Most discussions of religious liberty in American concern the First Amendment to the Constitution. That these discussions have proved inconclusive is an understatement. But recently some different tacks have been suggested that at the very least may wake up those who find the current competing analyses productive of little more than sleep.
The first and less controversial is The Educational Autonomy of Perfectionist Religious Groups in a Liberal State by Mark Rosen (abstract here). I have generally criticized John Rawls's and "Political Liberalism" in an article here but Rosen works to improve Rawls to permit a greater scope to "illiberal" education. In other words, Rosen believes, that by expanding the political notion of personhood beyond Rawls's narrow strictures, illiberal groups (characterized by Rosen as those "structured along patriarchal, theological, racist, classist, or homophobic lines") can be afforded the right to educate their children in a liberal polity subject to only two constraints. Rosen characterizes such groups as "Perfectionist," an unhelpful term because many illiberal groups do not expect or even seek "perfection" is the political world. In Rawlsian terms, for those familiar with them, such groups believe the good comes before the right.
Rosen, following Rawls, is a contractarian. That it, he believes legal rules within a liberal polity deserve moral respect and enjoy a strong presumption of moral validity because the citizens of that polity have consented to them, at least hypothetically. In other words, citizens have a duty to obey such a polity's laws and not merely a prudential sensibility to do so. But, differing from Rawls, Rosen expands the notion of the political conception of the person to include the social and cultural. This is significant because it increases the scope of what it means to be human when employing the "veil of ignorance" heuristic. The hypothetical pre-political community that chooses the rules for the liberal polity should take into account not only Rawls's bare-bones concept of human agency but also the observable reality that no such individuals exist. Actual citizens, in other words, always exist as part of a community-forming culture and the liberal polity should provide room for such culture-creating institutions as are necessary to maintain a particular culture.
The rubber meets the road when Rosen compares the scope of legitimate educational institutions his expanded notion of personhood permits. Whereas Rawls would prohibit the maintenance of illiberal educational institutions because their eventual proponents would, ipso facto, have been excluded from bringing their illiberal conceptions behind the veil of ignorance, Rosen would permit the ideals of such persons to be part of the pre-political founding. In other words, a liberal polity should permit persons with illiberal understandings of a polity's purpose to share in political affairs. And those political affairs include the maintenance of educational institutions that inculcate those illiberal understandings.
Are there any limits on the recognition of illiberal political existence, including education? What are Rosen's "two [actually three] constraints?" A round-about discussion will get us to Rosen's conclusion. First, Rosen distinguishes between "Local" and "Universal" Perfectionists. Only the viewpoints of potential adherents of Universal Perfectionism are excluded from standing behind the veil of ignorance; Localists are okay because they seek to implement their comprehensive understandings of the good only within their community. They have no pretensions to universalize their understandings (unless by liberal means). Rosen posits the intertwined religious and civil governing institutions of American Indian peoples as a well-known example of Local Perfectionists.
Rosen's second limitation on the extent of illiberal Perfectionist is a commitment to "well-orderliness." In other words, "Perfectionists can be accommodated only if they have a peaceful disposition toward their non-Perfectionist neighbors." Jihadists need not apply. So what about education? "Well-orderedness imposes important educational obligations. Those raised in religious perfectionist communities must be educated in a manner that encourages them to understand the justice of the polity in which they live, so that they willingly comply with the basic institutions of society." Liberalism extends only so far.
Rosen's final limit on liberal toleration of illiberal "Perfectionists" and their right to educate is a mandatory "opt-out." Members of a Perfectionist communities--Local and Universal--must be permitted to leave. And this "opt-out" must be meaningful; that is, those educated in a Perfectionist system must be taught that other systems (presumably liberal ones) exist and must be given the tools to leave and survive in outside the Perfectionist community. (Rosen obviously has a misguided view of the "education" that takes place in most liberal (i.e., public) schools.)
In conclusion (at last!), Rosen represents a significant advance over Rawls. Illiberal "Perfectionists" are not ruled out of political legitimacy tout court. And, significantly, many have the right to educate their children in their Perfectionist tradition. But Rosen does not address the justification for any sort of contractarian legitimacy other than to trot out the tired "Wars of Religion" trope. By continuing to impose a moral obligation on a polity's citizenry to adhere even to an expanded notion of the political person, Rosen, like Rawls and all contractarians, asks too much. It is not that the results of the liberal political order are wrong--I think they are generally very good--but that contractarianism requires a moral commitment to its validity, a commitment which many are unwilling to provide.
The first and less controversial is The Educational Autonomy of Perfectionist Religious Groups in a Liberal State by Mark Rosen (abstract here). I have generally criticized John Rawls's and "Political Liberalism" in an article here but Rosen works to improve Rawls to permit a greater scope to "illiberal" education. In other words, Rosen believes, that by expanding the political notion of personhood beyond Rawls's narrow strictures, illiberal groups (characterized by Rosen as those "structured along patriarchal, theological, racist, classist, or homophobic lines") can be afforded the right to educate their children in a liberal polity subject to only two constraints. Rosen characterizes such groups as "Perfectionist," an unhelpful term because many illiberal groups do not expect or even seek "perfection" is the political world. In Rawlsian terms, for those familiar with them, such groups believe the good comes before the right.
Rosen, following Rawls, is a contractarian. That it, he believes legal rules within a liberal polity deserve moral respect and enjoy a strong presumption of moral validity because the citizens of that polity have consented to them, at least hypothetically. In other words, citizens have a duty to obey such a polity's laws and not merely a prudential sensibility to do so. But, differing from Rawls, Rosen expands the notion of the political conception of the person to include the social and cultural. This is significant because it increases the scope of what it means to be human when employing the "veil of ignorance" heuristic. The hypothetical pre-political community that chooses the rules for the liberal polity should take into account not only Rawls's bare-bones concept of human agency but also the observable reality that no such individuals exist. Actual citizens, in other words, always exist as part of a community-forming culture and the liberal polity should provide room for such culture-creating institutions as are necessary to maintain a particular culture.
The rubber meets the road when Rosen compares the scope of legitimate educational institutions his expanded notion of personhood permits. Whereas Rawls would prohibit the maintenance of illiberal educational institutions because their eventual proponents would, ipso facto, have been excluded from bringing their illiberal conceptions behind the veil of ignorance, Rosen would permit the ideals of such persons to be part of the pre-political founding. In other words, a liberal polity should permit persons with illiberal understandings of a polity's purpose to share in political affairs. And those political affairs include the maintenance of educational institutions that inculcate those illiberal understandings.
Are there any limits on the recognition of illiberal political existence, including education? What are Rosen's "two [actually three] constraints?" A round-about discussion will get us to Rosen's conclusion. First, Rosen distinguishes between "Local" and "Universal" Perfectionists. Only the viewpoints of potential adherents of Universal Perfectionism are excluded from standing behind the veil of ignorance; Localists are okay because they seek to implement their comprehensive understandings of the good only within their community. They have no pretensions to universalize their understandings (unless by liberal means). Rosen posits the intertwined religious and civil governing institutions of American Indian peoples as a well-known example of Local Perfectionists.
Rosen's second limitation on the extent of illiberal Perfectionist is a commitment to "well-orderliness." In other words, "Perfectionists can be accommodated only if they have a peaceful disposition toward their non-Perfectionist neighbors." Jihadists need not apply. So what about education? "Well-orderedness imposes important educational obligations. Those raised in religious perfectionist communities must be educated in a manner that encourages them to understand the justice of the polity in which they live, so that they willingly comply with the basic institutions of society." Liberalism extends only so far.
Rosen's final limit on liberal toleration of illiberal "Perfectionists" and their right to educate is a mandatory "opt-out." Members of a Perfectionist communities--Local and Universal--must be permitted to leave. And this "opt-out" must be meaningful; that is, those educated in a Perfectionist system must be taught that other systems (presumably liberal ones) exist and must be given the tools to leave and survive in outside the Perfectionist community. (Rosen obviously has a misguided view of the "education" that takes place in most liberal (i.e., public) schools.)
In conclusion (at last!), Rosen represents a significant advance over Rawls. Illiberal "Perfectionists" are not ruled out of political legitimacy tout court. And, significantly, many have the right to educate their children in their Perfectionist tradition. But Rosen does not address the justification for any sort of contractarian legitimacy other than to trot out the tired "Wars of Religion" trope. By continuing to impose a moral obligation on a polity's citizenry to adhere even to an expanded notion of the political person, Rosen, like Rawls and all contractarians, asks too much. It is not that the results of the liberal political order are wrong--I think they are generally very good--but that contractarianism requires a moral commitment to its validity, a commitment which many are unwilling to provide.
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