrect. The chapter also argues that making political judgments on grounds that are commonly shared is often appropriate, even if these grounds extend beyond what can be justified directly on accessible realist bases. Finally, the ground of authority is discussed based on three scenarios: straightforward application, discretion, and interpretation. (shrink)

This chapter addresses the argument that rejects the widely held proposition that religious convictions are inherently nonrational or beyond reason and that religious convictions are subject to rational examination and are not beyond public scrutiny. The chapter makes a distinction between religious convictions that are unacceptable grounds for decision-making and those that are acceptable. The idea of arguing based on acceptable religious grounds is an idea of ecumenical politics, in which people speak to one another from their own traditions, but (...) with sufficient basis in community and shared ideas to engage in genuine dialogue. (shrink)

This chapter poses a problem about the relation between comprehensive views and politics, on whether any political principle of self-restraint can stand independently of comprehensive views. The chapter also touches on the subject of political and religious truth and the method by which one is identified from the other. The chapter also raises the value of a theorist's developing an argument of political philosophy that is detached from a specific comprehensive view. In that way, the assessments one could make could (...) be widely shared by people whose comprehensive views are strikingly different. (shrink)

Introduction: dimensions of inquiry -- Speaker intent and convention; linguistic meaning and pragmatics; Vagueness and indeterminacy: three topics in the philosophy of language -- Literary interpretation, performance art, and related subjects -- Religious interpretation -- General theories of interpretation -- Starting from the bottom: informal instructions -- The law of agency -- Wills -- Contracts -- Judicial alterations of textual provisions: Cy Pres and relatives -- Conclusion and a comparison.

This chapter presents problems of possible principles of self-restraint for legislators and citizens and of presidents and administrative officials. The consideration of most citizens in this chapter is based on two main reasons: One is that comparisons between citizens and government officials help illuminate appropriate standards for each. The second reason involves a more direct relationship between legislators and citizens. Legislators should exercise some combination of their own judgments and deference to the judgments and expressed interests of citizens, especially their (...) own constituents. Thus, the concern about possible self restraint by legislators is twofold: Should they rely for judgment and use in public advocacy upon their own comprehensive views and nonaccessible reasons? Should they rely upon and use in public advocacy the convictions of citizens that are grounded in this way? A sharp discrepancy between what legislators and citizens appropriately rely upon would create an unfortunate tension. (shrink)

Controversial Supreme Court decisions have barred organized school prayer, but neither the Court nor public policy exclude religion from schools altogether. In this book, one of America's leading constitutional scholars asks what role religion ought to play in public schools. Kent Greenawalt explores many of the most divisive issues in educational debate, including teaching about the origins of life, sex education, and when--or whether--students can opt out of school activities for religious reasons. Using these and other case studies, Greenawalt considers (...) how to balance the country's constitutional commitment to personal freedoms and to the separation of church and state with the vital role that religion has always played in American society. Do we risk distorting students' understanding of America's past and present by ignoring religion in public-school curricula? When does teaching about religion cross the line into the promotion of religion? Tracing the historical development of religion within public schools and considering every major Supreme Court case, Greenawalt concludes that the bans on school prayer and the teaching of creationism are justified, and that the court should more closely examine such activities as the singing of religious songs and student papers on religious topics. He also argues that students ought to be taught more about religion--both its contributions and shortcomings--especially in courses in history. To do otherwise, he writes, is to present a seriously distorted picture of society and indirectly to be other than neutral in presenting secularism and religion. Written with exemplary clarity and even-handedness, this is a major book about some of the most pressing and contentious issues in educational policy and constitutional law today. (shrink)

This chapter considers three closely related principles of political self-restraint that are not cast explicitly in terms of religion: those that exclude nonaccessible grounds, grounds deriving from comprehensive views, and grounds based on controversial ideas of the good life. The basic argument for excluding nonaccessible grounds has two dimensions. The first is that it is fundamentally unfair to coerce people, or to use the corporate authority and power of the state, when the grounds for doing so are not ones that (...) all those affected could be expected to accept if they made reasonable judgments. The second dimension of the argument is that the political life of a society will be healthiest and most stable if political issues are resolved on premises and grounds that are fully available to everyone in the society. On the other hand, the idea of self-restraint is based on principles of neutral input towards decision-making. As the idea is put by Charles Larmore, “The fundamental liberal principle is that the state should remain neutral toward disputed and controversial ideals of the good life.”. (shrink)

Constituting a collection of essays written over the last five decades about a wide range of topics, Kent Greenawalt's From the Bottom Up addresses vital ties between the law and political and moral philosophy.

Should "hate speech" be made a criminal offense, or does the First Amendment oblige Americans to permit the use of epithets directed against a person's race, religion, ethnic origin, gender, or sexual preference? Does a campus speech code enhance or degrade democratic values? When the American flag is burned in protest, what rights of free speech are involved? In a lucid and balanced analysis of contemporary court cases dealing with these problems, as well as those of obscenity and workplace harassment, (...) acclaimed First Amendment scholar Kent Greenawalt now addresses a broad general audience of readers interested in the most current free speech issues. (shrink)

This chapter discusses the triumph of liberal democracy over the challenge of Marxism and states that such triumph does not mean that the citizens of liberal democracies are already sanguine with their societies. For example, at a practical level, racial and ethnic conflict, poverty and violence are proving distressingly intractable, and relations among men and women are unsettled and unsettling. This is the context on which the rest of the chapters are grounded on. Particularly, they delve and find answers to (...) the following questions: What grounds are proper for people making political decisions and arguments within a liberal democracy? Should public reasons be more limited than all that properly counts in private conscience? Should officials, and even ordinary citizens, restrain themselves from relying in public politics on some grounds that appropriately influence them in their private lives and within their nonpublic associations? Do fairness, cohesiveness, and stability suggest that such self-restraint is desirable? Can someone engage in such self-restraint and remain true to his or her larger conceptions of how we should live? Although constitutional principles bear on parts of the discussion, the chapter states that the inquiry to the questions above will apply political philosophy, not constitutional law. (shrink)

This chapter focuses on the theory surrounding judicial decision-making. The chapter concedes that if anyone is constrained in the reasons they should employ for decision and argument, it is judges. The restraint on judges is obvious in easy cases, where the existing law calls for straightforward answers; but it has been typically assumed that judges are substantially constrained even when the right result for a case is highly arguable. The chapter presents two challenges to the ideal decision-making theory in the (...) legal profession: the “reality” challenge and the “desirability” challenge. (shrink)

In this chapter, a challenge to the idea of ecumenical exchange is set forth from explicit religious premises. One made by David Smolin critiques Michael Perry's ideas on religious dialogue. Based mainly on the conservative traditionalist view, Smolin rejects the idea of a rational reexamination of religious beliefs. Smolin regards liberal Christianity as unstable, because the attempted mix of modernist premises with loyalty to God is bound to result in an increasingly secular identity. Smolin urges that the very nature of (...) scriptural religions like Christianity, Judaism, and Islam is that they posit an extremely public and accessible revelation of God, from this Christian perspective, the main barrier to acceptance of Christianity is not insufficient understanding but a failure of will stemming from sinful human nature. Perry's reply to this critique presents a shift in position which Perry says that one should not posit an ideal that would render beliefs like David Smolin's an inappropriate basis for political choice. Instead, those beliefs need to be met on their merits. (shrink)

In this Response to Professor Peters, Professor Greenawalt argues that prescriptive equality does have meaningful normative force. Prescriptive equality plays a reinforcing role when it agrees with nonegalitarian justice and is not incoherent when it pulls against nonegalitarian justice. Specifically, when one individual has been treated better than is required by nonegalitarian justice, a similarly situated and significantly related individual who is aware of that treatment may merit equivalent treatment because of widespread and deep-seated feelings about equality.

Balancing respect for religious conviction and the values of liberal democracy is a daunting challenge for judges and lawmakers, particularly when religious groups seek exemption from laws that govern others. Should students in public schools be allowed to organize devotional Bible readings and prayers on school property? Does reciting "under God" in the Pledge of Allegiance establish a preferred religion? What does the Constitution have to say about displays of religious symbols and messages on public property? Religion and the Constitution (...) presents a new framework for addressing these and other controversial questions that involve competing demands of fairness, liberty, and constitutional validity. In this second of two major volumes on the intersection of constitutional and religious issues in the United States, Kent Greenawalt focuses on the Constitution's Establishment Clause, which forbids government from favoring one religion over another, or religion over secularism. The author begins with a history of the clause, its underlying principles, and the Supreme Court's main decisions on establishment, and proceeds to consider specific controversies. Taking a contextual approach, Greenawalt argues that the state's treatment of religion cannot be reduced to a single formula. Calling throughout for acknowledgment of the way religion gives meaning to people's lives, Religion and the Constitution aims to accommodate the maximum expression of religious conviction that is consistent with a commitment to fairness and the public welfare. (shrink)

Balancing respect for religious conviction and the values of liberal democracy is a daunting challenge for judges and lawmakers, particularly when religious groups seek exemption from laws that govern others. Should members of religious sects be able to use peyote in worship? Should pacifists be forced to take part in military service when there is a draft, and should this depend on whether they are religious? How can the law address the refusal of parents to provide medical care to their (...) children--or the refusal of doctors to perform abortions? Religion and the Constitution presents a new framework for addressing these and other controversial questions that involve competing demands of fairness, liberty, and constitutional validity.In the first of two major volumes on the intersection of constitutional and religious issues in the United States, Kent Greenawalt focuses on one of the Constitution's main clauses concerning religion: the Free Exercise Clause. Beginning with a brief account of the clause's origin and a short history of the Supreme Court's leading decisions about freedom of religion, he devotes a chapter to each of the main controversies encountered by judges and lawmakers. Sensitive to each case's context in judging whether special treatment of religious claims is justified, Greenawalt argues that the state's treatment of religion cannot be reduced to a single formula.Calling throughout for religion to be taken more seriously as a force for meaning in people's lives, Religion and the Constitution aims to accommodate the maximum expression of religious conviction that is consistent with a commitment to fairness and the public welfare. (shrink)