Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, April 15, 2013

Horwitz on "When the State Speaks," by Brettschneider

Corey Brettschneider has an interesting book out, called When the State Speaks, What Should it Say?  How Democracies Can Protect Expression and Promote Equality.  As I hinted at in this paper, there is a lot to welcome and embrace in Brettschneider's book, but there are also a lot of places where I'd have to disagree.  In any event, Paul Horwitz has a characteristically thoughtful and charitable post up, at Concurring Opinions, in which he poses a laundry list of questions about the book.  Definitely check out his post, which gives voice to (and better expresses than I would have) many of my own reservations.

Here is just one (of 13!) of Paul's detailed questions:

 1) Much of Brettschneider’s book argues that the state has an obligation to publicize “the justification for those rights protected by law–namely, their basis in the values of free and equal citizenship.” Elsewhere, he refers to “reasons” for rights, which seems to indicate there might be several, but the overall emphasis seems to be on the idea that there is a particular correct view of the justifications underlying rights. Is it sensible or advisable to argue on the basis that there is a single best justification for rights, and that promoting that particular justification–and arguing against viewpoints that contradict that single justification–is an obligation of the state and of individual citizens and state officials? Most people, I should think, believe (correctly) that rights are subject to a variety of overlapping justifications, including religious ones. Why are we better off starting with a monist approach to rights justifications rather than with a pluralist view that rights are subject to a variety of potential justifications, and that much of the consensus around the importance of rights stems precisely from incompletely theorized agreements about rights from a variety of perspectives? If the justifications for rights are importantly plural, would that not affect the kinds of policy recommendations Brettschneider makes, and perhaps chasten the nuanced but strong recommendations that he offers for a more active, non-viewpoint-neutral state? In particular, why should citizens who, in Brettschneider’s view, have an obligation to engage in a “persuasive response” to speech that undermines free and equal citizenship be obliged to offer what he thinks is the “correct” view of free and equal citizenship and the way in which it supports rights? Wouldn’t it be better if they advanced a variety of views about why rights are right, so to speak, and why hateful and discriminatory views are wrong?

Here is an additional wrinkle:  If Michael Perry and others are right (and I think they are, about this) then the best (and maybe the only) "reason for rights" -- that is, the only reason why it is true that the claims rights-talk makes about persons are plausible -- are "religious" . . . then the modern liberal state -- if it is supposed to publicize the "reasons for rights" -- is kind of in a bind.

Paul's follow-up post -- which focuses on the implications of Brettschneider's arguments for religion and religious liberty, is also a must-read, and is available here.


Garnett, Rick | Permalink


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I think Michael is mistaken, he asks: "Can any non-religious ground bear the weight of the twofold claim...that every human being has inherent dignity and is inviolable?" And the answer is, yes, provided we come up with a secular metaphysical formulation or even a non-reductionist (non-scientistic) naturalistic conception of personhood that articulates the manner in which human beings transcend the "natural" world of causality. Kant certainly provided such a (metaphysical) conception (of the person), and that is hardly surprising given that it is his conception of dignity that first made this two-fold formulation in a manner that proved conducive to the way it has in fact been used to ground human rights. Grant Gillett provides us with an argument for a neo-Aristotelian and Kantian conception of the human being that he describes as a "transcendental naturalism" which views the human being as an embodied subject inhabiting the domain of reason (Kant, Sellars, Husserl) and will (Wittgenstein, Nietzsche, Sartre), invoking a "narrative metaphysics" from which one could provide the non-religious ground Perry believes unlikely (or impossible?). And, provided we believe, as I do, that there exists a secular natural law tradition (cf. Larry May's minimalist conception of this tradition or, most recently, reflections by Robin West in her book on normative jurisprudence) with roots in Grotius and Pufendorf, we have yet another possible source for a more-than-plausible non-religious ground of the Kantian formulation or the two-fold claim that grounds the moral conception of human rights. I could be wrong, but I think Michael seems to assume that lack of belief in God implies the absence of belief in a metaphysical order or that theology somehow has a monopoly on (at least a non-naturalist or non-materialist) metaphysics, and that is not in fact the case, either historically or logically in the case of worldviews, East and West. I hope to discuss these possibilities a bit more in a response to Michael's important question at Ratio Juris and Religious Left Law in the near future. In short, a secular metaphysics is perfectly capable of providing the sort of ground Michael believes necessary (and I'm at least in agreement with him on the need for such a ground, unlike quite a few others who, with Charles Beitz, believe no such ground is necessary).

Posted by: Patrick S. O'Donnell | Apr 15, 2013 5:04:38 PM

Thanks, Patrick. Certainly, you are right -- as a descriptive matter, anyway -- that "belief" in a metaphysical order is compatible with a lack of "belief" in God or gods. (And, obviously, we know that belief in God or gods is neither sufficient nor necessary for living and acting in ways that respect the dignity of human persons.) While I know that, as you say, a number of way-more-prominent-than-I-am people propose non-theistic accounts of the world in which rights and rights-talk are meaningful, I am unconvinced. It (still) seems to me that, in order for the world to be and for persons to be -- to *in fact* be -- as human-rights-talk presumes and claims, more than "transcendental naturalism" is required.

Posted by: Rick Garnett | Apr 16, 2013 2:19:15 PM

As to what "more is required," I think James Griffin is more or less on track in his book, On Human Rights (Oxford University Press, 2008), although I will not presume he is capable of convincing you as well.

Posted by: Patrick S. O'Donnell | Apr 16, 2013 4:23:30 PM