A Creeping Theocracy?

[Alec Walen]

I thank David Guinn for his long and thoughtful post, and apologize for the
length of my reply.

1. Moral libertarianism.  Even though the state has obviously not
officially adopted this view, it should.  Guinn argues that it should not
by claiming that it is too difficult to draw the line between (a) the
contestable and the non-contestable, and (b) the public and private.

Guinn says: "a) In addressing contestability, Rawls highlights a standard
of harm to others as justifying legal regulation.  Yet, how do we define
harm without reference to a comprehensive theory?  Beyond the obvious
example of abortion..., the harms in many moral crimes are contested.
There are some who believe in the virtues of sexual relations between
adults and children.  Some endorse recreational drug use.  Some endorse
legalizing prostitution.  Others (hopefully still a majority) view these
activities as causing harm justifying legal regulation - even if they
disagree about how the law does or should address these harms."

I believe the proper response is that the issue isn't contestability at
all; it is the grounds therefor.  Consider sex with children.  The law
should not cite views concerned with the commands of God or the idea that
sex is dirty and proper only between married people.  Rather, those who
would defend the law need to explain how (a) children do not understand the
complexities of the feelings that arise as a result of sexual intimacy well
enough to make a consenting choice, and (b) sexual encounters with adults
tend to lead to psychological trauma, difficulty trusting adults, etc.  The
factors concern the basic capacity of children to exercise their autonomy
and develop into well functioning autonomous agents.  They clearly fall
inside the acceptable liberal line.  The first set of factors do not.
Insofar as the state has trouble coming up with a sufficient liberal
justification, the crime should be considered dubious.  This is an
important standard to have in a liberal society.  It puts the burden of
explaining the harm in questionable cases on the defenders of a criminal
law.  If the defense seems to be merely pretext for foisint a comprehensive
doctrine on all people, then the law should be reconsidered.

Guinn: "b) With respect to the public/private distinction..., how do we
define what is private concern?  Many argue that the ultimate zone of
privacy should surround the family - yet they are
equally ready to regulate spousal abuse, child rearing practices (e.g.
education, health care that violates religious belief, child custody) and,
perhaps more controversially, marital parameters such as the sex of the
spouses and the number of spouses one may have at one time.  Or, in line
with the article that provoked this thread, is stem cell research a private
or public concern?  Given the level of public funding for research (direct
or through tax subsidies) how can it not be?  Is Physician Assisted Suicide
a private act (a decision of the patient) or a public concern (e.g. the
conduct of a professional in a regulated profession)?"

The idea that the family should be walled off as a zone of privacy is,
frankly, nutty.  What consenting adults do with each other may be presumed
to be a private matter unless there are sufficient externalities, but what
they do with their children cannot be, early substantive due process cases
notwithstanding.  Beating, starving, emotionally abusing, refusing to
educate, sexually molesting or otherwise clearly harming children is not a
parent's prerogative.  As for questions like the sex of one's spouse, the
limits on that seem to me indefensible on liberal grounds -- a point on
which I have written (see the Wm and Mary Bill of Rights Journal).

Polygamy may be different, however, as it has a tendency to foster gender
inequality (an externality).  Since the need to have more than one spouse
is significantly less than the need to have one, in terms of creating a
partnership for major life tasks, including raising children, the state may
have sufficient reason to give the special support it lends to marriage
only to pairs.

Stem cell research is an interesting example, but again, I don't think it
should embarrass a liberal.  The debate over where life starts, for the
purposes of legal protection, cannot be avoided by the law.  But the
reasons offered in the debate can be limited.  They should not include
reasons such as that a religious text says life begins at conception
(which, interestingly, the Bible most certainly does not say).  They can
include, however, common sense notions that are part of our practical lives
regardless of our comprehensive doctrines, such as: (a) that the ability to
have subjective states is important for personhood, (b) that the ability to
have moral agency is important for personhood, (c) that having the
potential to develop into a person is relevant to personhood.  If one reads
the ethical literature dealing with this topic, it turns out that it is not
at all hard to discuss it in a way which does it justice and yet does not
cross the line of presupposing a comprehensive doctrine.

Finally, with regard to physician assisted suicide, it obviously has the
potential to effect things like the provision of palliate care generally,
and thus is of public concern.

Guinn: "2.  Liberalism is a Comprehensive Theory - As argued by scholars like
Franklin Gamwell,  Rawls and other liberal theory is itself a comprehensive
theory.  While liberal theorists may hold additional comprehensive theories,
liberalism does provide a comprehensive understanding (i.e. that individual
rights are a primary good; that the good is contestable.)"

This is just a mistake that critics of liberals make.  The mistake shows up
in the very idea of holding "other comprehensive theories."  Comprehensive
means what it says.  That's like saying that I could have a comprehensive
view of physics, and hold other views of physics as well.  What is true in
the claim is that liberals hold a view about the primacy of the individual,
and the primacy of the norms of autonomy and equality.  But these are
political views, meant to be constraints on the organization of society.
Likewise, the view that the good is contestable is *only* a political view.
Rawls is quite careful to insist that one need not accept any skepticism
about the good to be a liberal.  One merely has to believe that others
should be free, as a political matter, to make their own mistakes.

Guinn: "3.  Impossible to Exclude Comprehensive Theoretical Belief - As
demonstrated
by Rawls' own effort to justify abortion in the famous footnote in Political
Liberalism (I don't have my copy with me), public reason often smuggles in
values from an often unarticulated comprehensive belief.  Again, the
American focus on individual rights ignores the many subtleties of what many
people actually believe about individual rights and the possibility of
autonomy."

The first part of this shows that Guinn has not read his Rawls carefully.
He clarified the controversy regarding this footnote in "Public Reason
Revisited" by noting that he was just articulating a view that one could
have as a political liberal.  He did not mean to be insisting that it was
the only view one could have as a reasonable liberal.  As for the second
part, see my response to number 1.

Guinn: "4.  Excluding Comprehensive Theories Violates Liberalism - As I
think Rawls
has come to acknowledge (particularly in the revised paperback version of
Political Liberalism and the essay Public Reason Revisited) liberalism
cannot exclude the participation of people holding comprehensive theories
of the good without demonstrated a disrespect for those individuals that
violates liberalism's basic premise that demands respect for all
individuals.  What he has done is shifted the concern from simply limiting
public discussion to "public reasons" to a focus upon "overlapping
consensus" where the political judgment is justified by the fact that it
can reasonably be explained by various comprehensive theories and it
reflects the will of the majority.  (Admittedly, Rawls does stress that
some of those justification must qualify as public reasons - but this is
where I think the requirement of overlapping consensus between secular and
religious perspectives applies.)

Yes, the acknowledgement that comprehensive doctrines cannot be excluded
from public discourse is taken up in what Rawls calls his "proviso."  But
the proviso rightly insists that anyone offering comprehensive reasons for
a policy should also offer public reasons.  If one cannot do the latter in
good faith, with the good faith belief that these reasons are sufficient to
decide the case, then one is being unreasonable.

As for the "shift" to an overlapping consensus, I think that's just false.
The point of saying that there is an overlapping consensus is to emphasize
that public reason is not the front for or puppet of some particular
comprehensive doctrine.  Rather, people holding a wide range of
comprehensive doctrines can agree on basic liberal principles to govern the
political sphere.  There was no shift to this; it was there all along.

Guinn: "5.Problematic Anthropology - Rawls' theories rest upon the
presumption that people are all cerebral/rational beings and that
controversy and debate are evils to be avoided.  Rawls wants things to be
discussed using cool, dispassionate reason and avoiding the potentially
emotional conflicts
provoked by religion and other comprehensive theories.  This ignores the
reality that emotions may be very important in how humans behave and make
decisions (see the new book by Martha Nussbaum and the extensive work by
Feminist Theorists) and that robust debate (as opposed to incivility) is
considered an American (and legal) virtue (see, e.g. Clarence Thomas's
criticisms of the civility movement)."

Unfair criticism.  Rawls recognizes that there will be debate and heated
debate.  Indeed, this comment makes me think Guinn misunderstands the the
idea of overlapping consensus.  Rawls often (and regrettably) speaks of
justice as fairness, his pet theory of justice, as the one which reasonable
people would all agree to.  But he shows in a number of places that this
way of speaking is not meant to be taken at face value.  In "Public Reason
Revisited" he makes it clear that we should not expect unanimity in
applying the basic liberal concepts to the concrete cases where they have
to lead to concrete judgments of right and wrong. His point is that we
should strive to find some way of constraining debate so that we can
respectfully settle, for the here and now, what will be allowed and what
will not.  That is what democracy and the rule of law provide.  But by
providing that much, they do not aim to squelch debate, exclude
comprehensive doctrines from the debate, insist that people debate with
cool, rational detachment, or anything of the sort.

Guinn: "6.  Fails to Address Political Reality - While Rawls' theories have
a lovely intellectual coherence, practical politics is not and cannot be so
easily structured.  While it is possible that many arguments can be framed
according to public reasons understandable by a majority of people - that
does not mean that they will find them even marginally persuasive.  While
someone who adheres to a divine command orientation may understand a
secularist arguing from a respect for persons perspective - they may not
find the argument persuasive in any significant way - yet the two people
may easily agree that murder should be outlawed.  In order to comply with
Rawls' political etiquette, the two may comply with the formalities of
justifying their actions by public reasons - nonetheless, they make their
discussions based upon their comprehensive world-views.  This means that
witnesses to the conversation may not understand the real reasons for the
decision - and those holding similar comprehensive views that might be
persuaded to agree with the decisions are deprived of the benefit of those
rationales/justifications."

Again, I think this misses the point of the proviso.  First, both should
feel free to bring their comprehensive doctrines into view, so that there
is no deception of coverup.  But at the same time, insofar as there is a
dispute between them, the divine command believer -- who has more of a
tough time providing liberal reasons than the secularist -- had better come
up with reasons that do not refer to God's will.  And truth is, for anyone
raised in a secular society, and maybe for anyone period, that's not hard.
God's commands are rarely taken to apply literally to fine points (perhaps
laws of kashrut are an exception).  Generally, religions figure out what
religious law requires by making sense, in a humanistic way, of the
religious commands, which generally have a humanistic flavor insofar as
they apply to issues governing human to human (as opposed to human to god)
interactions.  So if the dispute were, say, over whether one can kill in
self defense against an innocent aggressor, both parties should reason by
way of anology between self-defense against culpable aggressors, on the one
hand, and restrictions on killing innocent bystanders, on the other hand.
As long as these endpoints are accepted -- and I believe they are almost
universally accepted -- then the problem will be one where appeal to God's
will need not come up at all.

Guinn: "In contrast to Rawls, the position that I have been advocating in
this thread is that all comprehensive theories (including traditional
religions) should be encouraged to participate fairly and equally in public
conversations.  Whether or not a decision is legitimate depends upon whether
or not it reflects a legitimate overlapping political consensus (and not a
veiled sectarian hegemony) balanced against a strong concern for individual
rights that does not endanger important social interests."

My problem with what Guinn says here is that it naively presumes too much
by way of overlapping consensus.  There are issues on which we just cannot
form consensus -- abortion being the easiest example of many (consider,
also, the death penalty).  Moreover, with these issues, appeal to rights
won't help, because they are often what is disputed.  In those cases, we
have to look to democratic mechanisms to provide a resolution for the here
and now of what will be acceptable.  We can't hope that all or even a large
supermajority will agree with the resolution.  What we can hope for is that
there will be an overlapping consensus on (a) the procedures that can
legitimately be used to make, execute, and interpret the law, and (b) the
kinds of reasons which a law must be supported by if it is to be
legitimate.  I think this second view, which I find in Rawls, is much more
honest and practical.

A note of disclosure: I have recently published a piece in Ethics,
"Reasonable Illegal Force" arguing that Rawls's framework is the best
framework we could hope to find for resolving disputes.  But at the same
time arguing that it is not sufficient to handle all disputes, and that
there may be occasions when justice calls for the use of illegal force.

Alec Walen, J.D., Ph.D.
University of Baltimore.