The moral limits of Feinberg's liberalism

This essay explores Joel Feinberg's conception of liberalism and the moral limits of the criminal law. Feinberg identifies liberty with the absence of law. He defends a strong liberal presumption against law, except where it is necessary to prevent wrongful harm or offense to others. Drawing on Rawlsian, Marxian, and feminist standpoints, I argue that there are injuries to individual liberty rooted not in law, but in civil society. Against Feinberg, I defend a richer account of liberalism and liberty, linking them to human dignity, and a more positive role for law. Feinberg justifies liberty as an instrumental welfare‐interest, valuable in virtue of the way it serves the individual's ulterior goals. Drawing on the example of racism and civil rights, I argue that the value of equal liberty stems from its social role in constituting persons’ sense of their own worth and dignity. Against Feinberg, I claim that liberty's value is grounded in a shared historical ideal of personhood, not in the individual's goals or desires. Feinberg also links liberalism with an extreme anti‐paternalist position, on which individuals should be at liberty to alienate their very own right of personal autonomy. Drawing on the examples of slavery and drug addiction, I argue against this liberty, and the conception of liberalism and paternalism in Feinberg which leads to it. A liberalism founded upon an ideal of human dignity allows, even requires, a use of law to prevent persons from destroying the very conditions of their own autonomy and dignity.     

POLITICAL LIBERALISM,BASIC LIBERTIES,AND LEGAL PATERNALISM

This essay argues that neutral paternalism (NP) is problematic for antiperfectionist liberal theories. Section 2 raises textual evidence that Rawlsian liberalism does not oppose and may even support NP. In section 3, I cast doubt on whether NP should have a place in political liberalism by defending a partially comprehensive conception of the good I call “moral capacity at each moment,” or MCEM, that is inconsistent with NP. I then explain why MCEM is a reasonable conception on Rawls's account of reasonableness. In section 4, I handle concerns that showing NP fails the test of Rawlsian public justification is a nonstarter since NP does not threaten any of our basic liberties. I sketch an argument that, if this is so, the burden is on political liberalism to defend its particular account of basic liberties, since MCEM is reasonable on Rawlsian grounds. More precisely, MCEM is a conception that challenges the way Rawls characterizes basic liberties; that is, his list of basic liberties should be more inclusive by political liberalism's own structural commitments, including Rawls's “liberal principle of legitimacy.” On this revised account, political liberalism can mount a strong opposition to hard legal paternalism.     

Can liberal perfectionism justify religious toleration? Wall on promoting and respecting

Toleration is perhaps the core commitment of liberalism, but this seemingly simple feature of liberal societies creates tension for liberal perfectionists, who are committed to justifying religious toleration primarily in terms of the goods and flourishing it promotes. Perfectionists, so it seems, should recommend restricting harmful religious practices when feasible. If such restrictions would promote liberal perfectionist values like autonomy, it is unclear how the perfectionist can object. A contemporary liberal perfectionist, Steven Wall, has advanced defense of religious toleration that grounds perfectionist toleration in an innovative account of reasons of respect. He thus defends perfectionist toleration on two grounds: (i) the appropriate manner of responding to perfectionist goods like autonomy and membership is to respect the religious choices of others; (ii) citizens can acquire reasons to respect the religious choices of others through internalizing a value-promoting moral and political code. I argue that both defenses fail. The cornerstone of both arguments is the connection Wall draws between reasons to promote value and reasons to respect it. I claim that Wall’s conception of the relationship between promoting and respecting value is inadequate. I conclude that the failure of Wall’s defense of perfectionist toleration should motivate liberal perfectionists to develop more sophisticated accounts of normative reasons. The viability of a truly liberal perfectionism depends upon such developments.     

Rethinking Relational Autonomy

John Christman has argued that constitutively relational accounts of autonomy, as defended by some feminist theorists, are problematically perfectionist about the human good. I argue that autonomy is constitutively relational, but not in a way that implies perfectionism: autonomy depends on a dialogical disposition to hold oneself answerable to external, critical perspectives on one's action‐guiding commitments. This type of relationality carries no substantive value commitments, yet it does answer to core feminist concerns about autonomy.     

AGENCY,AUTONOMY, AND SOCIAL INTELLIGIBILITY

Popular Frankfurt‐style theories of autonomy hold that (i) autonomy is motivation in action by psychological attitudes that have ‘authority’ to constitute the agent's perspective, and (ii) attitudes have this authority in virtue of their formal role in the individual's psychological system, rather than their substantive content. I pose a challenge to such ‘psychologistic’ views, taking Frankfurt's and Bratman's theories as my targets. I argue that motivation by attitudes that play the roles picked out by psychologistic theories is compatible with radically unintelligible behavior. Because of this, psychologistic views are committed to classifying certain agents as ‘autonomous’ whom we intuitively find to be dysfunctional. I then argue that a necessary condition for autonomy is that an agent's behavior is intelligible in a particular way: autonomy necessarily involves acting from a subjective practical perspective that is, in principle, minimally comprehensible to others – not simply in a causal sense, but in a substantive, socio‐cultural sense.     

Public Reason, Religious Restraint and Respect

In recent years liberals have had much to say about the kinds of reasons that citizens should offer one another when they engage in public political debates about existing or proposed laws. One of the more notable claims that has been made by a number of prominent liberals is that citizens should not rely on religious reasons alone when persuading one another to support or oppose a given law or policy. Unsurprisingly, this claim is rejected by many religious citizens, including those who are also committed to liberalism. In this paper I revisit that debate and ask whether liberal citizens have a moral obligation not to explain their support for existing or proposed laws on the basis of religious reasons alone. I suggest that for most (ordinary) citizens no such obligation exists and that individuals are entitled to explain their support for a specific law and to persuade others of the merits of that law on the basis of religious reasons alone (though there may be sound prudential reasons for not doing so). My argument is grounded in the claim that in most instances advocating laws on the basis of religious reasons alone is consistent with treating citizens with equal respect. However, I acknowledge an exception to that claim is to be found when using religious reasons to justify a law also implies that the state endorses those reasons. For this reason I argue that there is a moral obligation for some (publicly influential) citizens, and especially those who hold public office, to refrain from explaining their support for existing or proposed laws on the basis of religious reasons. I conclude by suggesting that this understanding of the role of religion in public political discourse and the obligations of liberal citizens is a better reflection of our experience of liberal citizenship than that given in some well-known accounts of liberalism.     

Temporal Autonomy in a Laboring Society

The aim of this paper is to discuss which stance towards the allocation of labor and leisure would be defensible from the perspective of modern liberal political theory. There is a long tradition in philosophy defending an ideal of leisure, but this tradition has been rightly criticized for being too perfectionist. A liberal perspective seems more attractive in not dictating how much time people spend in labor or leisure, but leaving this choice to individuals. The question is whether this is possible. After scrutinizing the traditional philosophical defense of leisure I focus on Robert Goodin and his collaborators' recent proposal to think about labor and leisure in terms of “temporal autonomy”. I show that their concept is a great improvement over the older philosophical theories, both in its conceptualization of labor and leisure and in its ambition to leave labor/leisure choices to individuals. Nonetheless, it contains an important unresolved ambiguity about whether discretionary time maximization is a desirable end. Since the exercise of one's temporal autonomy can undercut the temporal autonomy of others in society, this leads to a dilemma. This dilemma can be resolved either in a libertarian or in a sufficientarian direction. I provide a cautious defense of the sufficientarian conception of temporal autonomy, because it accounts for the intuition in the older tradition of leisure that it is important not to be overwhelmed by the demands of labor, while also retaining the liberal emphasis on individual choice.     

Legitimacy, Democracy and Public Justification: Rawls’ Political Liberalism Versus Gaus’ Justificatory Liberalism

Public justification-based accounts of liberal legitimacy rely on the idea that a polity’s basic structure should, in some sense, be acceptable to its citizens. In this paper I discuss the prospects of that approach through the lens of Gerald Gaus’ critique of John Rawls’ paradigmatic account of democratic public justification. I argue that Gaus does succeed in pointing out some significant problems for Rawls’ political liberalism; yet his alternative, justificatory liberalism, is not voluntaristic enough to satisfy the desiderata of a genuinely democratic theory of public justification. So I contend that—pace Gaus, but also Rawls—rather than simply amending political liberalism, the claims of justificatory liberalism bring out fatal tensions between the desiderata of any theory of liberal-democratic legitimacy through public justification.     

Are liberal perfectionism and neutrality mutually exclusive?

In this paper, I question the view that liberal perfectionism and neutrality are mutually exclusive doctrines. I do so by criticizing two claims made by Jonathan Quong. First, I object to his claim that comprehensive anti-perfectionism is incoherent. Second, I criticize his claim that liberal perfectionism cannot avoid a paternalist stance. I argue that Quong’s substantive assumptions about personal autonomy undermine both of his arguments. I use the discussion of Quong to argue that the standard assumption in liberal theory about mutual exclusivity of liberal perfectionism and neutrality needs to be reconsidered, and I show why the argument about the convergence of perfectionism and neutrality makes conceptual sense.     

Dupes of Patriarchy: Feminist Strong Substantive Autonomy's Epistemological Weaknesses

Feminist strong substantive autonomy (FSSA), as presented by Natalie Stoljar and Anita Superson, pronounces judgment on the autonomy status of certain women living under oppression. These women act on deformed desires, Superson explains, and as deformed desires cannot be the agent's own, the women are heteronomous. Stoljar argues that some women's choices violate the Feminist Intuition; by acting on false and oppressive values, these women render themselves heteronomous. I argue against Stoljar and Superson on epistemological grounds. I present six different ways in which agents' choices can be related to deformed desires, with varying results for their autonomy statuses. I show that Stoljar and Superson are not able to distinguish properly among the differing autonomy statuses in these six cases, because doing so requires attention to agents' inner processes of decision‐making, as those processes are enacted in the agents' social and temporal contexts. Stoljar and Superson judge others' autonomy statuses based on abstract generalizations rather than via empirical attention to agents' actual decision‐making processes. Consequently, their judgments are not adequate to the lived self‐direction of real persons. Assessing others' autonomy status requires consideration of agents' inner choice‐making in sociotemporal context, which favors a procedural or weak substantive account of autonomy.     

Intelligibility,Moral Loss and Injustice

In Liberalism's Religion, I analyse the specific conception of religion that liberalism relies upon. I argue that the concept of religion should be disaggregated into its normatively salient features. When deciding whether to avert undue impingements on religious observances, or to avoid any untoward support of such observances, liberal states should not deal with ‘religion’ as such but, rather, with relevant dimensions of religious phenomena. States should avoid religious entanglement when ‘religion’ is epistemically inaccessible, socially divisive and/or comprehensive in scope. In turn, states should show special deference to religious observances insofar as they exhibit what I call integrity – whether personal or collective. The upshot of this interpretive strategy is that liberal law need not recognise religion as such. As a result, there are gaps between the liberal construal of disaggregated religion and the lived experience of religion as a uniquely integrated experience. Are these gaps morally regrettable? Are they unjust?     

Raz on the Right to Autonomy

Abstract: In The Morality of Freedom, Joseph Raz argues against a right to autonomy. This argument helps to distinguish his theory from his competitors'. For, many liberal theories ground such a right. Some even defend entirely autonomy‐based accounts of rights. This paper suggests that Raz's argument against a right to autonomy raises an important dilemma for his larger theory. Unless his account of rights is limited in some way, Raz's argument applies against almost all (purported) rights, not just a right to autonomy. But, on the traditional way of limiting accounts like his, Raz's account actually supports the conclusion that people have a right to autonomy. So, unless there is another way of limiting his account that does not have this consequence, Raz's argument against a right to autonomy does not go through.     

Educating for Autonomy: Liberalism and Autonomy in the Capabilities Approach

Martha Nussbaum grounds her version of the capabilities approach in political liberalism. In this paper, we argue that the capabilities approach, insofar as it genuinely values the things that persons can actually do and be, must be grounded in a hybrid account of liberalism: in order to show respect for adults, its justification must be political; in order to show respect for children, however, its implementation must include a commitment to comprehensive autonomy, one that ensures that children develop the skills necessary to make meaningful choices about whether or not to exercise their basic capabilities. Importantly, in order to show respect for parents who do not necessarily recognize autonomy as a value, we argue that the liberal state, via its system of public education, should take on the role of ensuring that all children within the state develop a sufficient degree of comprehensive autonomy.     

MODERN LIBERALISM AND PRIDE An Augustinian Perspective

In “Toward an Augustinian Liberalism,” Paul Weithman argues that modern liberal institutions should be concerned with the political vice of pride as a threat to the neutral, legitimate use of public power that liberalism demands. By directing our attention to pride, Weithman attempts to provide an incentive to and foundation for an Augustinian liberalism that can counteract this threat. While Weithman is right to point to the centrality of pride in understanding the modern liberal tradition, an investigation of the early modern reflections on pride in politics reveals a deeper tension between Augustine and modern liberalism than Weithman's analysis acknowledges. This essay discusses this tension by focusing on Hobbes's account of pride and equality in the commonwealth, asking whether Hobbes can be understood as a thinker in the Augustinian political tradition. In order to provide a background on pride as a political vice, this essay contrasts Aristotelian magnanimity with Augustinian humility. Finally, Aquinas's attempt to reintroduce magnanimity into the Augustinian political tradition is considered as a more consistent development of Augustine's thought, thereby revealing more pointedly the tension between Augustine and modern liberalism. By way of conclusion, the possibility of deflating this tension is briefly addressed by considering Jean Bethke Elshtain's discussion of an Augustinian liberalism that does not rely upon a “secular” conception of human nature.     

Human Rights and the Defense of Liberal Democracy

In recent issues of the Journal of Religious Ethics (2006, 2007), David Little has defended the contemporary regime of international human rights against what he thinks of as the relativizing influences of the genealogical “just‐so” story told by Jeffrey Stout in his Democracy and Tradition (2004). I argue that Stout is correct about just‐so stories, and that Little does not go far enough in his reclamation of liberalism against Stout's “new traditionalists.” The main weaknesses of Little's approach are his insistence on the idea that human rights are to be thought of as natural rights, and that these in turn are to be thought of as self‐evident and self‐justifying. I argue that they are neither: they come to us via a Stoutian just‐so story, and that as part of a broader reclamation of liberalism, they can continue to serve as the basis for the kind of international liberal constitutionalism that Little advocates.     

PLURALISM,LIBERALISM, AND THE ROLE OF OVERRIDING VALUES

While it is often thought that pluralism is best accommodated by a liberal state, John Kekes has recently argued that pluralism and liberalism involve inconsistent commitments. He maintains that liberalism is committed to the idea that one or more of the “liberal values” must override all other values, while pluralism is committed to the idea that there are no overriding values whatsoever. In this paper I challenge Kekes' position by arguing that ethical pluralism does not require an absence of overriding values, and that liberalism does not require that one or more of the liberal values must override all others.     

The place of the unconscious in critiques of systematic prejudice: Lessons from MacKinnon and Critical Race Theory

In this paper, I argue that so called “systematic critiques” of the liberal conception of law in Catherine MacKinnon and Critical Race Theory which have traditionally been seen to reject liberalism should really be understood as subjecting the liberal conception of law as impartial and just to an immanent critique. Critical Race Theory and MacKinnon both seek to unmask the seemingly neutral subject which authorizes law as in reality a hegemonic and oppressive subject. They also employ the tools of liberalism, demanding justice and equal protection under the law. I argue that the apparent contradiction of their demands can be understood by seeing the subject itself as combining these contradictions at the level of the relation between the unconscious and consciousness. The ego strives for rational self-organization while the unconscious contains sedimented socially transmitted prejudice. There is thus room within both for the struggle for freedom and justice espoused by liberalism at the conscious level as well as for the unconscious perpetuation of prejudice and domination. I conclude that MacKinnon’s work and that of CRT show that liberalism must not be abandoned as post-structuralism does, but that liberals is in fact aided by its critics.     

TWO CONCEPTIONS OF LIBERALISM: Theology,Creation, and Politics in the Thought of Immanuel Kant and Edmund Burke1

Constitutional liberal practices are capable of being normatively grounded by a number of different metaphysical positions. Kant provides one such grounding, in terms of the autonomously derived moral law. I argue that the work of Edmund Burke provides a resource for an alternative construal of constitutional liberalism, compatible with, and illumined by, a broadly Thomistic natural law worldview. I contrast Burke's treatment of the relationship between truth and cognition, prudence and rights, with that of his contemporary, Kant. We find that in each case where Kant's system is constructed from the first principle of autonomy, Burke's thought is oriented toward an end that is not of our making. Readings of Burke as a natural law thinker are currently out of fashion among Burke commentators; without relying, for the main thesis, on historical claims about Burke's “Thomism,” I nonetheless explore and challenge some of the assumptions that underlie the current orthodoxy.     

A JEWISH CONCEPTION OF HUMAN DIGNITY

This paper depicts the meanings of human dignity as they unfold and evolve in the Bible and the Halakhah. I posit that three distinct features of a Jewish conception of human dignity can be identified in contrast to core characteristics of a liberal conception of human dignity. First, the original source of human dignity is not intrinsic to the human being but extrinsic, namely in God. Second, it is argued that the “dignity of the people” has precedence over personal autonomy and liberty, which are core liberal pillars. The third characteristic pertains to the potential conflict between personal autonomy and liberty, and God's commandments. The theoretical analysis of human dignity is then examined in light of several Supreme Court decisions in Israel during the 1990s. I illustrate that Jewish religious and secular‐liberal conceptions pull in different directions in the rulings of liberal and religious Justices in Israel.