By Mike Dorf
Today I am scheduled to be on a panel at Boston University Law School discussing the excellent new book by BU LS Professors Jim Fleming and Linda McClain, Ordered Liberty. The book defends liberalism against communitarian, civic republican and related criticisms. In this post, I'll discuss what I plan to say in my remarks, which focus on the first three chapters of the book. There (and in various places throughout the book), the authors address the following charge: Liberalism improperly elevates rights above responsibilities, and thus improperly elevates the individual above the group.
Fleming and McClain have each addressed such charges in their solo writings--especially in their respective books, Securing Constitutional Democracy (Fleming), and The Place of Families (McClain)--but teamed up they make a powerful combination.
The core of their response relies on a kind of intellectual jujitsu. Communitarians often complain that liberalism relies on an unrealistic picture of the person as an "unencumbered self" who is isolated from others. Not so, Fleming and McClain say. In fact, quite to the contrary, liberals have much greater faith in people's ability to choose to act responsibly towards the community than do communitarians. That's why liberals trust individuals with substantially more autonomy to make responsible choices than communitarians do.
I should say that I am overall very sympathetic to liberalism as espoused by Fleming and McClain, although--to foreshadow my post for tomorrow--it's not clear to me how much of that sympathy stems from the fact that we share common values and thus would resolve concrete disputes similarly.
But that is not the point I intend to make during the panel--and which I make in a review essay that will later appear in the B.U. Law Review as part of the festivities. During the panel and in the review essay, I will take issue with a claim made by Fleming and McClain, as well as by some other liberal thinkers. The claim is that one important reason why persons should have the rights they have is so that they may exercise their moral capacity to choose responsibly. I argue in the paper that this claim parallels a claim made by religious thinkers who say that persons have free will in order to be able to choose to act morally. In religion, this claim frequently appears as part of a theodicy--that is, an argument designed to respond to the problem of evil. Evil exists, the argument goes, as a product of choices by human beings to do evil, and human beings must have that choice in order that they may be able to choose to do good. Thus, God is not responsible for the bad things that happen in the world.
The argument is obviously fallacious in its original habitat because much of the problem of evil arises out of natural phenomena: disease, natural disasters, etc. These evils are not the work of human beings exercising free will, and so the argument from free will does not get God off the hook for them. There may be other, more persuasive, responses that religious persons can give to the problem of non-man-made evil, but I won't pursue them here because my main concern is with the "theodicean" claim when offered as a justification for political liberty, not when offered as a defense of God against the problem of evil.
Anyway, my core claim--which I develop at greater length in the full paper--is that the theodicean argument offers no reason, or at most a very slight reason, to affirm liberty in any given conflict between individual liberty and some collective goal offered as a justification to infringe liberty. In a nutshell, Fleming and McClain are right that liberalism presupposes the capacity of persons to make responsible choices, but that capacity does not count as a justification for treating any putative liberty as shielded against being overridden if, on balance, the reasons for overriding the asserted right are strong enough to warrant overriding the right.
Finally, I should note that Fleming and McClain's book covers a lot of ground. I have focused on one important theme here and in my review essay, but there are many others. Tomorrow I'll have a few thoughts on how they address conflicts between liberty and equality.