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A Truly Different Understanding of Law and Morality

May 5, 2014 Brian BixAdd a Comment

In legal philosophy, as in many scholarly areas, there is a “good and original” problem: the work that is very good tends not to be particularly original (usually being rather a careful modification of existing ideas), and the work is truly original tends not be very good at all.  There are occasional exceptions, and one of these in the area of legal philosophy is the work of Mark Greenberg, who in recent years has developed, through a series of articles, a significant, and significantly novel approach to the nature of law.  As will be described, Greenberg’s theory is distinctive and refreshingly heretical.

Greenberg’s approach is in sharp contrast with what he calls “the Standard Picture,” a view he believes to be assumed or accepted, but rarely argued for, in connection with most of the currently popular theories of the nature of law.  Under the Standard Picture, when legislators enact a statute, they directly and straightforwardly add to our law(s).  At the same time, as Greenberg points out, lawyers, legal theorists, and law students – and everyone else who has looked seriously at the process of statutory interpretation in actual cases – know that the way statutes add to the law(s) is not that direct or that clear.  This is shown indirectly in the way that competent judges and practitioners, acting in good faith, often disagree about the legal effects of a statute (in application to actual or hypothetical sets of facts), with disagreements often occurring at a basic level (e.g., should we focus on the plain meaning of the statute’s text, or should we focus on what the lawmakers intended to do).  As the article points out, judges who disagree about statutory interpretation rarely come equipped with arguments about why some factors are relevant and others are not, or why some factors should be given greater weight than other (relevant) factors.  As Greenberg indicates, any such argument would likely be in terms of why – and when — the actions of legal officials affect our moral rights and duties.

Greenberg’s Moral Impact Theory of Law points the focus elsewhere, in determining what counts as “law.”  His approach focuses on the way that the actions of legal officials (lawmakers in passing statutes, judges in deciding case, etc.) affect our existing moral obligations, and it is those effects that are (our) “law.”  Legislators may enact statutes and judges may decide disputes, but, under this approach, we only have “law” once we calculate the moral impact of those official actions on our moral rights and duties (and powers and immunities).

The Moral Impact Theory of Law has the advantage of being able to account for deep and lasting disagreements about the legal effects of statutes, decisions, and constitutional provisions.  It is also, as Greenberg points out, consistent with the way that law seems to claim moral authority for the obligations it creates.  This seems an audacious claim, but if and when it is rejected (as many modern legal positivists do), we are then left with a real mystery regarding what is meant by saying that someone “has a legal obligation to act (or refrain from acting) in a certain way” – in what does that “obligation” entail if it is not a moral obligation?

Greenberg’s Moral Impact Theory is related to, but clearly different from, an approach associated with the Natural Law tradition.  Under this Natural Law approach (there are a number of different Natural Law approaches; this is just one of them), law can change our moral reasons for action (i.e., it changes our moral rights and duties), but only if the laws promulgated are consistent with morality and meet certain other substantive and procedural criteria.

The other approach with a surface similarity to Greenberg’s is Ronald Dworkin’s theory.  As Greenberg characterizes the contrast, “the Moral Impact Theory holds that the law is the moral impact or effect of certain actions of legal institutions … rather than [as in Dworkin’s theory] the set of principles that best justify them.”

As an old theorist, set in my ways, it is probably not surprising that I am inclined to resist Greenberg’s provocative heresy.  I resist any equation of the questions “what is law?” with “what is morally required?,” worried that merging law with morality in this way deviates too far from distinctions between law and morality central to both conventional and theoretical understandings.  I can see the attraction of the view of those American legal realists who insisted that a legal obligation should be understood not in moral terms (the actions of legal officials clearly range from the morally praise-worthy to the far opposite) but in terms of what state force is likely to be brought to bear against one, through the courts or other officials, if one does not comply.

Note that there is no dispute across approaches – from Greenberg’s approach to Thomistic natural law theory to recent versions of legal positivism – that the actions of legal officials can at least sometimes change our moral rights and duties, and also at least sometimes fail to change them.  The question is only at what stage the term “law” applies:  at the stage of the officials’ action, or the stage when our moral rights and duties have been changed.

While I resist the approach, I recognize that that Greenberg’s “Moral Impact Theory” succeeds in responding to jurisprudential issues that more conventional approaches not only fail to resolve, but seem largely to ignore.

On Narrative, Legal Discourse, and Yaser Esam Hamdi

Apr 1, 2014 Michael CedroneAdd a Comment

Linda Edwards’ article is a thoughtful examination of the hidden and unexplored role of narrative in legal decisions. The article raises fundamental questions about the nature and boundaries of legal discourse and demonstrates that narrative theory and cognitive study can bridge the distance between what one may call ‘traditionalist legal analysis’ and its ‘oppositionist’ critique. The article is a delight. It joins an arresting image to an elegant argument, and it is beautifully written.

Edwards’ arresting image evokes an ancient, walled city. Life proceeds vibrantly inside the walls, where people deliberate and decide questions within a common cultural frame. Outside the walls, prophets shout toward the people, but their voices are lost in the vast plains. Occupants of the city occasionally lob verbal assaults—“Be quiet; stop whining; leave us alone”—but the city largely ignores the prophets. For Edwards, this metaphor captures the relationship between judges and traditionalist legal scholars and critical theorists.

Edwards’ elegant argument posits that narrative frame accounts for the distance between the city and its prophets. The lynchpin of Edwards’ logical argument is that cultural myths and master stories—“preconstructions,” to use Peter Goodrich’s term—underlie the traditional tools of legal analysis. If these myths and master stories are part of law when used by traditionalists, then, for Edwards, they surely are part of law when used in critique.

To illustrate this point, Edwards turns to the “myth of redemptive violence,” tracing its history to the Enuma Elish, an ancient Babylonian creation story. The young god Marduk vanquishes an existential threat to the community in exchange for the community’s unquestioning obedience to him. According to the myth, only Marduk’s redemptive violence can secure the people. Cumbersome social and legal systems can handle mundane problems but fail to protect against existential crises. Only violence, directed against a scapegoat, can redeem the community and define its insiders and outsiders.

Enter Yaser Esam Hamdi, a U.S. citizen captured on the battlefield in Afghanistan in 2001. President Bush declared him an “enemy combatant,” and he was held first in Afghanistan, then at Guantanamo, and finally within the United States, without charges, without access to a lawyer, and without process. Hamdi’s father filed a habeas petition on his behalf that in part challenged his designation as an “enemy combatant” based on the circumstances of his capture. The government defended with a cursory affidavit based on hearsay.

The Fourth Circuit begins its judgment denying the Habeas petition by describing the events of September 11, cavalierly declares the enemy combatant issue to be “undisputed,” then orders the habeas petition dismissed. For Edwards, this opinion illustrates the myth of redemptive violence: for the Fourth Circuit majority, habeas will not protect us, only violence wrought on the outsider Hamdi will—forgetting almost entirely the inconvenient fact of Hamdi’s citizenship.

Eight justices of the Supreme Court reject this conclusion—albeit on three different grounds and with important doctrinal differences among them. According to Edwards, whatever their doctrinal commitments, these eight justices are operating on a different cultural myth—this time, a story about the founding of our Nation, and the habeas corpus protections from government overreach that are enshrined in our Constitution.

It is one thing to observe narrative at work; however, it is a quite larger challenge to define space for narrative in legal discourse. Edwards recognizes that outsider narratives are not meant to be set in bald opposition to the traditional tools of legal analysis. Conversely, cognitive science teaches that confronting a decision maker with traditional merits arguments merely triggers the decision maker to generate competing merits arguments that protect his or her own preconstructions.

Edwards argues instead for a values-involved mode of argument that attempts to reframe the dominant narrative into one that opens the decision-maker’s mind to new ways of seeing a legal problem and ultimately, new solutions. Edwards revisits Richard Delgado’s point made nearly twenty-five years ago: the law is a war between stories. Consequently, Edwards advocates a wide definition of law that admits and attempts to make explicit the hidden myths and master narratives that underlie traditional legal argument.

An important contribution of Edwards’ article is its insight into how cognitive science and neurobiology impel people toward narrative schemata. Narrative is part of our human DNA and therefore provides a cognitive foundation for rational legal argument. While Edwards recognizes that narrative does not explain all legal outcomes, the scientific evidence adds a compelling reason to examine our preconstructions closely. Edwards’ long experience as a scholar of rhetoric well qualifies her to undertake such a study.

More reflection on this topic is surely necessary. While Hamdi offers a nice example of courts motivated by opposing master narratives, and so is quite useful for understanding how narrative influences legal outcome, these opinions do not adequately capture the traditionalist-critical dynamic. The Justices of the Supreme Court and the Judges of the Fourth Circuit differ in the Hamdi case, but none is an oppositionist in the sense of a critical theorist. The uphill climb is significantly steeper for discrete insular minority groups that face a long history of exclusion from the structures of power and who often suffer far from the spotlight.

At the end of the day, Edwards’ piece not only provides fresh thought about the effect of narrative on legal outcomes, but it also prompts me to reflect on my own teaching in legal research and writing classes. The piece vivdly demonstrates the power of narrative frame. Factual framing of a case should not be limited to the Statement of the Case in a brief, or even to that amorphous concept, “theory of the case.” Instead, it should underscore and reinforce the doctrinal arguments contained in a brief, and this is a lesson that beginning law students would do well to learn. For them, coherence in persuasive legal documents must take on deeper meaning. At a very pragmatic level, Edwards’ insights have the power to prompt advocates to broaden the scope of tools available in the quest for justice.

Liberty, Equality, and the Rule of Law

Mar 3, 2014 Mortimer SellersAdd a Comment

There is an innovative, very influential, and deeply pernicious tradition in English law and jurisprudence equating liberty with license and the rule of law with legal despotism. The beauty of this short chapter by T.R.S. Allan lies in its full implicit refutation of this shared misconception, as found in Thomas Hobbes, John Austin, and H.L.A. Hart, and its shorter explicit repudiation of their gentle contemporary apologist, Joseph Raz. Allan embraces traditional conceptions of the rule of law, demonstrates their central position in British jurisprudence, and makes sense of the doctrines of A.V. Dicey, often misstated as mere legal formalism.

“The rule of law and not of men” in its original, best, and most coherent sense is the antithesis of arbitrary power. This is both a political ideal and a constitutional doctrine: law and government are only legitimate when they serve justice and the common good of their subjects. To legislate, adjudicate, or execute the laws to any other end is contrary to the proper purposes of law, and therefore corrupt. “Liberty” consists in subjection to just laws, made for the common good — not (as some would have it) the simple license to do what one wants.

Prof. Allan makes it clear that there can be no liberty without the rule of law, when the rule of law includes all the procedural and substantive safeguards necessary to contain the private will and self-interest of those in power. This means more specifically that the much-touted doctrine of “parliamentary sovereignty”, or any other form of legislative power, must give way to judicial supervision, when legislation violates rule of law principles, fundamental rights, or reason, in light of the public good.

Constitutionalism and the rule of law are closely related concepts, in that the first exists to achieve the other. Both serve “liberty,” “equality,” and “legality” by preventing public or private oppression. Allan rightly identifies “liberty” as citizenship under the rule of law, “legality” as governance under the rule of law, and legal “equality” as a comprehensive respect for human dignity, secured by the rule of law. The rule of law cannot be reduced to formal equality before the law, but also requires a substantive equality of concern and respect for all persons in framing and administering the laws that will govern them. There is no rule of law when the legal system serves one faction or segment of society at the expense of the others.

This brings up the most important distinction between Raz and Allan. For neo-Hobbesians “the rule of law” is purely procedural — techniques of legal formalism that make the law more certain, for good or ill, according to the intent of the legislator. For Allan the rule of law is essentially substantive — the project of replacing private interests with the public good in framing and administering justice. This latter understanding is more useful, not only because it accords better with the history and current usage of the phrase, but also because it captures the actual value and purpose of law, which is not certainty, but justice.

As Allan explains, when the rule of law is treated as a mainly formal ideal, its connection with liberty consists in restraining discretion. But discretion is an inevitable and at times unavoidable aspect of administering the law. The purpose of the rule of law is not to abolish discretion but to guide it towards its proper end, which is justice. The lesson is not that there should be no administrative or executive discretion, but that discretion should not be arbitrary. The rule of law prevents oppression by constraining arbitrary power.

Liberty, equality, and the rule of law are all powerful and resonant terms, which makes it tempting to misuse or redirect them, as Thomas Hobbes did in the interest of stronger government and stability. But the words’ positive connotations first arose from and properly only belong to their original and more natural meanings, which is why Allan’s argument is so refreshing. He has reclaimed the rule of law for the English legal tradition, and restored old conceptions of democracy and parliamentary sovereignty, to make them once again compatible with the rule of law, constitutionalism, the common good, and justice.

Animals, Rights, and Legal “Bifurcation” In Kant

Jan 29, 2014 W.A. Edmundson3 comments

The moral arc of the universe is long. But how long is it? If we measure from the civilizations of ancient Greece and Rome, it is long enough to bring into the fully human fold  whole categories that had once been denied equal moral status: notably slaves, women, and people of color, who had sometimes been regarded as hardly more significant, morally and legally, than (non-human) animals. It may be an exaggeration to say that Roman law adhered to a rigid, exhaustive and mutually exclusive bifurcation between rights-holding persons and non-rights-holding things, but the eminent Kant scholar Christine Korsgaard does not deny that Kant was “consciously following” precisely that view (P. 630, emphasis original). In this superb paper, she takes up the task of showing that Kant’s thought contains elements that undermine what she calls “the legal bifurcation” (P. 629) of the world into persons, on one hand, and things, on the other. That task is instrumental to her aim of showing that Kant might consistently have adopted a more respectful view of the moral status of animals, and that the framework of Kant’s thought indicates an attractive way of understanding what that third status—of neither person nor mere thing—might be.

Working within Kant’s general account of rationality, agency, and personhood, Korsgaard proposes that we recognize a third category of morally significant being: that of creatures who are not mere things, and yet are not persons either.  The tantalizing suggestion is that at least some animals populate this third category, and that they are not apt objects of ownership, at least not in the usual sense.  This of course is contrary to Kant’s statement in Anthropology from a Pragmatic Point of View:

The fact that man can have the idea ‘I’ raises him infinitely above all the other beings living on earth. By this he is a person; and by virtue of the unity of his consciousness, through all the changes he may undergo, he is one and the same person–that is, a being altogether different in rank and dignity from things, such as irrational animals, which we can dispose of as we please.

Kant’s official view is not so crabbed as to deny—as Descartes did—that animals can feel; but it is not so generous as to hold—as Bentham did—that feeling, rather than thinking, is all that morally matters.  Korsgaard wants to show how Kant could get over onto the right side of history (without surrendering to Benthamite sentimentalism).

Even so, taking animal feeling into account is Korsgaard’s key move.  Reason does not—and cannot—give us direct access to a noumenal world of absolute value.  As rational agents, the goods we choose to pursue are ones that are in a sense relative to us, and to our animal nature as feeling creatures.  But our rationality requires that we claim absolute value for our ends, in the sense that what we deliberately value gives everyone a reason to promote what we, by our choosing, necessarily claim to be valuable.  Our rationality thus is an expression not only of our membership in the Kingdom of Ends, it is also an affirmation of our “animal spirits,” as it were.

This understanding of the involvement of feeling and reason in our makeup furnishes grounds for respecting feeling beings who, nonetheless, lack a “transcendental unity of apperception,”and who, therefore, are not capable of personhood in the proper sense of the word.  For Korsgaard, the capacity for feeling is evidently tied to the possibility of there being a “good for” a feeling being; and the good-for “buck” passes into reasons for action on the part of members of the Kingdom of Ends.

Korsgaard acknowledges that much more needs saying to develop a complete account of the moral status of animals.  She also acknowledges that her reading does nothing to elevate the moral status of non-feeling objects.  The link between having feelings and having a “good” is not explained, and an Aristotelian teleological account of having a good is not available to Kant.  (Kant’s metaphysical scruples govern here too, as she points out.)  But can’t plants and lower invertebrates be said to have a good, despite lacking feeling?  Plausibly, their good makes no (or much lesser) claims.  Feeling, then, seems to have an implicit role beyond that of merely specifying an aspect of a creature’s good.  If that thought is combined with the burgeoning evidence that at least some animals do possess some rudimentary conception of self, it may begin to appear that what ought to go is not only bifurcation, but trifurcation and—in fact—the very idea that “bridge claims” (P. 635) connecting categories of entity with an internally homogeneous moral status are what we really need.  Compare the moral status of children.  These undoubted members of our species are allotted greater or lesser rights and duties based upon relatively fine-grained (though arbitrary) presumptions about degrees of moral fitness—and in application even these yield to finer-grained, multi-dimensional judgments about the individual.  Why not regard the whole matter of moral status as one not of category but of degree?

Korsgaard elsewhere argues for a surprisingly stronger “pro-animal” position.  In the chapter, “Interacting with Animals: a Kantian Account,” in the Oxford Handbook of Animal Ethics, she concludes:

We may interact with the other animals in ways to which we think it is plausible to think they would consent if they could—that is, in ways that are mutually beneficial and fair, and allow them to live something reasonably like their own sort of life. If we provide them with proper living conditions, I believe, their use…perhaps even as providers of wool, dairy products, or eggs, might possibly be made consistent with that standard. But it is not plausible to suppose a nonhuman animal would consent to being killed before the term of her natural life is over in order to be eaten or because someone else wants the use of her pelt, and it is not plausible to think she would consent to be tortured for scientific information. (P. 110)

A surprising thing about this is that it follows in the train of an argument that non-human animals are incapable of claiming standing as ends in themselves, and are incapable of genuinely consenting to laws of interaction, for they are incapable of choosing whether or not to interact with us. It is unclear how much of this incapacity is assignable to the vulnerable situation of non-human animals, and how much to the rudimentary nature of their intellects. Other entities that are incapable of consenting presumably are not entitled to the benefit of this sort of counterfactual contractualism even if they are creatures that can be said to have a “natural” good.  Plants, for example, can’t easily be imagined to consent to being burnt or cut to pieces for human purposes, although they might imaginably consent to giving up their fruit.

Why are some creatures who are incapable of consent, but are of such nature that their lives can go better or worse, entitled to the benefit of the counterfactual test, and others not?  The answer has to be that plants and other unfeeling things (some of them animals) lack what is minimally required for moral status: the capacity to feel.  When we humans make the claims that establish us as members of the Kingdom of Ends we do so not only on behalf of our rationality but our sensibility, and in doing so—on Korsgaard’s account—we legislate that there is reason to respect the feeling-bound good of all feeling creatures.  Korsgaard does not explain why, in staking claims for ourselves, we do not simultaneously stake a claim for ourselves simply as natural organisms.  Again, sensibility—as contrasted  both to bare organism and to bare unfeeling sentience—seems to do a lot more work in Korsgaard’s account than Kant ever expected or wanted of it.  We have to hope that Korsgaard will further pursue, on her own behalf, the questions she has taken up here, on Kant’s—though it is unclear whether the result will be a view that can truly be called Kantian.

Natural Law and Its History

Dec 20, 2013 Sean CoyleAdd a Comment

The image of natural law to the modern mind is one in which certain actions, states-of-affairs, and “values,” are represented as being right or wrong, reasonable or unreasonable, depending upon whether they can claim to be in accord with or contrary to nature. Though apparently hard to shift, this image, as John Finnis and others have pointed out on numerous occasions, is misconceived: the orientation of thinking running rather from what is reasonable and right to what is (therefore) in accord with nature.

The matter is dealt with in some detail in the second chapter of Natural Law and Natural Rights, and the rest of that book constitutes an example precisely of arguments of practical reasonableness (a reworking of Aquinas’s prudentia) as the ground of a theory of “natural law” (i.e. a fully critical basis for evaluation of human acts and institutions, and the subject-matter of the social sciences). It is taken up again, in much greater detail, in Finnis’s book on Aquinas, in the context of Aquinas’s own account (itself quite clear on this point) of human choosing and deliberating. The present essay situates the discussion within a much broader historical context, ranging from the treatment of “nature” in Platonic and Sophist philosophy through to the positivism of Hart and Austin. Just as the idea of “natural law” must be logically separated from the beliefs and opinions of those who assert its existence (only the latter having a temporality and history), so the skeptical, nihilist or agnostic assertion that there is no moral law, but only the satisfactions of “animal” nature (subrational emotions, desires to which reason is the ingenious servant), represents a single permanent idea which plays out in numerous different forms in different times and places. How could it be otherwise? For the skepticism is directed precisely at reason’s governance, its ability to identify and work its way towards those human goods that stand at the center of natural law thinking. In one long argument, the essay unpicks, steadily and relentlessly, the confusions that underpin the strand of skeptical thinking that unites the Sophists’ outlook to Hart’s own commitment to legal positivism.

Many discussions of positivism have been hampered by uncertainty as to whether the subject of discussion, the “relationship between law and morality”, is conceived as a relationship between two sets of norms held (conventionally) by members of a community, or as a relationship between just such a set of conventional (legal) standards and some truths about right and wrong in human choosing and acting (P. 90-91). But the features of Hart’s own discussion of law make clear that the real issue is none other than the question whether there is indeed knowledge of human good and evil (P. 99). Hart believed that one could elaborate a theory of law without taking a stand on that issue. But Hart’s very case for conceiving law as a union of primary with secondary rules, descriptive as it may be of the actual workings of (certain, mature types of) legal order, is nonetheless formed from a series of evaluative efforts to comprehend what is wrong with, and thus what is required in order to remedy, the defects of immature, “non-standard” legal orders or of societies that lack law (P. 98-99). Thus his explanation of the functional operation of secondary rules (as opposed to their malfunction) reaches back into a consideration of the character and causes of such defects. Despite Hart’s suggestion that their nature is fully comprehended by the ways in which they manifest inefficiency, the reality is that they embody defects of justice, matters which are suspended only to come crashing back in Chapter IX of The Concept of Law.

There are two respects in which the essay might have gone further. First, it could have indicated a means (if there is one) of tackling those virulent forms of skepticism that are anti-rational. One of the strongest lessons of the essay (and of Finnis’s work generally, building on Aquinas’s own insights) is that the skeptic is led to truth not by leading him into contradiction, but by exposing the commitments which underlie all practical thinking and deliberation. Those who, for instance, commit themselves to a maxim of “live and let live” must be prepared to defend that principle against the very moral tyrants they do not wish to become; and in doing so immediately set normative limits to human action. The point is not that such a principle, applied without restriction, annihilates itself (though that is true), but that its underlying assumptions involve a commitment to autonomy as a “human good” to be pursued and secured: a good the nature of which is only fully understood when placed within those normative structures which limit human action, and which can then be elaborated in terms of other, distinct goods: sociability, knowledge and the like.

The success of this argument (i.e. not its logical consistency but its success in actually moving minds toward acceptance of truth) is dependent upon the skeptic’s realization that morality is not held “as positive” but “as true” (P. 86). But this is often not the case: some modern “liberals” claim to assert moral principles precisely as cultural artifacts, refusing even in the case of deep commitments (such as injunctions against hate crimes, rape, murder) to acknowledge them as more than merely conventional commitments: they are indeed held self-consciously “as positive”. Aristotle famously acknowledged that arguments alone cannot move men toward truth: the mind must first be cultivated so as to be open to rational persuasion. How then should the philosopher go about cultivating that integration between rational and subrational factors (to use Finnis’s terms) in the human personality required in order to persuade recalcitrant listeners?

Secondly, natural law’s own identity and commitments could be further clarified by considering these theses in relation to those (major) representatives who lie outside the Thomist tradition to a greater or lesser degree: such as Grotius or Locke for example. There is indeed some debate as to the extent to which Grotius departs from Aristotelian and Thomist premises, but his own position is grounded in an idea of self-ownership (or self-right, precisely as a ground of further duties) that Aquinas specifically rejects. Do all moral understandings reach back into ideas of human goods as the ground of their intelligibility (or truth), so that eudaimonism is an inescapable basis for ethical reflection?

The essay is not really directed toward answering either of these questions. But as a self-standing inquiry and as an eloquent survey of Finnis’s considerable body of thought, it should command careful and sober attention.

Liberalism Revisited

Oct 21, 2013 Ekow Yankah1 comment

We live in a liberal age, philosophically speaking.  One may argue about what variant of liberalism is most persuasive but, on the whole, most theories of law or politics do not seriously question a slate of liberal doctrines, most especially the primacy of individual autonomy, the commitment to “negative liberty” and thus the limitation of state coercion by the harm principle.  Perhaps it is an inevitable sign of the dominance of liberalism that a number of scholars have started to more acutely feel its shortcomings more acutely.  Thus liberalism is accused by some of being too thick, requiring commitment to a comprehensive world-view that makes individual liberty primary and excluding those who do not take controversial issues of law and politics to be decided by individual rights.  Gaining more momentum perhaps, are those who find liberalism too thin, arguing that the hegemony of individual rights leads our legal system to pay insufficient attention to the encouragement and enforcement of the duties of citizenship, civic virtue and morally valuable forms of life of both citizens and communities that cannot flourish without collective political support.

In the face of this increasingly strenuous criticism from both sides steps in Fleming and McClain’s Ordered Liberty: Rights, Responsibilities, and Virtues.  Fleming and McClain take up a rather ambitious task.  They seek to reform and/or illustrate, in turns, that liberalism of a certain type, their “Constitutional Liberalism,” can meet the challenges leveled at liberalism.  The text places itself firmly in that intersection of law, feminism, constitutional theory and political theory.  For those interested in purely philosophical discussion of liberalism, the book may seem to only weave in and out of important conversations.  That said, it does engage with important and popular contemporary philosophical and theoretical positions in the liberalism literature on liberalism, from Michael Sandel on one side to Cass Sunstein on another.

Though much is attempted, the authors ultimately have two goals.  The first is a theoretical one.  The authors wish to show that a perfectly plausible form of liberalism can answer its main criticisms.  Thus their liberalism neither requires an imperialist view of individual rights that shuts down political debate by imposing a uni-faceted rights-based comprehensive worldview.  The authors argue that even those who believe in the spirit of Dworkin’s famous phrase, “rights as trumps,” do not take this to mean that rights can be exercised without responsibility.  Indeed, the authors point out that within Dworkin’s conception, the very point of having rights is the role of autonomy in living a life for which one can authentically ascribe (self) responsibility.

Secondly, liberalism need not be in grave tension with other moral goods, eschewing all talk of thoughtful responsibility, civic virtues and ethical development and enshrining personal rights as concerned with the mere legal immunity to engage in any behavior, no matter how ethically poor; that is, liberty as license.  One sees that rights need not insulate one from responsibility but are a precondition to certain types of responsibility.  Secondly, knowing that someone has the legal right to act in a certain way does not insulate others from criticizing, praising, supporting or cajoling one to or against the exercise of that right.  Indeed, as Rawls points out, there are some virtues that the state must necessarily support precisely because they are necessary to the project of functioning citizenship.  The authors also do a service by reminding that what is often romanticized as our august past of shared civic engagement was often bought at the tremendous cost of homogeneity, enforced by sexist and racist conventions.  None should too easily rely upon a time when coherence was subsidized because minorities knew their place and women were trapped in bad marriages.

Having proposed that liberalism can make room for both the responsible use of rights and the promotion of genuine civic virtue, the authors then turn to reveal their second, and perhaps core, ambition.  The authors march through a minefield of controversial legal areas—from delicate areas of family law and the balancing of parental rights against the state’s interest in children and education, to the balancing of rights against discrimination against the “rights of association,” issues of same sex marriage and abortion— applying their model of Constitutional Liberalism.  Their goal is to show both that their moderated form of liberalism, with a mild dash of perfectionism, is not only attractive but best describes the actual legal landscape.  The authors argue that current constitutional law reflects the same features they noticed in the philosophical structure.  Constitutional law, they propose, takes rights seriously without making them absolute.  Further, while the law respects a certain sphere of rights for every individual, it does not insulate one entirely from legal and political pressures that encourage civic virtues, promote valuable ways of living or the responsible use of legal rights.

To that end, the authors carefully excavate a string of important constitutional law decisions to illustrate what some will find rather surprising: the simple tripartite caricature of strict scrutiny, which is accused of allowing individuals carte blanche if acting within protected legal classes, obscures a much more subtle balancing of rights and social interests.  To take one highly visible example, the authors survey the abortion rights cases to reveal how rarely the Supreme Court has actually invoked, either formally or informally, the strict scrutiny, intermediate scrutiny and rational basis test that is the core of first year Constitutional law.  Instead, even in the very cases in which rights absolutism is decried, the court shows sensitivity to both the rights of individuals, the responsible use of those rights and the state’s incentives to protect and cultivate civic responsibilities.

A book with such broad ambitions will inevitability leave some important areas insufficiently addressed.  Because this text is in fact more constitutional theory than pure political philosophy, there is plenty to question.  Most importantly one might hunger for an underlying philosophical coherence to undergird the entire project.  The worry is that while many facets of their constitutional liberalism may be attractive, it is not clear what justifies it as a whole.  Ultimately, one might accuse the authors of simply choosing a pastiche of attractive positions, a little bit of rights talk, a bit of civic virtue and a mild perfectionism to form a theory that gives one everything they want.  This suspicion especially nags because there seems little their theory cannot accomplish.  Nor do the authors ever give us a sense of what drawbacks their theory may entail (an all too familiar absence in academic work).

That said, there is nothing unique in stretching to build a most attractive (even overly attractive) theory and one can always wish authors wrote the book you wanted them to write.  Yet in bringing together many strands critical in the questioning of liberal orthodoxies, engaging in spirit with a broad range of theorists and philosophers and applying their theory in an illuminating way to current constitutional questions, Fleming and McClain introduce the interested reader to an important conversation and jog us out of old, unthinking habits.