Neutered by Neutrality: The Abiding Influence of John Rawls, Part Two

 
 

There will be no true justice—and no real political discourse—until the Rawlsian illusion of neutrality is rejected and the Rawlsian tyranny strangling political discourse is overthrown. The second of two parts.

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In yesterday’s essay, I asked whether arguments about the common good can survive in a Rawlsian world in which rights are “trumps” negating any calculus of social benefits, “fairness” requires that we eradicate the family, and preserving the interests of the liberal autonomous “self” is the supreme goal.

Today I discuss the most ironic principle of the Rawlsian system: its insistence that the government should be neutral among competing conceptions of the good life and that political deliberation should not include what Rawls describes as reference to “comprehensive doctrines”—not only those derived from religion, but also from any comprehensive moral, metaphysical, or philosophical view.

In Rawls’s view, such “comprehensive doctrines” can be entertained and discussed privately within the confines of one’s family, church group, or social gathering. In a pluralistic society, however, where there are many different comprehensive doctrines, each incommensurable with the other, none of them should be admitted into public political discourse. Instead, Rawls insists that public discourse should limit itself to “public reasons” that can be shared by all interlocutors no matter what “comprehensive doctrine” they might hold. In practice, this means restricting appeal to any comprehensive doctrines at all—except, of course, liberalism.

Rawls believed that this “bracketing,” whereby “certain matters are taken off the political agenda” and “no longer regarded as appropriate subjects for political decision by majority or other plurality voting,” would result in a greater sense of openness and toleration in society. Rawls believed that this would remove from the political agenda “the most divisive issues, serious contention about which must undermine the bases of social cooperation.”

We must ask ourselves: has this practice really led to less contention and less undermining of the bases of social cooperation? Hasn’t it done precisely the reverse?

The Dictatorship of Relativism

Harvard’s Michael Sandel has formulated some of the most trenchant criticisms of this Rawlsian restriction in an article on “Political Liberalism” published originally in Harvard Law Review and republished in his Justice: A Reader. As Sandel points out, Rawlsian bracketing requires that the liberal state deny the possibility that any of the moral claims arising from within any comprehensive doctrines might in fact be true. Public neutrality, it seems, can only be secured by negating the truth claims of all moral and religious doctrines.

The result is what Pope Benedict XVI has termed the “dictatorship of relativism.” It may not seem like a dictatorship, because its claim to legitimacy is based precisely on allowing each person his or her own view. But when every view must be held to be equally legitimate, and the perspective from which one judges truth cannot be rationally justified, then no view can be taken seriously as making a rational claim upon anyone else. My view is merely “my” view, and your view is merely “yours.” The entry fee for gaining access to public conversation is setting aside one’s moral and religious beliefs. For political purposes, I must act as a moral relativist, which means acting as though moral relativism were true.

Thus, the system is rigged to move always in the direction of moral license. When they come up for consideration before a Rawlsian judge, it is inevitable that previously held moral prohibitions will be voided politically. This must be the result, because to allow these moral claims public sway would be to undermine both Rawlsian tolerance for all views and the Rawlsian notion of the autonomous “self” open to choosing among all competing notions of the good.

The true “dictatorship” of this sort of relativism is made clear when the state uses its compulsory powers to enforce the liberal tolerance that it presupposes. Let us suppose that based on my “comprehensive doctrine” about humans and human nature, I have decided that abortion of unborn infants is morally wrong. I am allowed to hold this view privately and to argue it with friends, but I cannot bring this moral claim into the public debate. Although the government claims to be neutral between my view and the view of someone who holds the opposite view, my moral claim, precisely because it is prohibitive, and because it undermines the liberal notion of the unencumbered, autonomous self, will be disallowed.

Once abortion is “allowed,” those whose private moral views would prohibit them from performing abortions must be compelled by the state to take part, or else the “freedom” of those permitted to have abortions would be diminished. To the extent that being a doctor or a pharmacist or an insurance provider is declared a “public function,” then the state must compel compliance, lest the “freedom” it has declared become empty.  Thus although citizens are still permitted to argue in various public venues that abortion is murder, they are increasingly being restricted within their professional organizations from saying so, and pressured in accord with the duties of their “public” function to facilitate it.  In this way, the right to “freedom of speech” has become increasingly empty to the extent that arguments of a certain sort—those not in accord with the canons of Rawlsian “public reason”—are not accepted as the legitimate basis or justification for governmental action.

Pope John Paul II described with great insight the inherent difficulty of our current situation when he wrote:

Finally, the more radical views go so far as to maintain that in a modern and pluralistic society people should be allowed complete freedom to dispose of their own lives as well as of the lives of the unborn: it is asserted that it is not the task of the law to choose between different moral opinions, and still less can the law claim to impose one particular opinion to the detriment of others.… As a result we have what appear to be two diametrically opposed tendencies.

On the one hand, individuals claim for themselves in the moral sphere the most complete freedom of choice and demand that the State should not adopt or impose any ethical position but limit itself to guaranteeing maximum space for the freedom of each individual, with the sole limitation of not infringing on the freedom and rights of any other citizen.

On the other hand, it is held that, in the exercise of public and professional duties, respect for other people’s freedom of choice requires that each one should set aside his or her own convictions in order to satisfy every demand of the citizens which is recognized and guaranteed by law; in carrying out one’s duties the only moral criterion should be what is laid down by the law itself. Individual responsibility is thus turned over to the civil law, with a renouncing of personal conscience, at least in the public sphere.

The Impoverishment of Political Discourse

The supposed neutrality of the Rawlsian position is not actual neutrality at all. It moves the political scales in a very definite direction. Worse, its restrictions on what counts as “public reason” have resulted, as Michael Sandel has argued, “in the impoverishment of political discourse,” making it more difficult to discuss important issues and resulting in less tolerance, not more.

“Whether a moral or political controversy reflects reasonable but incompatible conceptions of the good, or whether it can be resolved by due reflection and deliberation,” contends Sandel, “can only be determined by reflecting and deliberating.” The political life envisioned by Rawls, by contrast, says Sandel, “leaves little room for the kind of public deliberation necessary to test the plausibility of contending comprehensive moralities—to persuade others of the merits of our moral ideals, to be persuaded by others of the merits of theirs.”

When all comprehensive doctrines are bracketed out of political discourse, what is left tends to be scandalous, sensational, and empty. When interlocutors can no longer appeal to a shared conception of justice and shared notions of rational criteria of judgment, all that is left is power and suspicion. We suspect that our adversaries’ arguments didn’t come first, with the conclusions following from the reasonability of those arguments. Rather, it often seems that their conclusion came first and only later did they search for supporting arguments to buttress their position publicly. But if this is the case, then, as Nietzsche argued, what we call “arguments” are only masks for a person’s will to power.

As I argued in an earlier series of articles, by inculcating these suspicions and dispositions in young people, we have managed to raise a culture of media-savvy adults who specialize in seeing through the illusory and fictitious claims of their opponents, but who never take the time to examine their own. Since there is no way of securing rational agreement, the partisans of each side resort to self-assertive shrillness. And political discussions in the public realm have become increasingly shallow—something more akin to a children’s mud fight than the rational discourse America’s founders hoped would characterize the civic life of the American republic, or the “tolerant” discourse envisaged by Rawls.

But, as Sandel points out, Rawlsian omission of moral and religious convictions from political discourse

is not the only or perhaps even the most plausible way of understanding the mutual respect on which democratic citizenship depends. On a different conception of respect—call it the deliberative conception—we respect our fellow citizen’s moral and religious convictions by engaging or attending to them—sometimes by challenging them, and contesting them, sometimes by listening and learning from them . . .

By engaging in discussions such as these, citizens can develop the skills and virtues needed for authentic discourse and disagreement about fundamental issues. When we take refuge in ideological “safe spaces,” we lose our ability to engage in this way—to discuss socratically, to question ourselves and others critically, and to correct mistakes judiciously.

Intolerance of the Intolerant

This inability of citizens to discuss and reconcile different goals and conceptions of the good merely serves to strengthen people’s resolve to use the compulsory powers of the state to force their position on the fools and scoundrels who oppose them. Failure to understand how one’s opponents could even imagine themselves to be defending what is “good,” “just,” or “fair” (since their conceptions of what is “good,” “just,” and “fair” are so far from one’s own) results in a high degree of self-righteous indignation in asserting one’s claims. “One cannot argue with such people” is the refrain. And the result is that “compromise” becomes not the description of a political art, but a term of derision.

The result of the Rawlsian regime is not a new, higher level of rationality in public discourse but a widespread abandonment of it. Powerful arguments such as those of Sherif Girgis, Ryan Anderson, and Robert George on the nature of marriage, or Mark Regnerus on the importance of biological parents to the welfare of children, are too often, for the reasons I’ve suggested, not being weighed seriously by a significant segment of the judiciary. It naturally follows that in the general public there is an increasing tendency, especially among the educated elite, to believe that such arguments are not even worthy of reply.

There will be no true justice—and no real political discourse—until the Rawlsian illusion of neutrality is rejected and the Rawlsian tyranny strangling political discourse is overthrown. The freedom to say only what the elites schooled in political liberalism deem acceptable is no freedom at all.  For its own good, the public should be a lot more attentive to the political philosophy underlying a potential judge’s future decisions rather than simply checking whether he or she got one or two key decisions “right.”  The judge who affirms on Rawlsian principles that your “right” to own a gun is “not subject to political bargaining or to the calculus of social interests” may turn right around and affirm on the same basis that government-mandated contraception coverage or same-sex marriage cannot be subjected to the calculus of social interests, even the interests of the children involved, and so too cannot be subject to the prudential judgments of democratically elected legislative bodies.  The result is legislation from the judiciary in the name of “rights” and the beginning of the end of deliberative, representative government of the sort intended by the framers of the Constitution.

Randall B. Smith is the Scanlan Professor of Theology at the University of St. Thomas in Houston, Texas.

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