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Balkinization Symposiums: A Continuing List E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahman sabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Liberalism’s Errant Theodicy
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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.
Posted 3:00 PM by Guest Blogger [link]
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