The Garden of Liberalism A Theory of Liberal Neutrality and Toleration Bouke R. de Vries Thesis submitted for assessment with a view to obtaining the degree of Doctor of Political and Social Sciences of the European University Institute Florence, 14 November 2016 European University Institute Department of Political and Social Sciences The Garden of Liberalism A Theory of Liberal Neutrality and Toleration Bouke R. de Vries Thesis submitted for assessment with a view to obtaining the degree of Doctor of Political and Social Sciences of the European University Institute Examining Board Prof. Rainer Bauböck, EUI Prof. Richard Bellamy, EUI/UCL Prof. Will Kymlicka, Queen's University Prof. Cécile Laborde, UCL © De Vries, 2016 No part of this thesis may be copied, reproduced2 or transmitted without prior permission of the author Researcher declaration to accompany the submission of written work Department of Political and Social Sciences - Doctoral Programme I Bouke Reinier de Vries certify that I am the author of the work The Garden of Liberalism: A Theory of Liberal Neutrality and Toleration I have presented for examination for the Ph.D. at the European University Institute. I also certify that this is solely my own original work, other than where I have clearly indicated, in this declaration and in the thesis, that it is the work of others. I warrant that I have obtained all the permissions required for using any material from other copyrighted publications. I certify that this work complies with the Code of Ethics in Academic Research issued by the European University Institute (IUE 332/2/10 (CA 297). The copyright of this work rests with its author. Quotation from it is permitted, provided that full acknowledgement is made. This work may not be reproduced without my prior written consent. This authorisation does not, to the best of my knowledge, infringe the rights of any third party. I declare that this work consists of <58259> words. 31-08-2016 3 4 Abstract This dissertation is on liberal neutrality and toleration. The first part asks what kinds of comprehensive doctrines or worldviews should be tolerated by a liberal state. Specifically, it considers to what extent, if any, doctrines that (partially) reject citizens’ freedom and equality in the public and/or private sphere merit toleration. The second part asks whether liberal states should be neutral towards tolerable doctrines. Besides considering whether their policies should be neutrally justified towards such doctrines, it considers whether states should (sometimes) equalise policy consequences amongst them. In doing so, this dissertation focuses on consolidated liberal democracies and the doctrines of citizens. 5 6 Table of contents Acknowledgements ....................................................................................................................................... 9 Introduction ................................................................................................................................................. 11 Part I: Toleration ......................................................................................................................................... 25 1 Illiberalism in the public sphere: The Fair Value account of toleration .............................................. 27 2 Illiberalism in the private sphere: The EO³ account of toleration ....................................................... 55 Part II: Neutrality......................................................................................................................................... 91 3 Neutrally justified perfectionism: A defence of Perfectionism á la Carte ........................................... 93 4 Costless Counterfactualism: A theory of minority rights .................................................................. 113 Conclusion ................................................................................................................................................. 141 Bibliography .............................................................................................................................................. 143 7 8 Acknowledgements I would like to thank my supervisors, Rainer Bauböck and Alan Patten, as well as my examiners, Richard Bellamy, Will Kymlicka, and Cécile Laborde. My gratitude also goes to the following people: Aurélia Bardon, Marcia Baron, Andrea Baumeister, Rutger Birnie, Luc Bovens, Martijn van den Brink, Matthew Clayton, Rowan Cruft, Jan Dobbernack, Roel Frakking, Diego Gambetta, Bram Hoonhout, Elselijn Kingma, Koen Doctor, Tariq Modood, Alexander Kirshner, Chandran Kukathas, Will Kymlicka, Joseph Lacey, Geoffrey Levey, Andy Mason, Ronan McCrea, Fran Meissner, Jan-Werner Müller, Sofie Møller, Olivier Roy, Andrew Shorten, Adam Swift, Steven Wall, Joseph Weiler, Jennifer Welsh, and Ben Saunders. Parts of this dissertation were presented at: the symposium on Joseph Raz’s The Morality of Freedom at the Central European University (2016); the workshop on ‘Religion and public justification’ at University College London (2016); the researchers’ lunch seminar at Princeton University (2015); The ECPR conference at the University of Montreal (2015); the ‘Compromise and disagreement’ conference at the University of Copenhagen (2015); the ASSP conferences at the University of Amsterdam (2015) and Leeds University (2014); and graduate conferences at the European University Institute (2015), Sciences Po (Paris) (2014), and Warwick University (2013). Thanks to the audiences on those occasions, as well as to fellow students, faculty, and staff at the EUI, Princeton University, Warwick University, St-Andrews and Stirling, King’s College London, and Maastricht University. This research has been funded by Nuffic and the EUI. 9 10 Introduction 0.1 Research questions Suppose that the plants of a garden represented citizens’ comprehensive doctrines or worldviews. In that case, when may/should a liberal state – the gardener – obstruct or foster the growth of those plants? That is, when is it morally permissible/required for states to impede or aid citizens’ doctrines? This is the question animating this dissertation. All liberals worthy of the name would agree that some gardening is necessary. They would concur that states have a moral duty to interfere with doctrines that crowd out others, such as Fascist or Jihadist doctrines. At the same time, certain forms of interference are clearly impermissible. A state that only allows one type of vegetation to grow is not a liberal democracy but an autocracy (recent attempts by the Burmese authorities to promote Theravada Buddhism at the expense of Islam and other religions may be a case in point1). Put differently, if states are to respect citizens’ free and equal status, they should accept limits on how they can pursue (what they regard as) a Garden of Eden or perfect society. This leaves many questions unanswered though. Exactly what doctrines are candidates for interference and how may/should states interfere with them? When are mild forms of interference appropriate, such as denying tax benefits or refusing airtime on television/radio; and when are more militant forms due, such as closing down websites, proscribing marches, or even imprisoning people and banning associations? These issues are addressed in the first part of this dissertation, which focuses on toleration. The second part, which focuses on neutrality, asks under what conditions, if any, states may enact policies that are predicated on the view that some tolerable doctrines are better than others, i.e. more non-instrumentally valuable. It also considers when, if ever, the fact that state policies may unevenly burden or benefit tolerable doctrines is a reason for either revoking these policies, or for offering redress to citizens whose doctrines are burdened/denied benefits (e.g. legal exemptions, subsidies, symbolic recognition). Some definitions. With Max Weber (Weber & Owen, 2004 [1918], p.33), I understand a ‘state’ to be a “human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory”. In asking how states should treat citizens’ doctrines, I do not wish to commit to a view on the (im)plausibility of attributing corporate agency to states. If states are not real agents, perhaps because they lack their own goals, or because they fail to pursue these rationally (for a discussion of the requirements of group agency, see List & Pettit, 2011), this dissertation’s central question may be 1 http://thediplomat.com/2015/08/the-truth-about-myanmars-new-discriminatory-laws/ 11 reformulated as follows: Under what conditions, if any, may/should state officials (e.g. legislators, judges) undermine or promote citizens’ doctrines? By a ‘comprehensive doctrine’, I mean a set of moral, metaphysical, and aesthetic beliefs that a person holds at a given time (whilst these beliefs may change, they are often quite tenacious and are sometimes held for a life-time). Such doctrines have two components. They contain a conception of the good life, i.e. an understanding of what makes life worth living, such as scholarly activity, contemplating art, religious devotion, drinking beer, or watching football (R. Dworkin, 1985, p. 191), and a conception of justice, that is, a notion of how just or fair societies are ordered (Rawls, 2005, p. 13). 0.2 Chapter outline Part I: Toleration Chapters 1 and 2 separate the chaff from the wheat. That is, they ask what kinds of doctrines