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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Arthur Greeves
Arthur Greeves
4 years ago

Rawls as an enemy of the “open society”, eh? If we take him that way, then Gaus is right to criticize the imposition of morality BY LAW as ineffective, but then we can just understand Rawls as a poor student of Plato. Plato did not advocate for moral imposition by law; he recommended moral imposition by rhetoric. The Left’s approach to LGBT matters is, in this respect, a classically Platonic approach. It involved the manipulation of the media, so as to portray LGBT individuals as “virtually normal”, and thereby swallow up the opposition to homosexuality, which was after all based mostly on the perception of queerness, not on the perception of immorality as such. The Supreme Court came along AFTER the culture was won, and merely formalized the whole thing.

This is in striking contrast to the liberal approach to other issues: abortion, conscience rights, transgenderism, even health care. On these topics, liberals have followed Rawls, not Plato. They have imposed laws that “run out ahead of” ordinary people’s consciences. I don’t know whether this is ethical, but it is certainly ineffective. I recommend that would-be totalitarian liberals get their reading priorities straight. Stop reading Rawls, and start reading Plato. Though reading Aldous Huxley (or even Suzanne Collins) wouldn’t hurt, either.Report

Hey Nonny Mouse
Hey Nonny Mouse
Reply to  Arthur Greeves
4 years ago

Aren’t there important cases where we must enforce measures by law, even in the absence of public support? For instance, what about slavery in the American south?Report

Arthur Greeves
Arthur Greeves
Reply to  Hey Nonny Mouse
4 years ago

I didn’t deny that. I’m just saying it’s not the most effective long-term strategy, in most cases. The issue of slavery demonstrates this, as it evidences the extreme bitterness that arises when we impose moral claims on others. If we had eliminated slavery in some gentler way (supposing this were possible — and mind you, the way could involve a lot of clever propaganda and manipulation), we might not still to this day be experiencing sharp divisions between the American North and the American South.Report

jdkbrown
jdkbrown
4 years ago

“This is in striking contrast to the liberal approach to other issues: abortion…”

This is simply false. The legality of abortion is overwhelmingly popular and has been for decades. See http://www.gallup.com/poll/1576/abortion.aspx and http://www.pewresearch.org/fact-tank/2016/06/27/5-facts-about-abortion/.

As a counterpoint to Gaus, it is well worth reading Scott Lemieux. These are a good start: http://theweek.com/articles/446728/how-gay-marriage-advocates-learned-love-courts and http://prospect.org/article/dont-fear-backlash.Report

n
n
Reply to  jdkbrown
4 years ago

The Gallup data indicates that a majority of people over the last 20 years say abortion should be legal in few or no circumstances. The Pew data indicates that about 40% over the last 20 years say abortion should be legal in few or no circumstances. Honest question: doesn’t 60/40 count as “pretty divided” about the legality of abortion rather than one position being “overwhelmingly popular”? or am I misunderstanding the data?Report

jdkbrown
jdkbrown
Reply to  n
4 years ago

“Under certain circumstances” is not the same thing as “few.” The Gallup data show that 79% currently favor legal abortion, and 77% did so in 1975, shortly after Roe. These numbers have been pretty stable for 40 years.

Arthur Greeves claimed that the liberal approach to abortion – by which I take him to mean seeking to secure abortion rights through the courts – imposed laws that “run out ahead of ordinary people’s consciences.” Unless only those with anti-abortion opinions count as ordinary people, the data show that, at least in this case, he is wrong.Report

n
n
Reply to  jdkbrown
4 years ago

Yes, “under certain circumstances” is not the same as “few”, and it’s also not the same as “many” or “most”. I was looking at Gallup data where they followed up and asked whether “abortion should be legal in most circumstances or only in a few circumstances”. On the most recent poll shown, it’s 37% (of the original sample) for “few” and 19% for never legal. That means the majority (56%) think it should be legal in few or no circumstances. Gallup doesn’t break down “certain circumstances” before 1994, but over the last 20 years, it appears that consistently about 1/3 of the people who say “certain circumstances” believe “most” and about 2/3 mean “a few”. I was also looking at Pew’s summary of their data, which explicitly claims that 41% say abortion “should be illegal all or most of the time”.

I’m assuming that if one thinks abortion should be legal in only a few circumstances, this doesn’t count as “favoring legal abortion”. Maybe we disagree about that.Report

Arthur Greeves
Arthur Greeves
Reply to  jdkbrown
4 years ago

Are you familiar with Planned Parenthood v. Casey? Far more than Roe, that particular decision set up a circumstance whereby — in practice — nearly every abortion was declared legal. That went far out ahead of public opinion, which tends to say that abortions in the first trimester, but not after, should be legal.

Also, check your logic. I said the Court opinions went out ahead of ordinary people’s consciences. I did not say that they ran out ahead of ALL ordinary people’s consciences.Report

jdkbrown
jdkbrown
Reply to  Arthur Greeves
4 years ago

I’m perfectly familiar with Casey, but I dispute your interpretation of it. In any event, subsequent Supreme Court decisions have steadily chipped away at its protections, as the court has been extremely reluctant to find just about any regulation short of an outright ban as imposing an undue burden.

As to my logic: I read your claim as a generic, and I take the data to show that that reading – in addition to the universal reading – is false. And an existential reading is obviously too weak for your purposes, since it would set up a situation where only Court decisions that are supported by everybody are (politically? morally?) legitimate. Report

Arthur Greeves
Arthur Greeves
Reply to  jdkbrown
4 years ago

I wasn’t making a point about legitimacy. I was making a point about political expedience. If you don’t have enough (not all) ordinary people behind a public policy, you will spend years or decades trying to cram it down people’s throats, unsuccessfully. This may be worth it, if you think the stakes are very high. But it generally involves shooting yourself in the foot.

Do you deny that the Left has spent decades unsuccessfully trying to make abortion rights settled law? Your very claims about the erosion of these rights makes my point for me. The rights wouldn’t be eroding if they (like the ruling on gay marriage) had arisen out of something more like a consensus.Report

Derek Bowman
4 years ago

So what are some examples of the advances of justice that have been achieved by passively waiting for social norms to catch up, rather than fighting for one’s considered convictions about justice?

Gaus mentions the Warren Court, including the Brown v Board of Education decision, and the Congressionally enacted Civil Rights and Voting Acts, and he seems to still endorse those. (“We Warren Court enthusiasts saw quite correctly that the state must, absolutely, enforce the basic equal rights of citizens to participate in politics and civil society if there was to be a free society at all.”) There he seems to agree that it was appropriate to use the force of government to enforce controversial views of justice. Yet his empirical claims about moral psychology and the causal powers of government enforcement don’t seem to apply any less to these interventions than they do to those he would criticize. (“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.”) Does he consider these coercive legal interventions to have been effective? Or should those advances in civil rights have waited for social attitudes to come around naturally? Report

Arthur Greeves
Arthur Greeves
Reply to  Derek Bowman
4 years ago

Your question misunderstands his view. His view does not seem to be that we should be quietists who wait until public opinion comes around. Rather, his view is that LEGAL COERCION is not the ideal method one might use to effectively create a long-term change in social norms. In the cases you mention, a whole lot of “ground work” had been done to pave the way for the legal interventions. The methods there are more similar to methods gay rights advocates used to advance gay marriage, in which changing laws came after changing hearts. Report

Derek Bowman
Reply to  Arthur Greeves
4 years ago

Perhaps that is your view, but Gaus clearly does not agree, since he cite Obergefell as an example of the kind of ideological overeach he rejects. (NB: On a second reading, it also seems that his objection is not so much to coercive imposition as it is to coercive imposition *by the courts.* After all, he seems fine with individual states coercively enforcing laws against abortion, and the fact that the Civil Rights and Voting Acts were Congressionally enacted seems as though it is supposed to give them extra legitimacy. But it’s hard to see how that preference for legislative over judicial coercion is supported by the general principles of moral/political psychology he points to.)

But if you’d care to defend the position you need to say not merely that lots of “ground work” had been done, but that such groundwork made it the case that these legal changes were not enforced “on a population who perceives those changes as violating informal moral norms, and their ideas about what is wrong and ungodly.” Report