Getting on with each other
- Ethics in the Public Domain: Essays in the Morality of Law and Politics by Joseph Raz
Oxford, 374 pp, £40.00, June 1994, ISBN 0 19 825837 2
Liberalism of one kind or another is the dominant political tradition of Western culture; that is why it is under such constant attack. But while the conflicts between liberalism and various authoritarian, repressive, radical, romantic or theocratic alternatives produce a good deal of excitement on a world scale, a quieter and intellectually more demanding argument has gone on within the tradition concerning the best way to interpret liberalism, both theoretically and in application to concrete social and political problems. One of the most important issues in this debate is how liberalism justifies its distinctive toleration for multiple different and inconsistent forms of life and systems of value – its remarkable impartiality, in political terms, among diverse conceptions of the human good, and its commitment to allow individuals to seek their own salvation or self-realisation provided they do not interfere with the same freedom of others. Unlike those French secularists who forbid Muslim girls to wear head-scarves to school, true liberals are reluctant to interfere even with anti-liberal cultures in their midst. This is sometimes foolishly thought to depend on moral scepticism, but it doesn’t: the commitment to toleration, if it is not a mere compromise imposed by the balance of power, can be justified only by a strong moral conviction that it is right – otherwise why not suppress what we don’t like?
On this question the Oxford moral and legal philosopher Joseph Raz is a distinguished defender of a view that, in its logical structure and basic values, adheres to the tradition of John Stuart Mill. Raz believes that liberal institutions are justified because, for those civilisations capable of sustaining them, they provide the best way of promoting human well-being: their value, in other words, is instrumental. The argument depends both on a definite view of the nature of human well-being, human good or human happiness – in which autonomy has a central place – and on a belief that liberal toleration increases the likelihood that people will attain that good. This was precisely the structure of justification, in its original utilitarian version, that John Rawls set out to oppose with his contractarian alternative and his motto that ‘the right is prior to the good.’ Raz believes, on the contrary, that the system of individual rights is a means of achieving the good, and cannot be explained as an independent part of ethics or political theory. The issue between them is whether recognition of liberal rights is in itself a way of treating people as equals – an end in itself –or a consequence of equal concern for their welfare: a mere means.
This collection of 16 essays from the past decade, most of them previously published, offers an excellent exposure to Raz’s recent thoughts not only on such general questions of moral and political philosophy, but also on concrete issues such as multiculturalism, free speech, national self-determination (in an essay jointly written with Avishai Margalit), and on the nature of law and its relation to morality (a subject on which he is in the positivist tradition of H.L.A. Hart). The essays use and develop ideas set out in his earlier books, particularly The Authority of Law (1979) and The Morality of Freedom (1986).
Though Raz believes that rights are valuable because they promote the good, he is not a utilitarian, because he does not believe that all human good can be reduced to a single, experiential common denominator, such as pleasure or happiness or desire-satisfaction. Nor does he think that the good life requires the kind of individualistic freedom of choice in professional, personal and aesthetic matters that typifies modern, economically and politically liberal cultures. His position, which he calls ‘value pluralism’, is that many different and incompatible ways of life are good in their own (incompatible) terms. Since he thinks secure membership in a community is very important, he finds value in all kinds of relatively closed cultures. Autonomy is a general condition of well-being only because the value of a way of life, even one which does not include constant opportunities for choice, is greatly enhanced if it is as a whole freely chosen or freely accepted by someone to whom other options were available.
Our moral duty to foster the well-being of others therefore requires us, in Raz’s view, not to promote a particular form of life, but to make available the conditions of free pursuit of any of those forms of life that are capable of being good for their participants. Liberalism is the political fulfilment of that duty. Governments cannot make people’s lives good; they can only make available, to as many people as possible, a range of valuable options that will permit them to make something of their lives. It won’t be the same range of options for everyone in the society, nor will it include the same range of options in every liberal society, but this is no cause for regret.
The very plurality of valuable forms of life and the incompatibility of their conditions makes it inevitable that they will not all be able to co-exist, because every social arrangement will rule out many of them. Raz says, for example, that the legal recognition of homosexual marriage, even if it is a good idea, would entail the passing away of the current type of marriage, whose exclusive heterosexuality is part of its essence. But his value pluralism is very generous: he thinks that many cultural forms typically repellent to liberals, including religious orthodoxies which assign strictly differentiated sex roles, can give people good lives, provided they socialise their members appropriately. That is why he supports toleration.
This is an attractive position, so why have Rawls and others found if unsatisfactory? One reason is that many liberals don’t share Raz’s value pluralism, and even those who do share it want to find a justification for liberal institutions that could be accepted by those who do not: by persons whose views about what constitutes a good life are much less latitudinarian than that, whether their conception is religious, or hedonistic, or ascetic, or communitarian – or even, for that matter, individualistic. The idea that there are principles of right independent of specific, comprehensive conceptions of the good for human beings presupposes a common ground for the evaluation of the basic structure of political institutions which does not depend on settling all basic value disagreements. If liberalism had to depend on the acceptance of value pluralism, or perhaps of some narrower doctrine about the nature of human well-being, then it could not command the ethical allegiance of those with conflicting convictions: those who assign much less value to alternatives incompatible with their own form of life than Raz does, and who would choose very different means of promoting the well-being of other members of their society.
That prompts the search for a different kind of political theory, driven not by the desire to advance everyone’s well-being as we see it, but rather by an independent duty to respect them as autonomous equals, at least in the design of our common political institutions. Such a theory would explain why people have a right to live as they choose even if it will not promote their well-being, provided it doesn’t interfere with the equivalent right of others. In particular, none of us may impose our own, contested conception of well-being as the basis for the political order – and that applies even to a conception like Raz’s value pluralism.
The difference between Rawls’s view, based on the requirement to treat people as equals, and Raz’s view, based on the duty to promote their well-being pluralistically conceived, is that the former aims for broader moral appeal. It can be equally accepted by people who disagree about the ends of life, as they inevitably will in a pluralistic society. Of course people also disagree about the existence and definition of the right to be treated as an equal, and no justification of liberalism can avoid imposing a regime of toleration on some people who reject its fundamental values. But an equality-based conception of rights aims to rely on a more restricted – and therefore more widely acceptable – foundation than any specific conception of the good or the ends of life.
Admittedly this strategy has something paradoxical about it, because it requires us to subordinate the pursuit of the good for everyone as we see it to another value that is more obscure, in spite of its intuitive appeal. It has always been a puzzle why people’s rights should be more ethically important than their welfare. Raz’s position removes the problem by explaining rights as means to the good as he understands it. Rawls, by contrast, finds in liberal rights an ethical and political common ground acceptable to parties who can’t agree about the good, or about the best means of achieving it. Liberal institutions enable them to show respect for one another nonetheless.
To take a current example: what should be the attitude of political liberals towards religious fundamentalist communities in their own societies – Islamic fundamentalists in Britain and Christian fundamentalists in the United States? Raz was strongly affected by the Rushdie affair, and in a superb essay on multiculturalism he addresses with great sensitivity the question of how liberalism should deal with the kind of cultural diversity that puts religious fundamentalists check by jowl with secular individualists. He argues that with the sort of cultural pluralism that has resulted from the labour migrations of this century, mere toleration for minorities is no longer enough; that it is necessary to adopt a positive liberal multiculturalism – the ideal of a political society which embraces diverse communities ‘and belongs to none of them’. Raz believes we should support the equal standing of rival groups on the basis of a value pluralism those groups themselves do not share – because while fundamentalists are mistaken in thinking that theirs is the privileged gateway to human fulfilment, nevertheless their communities provide one among many forms of well-being. Liberals ‘should not lake cultures at their own estimation’, but should recognise value even in those whose claims to absolute superiority they reject.
While Raz’s pluralism opposes the forcible detachment of children from the culture of their parents, and acknowledges the deep desire of most parents to understand their children and share their world, it also implies that such communities should not be permitted to prevent their members from leaving, or from acquiring the capacities (through education) which would make it possible to move to another form of life. Finally (to come to the Rushdie case), it does not require that others should be prevented from condemning or denigrating those cultures – since hostility between rival forms of life is inseparable from commitment, and the state does not endorse such hostility merely by tolerating its expression.
Raz cannot expect the fundamentalists to endorse tolerant political institutions (except as a form of self-protection where they are weak), since that would require them to accept a value pluralism incompatible with their deepest beliefs. Yet he hopes that liberal multiculturalism would produce changes in its component subcultures which could lead them to support it. He says it requires a common political culture of mutual toleration and respect, which permits participation in a shared political arena. But how is this possible, in Raz’s theory? If such a society ‘belongs to none’ of its subcultures, that must mean its common political framework is something they all have reason to accept, rather than an imposition of the values of one of them. Raz is faced with a dilemma: either the liberal framework depends on value pluralism, in which case it is imposed by a sub-group, or else it depends, as in Rawls’s theory, on an independent conception of right, in which case it isn’t just an instrument for the promotion of well-being.
Raz has excellent things to say about freedom of speech, commonly derided by authoritarian governments as a right that is of interest only to writers and intellectuals. He makes the important point that the protection of freedom of expression contributes to the common good, vastly beyond the interests of those who take advantage of it to express themselves on controversial subjects, because it is a vital tool in the detection and prevention of the worst forms of abuse of power, through cruelty, massacre, neglect, or sheer incompetence and stupidity. The interests of speakers or writers are only a small part of it, as we can see by looking around at the sorts of things, from mass famine to genocide, that seem to happen with such ease in closed societies. Raz says, strikingly:
If I were to choose between living in a society which enjoys freedom of expression, but not having the right myself, or enjoying the right in a society which does not have it, I would have no hesitation in judging that my own personal interest is better served by the first option. I think that the same is true for most people.
This instrumental justification of the right explains why its importance is much greater than its direct contribution to the well-being of the right-holder would suggest. Many familiar rights, including property rights and freedom of contract or occupation, are justified partly by this kind of contribution to the common good.
Yet I doubt that it is the whole story. The idea of equal respect for persons, for their autonomy and sovereignty over their thoughts, utterances and personal choices, is a value distinct from concern for their general well-being, and it justifies the protection of individual rights of liberty, not just instrumentally but as something we owe to each person for its own sake. That is part of what it means to treat others as moral equals. But this is part of a continuing argument – an argument which has certainly not been won by either side.
Half the book is taken up with the philosophy of law. As Raz’s political theory stands in opposition to Rawls’s, in legal theory his position contrasts with Ronald Dworkin’s. Raz is a positivist about law in the following sense: he believes that the content of the law can be identified by reference to social facts only, without resort to moral argument. Law is the directive of a suitably constituted authority, telling its subjects how they ought to behave. This doesn’t mean that moral argument has no role in the law. First, it will often be part of the reason for legislation: conduct may be made illegal because it is wrong. But one can tell that it is illegal even without agreeing that it is wrong. Second, application of the law by the judiciary may require moral reasoning, particularly if the law includes general concepts like ‘reasonable care’ or ‘equal protection of the laws’, which have evaluative meaning. But here again, says Raz, the identification of the law on the basis of a judicial decision does not require that one agree with the moral reasoning that led to it. Third, there are, according to Raz, gaps in the law: cases in which the social facts, including the language of the relevant statutes and the precedents, do not by themselves determine a verdict. In such cases it is appropriate for the judge to make new law, filling the gap, and he should be guided by the moral aim of producing the best outcome, all things considered. Fourth, there may be cases where the law is so bad that not only should private individuals disobey it, but even judges should refuse to enforce it.
The main contrast with Dworkin’s position has to do with adjudication. Where Raz sees gaps in the law, Dworkin sees demands for interpretative discovery, in which moral reasoning plays a role. Dworkin denies that a judge should regard himself as making law when he produces a new decision in a difficult case: rather, he must regard his reasons for the decision as showing that that is what the law is – and this in turn constrains the reasons on which he can rely. On Raz’s theory, a judge who relies on moral reasoning is creating law, and it is only after the decision has been rendered that others can base on it the judgment that that is what the law is. The process of judicial deliberation may include moral reasoning; the process of discovering what the law is does not.
This is not just a disagreement about how to describe what judges do; it is a disagreement about what they ought to do. Raz believes that Dworkin’s interpretative method, of deciding hard cases in light of the morally best construction that fits with the existing legal system, is objectionable because ‘it advocates acting on principles which may never have been considered or approved either explicitly or implicitly by any legal authority and which are inferior to some alternatives in justice and fairness.’ In other words, he finds Dworkin’s method too conservative: Raz believes that when a decision is not dictated by the prior acts of legal authority, a judge should not be required to decide the case on principles extrapolated from the existing legal system, if there is a morally superior alternative. This is precisely a rejection of the value that Dworkin calls ‘integrity’: the moral fit between the system of law as a whole and a particular decision that is not positivistically determined by that system is a constraint on adjudication that Raz does not accept.
He believes that courts should be regarded as frankly political, except that they are charged primarily with advancing the common good – what’s good for everyone – rather than the overall balance of conflicting interests. But how that is to be done, what rights it requires that we protect, is an issue on which people will disagree for the same types of reason which divide them politically elsewhere. So there is no deep difference between criticising a court for a bad interpretation and criticising the legislature for a bad law. Here again, I find Raz too suspicious of fundamental divisions between different forms of legal, moral and political reasoning. In spite of his value pluralism, he retains the reductionist impulse to analyse morality in all its aspects as a way of making things better on the whole.
Raz offers sharp opinions in clear and unpretentious prose. Sometimes the academic arguments go on at such length that only an addict will want to follow him. But the book can be easily sampled, and it presents an important viewpoint, not only for specialists but for anyone who cares about the moral dimension of politics and law.