La religión y el estado liberal

Por Roberto Blum
Guatemala, 9 de noviembre de 2010

La religion y el estado liberal es el título del artículo que escribió Stanley Fish a principios de este mes de noviembre en el periódico The New York Times.

En este artículo, el autor plantea la cuestión de hasta qué punto un “estado liberal” puede imponer coerciblemente a sus ciudadanos las normas que establece una determinada religión, aunque ésta sea la religión de la mayoría.

Church and State

El argumento central es que en el liberalismo clásico, existe una clara distinción entre lo que es el ámbito privado y el público. En esta visión, la religión pertenece claramente al ámbito privado, en donde el estado no debe intervenir.

Sin embargo, algunas concepciones religiosas niegan esta distinción, ya que para ellas el individuo es una unidad que no se puede separar. La religión permea toda la vida y toda la actividad de los individuos y el estado debería velar por el bien integral material y espiritual de los hombres y mujeres de la comunidad que tiene a su cargo.

Para iniciar una conversación sobre este tema, reproducimos el siguiente artículo:

Religion and the Liberal State Once Again

The New York Times

Nothing gets the juices and the comments flowing better than a column on religion and the liberal state. But before attempting a response to the issues raised by readers of my previous column, I would like to offer a couple of clarifications.

First, by “liberal” and “liberalism” I do not mean, as some posters assumed, a position on the political continuum at the other end of which would be “conservative” and “conservatism.” Liberalism is the name of an enlightenment theory of government characterized by an emphasis on procedural rather than substantive rights: the law protects individual free choice and is not skewed in the direction of some choices or biased against others; the laws framed by the liberal state are, or should be, neutral between competing visions of the good and the good life; the state intervenes aggressively only when the adherents of one vision claim the right to act in ways that impinge upon the rights of others to make their own choices.

You are free to believe that salvation comes only through faith in Jesus Christ and to order your behavior accordingly. You are not free to coerce others, either by physical force or the force of law, to share your faith and behave as you do. Adherence to the primacy of individual choice and to the idea that law should not enshrine any orthodoxy is compatible with any politics (except an avowedly racial, sexual or religious politics). Barack Obama and Ronald Reagan are both classical liberals.

The key distinction underlying classical liberalism is the distinction between the private and the public. This distinction allows the sphere of political deliberation to be insulated from the intractable oppositions that immediately surface when religious viewpoints are put on the table. Liberalism tells us that religious viewpoints should be confined to the home, the heart, the place of worship and the personal relationship between oneself and one’s God.

When the liberal citizen exits the private realm and enters the public square, he or she is supposed to leave religious commitments behind and function as a stripped-down entity, as an abstract-not-full personage, who makes political decisions not as a Jew or a Christian or a Muslim but as what political scientist Michael Sandel calls an “unencumbered self,” a self unencumbered by ethnic, racial, gender, class or religious identities. (Some theorists allow the liberal citizen to think politically through a religious lens as long as the policies advocated can be stated in secular terms; other insists that the liberal citizen should not even have religious thoughts when operating in the public sphere.) The basic notion is captured nicely (if hostilely) by Jeffrey: “A human being is first a human being before he or she becomes infected with the virus of religious ideology and superstition.”

Now some religions — notably forms of Lockean Protestantism — reflect in their doctrines the private-public split liberalism requires. Others — some versions of Christian fundamentalism, some versions of Orthodox Judaism, and some versions of Islam— don’t. Such a religion, as Dave points out, “cannot be separated from its role as an entire political/governmental system.” That is, it won’t respect the private-public distinction; its adherents want to see its strictures and regulations enacted in every corner of daily life, not just in the privacy of the home or chapel.

The question is what does the liberal state do with those religious believers — the popular answer in the comments is “tell them to go back where they came from” — and my contention, and the only one I make (in agreement with John Milbank), is that the liberal state is incapable of doing anything with them except regard them, as many of the posters do, as fanatical, medieval, crazy, dictatorial and downright dangerous. As I point out, liberalism’s inability to regard strong religious claims — claims that spill out into public life — as anything but a mistake and a transgression is not something liberalism can correct or get beyond; it is the inevitable (and blameless) reflection of what liberalism is and must be if it is to sustain its particular, not to say peculiar, brand of universalism, a universalism that operates by reducing persons to formal entities, all of which are, in the essential political respect, exactly the same. (It’s universalism writ small.)

When I say that is the only contention I put forward, I am responding to these readers who chided me for recommending a surrender of legal jurisdiction in at least some areas to religious courts and tribunals. Chris protests that “this article’s message is that we should alter our current system to adhere to [Shariah] law.” I offer no such message and in fact I offer no message at all. I am certainly not implying “that stoning a woman for adultery is something a liberal state ought to allow” (glennvirt). I’m just foregrounding an issue, reporting on its having been raised controversially by the Archbishop of Canterbury, and alerting readers to a new volume (“Shari’a in the West”) that takes up the matter in depth, and includes, let me add, full and detailed discussions of the dangers to women’s rights associated with the legitimization of Shariah or other comprehensive religious codes in Western democracies.

The danger is not theoretical or far away. Dean Jamison alerts us to a 2010 decision by a judge in New Jersey that a Muslim man from Morocco accused of sexually abusing his wife did not have criminal intent because he “was operating under his belief that . . . his desire to have sex when . . . he wanted to was something consistent with his practices” — according to testimony he had said, “You are my wife, I can do anything to you” — and was therefore “not prohibited.” In other words, “I was merely acting on the basis of and at the behest of my Muslim faith and committed no wrong.”

An appellate court overturned the judge’s ruling, declaring that what the husband believed was irrelevant to the question of whether he had acted criminally; but the principle invoked — this is the way we do it where I come from and so I shouldn’t be punished for doing it here — is not foreign to U.S. courts, where it has had some success, more often in the penalty or sentencing phases than in the determination of innocence or guilt.

The name of the principle is the “cultural defense” — the argument by a defendant, often but not always an immigrant, that his or her allegedly criminal behavior should be excused or subject to a lesser penalty because in the culture of origin that behavior is an accepted and even commanded norm. The cultural defense is obviously distinct from the issue of establishing religious tribunals alongside the tribunals of the sovereign state. In a way, the person pleading the cultural defense is saying that he has brought the tribunal of his religious faith with him by virtue of having deeply internalized its precepts and imperatives. The question raised by the cultural defense is, “When people come to America [do] they have to give up their way of doing things?” (Margaret Fung quoted by Cathy Young, Chicago Tribune, July 8, 1992).

The answer divides social and legal commentators in a way that mirrors the division produced by the specter of “supplementary” religious courts: The “larger debate,” explains legal scholar Doriane Lambelet Coleman, “concerns whether there is and should be a unifying American culture that guides our institutions, including the justice system, or whether the United States is and should be a culturally pluralistic nation in all respects, including in the law” (Doriane Lambelet Coleman, “Individualizing Justice Through Multiculturalism: The Liberals’ Dilemma,” Columbia Law Review, June 1996). Or, if I may rephrase slightly, does the (undoubted ) fact that the United States is very much a pluralistic nation provide a normative basis for plural legal orders? Does multiculturalism as a demographic reality demand multiculturalism as a principle of legal decision-making?

There are three responses one might give to these questions and to the cultural defense when it is invoked. (1) I see your point; you were acting in the grip of a sincere belief; go and sin no more (2) That may be the way they do it back home, but you’re here now and our laws trump your culturally acquired beliefs, and (3) That may be the way they do it back home, but here we do it differently, and the way we do it here is the right way and should be the way it’s done in the culture you came from.

Response #1 (not often given in its strong form by U.S. courts) acknowledges the legal relevance of deep religious beliefs to the question of culpability and is in sync with the spirit of multiculturalism. Response #2 says, no, in the U.S. the legal system operates independently of anyone’s religious beliefs and is undergirded by neutral procedural norms. The interesting thing is that both #1 and #2 accept the logic of multiculturalism — different strokes for different folks. It’s just that the first would apply the logic to individuals and the second to nations: yes, there are different forms of law in different cultures, but you’re in ours now.

The problem with this stance is that it makes law’s shape a matter of political power and has nothing positive to affirm in case the political winds shift and bring with them a new kind of law.

Response #3, on the other hand, is genuinely universal; it recognizes cultural difference and the existence of many legal systems, but insists that there is only one right way to conceive of law, and those nations that conceive of law differently — by, for example, encoding male supremacy or corporal punishment for female adultery — are not just different; they’re wrong.

Multicultural deference, procedural neutrality as a local norm, and procedural neutrality as a norm every nation should embody in its laws. These three alternative conceptions of law are in play in every advanced society on earth, including ours. More than a few posters were amazed that the question of plural legal jurisdictions was being debated in this day and age and wondered why The Times would devote its coveted space to matters settled long ago. The truth is that they are by no means settled and, given patterns of migration and what C.S. Peirce called the “tenacity of belief,” they never will be.

Lea más...