Law and Religion
Contract Law Illusions and Delusions (2023), Working Paper
This essay explores the extent to which lawyers’ beliefs about contract law emanate from illusions and delusions embedded in and around the doctrinal canon. It praises the recent piece on generative contract interpretation by Arbel and Hoffman as means of skewering metaphysical nonsense like “mutual” or “shared” intention of the parties. It also assesses the extent to which belief in, and justification of, contract law as an institution borders on the delusional. The claim is that our very ability to cope with the world entails “dark trust” we barely notice and cannot measure. Thus contracts, rather than being very meaningful or even not nearly as meaningful as lawyers think, are means of groping for order, reassurance, and certainty in the face of chaos, insecurity, and the unknown unknowns. They can be, in a phrase, delusions of order.
Can There Be a Religion of Reasons? A Response to Leiter's Circular Conception of Religion, 26 J.L. & Religion 43 (2010)
This is a comment on a definition of religion recently proffered by Brian Leiter in support of different conclusions we ought to draw with respect to religion. His analysis is ultimately circular: the problem with religion is that it is not science. Exposing the circularity requires identifying the trick, which is that he employs an appeal to common sense to distinguish religion and science. Nevertheless, the very belief in common sense is the same as the religion Leiter attacks: it is categorical and insulated from further reasons. My argument in response has three major themes. (1) The argument based on receptiveness to reasons and evidence itself arbitrarily picks and chooses reasons and evidence. (2) It is possible to posit a religion whose categorical demands on action and requirements of foundational bedrock are minimal. (3) Religion uses reason (in the sense of concepts apart from evidence) to grapple with the source of our bedrock beliefs. It differs from other such grappling only in degree and not kind of thought; once we accept the role of concept (or reason) in such work, religious or secular, we necessarily must accord bedrock status (or categoricity) to at least one concept. Finally, I suggest that adoption of Leiter's definition has a troubling implication as to our respect for personhood.