A Creeping Theocracy?

[David E. Guinn]

I fear that Alec Walen and I - due to the length of our respective posts -
have reached the point of diminishing returns.  He will continue to insist
that I misunderstand Rawls - and I will respectfully disagree.

There is, however, one significant clarification that I would like to make.
Walen is correct in pointing out the problem in suggesting that an
individual can draw upon multiple "comprehensive theories" in making a
decision.  I submit that the problem lies in the label itself, as used by
Rawls.

The difficulty with a comprehensive theory for Rawls and his supporters is
that the theory introduces values into the political conversation that may
not be shared by all and that cannot be independently justified.  Religion
provides a prime example of this, particularly where the justification to be
offered depends upon belief in God.  I submit, however, that either the
label is a misnomer or that it does not adequately reflect reality.  While
religion may provide a comprehensive theory of the good (i.e. a theory
capable of answering all questions) - few people draw on only one
comprehensive theory.  For example, consider the diversity between socialist
Christians and libertarian/capitalist Christians.  Socialism,
libertarianism, and Christianity are all potentially comprehensive theories
capable of providing a life orienting world view that determines and
explains all human good.  Nonetheless, individuals are capable of adopting
more than one of them - and often adopting them in different contexts (i.e.
a Christian perspective on non-economic issues; a socialist or capitalist
perspective on work issues, etc.).

In asserting that Rawls and traditional liberals are applying a
comprehensive theory, the argument critics are making is that liberalism
could be adopted as a comprehensive theory and that it includes values that
(a) are not necessarily shared by all and (b) cannot be justified except as
a statement of belief.  Walen's post, the ethics literature on stem cells
and Rawls' work all illustrate this.  Liberalism can be adopted as a
comprehensive theory (e.g. that all human good is identified with individual
freedom and autonomy.)  It also included contestable values.  In a number of
passages Walen talks about the value of individual autonomy.  As the many
critics of autonomy have noted, the ideology of autonomy is extremely
complex and value laden.  Many people disagree with it.  They stress the
importance of family, of relationships, and/or the interdependence of all
people.  The value itself cannot be established except as a point of belief
(For example, Ronald Dworkin in Life's Dominion was forced to acknowledge
that it rests on a philosophic sense of the sacred.)  Why is individual
autonomy so important?  One can be a liberal (in the sense of respecting
diversity and human rights) and still reject a strong individualism (see,
e.g. the work of Charles Taylor.)

Perhaps, instead of using the label comprehensive theory, it would be better
to talk of secular ideologies and traditional religion ideologies.  My point
remains that the religion clauses demand that all of these ideologies be
treated in a comparable manner.

David




----- Original Message -----
From: "Alec Walen" <walen at EARTHLINK.NET>
To: <RELIGIONLAW at listserv.ucla.edu>
Sent: Thursday, November 29, 2001 3:44 PM
Subject: Re: A Creeping Theocracy?


> 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.


_________________________________________________________
Do You Yahoo!?
Get your free @yahoo.com address at http://mail.yahoo.com