The recent discussion in this space of employee wages and, in particular, Mark Sargent's thoughtful contribution re the Catholic doctrine of just wages, prompted the following email from a reader:
Prof Bainbridge: Been a fan of yours ever since you coined the phrase "statist snakes in the communitarian grass" some time ago in a law article. [Ed.: My blushes. He is referring to Community and Statism: A Conservative Contractarian Critique of Progressive Corporate Law Scholarship.] And glad to hear you have received some sensible thoughts on living wages. One thing I did not see much discussed is to me the critical one. Where is the faith-based justification for wage LEGISLATION? I can see compelling appeals to individual consciences and beliefs, but it is a big jump to argue that one should harness the power of the state to this end. One of the things you jump would appear to be separation of church and state. If we don't address this issue, we look a lot more like those who would impose Sharia law, no?
It's a fair question, but it sure opens up a can of worms. There is a long and complex debate over the extent to which faith-based arguments are appropriate in what Fr. Neuhaus calls the Naked Public Square. There are a number of perfectly sensible people who argue that faith-based arguments should be excluded from discourse in a pluralistic liberal democracy. Others say that faith based arguments are perfectly appropriate. (There probably are even some lunatic fringe types who think only faith based arguments should be allowed.)
For what it's worth, and so regular readers know where I'm coming from, my own take is somewhere in the middle. I think it is perfectly appropriate for people to make faith-based arguments with respect to legislative issues. On the other hand, I don't think those arguments are trump cards. Instead, those who advance faith based arguments must do so in a way that can persuade those who do not share the faith in question. This can be done in one of two ways. First, it can be done by transcending narrow sectarian beliefs to call upon moral norms that are very widely shared amongst folks of differing beliefs. Not just Catholics, for example, think murder is wrong morally. (I discuss this option, which is the one I find most attractive in my article Social Propositions and Common Law Adjudication.) Second, it can be done by using faith based arguments to make a case for results that can also be reached through secular reasoning.
With respect to the living wage argument, I think it is perfectly appropriate to invoke just wage doctrine because (a) lots of non-Catholics also believe for religious or ethical reasons in what Catholicism calls the preferential option for the poor and (b) you can argue for living wage on other secular grounds. Hence, the just wage argument is part of the overall marketplace of ideas and, as such, may make a valuable contribution. As it happens, I am deeply skeptical of living wage legislation, but I found Dean Sargent's discussion of how the just wage doctrine fits into the debate quite informative (as was Paul Jaminet's reply).
