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Inclusivity and the Constitution of the Family
Published online by Cambridge University Press: 20 July 2015
Extract
In this paper I focus on chapter 9 of Constitutional Goods, with its analysis of sex and family. In that chapter Alan Brudner uses the constitutional theory that he has developed throughout the book and applies it to two key issues of state regulation: sexual relationships and abortion. The arguments he uses with respect to both issues are novel, and the conclusion concerning abortion is particularly controversial. So there is much to say about those arguments, and discussion of them is the focus of the second half of the paper. But I start with some general remarks on Brudner’s project as a whole: the project of inclusivity. It is necessary to discuss the concept of inclusivity not only because it underpins the arguments of chapter 9. The idea of inclusivity is fundamental to Constitutional Goods as a whole, and in the first part of the paper I argue that this idea is problematic both conceptually and normatively.
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- Copyright © Canadian Journal of Law and Jurisprudence 2009
References
I am very grateful to all the participants in the LSE conference for comments, particularly the organisers, Philip Cook and Thomas Poole, and Alan Brudner.
1. According to Brudner, the development of an objectively true theory was the aim of political philosophy before, thanks to Rawls’ political liberalism, it trampled on the turf of constitutional theory. Brudner, Alan, Constitutional Goods (Oxford: Oxford University Press, 2004) at 2–3.Google Scholar
2. Ibid. at 15-16.
3. Ibid. at 16.
4. Ibid.
5. Ibid.
6. Ibid. [emphasis in original],
7. Ibid. at 21.
8. Ibid. at 8-9.
9. Ibid. at 11.
10. For a more detailed argument that liberalism does not require public agreement see Clare Chambers & Parvin, Phil, “What kind of dialogue do we need? Gender, deliberative democracy and comprehensive values” in Browne, Jude, ed., Dialogue, Ethics and Gender Identity [forthcoming]Google Scholar; and Chambers, Clare & Parvin, Phil, “Coercive redistribution and public agreement: re-evaluating the libertarian challenge of charity” in Matravers, Matt & Meyer, Lucas, eds., Democracy, Equality, and Justice [Routledge, forthcoming].Google Scholar
11. I take it as read that Brudner only intends his theory to be acceptable to all those who do have a reasonable principled disagreement with it; that it is not, in other words, problematic for him if someone refuses to accept it for capricious, insincere or unprincipled reasons.
12. Brudner, Alan, Constitutional Goods (Oxford: Oxford University Press, 2004) at 15.Google Scholar
13. Ibid.
14. Ibid. at 13, n. 24.
15. Ibid. at 386.
16. Ibid. at 11.
17. For example, Brudner writes: “Once [my account of abortion] is explained, the contrasting positions taken by the American and German courts will become explicable.” Ibid. at 348-49.
18. Ibid. at 29.
19. See, for example, Coole, Diana, “Constructing and De-constructing Liberty: A Feminist and Poststructuralist Analysis” (1993) 41 Pol. Stud. 83 CrossRefGoogle Scholar and Hirschmann, Nancy, The Subject of Liberty: Toward a Feminist Theory of Freedom (Princeton, NJ: Princeton University Press, 2003).Google Scholar
20. Brudner, supra note 12 at 332.
21. There are various caveats to Brudner’s position, particularly that the state must have ensured that the mother has the equal opportunity for self-authorship that is due to her under the liberal constitution. Once these requirements are in place, though, Brudner argues that abortion should be constrained for women in committed relationships: “if there is (under ideal circumstances) no parental interest short of life and health that could override the good represented by a healthy fetus voluntarily conceived within a committed relationship, then there is nothing upon which a third party could rely to justify his killing it.” Ibid. at 352. Brudner does not explain what he means by a “voluntary” conception, but the context suggests that a conception is rendered nonvoluntary only if the act of intercourse that caused it was non-voluntary since he earlier attributes overriding worth to the foetus of a committed relationship “[e]ven if unwanted.” Ibid. at 351.
22. The phrase “even when both deviate from the ‘norm’ of heterosexual monogamy” is implied but not stated in Brudner’s account: it is notable that Brudner draws the contrast between polygamy and incest on the one hand and homosexuality on the other. Of course, the extent to which this position looks puzzling depends completely on what one takes to be the ‘norm’: why should permitted consensual heterosexuality not be equally puzzling? Brudner does argue (as discussed in this section of the paper) that there are good reasons for taking heterosexual monogamy as the paradigm of ethical life, but this position is the conclusion of his argument. He gives no reason why we should accept it as a premise of the sort that would give rise to an apparent contradiction. If we did not assume such a norm we might be puzzled about why all sexual relationships aren’t forbidden, given that incestuous, polygamous, underage and coerced ones are; or we might draw the line somewhere else, for example between monogamous and non-monogamous sexual rela-tionships, regardless of whether they are heterosexual, homosexual, incestuous or underage.
23. Supra note 12 at 326.
24. Ibid.
25. Ibid.
26. It is a different question whether the liberal state should offer state recognition to such relationships in the form of marriage but I argue that state recognition of marriage is problematic for political liberals. See Clare Chambers, “Feminism, Liberalism and Marriage” [mss. with author].
27. Supra note 12 at 332.
28. See, for example, Barry, Brian, “Statism and Nationalism: A Cosmopolitan Critique” in Shapiro, Ian & Brilmayer, Lea, eds., Global Justice: NOMOSXLI (New York: New York University Press, 1999 Google Scholar; Beitz, Charles, Political Theory and International Relations (Princeton, NJ: Princeton University Press, 1999)Google Scholar; Jones, Charles, Global Justice: Defending Cosmopolitanism (Oxford: Oxford University Press, 1999)Google Scholar; and Waldron, Jeremy, “What is Cosmopolitan?” (2000) 8 J. Pol. Phil. 227.CrossRefGoogle Scholar
29. For such an argument, see Miller, David, On Nationality (Oxford: Oxford University Press, 1995).Google Scholar
30. Brudner, supra note 12 at 332.
31. Ibid. at 334.
32. For the argument that state-recognised marriage is incompatible with certain forms of liberalism, particularly political liberalism, and with feminism, see Chambers, supra note 26.
33. Brudner, supra note 12 at 335.
34. Ibid. at 335.
35. Ibid.
36. Ibid. at 336.
37. Ibid.
38. Ibid.
39. Of course such arguments, whether put forward by Brudner or by liberals, do face the complexities of the non-identity problem. See Parfit, Derek, Reasons and Persons (Oxford: Clarendon Press, 1984).Google Scholar
40. Brudner, supra note 12 at 336.
41. Ibid. at 337. (and 336).
42. Ibid. at 338.
43. Ibid. at 343.
44. Ibid.
45. I am grateful to Alan Brudner for clarifying this aspect of his position at the LSE conference.
46. Supra at 351.
47. Ibid.
48. It is unclear whether, on Brudner’s account, a person conceived in marriage loses status as a good if the marriage ends.
49. I am grateful particularly to John Charvet and David Lloyd Thomas for highlighting these issues.