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Between Neutrality and Perfectionism

Published online by Cambridge University Press:  09 June 2015

Raphael Cohen-Almagor
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It has been argued that the difference between liberal states and theocratic, communist or fascist states is not that the liberal states promote different ideals of the good, but that they promote none. Unlike illiberal states, which regard it as a primary function of the state to prescribe the moral character of society, liberal states shun such attempts and allow freedom to citizens to develop their own conceptions.

The aim of this paper is to analyze the notions of “conception of the good” and “neutrality” and to suggest a perspective which provides a middle ground between strict perfectionism, on the one hand, and complete neutrality, on the other. This perspective would allow plurality and diversity without resorting to absolute neutrality. It would involve some form of perfectionism without resorting to coercion. I will assert that liberal states do resort to some forms of perfectionism in conducting their policies. I will further argue that the policy they should adhere to is one of impartiality rather than one of neutrality.

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 7 , Issue 2 , July 1994 , pp. 217 - 236
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1994

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References

The first drafts of this essay were written in 1990. Recently I read Political Liberalism where Rawls explains many of the issues that troubled him in his essays during the 1980s. The reading of Rawls’s new book enhanced my understanding of his position. Several individuals contributed valuable suggestions and comments. I wish to thank Geoffrey Marshall, Ronald Dworkin, Joseph Raz, David Heyd, and Avner De-Shalit. I am also grateful to an anonymous referee of The Canadian Journal of Law and Jurisprudence for his/her thoughtful suggestions.

1. Raz, J. The Morality of Freedom (Oxford: Clarendon Press, 1986) at 108.Google Scholar

2. Nozick, R. Anarchy, State and Utopia (N.Y.: Basic Books, 1974) at 33,48–51,271–74;Google Scholar Ackerman, B.A. Social Justice in the Liberal State (New Haven & London: Yale University Press, 1980) at 11–12, 347–378;Google Scholar Dworkin, R.M. “Why Liberals Should Believe in Equality?” (1983) 5:1 The N.Y. Review of Books 32 at 32;Google Scholar Dworkin, R.M. A Matter of Principle (Cambridge: Harvard University Press, 1985) at 191–94, 205;Google Scholar Kymlicka, W. Liberalism, Community, and Culture (Oxford: Clarendon Press, 1989) at 76–85,95–96;Google Scholar De Marneffe, P. “Liberalism, Liberty, and Neutrality” (1990) 19:3 Phil. & Publ. Affairs 253 at 253.Google Scholar

3. The assumption is that should governments not be neutral regarding the plurality of convictions that prevail in society, then their bias could generate intolerance.

4. B.A. Ackerman supra note 2 assumes that people pursue forms of social life in accordance with their conceptions of the good. Like him, other liberals use the terms ‘ideals’, ‘ways (or plans or forms) of life’, and ‘conception of the good’ interchangeably. Rawls, J. A Theory of Justice (Cambridge: Harvard University Press, 1971) at 446–52;Google Scholar J. Raz, supra note 1 at 110–33; W. Kymlicka, supra note 2 at 47–73, 74–99.

5. A well-ordered society is a society with just institutions and which accepts Rawls’s two principles of justice; whose basic structure is publicly known to satisfy these principles, and whose citizens have a normally effective sense of justice and so generally comply with society’s basic institutions. Rawls, J. Political Liberalism (N.Y.: Columbia University Press, 1993) at 35.Google Scholar See also Rawls, J. “A Well-Ordered Society”, in Laslett, P. & Fishkin, J. eds, Philosophy, Politics and Society Fifth Series (Oxford: Basil Blackwell, 1979) at 6–20;Google Scholar Rawls, J. “The Idea of an Overlapping Consensus” (1987) 7:1 Oxford J. of Legal Stud. 1 at 10 fn 17.CrossRefGoogle Scholar

6. A Theory of Justice, supranote 4 at 448.

7. Supra note 1 at 134–35.

8. Marxists hold that the liberal conceptions are prejudiced by bourgeois capitalist considerations. Macpherson, C.B. The Real World of Democracy (Oxford: Oxford University Press, 1972);Google Scholar Macpherson, C.B. The Life and Times of Liberal Democracy (Oxford: Oxford University Press, 1977).Google Scholar See also Fisk, M. “History and Reason in Rawls’ Moral Theory” in Daniels, N. ed., Reading Rawls (Oxford: Blackwell, 1975) at 53–80 esp. at 57–67.Google Scholar For a feminist perspective see Jaggar, A. Feminist Politics and Human Nature (Totowa, N.J.: Rowman & Allanheld Harvester Press, 1983);Google Scholar Nye, A. Feminist Theory and the Philosophies of Man (London: Croom Helm, 1988).Google Scholar

9. It should be said that western traditionalism (Yiddish, the life in the ayara, the Jewish small villages and ghettos) was rejected as well for the same reasons.

10. Pinkas’s, David-Zvi speech in Divrei Haknesset (Proceedings of the Knesset), 192 meeting, Vol. 7 (20 November 1950) at 275.Google Scholar In his appearance before Justice Proomkin Commission of Enquiry on Education in Olim (Immigrant) Settlements, 1950, Pinkas MK claimed that the actions taken by the cultural division in the Ministry of Education constituted “cultural and religious murder”. Archive of the State of Israel, G5543/3631, file 607 (IV) at 9.

11. Archives of the State of Israel, G5543/3631, file 607 (I), at 49, 105–106, and depositions of 9 March 1950 at 10–13; 17 May 1950 at 8–10.

12. In 1951 David Ben-Gurion wrote: “The immigration of today is mainly from the east, the countries of Islam in Asia and in Africa, where Jews of late could draw little enlightenment from Jewish or any other culture.” Ben-Gurion, D. Rebirth and Destiny of Israel (London: Thomas Yoseloff, 1959) at 409.Google Scholar

13. Israel regards western tradition and culture as the ‘significant other’, as the frame of reference to which it wants to be associated. Its leaders hold that Israel maintains “a stable democratic regime’, that it guarantees maximum degree of civic freedom, and that its “government holds no sway over that which is in a man’s heart, or over aught concerning science, aesthetics and art”. Ben-Gurion, D. Israel: Years of Challenge (London: Anthony Blond, 1964) at 233;Google Scholar D. Ben-Gurion, supra note 12 at 363–80, 280. In addition, the Education Law (1953) speaks of the strive to establish Israeli society on “liberty, equality, tolerance, mutual assistance and love of mankind”.

14. For further discussion see my paper Cohen-Almagor, R. “Neutrality, Culture, and the Nation—Building Ideology” The Rich seminar, Yarnton, Oxon. 1991.Google Scholar

15. Nozick, R. Philosophical Explanations (Oxford: Clarendon Press, 1984) at 448.Google Scholar I am aware that there are people who would object to this supposition. Raz, for example, notes in his comments on this paper that people he knows would not agree with it.

16. Political Liberalism, supra note 5 at 191. See also P. De Marneffe, supra note 2 at 253.

17. Rawls, J. “The Priority of Right and Ideas of the Good” (1988) 17:4 Phil. & Publ. Affairs 251 at 263.Google Scholar

18. Political Liberalism, supra note 5 at 192. Rawls explains that the principles of justice as fairness are substantive and express far more than procedural values, and so do its political conceptions of society and person, which are represented in the original position.

19. P. De-Marneffe, supra note 2.

20. Supra note 17 at 262–63; Political Liberalism, supra note 5 at 193–94.

21. Supra note 1 at 110.

22. Ibid, at 110–11, 134–36. Raz uses the terms ‘doctrine’ and ‘principle’ interchangeably.

23. Supra note 17 at 263.

24. J. Rawls, supra note 4; Rawls, J. “Justice as Fairness: Political Not Metaphysical” (1985) 14:3 Phil. & Publ. Affairs 223;Google Scholar A Matter of Principle, supra note 2; B.A. Ackerman, supra note 2; Lamiore, C.E. Patterns of Moral Complexity (Cambridge: Cambridge University Press, 1987).Google Scholar

25. Political Liberalism, supra note 5 at 337.

26. 26.1 think the same motivation guided Rawls when he spoke of procedural neutrality in “The Priority of Right”. But then he realized that his principles of justice as fairness are substantive and express far more than procedural values and thus shifted emphasis to qualified neutrality of aim.

27. The Respect for Others Argument urges us to give equal consideration to the interests of others, and to grant equal respect (within limits) to the way of life of others. Dworkin, R.M. Taking Rights Seriously (Cambridge: Harvard University Press, 1978) at 272–73;Google Scholar A Matter of Principle, supra note 2 at 181–204; Dworkin, R.M. “What Is Equality? Part 2: Equality of Resources” (1981) 10:4 Phil. & Publ. Affairs 283.Google Scholar

28. A Matter of Principle, supra note 2 at 229, 233.

29. This view is implied by the Kantian approach. Haksar, Vinit Equality, Liberty, and Perfectionism (Oxford: Oxford University Press, 1979) at 179 Google Scholar postulates that there is a second version which does not carry this implication. According to this second version, we can respect others by respecting their way of life and conception of the good, without necessarily respecting their autonomy.

30. Dworkin, R.M. “In Defense of Equality” (1983) 1 Soc. Phil. & Policy 24 at 26.CrossRefGoogle Scholar This statement, among others, proves Raz wrong in saying that “anti-perfectionism is based on restraint, on not doing as much good as one can”. The Morality of Freedom, supra note 2 at 111.

31. Ibid. R.M. Dworkin at 27 (Dworkin’s emphasis).

32. In Dworkin, R.M. “What Liberalism Isn’t” (1983) 29: 21 & 22 N. Y. Review of Books 47 at 47 Google Scholar Dworkin writes: “Whatever we may think privately, it cannot count, as a justification for some rule of law or some political institution, that a life that includes reading pornography or homosexual relationships is either better or worse than the life of someone with more orthodox tastes in reading or sex. Or that a life suffused with religion is better or worse than a wholly secular life”. See also A Matter of Principle, supra note 2 at 181–204,221–33; Rawls A Theory of Justice, supra note 4 at 325–32 argues that from the point of view of the parties in the original position, no form of life is intrinsically better or worse than another form of life. B.A. Ackerman, supra note 2 at 6; W. Kymlicka, supra note 2 at 33–36.

33. R.M. Dworkin, “What Liberalism Isn’t”, ibid, at 47. We may respect our fellow man A, respect A’s decision to steal from B, think that it is wrong, and with all due respect punish A. This is perfectly consistent with the Respect for Others Argument.

34. In comments made on a draft of this essay.

35. Rawls acknowledges that it is a disputed question whether and in what sense conceptions of the good are incommensurable. He states that incommensurability is to be understood as a political fact, an aspect of pluralism: namely, the fact that there is no available political understanding as to how to commensurate these conceptions for settling questions of political justice. “The Idea of an Overlapping Consensus”, supra note 5 at 4.

36. J. Rawls, supra note 24 at 225–30.

37. Rawls further asserts that if a conception of the good is unable to endure and gain adherents under institutions of equal freedom and mutual toleration, one must question whether it is a viable conception of the good, and whether its passing is to be regretted. It should be noted that Rawls speaks only of “just constitutional regimes”. He admits that the questions of whether the corresponding form of life would be viable under other historic conditions, and whether its passing is to be regretted, are still left open. Rawls, supra note 17 at 266.

38. Rawls, supra note 17 at 265–66. See also Rawls, J. “Fairness to Goodness” (1975) 84 Phil. Rev. 536 at sect. VI;CrossRefGoogle Scholar Rawls, J. “Representation of Freedom and Equality” (1980) 77:1 J. of Phil. 535 at sect. II;CrossRefGoogle Scholar Political Liberalism, supra note 5 at 196–97. A similar view is enunciated by Isaiah Berlin who holds that we cannot conceive a situation which would enable a joint realization of all values in one society. It is impossible to suppose that all goods and ideals can be united into a harmonious whole without loss: there are logical, psychological and sociological limits on what range of values one society can respect in the lives of some of its citizens. Williams, B. “Introduction” in Hardy, H. ed., Concepts and Categories, Isaiah Berlin’s Selected Writings (Oxford: Oxford University Press, 1980) at 11–18.Google Scholar

39. Political Liberalism, supra note 5 at 13, 175.

40. Ibid, at 59.

41. Ibid, at xvi.

42. In this connection see Michael Sandel’s distinction between the minimalist or pragmatic view and the voluntatis/ view in Sandel, M. “Moral Argument and Liberal Toleration: Abortion and Homosexuality” (1989) 77 Calif. L. Rev. 521.CrossRefGoogle Scholar

43. A Matter of Principle, supra note 2 at 352.

44. Supra note 1 at 401.

45. Ibid. at 417.

46. Rawls resorts to a different terminology, describing the same notions. Rawls speaks of “comprehensive” doctrines as opposed to “political” theories, supra note 17 at 264; Political Liberalism, supra note 5 at 155, 175.

47. C.E. Larmore, supra note 24 at 76, 91.

48. In this context one should note that in A Theory of Justice, supra note 4 Rawls views the parties in the original position as people who are concerned with protecting their autonomy. However, it is plausible to suggest that people in the original position can prefer to choose non-autonomous lives. But Rawls thinks of the normative ideal of personhood as one which is “implicitly affirmed” by our living tradition of modern liberal-democratic judgments and practices. In adding autonomy to the original position it is implied that a government can use certain reasons to vindicate political endeavours. It may advance certain conceptions of the good at the expense of others.

49. Supra note 17 at 268.

50. Political Liberalism, supra note 5 at 175, 78. Rawls further explains, at 199, that the liberalisms of Kant and Mill may lead to requirements designed to foster the values of autonomy and individuality as ideals to govern much if not all of life. But political liberalism has a different aim and requires far less.

51. Supra note 17 at 269.

52. I should note that Dworkin’s version of autonomy is a very specific one, and that it is very similar to Rawls’s view of political autonomy. In comments made on this paper, Dworkin distinguishes between abstract autonomy as a general condition, within which a conformist life can be chosen and led, and autonomy as a substantive kind of life to lead, which emphasizes self-creation and the other virtues of originality. Dworkin argues that a liberal state is committed to the former.

53. Supra note 1 at 417. See also Haksar, V. “Autonomy, Justice and Contractarianism” (1973) 3:Part 4 British J. of Pol. Sci. 487;Google Scholar and idem, Liberty, Equality and Perfectionism, 1979, passim.

54. Schauer, F. Free Speech: A Philosophical Enquiry (New York: Cambridge University Press, 1982) at 48;Google Scholar C.E. Larmore, supra note 24 at 74. Larmore emphasizes the notion of critical evaluation, seeing it an enterprise that agents should take upon themselves, reaching conclusions by exercising their own faculties. For further discussion see Scanlon, T.M. “A Theory of Freedom of Expression” in Dworkin, R.M. ed., The Philosophy of Law (Oxford: Oxford University Press, 1977) at 153–71.Google Scholar

55. Rawls further argues that educational systems should also prepare children to be fully cooperating members of society and enable them to be self-supporting; it should also encourage the political virtues so that they honour the fair terms of social cooperation in their relations with the rest of society. Political Liberalism, supra note 5 at 199. But these contentions beg the question as to where Rawls draws the line between full and ethical autonomy. It is not clear what makes Rawls conclude at 77–78, for example, that self-supporting is affirmed by the principles of justice and not by the ethical character of autonomy.

56. For Ackerman’s unqualified advocacy of neutrality see B.A. Ackerman, supra note 2 at 11,43, 346–48.

57. In comments on an earlier draft of this essay.

58. A Theory of Justice, supra note 4 at 331. Larmore would probably call this statement “expressivist”.

59. The Respect for Others Argument is based on the Kantian, deontological arguments. It holds that we ought to respect others as autonomous human beings, who exercise self-determination to live according to their own life plans. We respect people as self-developing beings, who are able to develop their inherent faculties as they choose as long as they do not harm others. In turn we respect them so as to enable them to realize what they want to be. Each individual is conceived as a source of claims against another person, just because the latter’s resolution is her own, made by her as a free agent.

60. Cohen-Almagor, R. “Harm Principle, Offence Principle, and the Skokie Affair” (1993) 41:3 Pol. Stud. 453.CrossRefGoogle Scholar

61. In “The Priority of Right”, supra note 17 at 260 and Political Liberalism, supra note 5 at 191 Rawls contends he believes that the term “neutrality” is unfortunate. I concur and thinks it should be replaced by impartiality.

62. By ‘disrespecting’ others it is meant denying a person the right to live as a free, autonomous human being.

63. The saying “everyone is supposed to respect” relates only to liberal societies, not necessarily to all societies. We, of course, may urge all societies to accept the Harm Principle and the Respect for Others Argument; but these principles are not necessarily derived from their moral outlook. On the other hand, these principles are derivative from the liberal outlook. For further discussion see Cohen-Almagor, R. The Boundaries of Liberty and Tolerance: The Struggle Against Kahanism in Israel (Gainesville, FL.: University Press of Florida, 1994).Google Scholar

64. Montefiore, A. ed., Neutrality and Impartiality (Cambridge: Cambridge University Press. 1975) at 224–25.Google Scholar See also Mill, J.S. Utilitarianism, Liberty and Representative Government (London: J.M. Dent, Everyman’s Edition, 1948) at 42,Google Scholar where Mill explains that it is inconsistent with justice to be partial, while impartiality does not seem to be a duty in itself, but rather instrumental to some other duty.

65. If we take a Rawlsian position we may say that an impartial judgment is one rendered in accordance with the principles chosen in the original position. An impartial agent is one who forms judgments according to these principles without bias or prejudice.

66. It has to be emphasized that I am not speaking of all groups within society, but only of those who accept the Respect for Others Argument. Groups of terrorists, murderers, rapists, etc. are subjected to partial treatment by government.

67. Supra section 11 of this paper.

68. By “extremely adverse conditions” decision makers and many scholars researching the 1950s refer to the massive immigration, where many of the olim had little or no experience with democratic order; the presence of ethnic, cultural, linguistic, religious and national differences; severe economic difficulties, and the grave security threat.

69. Political Supplement Yedioth Ahronoth (Israeli daily newspaper 12 February 1988) at 6.

70. For an elaborated explanation of these two principles see my The Boundaries of Liberty and Tolerance: The Struggle Against Kahanism in Israel, supra note 63.