Michigan Law Review Volume 89 Issue 6 1991 Liberal Theory and the Need for Politics Steven Shiffrin Cornell University Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Law and Politics Commons Recommended Citation Steven Shiffrin, Liberal Theory and the Need for Politics, 89 MICH. L. REV. 1281 (1991). Available at: https://repository.law.umich.edu/mlr/vol89/iss6/2 This Review is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. LIBERAL THEORY AND THE NEED FOR POLITICS Steven Shijfrin * LIBERALISM AND THE GOOD. Edited by R. Bruce Douglass, Gerald M. Mara, and Henry S. Richardson. New York: Routledge. 1990. Pp. viii, 289. Cloth, $49.95; paper, $15.95. A common misperception about the conflict between liberalism and conservatism is that liberals characteristically advocate state neu­ trality about the good life while conservatives believe the state should promote character and virtue. For example, in an influential essay, Ronald Dworkin claimed that the core belief of liberalism is that the state should maintain "official neutrality amongst theories of what is valuable in life." 1 He not only made the normative claim that this core belief is part of the best political theory, but also asserted that it described the beliefs of then contemporary American liberal politi­ cians2 from Hubert Humphrey3 to George McGovem.4 But it is simply false as a matter of intellectual history and as a description of contemporary liberal politics to suppose that liberalism generally exhibits a commitment to official neutrality about the char­ acter of the good life. To be sure, conservative and liberal political theories invariably conclude that the state should take a posture of neutrality about many issues. But liberal democrats have routinely • Professor of Law, Cornell University. B.A. 1963, Loyola, L.A.; M.A. 1964, Cal. State, Northridge; J.D. 1975, Loyola, L.A. - Ed. I want to thank Kathryn Abrams, Gregory Alexan­ der, Cynthia Farina, Valita Fredland, Gerald Lopez,' Seana Shiffrin, and Susan Williams for providing valuable comments on a prior draft of this review. 1. Dworkin, Liberalism, in PUBLIC AND PRIVATE MORALITY 113, 142 (S. Hampshire ed. 1978), reprinted in R. DWORKIN, A MATIER OF PRINCIPLE 181, 203 (1985); accord B. ACKER­ MAN, SOCIAL JusncE IN THE LIBERAL STATE 11, 57-58, 166 n.10 (1980); J. RAWLS, A THEORY OF JusncE § 67, at 442 & § 50, at 325-32 (1971) (after principles of justice are in place, govern­ ment must "avoid any assessment of the relative value of one another's way of life"); id. §§ 60- 68, at 395-452 (in original position, decisionmakers have no particular conception of the good, but think a rational plan of life is important). Dworkin's position on the issue has shifted over the years. See Shiffrin, Rights v. Goals, N.Y. Times, June 9, 1985, § 7 (Book Review), at 24, col. 4 (reviewing R. DWORKIN, supra). John Rawls' thinking in this area has also evolved. Compare J .. RAWLS, supra, with Rawls, The Prior­ ity of Right and Ideas of the Good, 17 PHIL. & PUB. AFFAIRS 251 (1988). 2. Dworkin, supra note 1, at 121, 128. 3. Id. at 118. 4. Id. at 115. 1281 1282 Michigan Law Review [Vol. 89:1281 departed from neutrality. John Stuart Mill5 and John Dewey6 specifi­ cally argued, for example, that it was an important part of govern­ ment's role to support the development of a particular kind of person. Moreover, many liberals have supported museums and libraries, for example, precisely on the ground that such subsidies would support the good life. Indeed, a key difference between liberals and conserva­ tives concerns the question of what type of citizen the state should en­ courage rather than whether the state should encourage a particular type of citizen or not. 7 Ten of the eleven essays collected in Liberalism and the Good and edited by R. Bruce Douglass,8 Gerald M. Mara,9 and Henry Richard­ son 10 proceed from the assumption that the state need not be neutral about the good life, and they pose a variety of alternatives to the ques­ tion: what follows from nonneutrality? In addition to the editors, 11 the contributors of those essays include a diverse group of thoughtful commentators: Brian Barry,12 William Connolly,13 Amy Gutmann,14 John Langan, 15 Martha C. Nussbaum,16 Stephen G. Salkever, 17 Ken­ neth Schmitz,18 William M. Sullivan, 19 and Dennis Thompson.20 Bruce Ackerman is the lone representative of the view that the state should be neutral about the good life, and he devotes little space in his otherwise stimulating essay21 to defending that premise.22 But 5. See J. MILL, PRINCIPLES OF PoLmCAL EcONOMY bk. v, ch. XI,§ 1, at 941-42; § 8, at 953-56; § 15, at 975-77 (W. Ashley ed. 1809) (7th ed. 1871). 6. J. DEWEY, LIBERALISM AND SOCIAL ACTION 30-31 (1935). 7. See generally Shilfrin, Liberalism, Radicalism, and Legal Scholarship, 30 UCLA L. REV. 1103 (1983); West, Liberalism Rediscovered: A Pragmatic Definition ofthe Liberal Vision, 46 U. PrIT. L. REV. 673 (1985). 8. Douglass is Associate Professor in the Department of Government at Georgetown University. 9. Mara is Associate Dean for Research in the Graduate School and Professorial Lecturer in the Department of Government at Georgetown University. 10. Richardson is Assistant Professor in the Department of Philosophy at Georgetown University. 11. Richardson, The Problem of Liberalism and the Good, p. 1; Douglass & Mara, The Search for a Defensible Good: The Emerging Dilemma of Liberalism, p. 253. The latter essay provides an overall analysis of the contributions to the book with much penetrating criticism. 12. Barry, How Not to Defend Liberal Institutions, p. 44. 13. Connolly, Identity and Difference in Liberalism, p. 59. 14. Gutmann & Thompson, Moral Conflict and Political Consensus, p. 125. 15. Langan, Cotholicism and Liberalism - 200 Years of Contest and Consensus, p. 105. 16. Nussbaum, Aristotelian Social Democracy, p. 203. 17. Salkever, ''Lopp'd and Bound'~· How Liberal Theory Obscures the Goods ofLiberal Prac- tices, p. 167. 18. Schmitz, Is Liberalism Good Enough?, p. 86. 19. Sullivan, Bringing the Good Back In, p. 148. 20. See supra note 14. 21. Ackerman, Neutralities, p. 29. 22. He has sought to defend the premise elsewhere. See B. ACKERMAN, supra note 1, at 355- 78; Ackerman, Why Dialogue, 86 J. PHIL. 5 (1989). May 1991] Liberal Theory and Politics 1283 at one point, he lashes out at a nonneutral form of liberalism, sug­ gesting that a departure from neutrality would involve the state in making "all sorts of intolerant public pronouncements about the na­ ture of 'human flourishing' " (p. 39). This brief argument invokes a standard range of liberal fears - from the ugliness of prejudice to the brutality of a state that limits freedom. But fears of this sort do not haunt the rest of the essays in this book. The contributors - all to the left of the American political spectrum's center23 - believe a progres­ sive form of politics may be maintained without resort to state neutrality. Of course, everyone believes that the state should be neutral about some things. In my view, however, the quest for official neutrality about the good life is one of political theory's best examples of a dead end.24 Worse, it has diverted scholars from asking questions that are approached but not addressed in this book. I propose, however, to sneak up on those questions by considering some of the themes that run through the essays: first, the objections raised by the contributors to liberal neutrality, and second, the postneutral alternatives posed by the commentators. In the end, I will fault most of the contributors for their conception of the relation of theory to practice. The essays are very much worth reading, but the book is representative of a dominant perversion of political theory, one that gives us "political theory" without politics. 25 I. AGAINST LIBERAL NEUTRALITY To claim that government should be neutral about the good is not to claim that government should be neutral about everything. The case for liberal neutrality draws on a distinction between the right and the good: the state, say proponents of liberal neutrality, should be neutral with respect to competing conceptions of the good, though not with respect to the right. Thus liberal neutrality supposes that individ­ uals are free to pursue their conception of the good without govern­ mental interference, but liberal neutrality also maintains that no person should be free to pursue a lifestyle that infringes on the rights of others. Certainly some such distinction is necessary to make the argument for liberal neutrality even plausible. Government cannot, for example, be asked to tolerate the lifestyle of the murderer. Many of the objec­ tions to liberal neutrality center on the difficulty of determining what "rights" are (and adjudicating between rights when they come into 23. I draw this conclusion from the evidence of the essays and in most cases nothing else. From that evidence, many of them are not far from the center, and most of the authors are liberals, not radicals. 24. See Sbiffrin, supra note 7, at 1134-74. 25. See generally B. BARBER, THE CoNQUESf OF PoLmcs 3-21 (1988). 1284 Michigan Law Review [Vol. 89:1281 conflict) without resorting to some particular conception of the good. Similarly, the possibility of defending systems of property or philoso­ phies of education while adhering to the principle of neutrality has been called into serious question.26 In short, these objections support the conclusion that the neutrality principle, if conscientiously adhered to, would leave government unable to address appropriately the most fundamental institutional issues.