Balkinization  

Wednesday, February 20, 2013

Liberalism’s Errant Theodicy

Guest Blogger

For the Symposium on James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)



Michael C. Dorf

Theologians and religion scholars use the term “theodicy” to refer to an argument that attempts to reconcile God’s omnipotence, omniscience and goodness with the existence of evil. One of the best known forms of theodicy invokes free will.  Evil exists, the argument goes, as a by-product of the freedom of human beings to make important life-defining choices for themselves.
A central argument of Ordered Liberty, the insightful and powerful new book by James E. Fleming and Linda C. McClain, is a kind of secular theodicy.  Fleming and McClain respond to a common set of charges against liberal individual rights made by civic republicans, communitarians, and their fellow travelers.  Liberalism, the critics contend, elevates rights over responsibilities and therefore undermines the ability of government to inculcate community-minded virtue in citizens.  Not true, Fleming and McClain respond.  Liberalism does concern itself with and foster responsibility, albeit of a somewhat different sort from the critics’ notion of the concept.
Whereas the critics wish to see individuals held responsible to the community—what Fleming and McClain call responsibility as accountability—liberals argue that rights are premised on a conception of responsibility as autonomy or self-government.  Fleming and McClain argue that a legal zone of individual autonomy permits each of us to deliberate about our own conception of the good.  Or, as the joint opinion in Planned Parenthood v. Casey—which figures prominently in Ordered Liberty—states: “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.  Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”
            The theodicean character of this claim should be clear on its face.  In spiritual matters, the existence of free will excuses God for evil caused by humans, but the argument only works if, in turn, free will serves some vital function.  It does, the argument goes, because a deterministic universe—one in which the Creator has scripted each of our actions—would leave no room for autonomy, and thereby leave no room for persons, only automatons.  Likewise in the secular realm, for the Casey Court as well as for Fleming and McClain and other liberals, a government that too tightly circumscribes our options thereby renders us unable to “define the attributes of personhood.”
            In both the religious and secular domains, the argument from free will faces substantial challenges.  Is free will really so valuable as to justify the suffering that apparently comes in its wake?  And even if we grant that some measure of freedom is essential to personhood or character development, could not an omnipotent God have created human beings so that we make choices in a domain circumscribed by universal revulsion to evil?  To put the point concretely, even if personhood demands that we must have the choice whether or not to give all of our possessions to the poor, it does not follow that we must also have the choice to become Nazis.  Such questions make the argument from free will problematic as a defense of God and parallel questions also make the argument from responsibility problematic as a defense of liberalism.

            The foregoing worry suggests a response: limits on freedom.  And indeed, Fleming and McClain quite sensibly accept two sorts of limits on autonomy.  First, they clearly reject what we might call libertinism or license; they do not contend that everything anyone might be inclined to do is a right or even a presumptive right. Second, they acknowledge that even those liberties that should be designated as constitutional rights or fundamental rights can be limited for sufficiently good reasons.  Accordingly, Fleming and McClain do not think that in order to act as responsible persons, all possible choices must be open to us.  We do not need the legal freedom to steal, rape or murder in order to act responsibly by refraining from stealing, raping or murdering.  So a freestanding interest in autonomy is not infinitely strong.
            But does it have any strength at all?  To answer that question, we would do well to ask what sorts of reasons justify the recognition of a right or the conclusion that some proffered justification for infringing a recognized right falls short.  Such reasons may take various forms.
First, the polity, its representatives, or judges might conclude that some sort of choice is both central to a person’s identity or life plan and causes no harm to innocent third parties.  The Supreme Court’s decision in Lawrence v. Texas treats decisions of consenting adults about whom to love as such a choice.  Accordingly, the Court finds the state’s assertion of an interest in conventional morality insufficient to justify a law forbidding homosexual intimacy.
Second, the polity might be deeply divided over the moral implications, if any, of some action and the relevant legal players might therefore conclude that the decision whether to take such an action should be left to individual conscience.  Fleming and McClain invoke this sort of rationale as part of the justification for a right to abortion, connecting it to the Rawlsian notion that modern democracies such as our own find themselves in conditions of reasonable pluralism in which competing conceptions of the good lead different citizens to draw different conclusions about their moral obligations.
Third, the polity might conclude that the use of the apparatus of the state to enforce a prohibition on some activity would cause substantially more harm than the activity itself.  The violence associated with Prohibition during the first third of the Twentieth Century and with the criminalization of narcotic drugs over the last half century could well lead one to think that adults ought to be free to decide whether to use alcohol or drugs, but not because we have any doubts about whether they are beneficial.  We might think that no reasonable person would choose to use heroin but nonetheless favor its decriminalization on the ground that the cure of prohibition is worse than the disease.
That sort of rationale would not ordinarily lead to our saying that there is a “right” to use drugs or alcohol.  In some circumstances, however, enforcement concerns can be relevant to the question of whether to recognize a constitutional right because constitutional rights are legal rights; they are not necessarily moral rights.
For example, one can read Griswold v. Connecticut to rest on the proposition that there is a right of married couples to use contraception simply because any effort to enforce the prohibition would intrude on constitutionally protected privacy.  Likewise, concerns about enforcement can be invoked in support of the abortion right, as when people say that making abortion illegal will not stop abortion, but will only lead women to seek dangerous “back alley” abortions.
Fourth, regardless of whether some activity can be deemed a right because of the liberty at stake, equality concerns may lead to recognizing a right.  Justice O’Connor’s concurrence in Lawrence, for example, rested on equality grounds.  Similarly, following a long line of feminists, Fleming and McClain invoke sex equality as a basis for the abortion right.
Fifth, there may be some matters that the state should not decide because constitutional democracy requires some limits on the scope of government decision making.  Suppose that the government attempted to assign everybody to a particular career path.  Even in our post-Lochner era, such a severe limitation on economic freedom would properly be deemed a violation of the rights of the individual, either on Thirteenth Amendment grounds or on the ground that Justice Bushrod Washington’s Circuit ruling in Corfield v. Coryell remains good law for the proposition that there is a fundamental right to pursue a career path.  The point is not so much that there is a fundamental right to engage in any particular profession or trade.  Instead, the idea is that some individual rights may arise simply as the complement to an anti-authoritarian principle of limited government.
The foregoing catalogue of factors does not exhaust the sorts of reasons we might have for recognizing a right, but it will do for present purposes.  The question now arises: Does an interest in autonomy as responsibility add anything to such factors?
Suppose we have done the math for some putative right and found it lacking.  For concreteness, let us imagine that a pedophile claims that his decision to engage in “consensual” sex with a twelve-year-old once per month is an exercise of his constitutional right to sexual privacy.  I put “consensual” in quotation marks to indicate that the pedophile claiming the right does not use physical force and the minor regards the sex as consensual, but that broader society (quite appropriately) deems the minor to be legally incapable of consenting.  Let us further assume that the hypothetical pedophile knows that the society deems sex with minors wrongful and that he actually agrees, as a cognitive matter, that it is wrongful.  That is why he is celibate for all but one day each month, even though it is a great struggle for him.  Nonetheless, the pedophile explains that he permits himself to succumb to temptation once each month, making what he fully acknowledges is a decision to act irresponsibly.
Notwithstanding the fact that the ordinary reasons for recognizing a constitutional right come up short, should we nonetheless say that the pedophile’s conduct is protected because the legal ability to choose to do wrong is essential to treating him as someone capable of being responsible?  Of course not.  To say that our best all-things-considered judgment leads to the conclusion that there should be no constitutional right to sex with minors simply means that nobody is legally entitled to choose whether to engage in pedophilia.  With three caveats I shall explore momentarily, autonomy as responsibility no more counts as a basis for recognizing a right to monthly pedophilia than it counts as a basis for a right to steal, rape or murder.
What are the three caveats?  First, extensive experimental data confirm a psychological fact about human beings that most of us know from our own experience: People do not like to be forced to do things. External sanctions “crowd out” intrinsic motivation.  Thus, purely as a strategic matter, a polity that concludes that it wants its citizens to refrain from some harmful conduct or to engage in some beneficial conduct may nonetheless refrain from imposing legal obligations on the ground that they could do more harm than good by undermining individual conscience or social sanctions.  But this consideration is a caveat rather than an argument for Fleming and McClain’s theodicean claim because such a strategic decision not to deploy legal sanctions does not rest on respect for autonomy as responsibility.
Second, allowing autonomy in personal matters may serve an educative function. At least when the stakes are low, parents will sometimes permit their children to “make their own mistakes” so that the children learn to act responsibly.  Likewise, we might think that in a democracy, some measure of personal freedom is necessary for adult citizens because the capacities they develop in their own internal deliberations about how to live their lives are also needed when they come together to make collective choices for the society.  Ordered Liberty, like Fleming’s earlier solo work, connects what he calls “deliberative autonomy” to deliberative democracy in this way.
To the extent that the state allows some measure of deliberative autonomy in order to foster deliberative democracy, the withholding of legal sanction is strategic, and thus provides no direct support for the theodicean claim.  However, to the extent that the state allows deliberative autonomy so that individuals may practice deliberative autonomy itself for its own sake, this second caveat lends some measure of modest support for the claim.
Third, many of us (myself included) share the intuition of Fleming and McClain, as well as other liberals and libertarians, that autonomy is valuable for its own sake, regardless of the particulars.  Other things being equal, adults, even more than children, want the freedom to make their own mistakes.
It is not clear that this shared intuition counts as a normative proposition, however.  The intuition that autonomy is valuable in itself may simply be a restatement of the psychological fact that I discussed in my first caveat.  Moreover, our intuitions do not exist in a vacuum. Culture shapes them, and American culture is, relative to other liberal democracies, libertarian. That is the very fact that communitarians lament and wish to change.  For example, Mary Ann Glendon, who serves as one of the chief communitarian foils for Fleming and McClain, specifically contrasts American liberalism with what she regards as a more appropriately communitarian western Europe.
Suppose that we nonetheless credit the libertarian intuition as having normative force. We still must confront a puzzle in tying it to the liberal theodicean claim.  The puzzle is this: If legal compulsion is thought to disrespect the autonomy of persons because compulsion reflects distrust of persons to choose to act responsibly, the disrespect is at its worst in precisely those cases when the conduct in question is undoubtedly wrongful because those are just the circumstances in which even minimally responsible persons would act responsibly.  If banning abortion disrespects women’s moral capacities, banning what would count for everyone as unambiguously murder disrespects all people’s moral capacities even more.  Accordingly, if we really thought that legal compulsion showed disrespect for the moral capacities of persons, we would worry most about the disrespect communicated by laws forbidding crimes like torture, rape and murder.  Yet nobody thinks anything of the sort.  The notion that legal compulsion disrespects personal autonomy only seems to have any traction at all when we are either collectively uncertain or divided about the morality of the relevant conduct, or when we are collectively certain that any of a range of personal choices would be morally permissible. Autonomy as responsibility appears to have no weight or only such slight weight as to count as a tie-breaker.
One may be tempted to respond that prohibitions on torture, rape and murder justifiably prioritize the autonomy of innocent potential victims of torture, rape and murder over the autonomy of torturers, rapists and murderers. Indeed, they do, but that is not all that they prioritize. Persons have a right against torture, rape and murder because torture, rape and murder inflict harms quite apart from (or in addition to) any impact they have on the moral autonomy of the victims. Surely we think it no less criminal to torture, rape or murder infants or incompetents who are not capable of making moral choices (but who are capable of suffering as a result of such crimes) than to commit such crimes against adults capable of acting as moral agents.  The judgment that the harm caused by torture, rape and murder readily justifies the prohibition of these acts cannot be defended on the ground that it simply reflects the prioritization of the autonomy as responsibility of one set of persons (victims) over the autonomy as responsibility of another set of persons (perpetrators).  For the victims, autonomy as responsibility simply does not enter the picture.  The judgment to maintain these prohibitions thus simply reflects the fact that autonomy as responsibility counts for precious little when weighed in the balance against serious harms.
Accordingly, I am left to conclude that Fleming and McClain—along with the other liberal thinkers whom they follow in this regard—mischaracterize their own argument when they suggest that basic liberties are in any substantial way derived from respect for the capacity of humans to make moral choices.  Liberalism presupposes such a capacity and, as Fleming and McClain argue in Chapters Four and Five of Ordered Liberty, liberalism allows government to play some role in fostering this capacity.  However, the justification for protecting particular individual rights mostly comes from other arguments of the sort I catalogued above.
To say that Fleming and McClain mischaracterize their argument as theodicean is not to say that their argument fails.  On the contrary, I think it responds effectively to the charge that liberalism focuses on rights to the exclusion of responsibilities.  Fleming and McClain should be understood to say—correctly—that liberalism takes for granted that persons are moral agents capable of exercising their rights responsibly.  That is all that is needed to rebut this particular communitarian charge.  Fleming and McClain do not need to make the further—theodicean—claim that we have any of the freedoms we have in virtue of a freestanding principle that respectful treatment of persons requires granting them autonomy as responsibility.
* * *
Ordered Liberty responds to the communitarian challenge to liberalism on multiple fronts. I have focused here on just one aspect of the challenge and the response, albeit on a question of great importance to the contest between communitarianism and liberalism. I shall conclude by connecting what I have said thus far with another ground of contestation.
Communitarians commonly complain that liberalism rests on an unrealistic picture of persons, what some communitarians call the “unencumbered self.”  Understood in its best light, Fleming and McClain’s argument about the place of responsibility in liberalism should be conceived as turning the tables on communitarianism by critiquing the latter’s view of human nature.  In trusting individuals to act responsibly, liberals like Fleming and McClain affirm their faith in humans as fundamentally connected and other-regarding.  By contrast, in seeking to expand the domain of permissible government coercion, communitarians tacitly but unmistakably signal that people cannot be trusted to make responsible choices.
To repeat my main point, affirming our belief in people’s capacity to act responsibly does not count for much as a justification for individual rights, but it is a necessary feature of such rights as we do recognize.  Thus, although I urge Fleming and McClain to strip their liberalism of its theodicean character, I would note that the debate between communitarians and liberals should properly be understood to parallel a different theological dispute—between those who say that without fear of Divine punishment in the afterlife, human beings will have no incentive to act morally in this life and those who say that, properly nurtured, the internal moral compass is a sufficient guide to right action.  Fleming and McClain’s argument about responsibility places them squarely on the latter side of that debate, which should be a comfortable place for secular liberals to come to rest.
Michael C. Dorf is Robert S. Stevens Professor of Law at Cornell University Law School. You can reach him by e-mail at mikedorf at gmail.com

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