Who's Still Afraid of Determinism? (Part 3)

(Part One, Part Two)

In the previous entry, we encountered Dennett and Taylor's two main arguments contra the incompatibilists. In this brief final entry, we consider the appendix to D & T's article in which they deal with Peter Van Inwagen's famous Consequence Argument.

The Consequence Argument is supposed to show that agents cannot have meaningful causal powers in a deterministic universe. The argument is of moderate complexity. It is outlined and illustrated in the following diagram (click to "embiggen"):

As you can see, the idea is that because determinism implies that events in the remote past are sufficient for events in the future, no one really has control over those future events.

D & T attack the argument on the grounds that it conflates causal necessity and causal sufficiency. As we saw the last time, D & T argue that counterfactual necessity is the most crucial criterion of causal power. Thus, they think that the term "power to cause" in premise (3) of the Consequence Argument should be thought of in the following terms:

A has the power to cause a iff for some sentence ψ describing an action of A and a world f close to actuality, ψ ∧ a holds in f and a → ψ in every world similar to f.

What this means is that within a cluster of possible worlds close to our own, there is an action ψ that is a necessary condition for a to occur. If this sounds confusing or imprecise, I suggest going back to part one and looking at the definitions of possibility and causation that were outlined there.

The problem for Van Inwagen is that once this definition of causal power is employed, premise (3) as a whole becomes unwarranted. Why so? Well, premise (3) in its original form is claiming that a → ψ applies in a cluster of nearby worlds, and that a → b applies in all possible worlds. If we could deduce from these two claims that b → ψ then premise (3) would be justified. But we can't do this because elementary logic tells us that a → ψ and a → b do not entail that b → ψ.

And so, with this simple combination of definitional judo and elementary logic, the Consequence Argument fails. I should say, before leaving D & T's article behind, that many doubt that Van Inwagen's argument can be defeated in such a simple manner (D & T acknolwedge this fact in a footnote). I personally prefer Gary Drescher's suggestion that a causal link between practical reason is not always required for meaningful action. Drescher's argument is presented in his book Good and Real and in effect defangs the conclusion of the Consequence Argument.

Who's Still Afraid of Determinism? (Part 2)

(Part One)

In the previous entry we took a look at the motivations behind D & T’s article and outlined some of the formal concepts they use in making their arguments. In this entry, we turn to the arguments themselves.

These arguments respond directly to the alleged problems with determinism. As you recall, these were (a) that determinism rules out any meaningful sense of alternative possible futures; and (b) that determinism rules out any meaningful sense of originative causal powers.

Let’s see why D & T think those concerns are misplaced.


1. Determinism and Alternative Possible Futures
Dennett thinks that the following famous footnote in one of J.L. Austin’s essays sums up the incompatibilist position on alternative possible futures:

"Consider the case where I miss a very short putt and kick myself because I could have holed it. It is not that I should have holed if I had tried: I did try, and missed. It is not that I should have holed it if conditions had been different: that might of course be so, but I am talking about conditions as they precisely were, and asserting that I could have holed it."

In this short paragraph, Austin is making a claim about what it is possible for him to do. In the previous entry, we saw that such statements are characterised by their appeal to possible worlds. So, roughly, what Austin is saying here is that the sentence “Austin holes his putt” is true in at least one possible world within a specified subset (X) of possible worlds.

The big problem for Austin is how large the specified subset X needs to be in order for him to meaningfully claim that he “could have holed the putt”. In the portion quoted above, Austin seems to include just one world in the subset X: the actual world in which we live (“conditions as they precisely were”). D & T call this the “narrow” approach and think it is typical of the incompatibilist position.

D & T’s contention is that the narrow approach is flawed: to make meaningful claims about what is possible, we have to have a broader interpretation of the subset X. Indeed, Austin himself seems to be aware of this because after the section just quoted he continues in the following manner:

“Further experiments may confirm my belief that I could have done it that time, although I did not.”

If Austin sticks to the narrow approach, “further experiments” are meaningless since they occur in a different set of conditions. Only if he takes the broader approach would such a claim make sense.*

D & T reinforce this observation with a lengthy thought-experiment about two chess-playing computers. Anyone who has spent time reading Dennett will know that, along with Conway’s Game of Life, this is one of his favourite “intuition pumps”. Apparently, there is no concept in the philosophy of mind, biology and responsibility that fails to be illuminated by it.

I won’t repeat the lengthy discussion of the chess-playing computer programmes here. Suffice to say, the important point about such programmes is that they are “miracles of determinism”: they play chess games in accordance with predetermined algorithms. Nevertheless, they can they can play different sequences of games if they make use of pseudo-random number-generators. Each one of those games is a possible world (in a subset X), and each one reveals something about the competencies and capabilities of the computer programme. Or, to put it another way, the games reveal something about what it is possible for the programmes to do. This is a meaningful sense of possibility, and it is based upon a broad construal of the set X.

D & T argue that these observations make discussions of possibility perfectly compatible with a deterministic worldview. The ball is thus sent back to the incompatibilist’s court: they must show why indeterminism is necessary.


2. Making a Difference in a Deterministic World
The second worry that incompatibilists have about determinism relates to causal powers. To recap, the concern is that determinism leads inexorably to the view that human beings are mere receptacles through which non-human causal forces exert their powers. D & T obviously think this is wrong and they do so on the basis of a simple argument:

• (1) Determinism is a thesis about causal sufficiency, not a thesis about causal necessity.

• (2) For meaningful, morally relevant causal powers, we care about causal necessity, not sufficiency.

• (3) So, the truth of determinism does not remove or eliminate the kinds of morally relevant causality that we care about.

Premise (1) could be taken as a stipulative definition of what determinism is, however, that may be a little unfair since it also tracks well what I have read elsewhere. D & T say the definition amounts to something like the following:

If σ1 is a (mind-bogglingly complex) sentence that specifies the state of the universe at t1, and σ2 is another sentence that specifies the state of the universe at t2, then determinism dictates that σ1 is sufficient for σ2 in all physically possible worlds.

What does this definition actually mean when making a causal judgment with practical implications?

D & T look to the example of JFK’s assassination by Lee Harvey Oswald. According to determinism, the condition of the universe one instant after the big bang (call this “σ”) sufficed to produce the death of JFK in November 1963 (call this “ψ”). But, argue D & T, this tells us nothing about what actually caused Kennedy’s death, or who bears responsibility for his assassination.

This is because although σ is sufficient for JFK’s assassination, it is not necessary. JFK could have been assassinated even if σ were other than what it was. The necessary preconditions of the assassination included things like “Lee Harvey Oswald was born” and “Oswald pulled the trigger of his gun” and so on, not the complete description of the microphysical properties of the universe one instant after the big bang.

This example allows us to see why the incompatibilist fear of determinism is misplaced: when we are interested in explaining why something happened, or in figuring out who bears responsibility for it, we are primarily interested in what is causally necessary, not what is causally sufficient. This is what is asserted in premise 2. The conclusion follows as a matter of course.

This brings us to the end of D & T’s main article. They have now, to their minds, shown why there is nothing to fear from determinism and why incompatibilists bear the burden of proving otherwise. They have an appendix in which they deal with Peter Van Inwagen’s famous Consequence Argument. I’ll look at that in the next entry.


* I sometimes like to employ a explicability argument in response to those who make use of the narrow approach. As follows: Suppose one does accept the narrow approach, and suppose the one world within the set X does give rise to alternative possible futures. Ask yourself: what is making the difference in realising these possible futures? By stipulation, it can’t be anything in your personality or psychology because if they were different, conditions would not be “precisely as they were”. So what could it be? The answer: nothing that is relevant to an ascription of responsibility. Is this a good argument? I think so, but I'd be interested in hearing counterarguments.

Who's Still Afraid of Determinism? (Part 1)

Daniel Dennett

(Conceptual framework for understanding free will)

“Who’s still afraid of determinism?” is an article by Dan Dennett and Christopher Taylor (hereafter “D & T”) on the topic of free will and determinism. As the adverbial use of the word “still” in the title suggests, it is an updated version of an earlier article. In the next two blog posts I want to summarise this paper.

Having read both versions, I can tell you now that the difference between them is slight. The major change is that a section has been added discussing Judea Pearl’s theory of causation. Ironically, I’m going to exclude this from my summary. I do so for two reasons: (i) the value of the discussion is proportional to one’s understanding of Pearl's rather complex theory of causation, which I have no intention of summarising and (ii) the authors argue that Pearl’s theory is not relevant to their overall conclusions so, at least in terms of understanding those conclusions, we do not need to discuss it here.

Anyway, my consideration of D & T’s article will be broken into three parts. The first part goes through the motivations behind the article, as well as the various concepts that D & T employ in their arguments. The second part examines the two main arguments (or theses) put forward by the authors. The third part looks at Van Inwagen's famous Consequence Argument, as well as D & T's responses.


1. The Motivations Behind Incompatibilism
The target of D & T’s argumentative ire is incompatibilism. As noted on a previous occasion, incompatibilism is the claim that either (a) free will is incompatible with causal determinism or (b) causal determinism is incompatible with moral responsibility. D & T’s primary concern is with the moral and existential implications of determinism. It would be a mistake, I think, to interpret them as making claims about the ontological or metaphysical implications of determinism.

As D & T point out, incompatibilism is attractive for two main reasons.

First, most people think that in order for alternative possible futures to be available to them when they act, causal determinism must be false. In other words, they think that determinism implies that they “could not have done otherwise”. This is because, in the words of Van Inwagen, determinism is the thesis that there is only one possible future.

Second, most people think that causal determinism implies that human beings are the empty receptacles of external causal forces. This thereby robs them of any ability to be the true (ultimate) originators of their actions.

D & T’s goal in their article is to show how acceptance of causal determinism neither rules out a meaningful sense of “could have done otherwise”, nor a meaningful sense of causal origination. If they succeed, the burden of proof then shifts to the proponents of incompatibilism. They must explain why their position still remains attractive.

To make their case, D & T begin by setting out some formal concepts.


2. Possible Worlds
The first thing D & T try to do is to get some purchase on the modal concepts of possibility and necessity. Philosophers usually do this by appealing to the idea of different possible worlds. D & T are no different, but they focus on possible worlds that are consistent with a modern scientific view of reality. They do not focus on all logically or metaphysically possible worlds.

Their account builds on a Democritean model of the universe. A Democritean universe is specified by a function ( f ) that assigns a value (0 or 1) to a four-dimensional unit of spacetime (x, y, z, t). If a value of 1 is assigned to (x, y, z) at time t1, then that unit of spacetime is occupied; if a value of 0 is applied to that unit, then it is not occupied.

This brings us to a definition:

• Def. “Possible world” = Any function of the form f : (x, y, z, t) → {0,1}

There are two important sets of such possible worlds:

• Ω is the set of all possible worlds.

• Φ is the set of physically possible worlds in which no physical law is broken (i.e. the deterministic worlds).

D & T acknowledge that this Democritean vision is a long way from the universe as described by modern physics, but they think it will suffice as we try to refine our concepts of necessity and possibility.

Within a possible world there will be entities. These are simply connected hypersolids occupying units of spacetime that have coherent and stable clusters of properties. A system of informal predicates such as “is human” and “is alive” will be used to describe such entities.

Some of the predicates ascribe necessary or contingent properties to entities. For example, a sentence of the form “Necessarily, Socrates is mortal” ascribes a necessary property to the entity we call “Socrates”. What does such a sentence really mean? According to D & T, it means roughly the following:

• In every world f, the sentence “∀x (x is Socrates → x is mortal)” obtains.

The crucial question for discussions of necessity is: how large should the set f be allowed to range? Should it cover Ω, or Φ, or some more restricted set X? D & T think this is a difficult question to answer but they propose that the following notation be used to indicate whenever something is necessary:

• □x ψ

This translates as “the sentence ψ obtains in all worlds in the set X” and would be equivalent to “Necessarily ψ.”

Having developed this understanding of the concept of necessity, the concept of possibility is much easier to define. Take the sentence “Possibly, Socrates has red hair”. This sentence can be rendered formally:

• There exists (within the set X) a possible world f in which the sentence “∃x (x is Socrates ∧ x has red hair) obtains.

More generally, we can employ the following notation to indicate that something is possible:

• ◊ x ψ

This translates as “the sentence ψ obtains in at least one world within the set X” or "Possibly ψ".

3. Counterfactuals
Counterfactuals are propositions that straddle possible worlds. As noted in another post on this blog, they are often thought to be central to accounts of causation. The following statement is a classic instance of a counterfactual:

• “If you had tripped Arthur, he would have fallen”

This means, roughly, that in every possible world within the set X, whenever the antecedent (Arthur’s being tripped) holds, so does the consequent (Arthur’s falling). D & T employ the following notation for counterfactuals:

• □ x ψ → φ

In this case ψ means “Arthur was tripped” and φ means “Arthur fell”. Two other bits of notation need to added at this stage:

• "ψ□→ φ"  and "~φ□→ ~ψ"

The first of these translates as “If ψ, then φ”. The second translates as “If not-φ, then not-ψ”.

Again, crucial to understanding the scope of counterfactual statements like this is the question: how large should the set X be construed? The answer, according to D & T is that X ought to include:

• (i) worlds in which ψ holds, not-ψ holds, φ holds and not-φ holds.

• (ii) worlds that are otherwise very similar to the actual world (i.e. the one in which we live).

Obviously (ii) is a bit of a fudge but D & T argue that a certain vagueness is inherent in even the most rigorous discussions of counterfactuals (they reference their later discussion of Pearl’s theory in this regard).


4. Causation
We come at last to the nature of causation. D & T do not think that a “true” account of causation is possible, so they set their sights a bit lower. They try to develop some conceptual tools for refining our thinking about causation in the real world. We will describe these tools by referring to the following example:

• “Betty’s tripping Arthur (call this “ψ”) caused Arthur to fall (call this “φ”).”

Our goal now is to describe the concepts that allow us to make causal claims like this.

• (a) Causal Necessity: ψ is a necessary causal condition for φ if, in every possible world within the set X, whenever ψ does not happen, φ does not happen either. As it happens, ψ is not a necessary condition for φ: Betty’s tripping Arthur is not necessary for his falling, he could fall for other reasons.

• (b) Causal Sufficiency: ψ is a sufficient condition for φ if, in every possible world within the set X, whenever ψ happens, φ happens. In our example, ψ probably is a sufficient condition for φ: Betty’s tripping Arthur probably does make him fall (but perhaps there are ways in which he can avoid this outcome even after he is tripped).

• (c) Independence: in making a causal claim, we expect the two sentences ψ and φ to be logically independent. In other words, we expect there to be possible worlds, however remote they might be from our own, in which ψ is true but φ is not.

• (d) Temporal Priority: in order for one event to cause another, it is usually the case that the cause precedes the effect.

• (e) Miscellaneous other concepts: there are other concepts to which we appeal when making causal claims. For example, most of the time the cause is active while the object on which it exerts its causal powers is passive. Also, physical contact is often thought to be important in discussions of causation.

After describing these conceptual tools D & T proceed to consider three classic problem cases. I won’t go through these here but I will summarise the main points, which are:

• (i) When trying to identify “the” cause of an event, sometimes we focus on the necessary conditions, sometimes on the sufficient conditions, and sometimes on other conditions such as temporal priority.

• (ii) Sometimes there may be no singular “cause” of an event.

Okay that’s enough for now. There's quite a lot to take in here. In the next post we’ll see how these concepts are used in the service of D & T’s arguments. You might like to keep this post open in a separate tab when you read the next part.

Free Will: A Conceptual Framework

Free will, if it exists, is a property of agency. It is something that agents, in virtue of their constitution, can exhibit that non-agents cannot. Furthermore, free will may be the most morally, spiritually, and existentially important property of human agency.

It has occurred to me that I might like to look at some recent papers on the topic of free will on this blog. Those papers tend to assume that the reader is familiar with the ins and outs of the contemporary debate on this issue. I don’t like to make those kinds of assumptions, partly because you never know who might be reading a blog, and partly because reacquainting oneself with the basics of an issue is always worthwhile.

This post offers a conceptual framework for analysing the contemporary debate on free will. The framework comes in three sections. The first section examines the nature of free will as a property of agency; the second section considers the intellectual significance of the debate; and the third section outlines some of the positions one can take up in this debate.


1. The Nature of Free Will
No one would deny that the term “free will” is ambiguous. A lot of conceptual baggage has been attached to those two simple words over the years. This is one reason why the debate over free will (even in the philosophical literature) can be so frustrating: different authors apply different meanings to the term and often end up talking past on another.

In an effort to cut through some of that confusion, I like to appeal to a model of free will that I first came across in Henrik Walter’s book The Neurophilosophy of Free Will (he took it from somewhere else). Walter’s contention is that when we talk about the property of free will, we are talking about a decision-making capacity with three components:

• (i) Alternativism: this is the capacity to (meaningfully) choose between different possible futures. In other words, if X must choose whether to eat an apple or an orange, and if X chooses the orange, it must still be possible for X to choose the apple.

• (ii) Intelligibility: this is the capacity to act from intelligible reasons. In other words, X does not simply choose among possibilities at random, X chooses in accordance with reasons, intentions, desires and beliefs.

• (iii) Origination: this is the capacity to be the originator of actions. In other words, X is not simply a passive receptacle through which external causal forces exert themselves but is, in some sense, the active originator of causal forces.

There are two main advantages to thinking about free will in this way. First, by focusing on three elements, this model helps to avoid the pitfalls associated with thinking about only one of the elements. For example, most discussions of free will are preoccupied with the concept of alternativism. But a popular objection to this preoccupation is that an agent with alternativism and nothing else might amount to little more than a random choice-generator. This would not be the kind of morally salient choice with which we are concerned. The extra ingredients of intelligibility and originations are needed for that.

Second, this model is flexible enough to encompass the diversity of positions that exist on the nature of free will. The flexibility stems from the fact that each of the three components can be subjected to strong, moderate or weak interpretations.

For example, a strong version of alternativism might contend that the agent must have been able to realise different possible futures in the exact same circumstances as obtained at the moment of their original decision. A weaker version might argue that sensitivity to changes in circumstances is all that is required. In future entries we will consider the respective merits of such interpretations.

Because one can have different interpretations of the three components, one can think of this model as describing three dimensions along which different theories of free will can vary. It might be the case that weak interpretations do not deserve the label “free will”, but this is something that can be worked out after the different positions have been described.


2. Intellectual Significance
Why do people bother writing and debating the concept of free will? What’s at stake in this debate? I suggest that there are three separate issues to worry about (I think I’m taking this from something Patricia Churchland said, but I can’t be too sure):

• (i) The Metaphysical/Ontological Issue: this is concerned with the reality or non-reality of the different conceptions of free will. The most widely debated ontological issue is the impact of causal determinism on the possibility of free will.

• (ii) The Moral Issue: this is concerned with the type of free will that is necessary for moral responsibility.

• (iii) The Existential Issue: this is concerned with the existential impact of the different metaphysical conceptions of free will. For example, one might ask: if all our choices are causally determined, is practical reason somehow futile or meaningless?

Discussions of free will tend to blend these issues in different ways. This is understandable since how you resolve one of them will affect how you resolve the others. Nonetheless, it is worth keeping them distinct at the outset.


3. Different Positions on Free Will
After over two thousand years of sustained philosophical debate, one can imagine that numerous stances and positions have been identified on both the nature of free will and the moral and existential issues associated with it. It would be difficult to do justice to all of these positions, but thankfully most of the conversation tends to gravitate towards the following:

• Libertarianism: this is the view that strong interpretations of all three components of the will are needed in order for there to be a meaningful sense of free will.

• Incompatibilism: this is the view (usually associated with libertarianism) that either (a) free will is incompatible with causal determinism or (b) determinism is incompatible with moral responsibility.

• Hard incompatibilism/determinism: this is similar to the above. The addition of the adjective “hard” connotes a positive endorsement of the fact that the world is causally determined and that moral responsibility is impossible. Regular incompatibilists tend not to have that positive endorsement.*

• Compatibilism: this is the view that either (a) free will is compatible with determinism or (b) moral responsibility is compatible with determinism. In order to avoid confusion, John Martin Fischer suggests that the latter position be termed semi-compatibilism.

• Agent Causation: this view is a little harder to characterise. Put most simply, agent causationists are primarily concerned with the origination component of free will. They argue that agents cause their actions (or will their actions) in a manner that is distinct from ordinary event-event causation. In other words, they argue that agents are exempt from ordinary causal processes.

So there you have it, a conceptual framework for discussing free will. I will refer back to this post in future entries on this issue.


* "Positive" is meant here in the sense of "believes it to be true" and not "believes it to be a good or desirable thing".

Religious Liberty and Tax Exemptions (Part 2)

This post is the second part in a brief series looking at the arguments for and against tax exemptions for religious organisations. The series is inspired by something I read in the book Bargaining with the State by Richard Epstein.

By the end of the previous entry we had derived a principle for assessing the legitimacy of selective changes to government tax policy. That principle was the following:

• Selective changes in taxation must be assessed in terms of just compensation and equal relative gain.

Stated in the abstract the principle makes little sense; stated in the appropriate context it does. The appropriate context is the general theory of the state that was outlined in the previous entry. To recap, the state was seen as the product of a rational bargain (social contract) that created a certain “status quo” or “baseline” consisting of rights and entitlements. Changes to that baseline must also garner rational assent through compensation and equal relative share of gains.

In this post, we apply the principle for assessing tax policy to cases involving tax exemptions that seem to affect rights that are part of the baseline in a liberal democratic society. This will lead us to a consideration of one of Epstein’s arguments relating to tax exemptions for religious organisations. Which will, in turn, lead us to a more general argument against the existence of a right to religious liberty.

1. Free Speech and Tax Exemptions

Epstein begins his chapter on tax exemptions and religious liberty by first considering some cases involving tax exemptions and the right to free speech. We can all agree that a right to free speech is part of the status quo of a liberal democratic state. It follows, given our argument in the part one, that any tax exemption that restricted or compromised one’s right to free speech would be unlikely to pass muster.

Epstein looks at several US cases dealing with this issue. I’ll consider just one of these for illustrative purposes. The case is Speiser v. Randall 357 U.S. 513 (1958). It involved a provision of the Californian Constitution that provided property tax exemptions to WWII veterans, provided they signed an oath to not advocate the overthrow of the U.S. or Californian governments. 

This provision was ruled unconstitutional (under the US constitution - in case you are confused) because it essentially amounted to a fine on a certain class of people for exercising their right to free speech. We can state the argument for this conclusion as follows:

• (1) A right to free speech is part of the baseline (or status quo) in a liberal democratic state.

• (2) Selective changes to tax policy from the status quo must be assessed in terms of just compensation and equal relative gain.

• (3) So changes to tax policy that impact upon the right to free speech must be assessed in terms of just compensation and equal relative gain.

• (4) A tax exemption that is conditional upon professing certain political opinions necessarily redistributes wealth from those of one set of views to those of another.

• (5) This essentially fines certain people for exercising their right to free speech.

• (6) There is no corresponding compensation or share of gains for the people who lose out.

• (7) Therefore, this tax exemption is illegitimate.

There are two things to be said about this argument. First, we might express some suspicion of premise 6. Is it really true that there is no corresponding compensation or gain? Could someone not argue that the tax exemption provides an incentive to loyal citizens to join the army and that we are all better off if loyal citizens are defending us?

That counterargument clearly couldn’t work here since the exemption applied retrospectively to WWII veterans. But even prospectively there would be problems: the right to free speech is often seen as foundational in a liberal society, to compromise it in any way would always be problematic.

The second thing to consider about this argument is whether a tax exemption to veterans could ever be legitimate. We have already hinted at the positive answer to this above, but just to draw out the reasoning: we all benefit from (or "are justly compensated for") having military protection, so an exemption which rewards or incentivises people joining the military does not automatically breach our principle of legitimacy.

2. Tax Exemptions and Religious Liberty

The free speech example was a warm-up. It highlights the basic structure of the analysis we undertake whenever there is a selective tax exemption. We can now apply it to cases involving tax exemptions for religious organisations. We begin with a general argument.

• (8) A right to religious liberty is part of the baseline (or status quo) in a liberal democratic system.

• (2) Selective changes to tax policy from the status quo must be assessed in terms of just compensation and equal relative gain (from previous argument).

• (9) Changes to tax policy that impact upon religious beliefs and practices must be assessed in terms of just compensation and equal relative gain.

• (10) The right to RL includes the right to practice different religions or no religion at all.

• (11) A tax exemption for particular types of religious organisation, in a religiously pluralist society, has serious redistributive consequences viz. it takes money from non-believers, or it privileges one religion over another.

• (12) So you cannot have a discriminatory tax exemption for religious organisations, i.e. one that privileges one type of religion or fails to include non-believers.

This argument is relatively straightforward. I suggest that, given our theoretical assumptions about the nature of the state, it is both true and valid. Some questions may be asked, however, about the implications of the conclusion. Specifically, what exactly would a non-discriminatory tax exemption look like? Epstein suggests that an exemption that merely equalises the status of those who practice a religion, when compared to their secular peers, would be non-discriminatory.

So, for example, a tax exemption for educational religious organisations, when there already is a publicly-funded secular system of education, might be deemed legitimate. Why? Because it merely equalises the religious and secular systems of education.

For the sake of argument, we can go along with this. What matters for my purposes is how Epstein applies this general principle -- i.e. that of non-discriminatory tax exemptions -- to a noteworthy case: Bob Jones University vs. United States 461 U.S. 574 (1978).

3. The Bob Jones University Case

The facts and the decision in the case are easily stated. Bob Jones University (BJU) were, as a charitable organisation, entitled to a tax exemption. However, the BJU, for religious reasons, did not permit interracial dating and marriage among its students. In other words, it practiced a form of racial discrimination. The Supreme Court decided that BJU could not keep its tax exemption under these circumstances.

There are two ways to analyse the decision in BJU-case. The first I shall call the “naive way” and it looks something like this:

• (13) BJU had a charitable tax exemption and practiced a form of racial discrimination.

• (14) The court withheld the tax exemption from BJU but not from other similar religious institutions.

• (15) So the court mandated a discriminatory form of tax exemption policy for religious organisations.

• (12) You cannot have a discriminatory tax exemption for religious organisations (from previous argument).

• (16) So the decision is incorrect.

As it stands, this argument is sound: the decision in the BJU-case did, in effect, create a discriminatory system of tax exemptions for religious institutions. By withholding the tax exemption from BJU, it forced the BJU to subsidise other institutions and it did so without any just compensation or reward for the BJU.

But I doubt anybody would be satisfied with this naive analysis. Why not? Well, because it focuses solely on the impact of the decision on the right to religious liberty. It forgets another important part of the status quo: the right to equal protection (which includes, most obviously, a right to non-discrimination on the basis of race). Surely that must be included in our assessment?

We can remedy the defect as follows:

• (17) Equal protection is part of the baseline (or status quo) in a liberal democratic state.

• (18) To reward a racially discriminatory organisation through a tax exemption would damage the right to equal protection.

• (19) Continuance of the tax exemption to BJU would reward a racially discriminatory organisation.

• (20) The right to equal protection trumps the right to religious liberty.

• (21) Therefore, the decision in the BJU-case was correct.

Although this argument rescues the decision in the BJU-case, it does not do so without controversy. The problem comes in the shape premise (20). Although this must be true to justify the conclusion (otherwise we must engage in some strange sort of balancing act), Epstein thinks we have good reason to think the opposite, i.e. to think that religious liberty actually trumps equal protection (at least in this instance).

4. Epstein Contra the BJU-case

Epstein’s argument is derived from the nature of the right to religious liberty. Epstein contends, and I agree, that a right to religious liberty is meaningless if it does not include a right to practice as well as profess religious beliefs. If it only included the latter, then it would be subsumed within the right to free speech.

Epstein then points out that many religious practices are discriminatory (he cites rules on membership of the Catholic clergy as an example) and so if equal protection were allowed to trump religious liberty in cases like the BJU-case, it would make a mockery of the right to religious liberty.

Formally, the argument looks something like this:

• (22) A right to religious liberty covers more than just a right to profess religious beliefs, it covers the right to practice as well.

• (23) Many religious practices are discriminatory (e.g. sex discrimination in Catholicism).

• (24) So lots of tax exemptions would have to be withdrawn in line with the reasoning in the BJU-case (from 23).

• (25) This would illegitimately undermine the right to religious liberty; it would effectively amount to a fine on religious practice without any just compensation.

• (26) So the decision must be wrong.

5. Contra Epstein and the right to Religious Liberty

Epstein’s argument is, no doubt, attractive to some. But for me it highlights the untenability of the separate right (i.e. over-and-above the right to free speech) to religious liberty. I would spell this out as follows.

• (27) Secular law must not discriminate between different religious beliefs and practices (a more general version of the principle embodied in premise 12).

• (28) At least some religious beliefs and practices will clash with secular law (as proven by the BJU-case).

• (29) So in order not to discriminate between religions, the secular legal system would have to accept (perhaps even reward) practices that are contrary to its provisions.

• (30) This would undermine the secular legal system.

• (31) So the right to religious liberty undermines the secular legal system.

This argument strikes me as being sound, given the general theory that has been expounded here and given the specific arguments outlined above. We can see how it relates to Epstein's argument in the following diagram. It implicitly defeats Epstein's claim that the BJU-case was incorrectly decided.

One thing that is unclear is the implications of the argument contra Epstein. I would suggest that a further conclusion can be drawn from it:

• (32) There should not be a right to religious liberty.

But note that this conclusion does not follow from the argument as presented to this point. A further assumption, to the effect that secular law trumps religious rules, would be required for that. I would submit that this assumption is likely to be acceptable to most people living in pluralistic democracies. 

I would further submit that an argument in favour of this assumption is possible. That argument would highlight the impossibility of rational, intersubjective assent to a system of rules centred on supernatural, faith-based claims. And hence the impermissibility of including such rules among the baseline conditions of the state. To put this another way, it would argue that religion is contrary to the epistemology of the social contract theory outlined in part one.

But that argument would be complex and would have to fend-off many objections from evidentialist religious believers. I will not pursue it here since it is little more than a promissory note in my mind. I am content that the assumption will be attractive to most people.

One final issue must be confronted. Does the argument contra the right to religious liberty have disturbing consequences? Would it mandate extreme intolerance towards religious believers?

I would suggest that it does not. The argument simply removes a special right to religious liberty from the baseline of the liberal democratic state; it does not affect the other rights and entitlements included in that baseline. 

Religious believers could still profess and proclaim their beliefs (in accordance with the right to free speech). They could still engage in all practices that do not violate the harm principle. Religious organisations could even engage in discriminatory practices (in accordance with freedom of contract) provided they are not rewarded by the state for doing so.

So despite the dismissal of the right to religious liberty, things would not be too intolerable for the religious.

Religious Liberty and Tax Exemptions (Part 1)

What is the correct legal position with respect to religious beliefs and practices in a liberal democracy? Should there be a right to religious liberty? Should religious organisations be granted tax exemptions? Should such exemptions be withheld if they engage in activities that are contrary to the laws of the land?

To non-believers and secularists like myself, the answers to these questions are straightforward: (i) religious beliefs and practices should be granted no special legal protections over-and-above those granted to other beliefs and practices of all citizens; (ii) there should be no tax exemptions for religious organisations; and, of course, (iii) religious organisations should not be rewarded (through tax exemptions or otherwise) for doing things that are contrary to the secular legal system.

These answers sound fine at a theoretical level. In practice, things are little more difficult. In practice, most liberal democracies do afford some special legal status to religious beliefs and practices (i.e. rights to free exercise and conscience). In practice, secularists would like to avoid excessive intolerance or oppression of religious believers. And so, in practice, convoluted balancing acts are undertaken.

In this brief series, I want to take a more in-depth look at some of the issues arising from the special status of religious belief and practice in liberal democracies. I do so by examining an argument from the libertarian legal theorist Richard Epstein relating to religious tax exemptions. I then use that argument as a springboard for questioning the law relating to religious liberty.

The series comes in two parts. In this first part, we develop a basic theoretical conception of the social contract and derive from it a principle for assessing governmental tax policy. In the second part, we will see how the application of this principle to cases involving tax exemptions for religious organisations highlights the implausibility of a robust right to religious liberty. 

1. Bargaining in General

Epstein’s argument concerning tax exemptions and religious liberty occurs in his book Bargaining with the State. The book develops a general theory of the social contract, and then applies that theory to a series of practical legal issues. Although I do not share Epstein’s libertarian sentiments, I do share his basic theoretical vision of the state. This vision is built on the notion of bargaining. This is something I have covered in detail in previous entries but I’ll summarise its essential elements here.

There are occasions on which two or more people can coordinate their activities and create a social surplus. In other words, they can gain more of something than they could if left to their own devices. But in order for this to take place, a bargain must be struck which determines the distribution of the surplus. 

Here’s an example, one of many which could be adduced. Suppose there are two people, A and B. Suppose A is the producer of some good X and that she values (perhaps due to production costs) X at $7. Suppose B is a potential consumer of X who would be willing to pay up to $15 for X.

Given these conditions, any negotiated exchange of X at a price between $7 and $15 would lead to the creation of a social surplus. Why so? Because A would get something more valuable to them than X, and B would get something more valuable to them than any cash-sum up to $15. The bounds of $7 and $15 represent the baselines or status quo over which the surplus is calculated. 

The bargain thus creates a larger pie of assets that is divided among the parties in different proportions.

2. The Creation of the State

The basic idea of the bargain can be used to build a theoretical model of the state. The picture is, roughly, the following: Rational actors left to fend for themselves without the option of cooperation could achieve a certain degree of personal welfare and security. This would be the “pie” or “surplus” that can be achieved in stateless society.

According to some classic theories, the size of the pie in the stateless society is exceptionally small. Thomas Hobbes, for example, argued that in the state of nature man’s life would be “nasty, poor, brutish and short”. He did so because he believed that without a state with a monopoly on the use of violence there is an unending state of war. The deeper reasons for this are explored in the diagram below (click to enlarge).

Whether Hobbes is right in his pessimism, most would agree that the creation of the state does, in general, enlarge the size of the pie (raise the baseline) compared to the stateless society. This enlarging of the pie would make it mutually advantageous (rationally acceptable) for people to agree to be bound by the regulations imposed by the state. In other words, it would be rational to negotiate a social contract that legitimates the state.

What kind of state would be required to enlarge the pie from what it is like in the state of nature? There are different suggestions. 

A libertarian like Epstein would argue that a very minimalistic state is all that is required. Such a state would have basic legal institutions, legal rules on freedom of contract and property, and some sort of police force and army. Hobbes himself argued that a maximal, authoritarian state (the Leviathan) was needed to lift us out of the war of all against all. The liberal democratic state probably falls somewhere between these extremes.

We do not need to engage with the arguments for and against these different possibilities. We assume that a liberal democratic state is required. This state comes with certain rights and entitlements including, usually, a right to freedom of speech and religion. It will also come with some sort of taxation policy because the state needs to raise revenue to perform its basic functions.

3. Bargaining with the State

Now we come to the crux of the issue. Once the state has been created, it becomes an agent in future bargains and negotiations with its citizens. This is because the situation arrived at after the implementation of the social contract is not some stable, unchangeable state of affairs. Changes in government policy could help to enlarge the size of the pie once again. 

If the government chooses to change its policies in order to enlarge the pie, it enters a new round of bargaining with its citizens. The citizens will be operating within the status quo (or baseline) that has been established by the social contract. Given that the working assumption is that government is the product of rational agreement, the government must ensure that its policy changes do not make people worse off than they are under the existing status quo. This requires just compensation for any losses suffered, and equal relative shares of the new surplus.

What are the implications of all this for changes in tax policy? Most forms of taxation are selective. That is to say, they target certain activities (e.g. work and consumption). But some forms are obviously more selective than others. For example, governments often impose higher taxes on the consumption of certain types of goods (alcohol or cigarettes). The same goes for policies relating to tax exemptions, e.g. exemptions for start-up companies but not established companies.

The crucial point here is that selective changes to tax policy, even if they do enlarge to social pie, necessarily involve the redistribution of assets from one group of citizens to another. This means that those changes constitute a deviation from the status quo. Any such changes must be rendered mutually advantageous by some form of just compensation and equal relative share of gains.

We will be considering examples in the next entry in the series.

4. How to Evaluate Tax Policy

There are a lot of ideas embedded in the preceding paragraphs. In the interests of clarity, we can restate them as a formal argument.

• (1) A legitimate government is one that is mutually advantageous for its citizens, i.e. it creates a social surplus and distributes it fairly.

• (2) Any change in government policy from the existing status quo must be assessed in terms of its ability to satisfy the requirements of mutual advantage (from 1).

• (3) One way to satisfy the requirements of mutual advantage is to ensure that there is just compensation for any losses suffered and equal relative shares of gains.

• (4) So changes in government policy from the existing status quo should be assessed in terms of just compensation and equal relative gain (from 2 and 3).

• (5) Selective changes in taxation are deviations from the status quo because they involve the redistribution of assets.

• (6) So selective changes in taxation must be assessed in terms of just compensation and equal relative gain (from 4 and 5).

This argument, working from a principle for legitimate government based on rational assent, gives us a principle with which we can assess the legitimacy of changes to tax policy given their impact on the status quo. We will put this principle into action in the next entry when looking at the topic of tax exemptions for religious organisations.