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Published online by Cambridge University Press: 20 July 2015
In this article, the author replies to critiques of his book, Constitutional Goods(Oxford, 2004) by Professors Trevor Allan, Clare Chambers, John Charvet, Philip Cook, Thomas Poole, and Lorenzo Zucca. These critiques were originally presented at a symposium held in May, 2008 at the London School of Economics and Political Science and were later published together in Vol. XXII (January, 2009) Canadian Journal of Law and Jurisprudence.
1. (Oxford: Oxford University Press, 2004) [CG].
2. January (2009) 22 (1). Henceforth page references to this issue are internal to the text.
3. (Oxford: Oxford University Press, 2001).
4. Allan sometimes makes the broad claim that liberal justice is enforceable by the common-law constitution, but at other times makes the narrow claim that only the “essential core of legality” is enforceable through the common-law constitution. If Allan wishes to make only the narrow claim, there is no disagreement between us.
5. R. v. Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115, at 131 Google Scholar. The U.K. Human Rights Act can be interpreted as signifying Britain’s refusal to make the shift, for it envisages courts declaring a statute to be incompatible with the European Convention on Human Rights and yet applying the statute.
6. If Chambers means that I provide no reason for thinking that reconciling the liberal sects might be possible apart from the argument for actuality, she is mistaken. In the Introduction (CG, 15-18) I argue that the liberal confidence in the individual’s final worth affords the possibility of reconciling the various liberalisms because they should in principle all be willing to embrace the conception of public reason that satisfactorily grounds and theoretically confirms that confidence.
7. Chambers treats as “another unexplained claim” the claim that sexual unions abstracted from loving relations are insufficient for worth. Why, she asks, must an activity be human to have worth? (145) But the claim is not unexplained; it is just that the explanation is lost on Chambers. The worth referred to is the worth-claim of the self. As far as I know, animals do not make claims of final worth. Worth-claims are not validated in abstract sexual unions because both parties use the other as a means.
8. Chambers also continues to misrepresent my argument for a legal prohibition on incest between consenting adults. As I pointed out at the symposium, it has nothing to do with unhealthy children (we do not prohibit sex between individuals with genetic abnormalities) nor is the argument that incest is necessarily inconsistent with self-authorship. The argument is that incestuous relations are not ones in which claims of individual worth are objectively validated. Validation can come only from someone who begins as a stranger, who is not predisposed to favouring the other by feelings of kinship, whose validation thus comes from an unbiased choice. What about siblings raised separately from birth? That would depend on what psychological studies can tell us about the natural, unconscious affinities between such people. If there were none that distinguished siblings from non-siblings, the prohibition would not apply.
There are other misrepresentations. For example, I don’t say that love and marriage are goods with “priority over self-authorship” or that they “override” self-authorship rights. I say that rights of self-authorship are fully rights only within the self-sufficient life, not outside it, and so they must be adjusted to common goods, as goods must be adjusted to them (CG, 351-52). Also, Chambers has me saying that “relationships can be regulated according to the extent to which they express love” (145-46). This is a careless paraphrase of what I actually say: that laws regulating pornography and prostitution can be justified to liberals as encouraging sexual desire to flow from abstract (loveless) sexual unions to marriages based on mutual recognition of worth.
9. Chambers weakens my argument when she reinterprets it as saying that the foetus’s value consists in its being empirically valued by the spouses as a symbol of the value of the marriage to them. For then she can wonder why a symbol should limit the self-authorship rights of a woman who does not attach much importance to the symbol (150). My argument is that the union of the couple is outwardly embodied in the child and that without the embodiment, the union is incomplete as an objective validation of their worth because it then remains inward and subjective. So the symbol has point independently of the empirical interest of the parents in the symbol. To say that the value of the symbol is identical to the value the parents place on it is just to absolutize the egalitarian right of self-authorship, which, on the theory of CG, is only part of a constitutional whole.
Chambers asks: does an item of matrimonial property have the same good status as the child preventing its legitimate destruction? (151) Here she ignores my argument for the child’s being a uniquely adequate embodiment of the marriage. The child is a spiritual being destined for freedom and self-worth, just as the marriage is a spiritual embodiment of the self-worth of the spouses (CG, 351). Does not the value of the symbol decrease the more symbols one has, Chambers asks? But if the good embodied in the child is not reducible to the empirical interest the parents have in the child then there is no reason why the value of the child should be subject to the law of diminishing marginal utility. But Chambers cannot (apparently) conceive of a value that is independent of our empirically valuing it. Her critique of my abortion argument presupposes a fundamentalist egalitarian framework that CG precisely challenges as being insufficient to realize the liberal confidence. In chapter nine, I tried to integrate the egalitarian right of self-authorship with an objective morality that is no longer grounded in revelation. Ultimately, it is this objective morality that Chambers is rejecting, but without giving it serious consideration as a challenge to her views. This is why her vote against my conclusions on sexual morality cannot count as a veto of the inclusive conception.
10. I should also say that the alternative formulation of the liberal belief that Charvet proposes—that each person’s freedom has worth to himself alone and makes no claim to restrict the freedom of others (156)—is, in my view, not liberal at all, for it affirms a belief that no individual is of final worth. Moreover, it is too partisan a conception of the liberal idea. For example, I doubt whether someone who holds a communitarian conception of individual worth could accept a formula according to which social outcomes ought to be based on the choices of individuals who conceive themselves as initially dissociated and who make no claims to the respect of others.
11. Cook also claims that I mischaracterize the burdens of judgment as a problem of indeterminacy rather than as a problem of inconclusiveness (180). However, even if he is right, nothing changes, for dialectical reasoning is also immune from the problem of inconclusiveness. It cannot reasonably be argued that parliamentary absolutism, or the absolutism of the egalitarian principle, or the absolutism of ethos is an adequate realization of government limited by respect for individual worth.
12. Cook thinks that strict rather than luck egalitarianism is the most self-consistent egalitarianism (174). Perhaps so, but it is not the most self-consistent elaboration of the conception of freedom as self-determination, because it views equality as a freestanding value apart from the end of self-determination. The egalitarian paradigm I describe is the realization of a particular conception of freedom; that is what makes it a paradigm of liberalism. Within this paradigm, egalitarianism is a by-product of realizing human self-determination against the causality of blind luck.
13. Rawls, John, “The Idea of Public Reason Revisited” in John Rawls: Collected Papers ed. by Freeman, Samuel (Cambridge, MA: Harvard University Press, 1999) 590.Google Scholar
14. Cook misdescribes the liberal confidence when he says that it involves a commitment to the proposition that the human agent’s value is “not derived from membership of a group or participation in a culture” (166). That description ostracizes the communitarian from the liberal family. I say that the liberal confidence involves a belief that the individual agent’s worth is not inferior to that of the group, culture, society, or state.
15. The qualification, “in a sense,” is curious because Poole never tells us in what sense CG’s state is superior to all other ends and in what sense it is not. It is thus not a qualification reflecting subtlety of thought but rather the devilish reservation of someone who is not sure about the truth of what he is saying but who wishes to say it anyway.
16. It is this whole which Hegel praises as “an absolute unmoved end-in-itself,” not the state as opposed to the individual, as Poole thinks. Hegel distinguishes between the state “as a political entity” and the state simply, which includes an independent private sector; Philosophy of Right, trans. by Knox, T.M. (Oxford: Oxford University Press, 1967) para. 273 Google Scholar.
17. Here, perhaps, we see an expression in action of Poole’s philosophic commitment to a “ ‘reduction in the role assigned to reason in the formation of judgement, and a corresponding increase in the role assigned to the imagination’” (Miller quoted at 131).
18. Poole claims that the closest analogy to corporate democracy is shareholder democracy, whose well-known limitations he enumerates (128). But that is the wrong analogy, for shareholders are absentee owners, not members with a life-pervasive commitment to the corporation. A better example is industrial democracy as evinced in German and Swedish “co-determination” systems. Poole also says that “[t]here seems to be nothing in the inclusive principle that would prevent” barriers to employment such as the closed shop or bloodline rules of membership (129). But the inclusive conception includes the principle of careers open to talents, which precludes discrimination based on factors irrelevant to the job. Finally, he argues that tying voting to corporate membership reduces “voice” because corporation members rather than monadic individuals are represented, and it reduces “exit” because individuals who drop out would be disenfranchised. But I argue that corporation membership enhances voice because it gives the individual an ongoing voice for his ethicized particular interests rather than a sporadic voice for his generic will. As for the disenfranchisement of the unemployed, here Poole is in the details. I did not write an entire electoral law. Of course, provision would have to be made for the unemployed and the retired perhaps by treating them as members emeritus of their last corporation. Being unemployed does not mean being without a profession.