Frederick Schauer

On the Utility of Religious Toleration

Criminal Law & Philosophy


Brian Leiter’s Why Tolerate Religion? valuably clarifies the issues involved in granting religion-specific accommodations (and thus exceptions or exemptions) to laws and policies of general application. His arguments are careful, rigorous, and fair, and in rejecting the deontological arguments for religion-specific accommodations he seems to me largely correct. But when he turns to arguing against the utilitarian case for such accommodations, he employs a seemingly non-standard sense of utilitarianism in which demands of principled consistency constrain what would otherwise be utilitarian welfare-maximization. A more traditional and stronger version of utilitarianism, however, has room for seemingly unprincipled or even irrational distinctions as long as employing those distinctions is utility- or welfare-maximizing. And thus although Leiter’s arguments against the deontological justifications for religion-specific accommodations are largely successful, his arguments against utilitarian justifications, by relying more heavily on the notion of “principle” than a utilitarian should accept, are open to challenge.


Frederick Schauer, On the Utility of Religious Toleration, 10 Criminal Law & Philosophy 479-492 (2016).

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