Paper by Joan C. Williams
Michael J. Perry's Morality, Politics, and Law contributes to a rethinking of the liberal tradition that has gained momentum over the past decade. This rethinking attempts to end liberalism's reliance on its “traditional Kantian backup,” which has become increasingly inconsistent with the major currents in twentieth-century thought that I have called the new epistemology. These currents include a sweeping critique of absolutes and a persistent focus on ways in which an observer's viewpoint affects her perceptions, and therefore, her reality.
Perhaps the most influential attempt to reconcile the new epistemology with the liberal tradition is John Rawls's A Theory of Justice. Rawls's desire to develop political theory without invoking “a priori considerations” reflects the critique of absolutes variously expressed by twentieth-century authors as a rejection of “a God's Eye point of view,” a critique of “foundationalism,” and a rejection of “metanarratives.” Rawls's work also reflects the persistent modern focus on how observers' viewpoints affect their perceptions. Historian of science Thomas Kuhn introduced important terminology when he developed the notion of incommensurate paradigms to explain how, for example, Copernican and Galilean astronomers came to such fundamentally different conclusions. More recently, the incommensurability thesis has been generalized through detailed descriptions of the way different cultures and subcultures present fundamentally different realities, each based on a relatively coherent pattern of values and perceptions. Aztecs are not Englishmen: the incommensurability thesis seeks to translate one culture's normative universe into terms intelligible to those of another culture. At its core, the modern focus on incommensurability is a rejection of unreflective ethnocentrism.
As the incommensurability thesis moved closer to home, it presented a challenge to traditional political theory. If society's different subcultures entail fundamentally incommensurate values, perceptions, and perspectives, what remains of the traditional search for social cohesion in pursuit of the Good? Rawls's theory of justice attempts to respect the incommensurate viewpoints within modern pluralistic societies. Though incommensurability is at the core of Rawls's theory of justice, for Rawls it remains something to transcend. His solution is “neutral” political theory that promises “moral objectivity . . . to be understood in terms of a suitably constructed social point of view all can accept” regardless of their incommensurate paradigms.
Although Rawls begins from the new epistemology, he remains deeply traditional in his conviction that we need neutral universals to generate agreement. Rawls generates these universals through the device of the “original position,” which he uses to argue that any rational person would choose specific substantive principles regardless of his philosophical, political, religious, or other commitments.
Unlike Rawls, Michael Perry rejects liberalism's traditional aspiration to neutrality, which has come under intense attack from critical legal scholars. Their argument that law is ideological, not neutral, generally means one of two things that are clearly distinguishable, though often not clearly differentiated. Sometimes the claim that law is ideological means that law is designed to dupe the masses, to impose a false consciousness that persuades them to buy into a system that works fundamentally to their disadvantage. At other times (often in the same text) the identical term simply states a truism of the new epistemology: law is ideological in the sense that no interpretation is neutral because all interpretation proceeds from a human, not a God's Eye, point of view.
In Morality, Politics, and Law, Perry in effect argues that law is ideological in the second sense. His book fills a pressing need for a thoughtful, well-crafted rejection of liberalism's traditional claim to neutrality that avoids the language of radical discourse and the problematic term “ideological.” Perry details how three of the most prominent liberal thinkers of our day, John Rawls, Ronald Dworkin, and Bruce Ackerman, fail to deliver the neutrality they promise. His approach promises to prove particularly persuasive to mainstream legal thinkers, especially judges, who tend to shy away from radical discourse. Perry's cogent critique may help thoughtful judges avoid the considerable institutional pressures upon them to claim that their decisions flow from neutral principles.
Perry's second major contribution is that he makes readily accessible to legal scholars contemporary literatures in philosophy, theology, and ethics. Many legal thinkers have turned to scholarship outside the law in recent years, but few have offered as imposing a command of extra legal literature as does Perry. His book sets a high standard that others (myself included) would do well to emulate.
Despite these important strengths, Perry's book has two major weaknesses. The first is that Perry's discussion of constitutional adjudication gives too little attention to the darker side of constitutional law and concedes too much plausibility to the originalist position that he seeks to challenge. The second weakness is equally far-reaching: Perry's neo-Aristotelian naturalism leads him to take positions inconsistent with his embrace of the critique of absolutes. Moreover, at the end of his book, when Perry returns to Roe v. Wade, the case that has haunted constitutional scholars for over a decade, his naturalism leads him to a position inconsistent with his eloquent appeal for sensitive attention to incommensurabilities among America's diverse moral communities.
About the Author
Joan C. Williams. Associate Professor of Law, American University.
Citation
63 Tul. L. Rev. 1651 (1989)