Against "The Moral System" as a Standard for Religious Accommodation

This is the first chapter of the monograph I have in preparation

There has been a long and sustained critique from religious studies and anthropology that manifestation of religion cannot be separated from religious belief. Criticism has also focussed on the European Court of Human Rights (EHCR) because it looks at all religions through a Protestant lens and therefore protects only conscience-based and religious beliefs, to the detriment of practice-based religions. Yet even in the face of this sustained criticism, the court continues to give manifestations of belief and practice-based religions short shrift. Why do these ECHR judgments keep coming up so discriminatory? I argue that there is a further, more powerful logic behind and in the background of both the assumptions about manifestations of belief and practice-based religion. I identify this background assumption as our need to express everything through the framework of duty and obligation. Bernard Williams labels this hidden background, “the moral system” and by the end of this paper I will show that the subtle influence of this system continues not only to ensnare judges but also those critics who have taken notice of the worry of protestantization of religion.

            In Part 1 and 2 I focus on a class of actions that form what I call Practices of Self Realization and Virtue (PSRVs) that I argue fall into a conceptual space outside the objectivity of duties yet are not reducible to pure subjectivity. PSRVs are independently important yet are wrongly subsumed under the category of morality as imperfect duties by the moral system. As a test case, in Part 3, I show that Islamic veiling, like other practices that fall between objective and subjective, does not fare well as an accommodation in front of the European Court of Human Rights (ECHR). Women who veil are stuck in a dilemma because veiling is seen as not obligatory and only moral obligations are seen as needing accommodation, never practices of virtue. Even when veiled women convince the courts that veiling is obligatory, courts argue that while moral conscience is absolutely protected its outward manifestation is not. I conclude in Part 4 by considering positions that successfully try to be fair to practice based religions and consider the worry of the Protestantization of religious accommodation. The first is Jocelyn Maclure who has changed his own work to deemphasize moral conscience but subsumes PSRVs under the concept of “moral integrity.” While his expansion of the concept of integrity is important, I argue that more than one principle is needed to cover the ethical sphere. I look toward Cecile Laborde’s “Disaggregation” approach to find a solution for the different values that are covered by the concept “religion” and when supplemented with my concerns about the use of the moral system, is a more promising position to ground public reason.