Hostname: page-component-cd9895bd7-8ctnn Total loading time: 0 Render date: 2024-12-26T14:59:06.313Z Has data issue: false hasContentIssue false
  • English
  • Français

Postmodern Liberalism and the Expressive Function of Law*

Published online by Cambridge University Press:  13 January 2009

N. Scott Arnold
N. Scott Arnold
Affiliation:
Philosophy, University of Alabama at Birmingham
Get access Rights & Permissions [Opens in a new window]

Extract

In 1992, the city of Boulder, Colorado, passed an ordinance forbidding discrimination against homosexuals in employment and housing. Two years later, voters in the state of Colorado passed a constitutional amendment forbidding the passage of local ordinances prohibiting this form of discrimination. The constitutional amendment did not mandate discrimination against homosexuals; it merely nullified ordinances such as Boulder's. The amendment was later struck down by the U.S. Supreme Court as unconstitutional.

Type
Research Article
Information
Social Philosophy and Policy , Volume 17 , Issue 1 , Winter 2000 , pp. 87 - 109
Copyright
Copyright © Social Philosophy and Policy Foundation 2000

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Boulder, Colorado, Code, Title 12 (1981; amended in 1992).

2 Zeman, Ned, “No ‘Special’ Rights for Gays,” Newsweek, 11 23, 1992, 32.Google Scholar

3 Romer v. Evans, 517 U.S. 620 (1996).Google Scholar

4 Throughout this essay, I operate with an intuitive understanding of what counts as a public justification. For a subtle and nuanced account of public justification that is consistent with the understanding adopted here, see Gaus, Gerald, Justificatory Liberalism (Cambridge: Cambridge University Press, 1995).Google Scholar

5 For an example of circumstances under which nongovernmental institutions could play a leading role in securing fundamental rights, consider the case of Poland in the 1980s. It is arguable that what most effectively constrained the Polish state in the 1980s in the area of human rights—to the extent that it was constrained—were the actions and policies of the Roman Catholic Church. Constitutional rights in communist societies were not worth the paper they weren't written on. This exception noted, nongovernmental organizations have obvious weaknesses in confronting the state, and it is only in unusual circumstances that they can effectively constrain the latter.

6 Implicit in this observation is another reason why a discussion of expressive arguments for fundamental rights can be bypassed. Liberals of all stripes tend to agree that it is the job of the state to promulgate and enforce such rights, so whether or not such arguments succeed in the case of fundamental rights will have no bearing on the larger issue of the proper scope of government. There is, of course, disagreement among liberals about the nature, source, and implications of these rights, but not all policy disputes among liberals are disputes about rights, and those that are tend to be peculiarly inconclusive. My interest in this essay is in narrowing the grounds on which policy debates among liberals should take place.

7 Inventing a term such as ‘postmodern liberal’ ordinarily calls for a discussion of conceptual geography in which postmodern liberalism is distinguished from other varieties of liberalism. For the purposes of this essay, however, a rough characterization will do. Postmodern liberalism is just the liberalism of the political left in the twentieth century, which means it does not include elements of the far left that have rejected liberalism's commitment to democracy, human rights, and the more or less free market.

8 Perhaps the most articulate defender of the legitimacy of the expressive function of law is Cass Sunstein. See especially Sunstein, Cass, “On the Expressive Function of Law,” University of Pennsylvania Law Review 144 (1996): 2021CrossRefGoogle Scholar; Sunstein, , “Social Norms and Social Roles,” in Free Markets and Social Justice (New York: Oxford University Press, 1997), 32–69Google Scholar; and Sunstein, , “Incommensurability and Valuation in Law,”Google Scholar in ibid., 70–107. See also Lessig, Lawrence, “The Regulation of Social Meaning,” University of Chicago Law Review 62 (1995): 943CrossRefGoogle Scholar; and Anderson, Elizabeth, Value in Ethics and Economics (Cambridge, MA: Harvard University Press, 1993).Google Scholar

9 It is for this reason that the scope of the argument that follows should also be taken to exclude laws that do not impose sanctions or restrict people's freedom. For example, proclamations honoring individuals or groups (e.g., veterans) might be justifiable on purely expressive grounds, as might resolutions condemning individuals or groups (e.g., terrorists). Even proclamations establishing national holidays might be justifiable on expressive grounds, so long as they do not restrict freedom (e.g., by requiring businesses to grant a new paid holiday). There is no need for classical liberals to be so stiff-necked as to oppose proclamations, resolutions, and national holidays.

10 This example comes from Lessig, , “The Regulation of Social Meaning,” 960.Google Scholar

11 They would also take pleasure in seeing flag-burners jailed, but this is not the sort of consideration that anyone could offer as a serious (i.e., public) reason for making flagburning illegal.

12 See note 9.

13 Press release issued by U.S. Senator John Ashcroft. Source: U.S. Newswire, 03 31, 1998.Google Scholar

14 This observation about the change in social meaning comes from Lessig, , “The Regulation of Social Meaning,” 966–67.Google Scholar

15 Sunstein, , “On the Expressive Function of Law,” 2023–28Google Scholar; Sunstein, , “Social Norms and Social Roles,” 61–64Google Scholar; and Sunstein, , “Incommensurability and Valuation in Law,” 91–93.Google Scholar See also Lessig, , “The Regulation of Social Meaning,” 966–67, 1016.Google Scholar As Sunstein uses the term, ‘norms’ include not only rules prescribing or proscribing behavior but also the associated values and attitudes. For example, the black students who sat in at the department-store lunch counters were trying to change not only the rules that proscribed this behavior but also the associated attitudes that whites and blacks had toward the behavior and ultimately toward each other.

16 Very often, interest groups believe that the most effective way to promote their goals is by trying to get the state to do something for them. In this capacity, their activities are a component of state action. The focus of the present discussion is on NGOs in their role as private actors.

17 See Olasky, Marvin, The Tragedy of American Compassion (Washington, DC: Regnery Gateway, 1992), ch. 6.Google Scholar

18 The terminology comes from Hirschman, A. O., Exit, Voice, and Loyalty (Cambridge, MA: Harvard University Press, 1970).Google Scholar

19 Sunstein, , “Social Norms and Social Roles,” 41.Google Scholar

20 In thinking about this argument, it is important to keep the focus on the expressive dimension of the action as opposed to its more ordinary “extensional” consequences. It is always open to friends of the state to argue that state action will more effectively solve some problem than the private sector. This sort of argument for state action, which might be called an “old-fashioned modern liberal argument,” has been used less frequently in recent years because of some spectacular failures by modern welfare states, but it is in principle available. By contrast, the argument under consideration here makes the claim that state action is a superior vehicle for expressing values, a claim that is independent of whether or not state action actually achieves its intended (nonexpressive) result.

21 For an excellent illustration of forbearance about the motives and intentions of one's opponents, see Hubert Humphrey's speeches in the Senate in favor of the Civil Rights Act of 1964. When Southern senators raised concerns about whether or not the bill would lead to hiring by quotas, Humphrey met the challenge head on, instead of denouncing these senators as racists who were unwilling to send the right message and who were raising the specter of hiring by quotas as a pretext for opposing the law. See Congressional Record, 88th Cong., 2d sess., 1964: 5864, 6000, 7420.

22 There are, of course, disputes about the content and extent of fundamental rights, though there is agreement about some core areas as well. It is doubtful, however, that such disputes as there are can be resolved by appeal to the underlying values that the right in question is supposed to give expression to. It is even more doubtful that most of the extant disputes about the proper role of the state are best understood as disputes about fundamental rights.

23 This phenomenon has been systematically investigated in Kuran, Timur, Private Truths, Public Lies (Cambridge, MA: Harvard University Press, 1995).Google Scholar

24 Ibid., ch. 9.

25 These two ways are discussed in Sunstein, , “On the Expressive Function of Law,” 2051–55.Google Scholar See also Sunstein, , “Social Norms and Social Roles,” 56.Google Scholar

26 Kuran, , Private Truths, Public Lies, 71–74.Google Scholar

27 Or at least they are not practicing full disclosure. Most people, smokers and nonsmokers alike, tend to overestimate the risks involved in smoking. See Viscusi, W. Kip, Smoking: Making the Risky Decision (New York: Oxford University Press, 1992).Google Scholar The latest scaremongering is about the evils of secondhand smoke and the effects of tobacco advertising on young people. Public discussion of these phenomena in no way mirrors the uncertainty and tentativeness of the relevant scientific research.

28 See Mill, John Stuart, On Liberty, ed. Rapaport, Elizabeth (Indianapolis: Hackett Publishing, 1978), ch. 2.Google Scholar

29 Ibid., 81–82.