Political Philosophy and the “Aggressive Use of the Law to Impose Controversial Rights”


Gerald Gaus (Arizona) reminds us of the law’s limited power for social change in a new essay at The Critique. There is only so much that the legal declaration of a right can do,and when controversial rights are imposed on a society, we should not be surprised by backlash. This is supposed to be part of what explains the electoral success of Donald Trump.

Legal theorists and social scientists have increasingly come to the conclusion that moral and cultural change cannot be enforced on a population who perceives those changes as violating informal moral norms, and their ideas about what is wrong and ungodly. Many advocates of the rights revolution have assumed that the “progressive” law would shape lagging informal moral norms. To be sure, this can occur, but more often the informal norms shape the law and determine law-abidingness. Laws that run counter to the moral norms of the populace are not only apt to be ineffective but… self-defeating: the very enactment of a controversial law that runs counter to moral norms often strengthens, not weakens, those norms.

Interestingly, Gaus recasts the history of political philosophy since Rawls as overemphasizing the power of law and, as a result, indirectly provoking the rise of Trump:

Underlying this aggressive use of the law to impose controversial rights on a half-unwilling nation, was an aggressive and self-righteous understanding of morality and justice, one certainly fueled by left-leaning professional philosophy. There have always been two strains in moral philosophy: one that sees morality as a social phenomenon, in which individuals come to share common rules of required and prohibited behavior based on implicit contracts, evolved conventions or shared forms of life (for example, Hobbes, Hume, Rousseau and Hegel) and those that uphold the individual moral consciousness, and its unconditional devotion to what it perceives as the truth about morality (e.g., Butler, and most interpretations of Kant).

On the former view the basic ethical rules of society have an ineliminable social dimension—they are the rules that we have constructed or discovered to live together, given our problems and aims. This view of a distinctly social morality became prominent among the liberal social contract theorists of the seventeenth and eighteenth centuries, who understood that because European society was riven with conscientious religious and moral conflict, no specific controversial doctrine could be the ground of public morality. The very attempt to impose any such vision of justice and morality on the entire society was sure to produce conflict and instability. In the 1950s and early ‘60s the idea of a “social morality” was still well represented in Anglo-American ethics, advocated by leading philosophers such as P. F. Strawson in England, and Kurt Baier in the U.S. (and before that, in Australia).

And then something odd happened. At first, in 1971 it seemed that this social, accommodative to disagreement, view of morality and justice won out in America. That year John Rawls published the greatest work in twentieth century political philosophy, A Theory of Justice. Rawls reintroduced the idea of social justice as based on a model of a fair social contract among diverse views, reinterpreting the great social contract theories of Locke, Rousseau and (an interpretation of) Kant. But rather than moral and political philosophy taking up Rawls’s idea that justice was based on what all reasonable persons in a society could endorse, the general take-home message was stunning: Rawls had identified the true principles of social justice, which showed America to be a deeply unjust society that needed to be radically reformed. From that moment on, Anglo-American, and especially American, political philosophy became obsessed with articulating the true principles of social justice, and they multiplied at an astounding rate: a plethora of egalitarianisms (resource, welfare, capability), “sufficientarianism,” “prioritarianism,” desert, need, natural-rights libertarianism, “left libertarianism,” and on and on. It was not simply that each of these perspectives saw themselves as advancing moral insights, but each was convinced that it had discovered the truth about ethics and justice and those who opposed these conclusions were immoral. Those who grasped the truth thus had the responsibility to enshrine it in legislation. Not, of course, because it was their vision (that would be arrogant!), but because they had the correct vision, while those of others were erroneous (which, apparently, was not arrogant).

Thus the apparent victory in 1971 for the social view of ethics became a victory for the individualistic view: viz. that ethical inquiry is focused on ethical truths, a lone inquirer can discover these truths, and those who have grasped the truth about morality have the responsibility to impose it on others who are too benighted to see it. Rawls, despite his explicit invocation of a social contract, was thus typically interpreted as articulating true moral intuitions about social justice. But the story gets odder still. In his later work Rawls became increasingly convinced of the importance of religious and moral disagreement in America, and explicitly sought to develop a view of liberalism—which he deemed “political liberalism”—that adamantly rejected any claim to moral truth, and was presented as a political accommodation that a wide variety of reasonable, diverse, perspectives could embrace. At this point many of his followers howled that we simply could not do without an appeal to moral truth, and sought feverishly to find it somewhere in Rawls’s work, or at least insist that some such notion had to be imported. Alternatively, other followers appeared to embrace the insight that political philosophy must accommodate “reasonable disagreement,” but then immediately reneged on this promise, defining the reasonable so that, essentially, the large part of the population who opposed the direction of the rights revolution were classified as unreasonable. By a slight of hand, it was “shown” that all reasonable people supported these controversial measures and thus, after all, disagreement was accommodated.

Despite the prominence and promise of Rawls’s political philosophy, it failed to produce a political philosophy suited to a non-sectarian open society, one that seeks basic rules for social and political life that not only can be endorsed given the widely diverse perspectives in our society, but understands how this diversity might be harnessed to promote mutual benefit. Instead, the contract apparatus was pressed in the service of moral self-righteousness, buttressing highly controversial convictions about justice, and why the state should be pressed into their service. Even for Rawls, the Supreme Court was the true voice of public reason, and so the deliberations of these nine jurists were to be taken as preeminent in proclaiming political morality for Americans. Political philosophy sought to vindicate the rights revolution. Moral and political philosophy overwhelmingly degenerated into a sectarian, ideological project, dismissing religion as superstition, traditional norms as bigoted and oppressive.

Gaus suggests an alternative approach for political philosophy (which will be recognizable to those familiar with his work):

A moral and political philosophy truly suited to the defense of the open society does not begin by supposing a correct perspective on justice, but takes as its foundational insight that the admissible perspectives are many and varied. The aim is not to vindicate a specific, or even a narrow family, of perspectives, but to understand the conditions under which diverse perspectives on justice, morality and religion can share a moral and political framework that participants can understand as consistent with their deepest convictions, and which all can see as beneficial. In such a society we must accept that few, if any, will see their society as perfectly or ideally just, but the overwhelming number can deem it sufficiently just in light of their own perspectives, and sufficiently accommodative to their deepest beliefs. And so loyalty to the open society can be recovered. The work on this project has barely begun.

Thoughts on Gaus’s diagnosis and prescription are welcome.

His whole essay, “The Open Society and Its Friends,” is here. It is part of a special issue of The Critique on the election. Other essays in it include “Liberal Understanding for Troubled Times” by Joshua Cherniss (Georgetown), “Trump and the End of Liberalism” by Mark Reiff (UC Davis), “Does Trump’s Election Represent a Failure of Democracy?” by Sharon Lloyd (USC), and “Name-Brand Populism” by Suzanne Dovi (Arizona).

Andreas Gursky, “Tote Hosen” (detail)

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