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Idaho Law Review

Authors

Omri Ben-Zvi

Abstract

Religious arguments, i.e. normative arguments that rely on premises regarding God's commands, routinely figure in legal and public debates. For example, they recently played a public role in the debate on same-sex marriage that ensued after the Supreme Court's decision in Obergefell v. Hodges. However, philosophers are bitterly divided on the question of whether such arguments are permissible in a liberal democracy. In this Article, I offer a novel rationale for excluding several prominent sub-groups of religious arguments from the public sphere, including from legal argumentation. While most philosophers address this issue as a question of political philosophy, I develop an account of religious arguments that draws on theories of practical reasoning. The Article argues that, appearances notwithstanding, many types of religious arguments do not provide standard, run-of-the-mill reasons for action in the same way that (for example) utilitarian or deontological arguments do. In fact, when examined closely, they are revealed to be internally incoherent. The Article thus shifts attention away from political philosophy, where both parties to the debate on religious argumentation have found inconclusive support for their positions, and focuses instead on practical reasoning theories. Analyzing religious arguments in this way shows that there is a fundamental tension between religious argumentation and the way we conduct practical and legal reasoning. This tension makes it hard to take religious arguments seriously qua arguments and consider them in a political or legal scenario. The upshot is that many religious arguments are revealed to be internally incoherent, and therefore unavailable to participants in legal and policy discussions.

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