Legal Commentary

Taylor borrows the term ?overlapping consensus? from John Rawls, but by it he means something considerably shallower, and therefore less necessarily committed to neutrality toward contested ideas of the good. Taylor thinks that ?Rawls still tries to hold on to too much of the older independent ethic.? Rawls expects citizens not only to endorse a set of political principles, but also to accept a doctrine of political constructivism and just terms of cooperation. This, Taylor thinks, is too much to ask. As a schedule of rights, political liberalism for Taylor may suggest an independent political ethic. But any schedule of principles will need interpretation, and interpreters inevitably will do this in light of their comprehensive moral views. To that extent, they will inevitably partake of the common ground strategy.

Taylor?s analysis implies that absolute neutrality is unattainable. Any state position will rely on some common ground, and no common ground is universal.

The answer to this puzzle, I think, is to note that there exist a large variety of possible modes of neutrality. The absolute neutrality toward all conceptions of the good proposed by Ronald Dworkin and Bruce Ackerman are only one available flavor of neutrality.

The range of possible justifications for any version of neutrality is broad. The following is a crude taxonomy of typical strategies of argument. It probably does not exhaust the possibilities, and arguments for neutrality typically rely on more than one of these moves.

One strategy is the argument from moral pluralism, which holds that there are many good ways of life and that the state should not prefer any of these to any other. Another is the argument from futility, which holds that some perfectionist projects are doomed to failure. The argument from incompetence holds that the state should be neutral about things that it is likely to get wrong. The argument from civil peace proposes that some issues be removed from the political agenda in order to avoid destructive controversy. Finally, the argument from dignity argues that some political projects fail to properly respect citizens? capacity for free choice.

Different formulations of these arguments have persuaded different people. Everyone probably accepts most of these five arguments for neutrality, at least in some form, as applied to some question. Conceptual analysis cannot, of course, say whether or in what form you ought to accept them. There is probably an infinite number of ways in which any of them could be formulated, and an infinite number of ways in which those formulations could be combined. Shifting from any formulation of each rationale to a slightly different one will probably yield a slightly different prescription for neutrality. Neutrality is not a fixed point, but a multidimensional space of possible positions. I develop this argument in an essay, The Fluidity of Neutrality, available here.

This is broadly consistent with the picture Taylor paints. Since obviously many of these argumentative moves toward neutrality are consistent with his claims ? his book, A Secular Age, can be read as an extended argument from moral pluralism, here mediating between religiosity and secularism ? there is a kind of neutrality appropriate for us. But its outlines are not definite, and will always be an object of negotiation. Taylor?s neutrality is not that of Dworkin and Ackerman. But for just that reason, it is more persuasive than theirs.

Full post as published by Balkinization on April 25, 2008 (boomark / email).