Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, May 21, 2014

"The Inevitability of Fundamental Disagreement"

Rebecca Brown's review of Linda McClain's and James Flemings book, Ordered Liberty, is up at SSRN.  Here is the abstract:

This review of Ordered Liberty: Rights, Responsibilities, and Virtues, by James
E. Fleming and Linda C. McClain, considers the possibility of reconciliation
between political liberalism and its critics. The book promises such a
reconciliation with a new version of liberalism they call “constitutional
liberalism.” This review essay considers four different topics on which
constitutional liberalism claims to find compromise and concludes that, in the
end, the compromise is elusive. Ultimately, liberalism must choose because
rights cannot be subject to communitarian or majoritarian approval; equality
cannot yield to intolerance; and political status cannot depend on the tenets of
contested moral belief systems. There is great social value in seeking common
ground in the arenas of public life where overlapping consensus is possible; but
on the deep constitutive principles, we search in vain for common ground.

Reading the review, and recalling the book, I'm reminded of the thought that these conversations about "liberalism" can be frustrating because there does not seem to be "common ground" on what, exactly, we are even talking about.  Brown writes, for example -- when treating McClain and Fleming's discussion of freedom-of-association, the following:  "The book acknowledges the tension between allowing private associations to define and compose themselves as they wish (a republican ideal) and the principle of antidiscrimination (a liberal ideal)."  But . . . those of us who think that "private associations" matter tend to regard this as a "liberal" ideal, and to regard as anti-liberal -- as statist -- the view that the state should be able to impose on non-state associations the antidiscrimination (or other) laws that constrain the government's dealings with citizens.

Brown also writes, in a footnote -- in the context of discussing the "dual authority of parents and schools to educate children" and addressing the familiar "why and to what extent do/should/must we 'tolerate' the 'intolerant'?" question -- this:  "It seems right that tolerance should not and cannot extend to groups that practice inequality, because equality is a principle on which liberalism cannot compromise.  But it does not seem accurate to speak of this as an accommodation to those fundamentalist doctrines for which inequality is a foundational tenet."  It is very difficult, for me, to recognize as "liberal" a "liberalism" that cannot (even) "tolerate" groups that "practice inequality."

Of course, folks like my friend and colleague Patrick Deneen would say that I have simply failed to appreciate what "liberalism" really is, that I missed the totalizing, flattening, homogenizing, anti-pluralism that was always and still is there in "liberalism."  Maybe so.    


Garnett, Rick | Permalink