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Published online by Cambridge University Press: 05 August 2009
In The Morality of Freedom, Joseph Raz has challenged the anti-perfectionism of orthodox liberal political theory and proposed an alternative form of liberalism based on perfectionist moral premises. Raz maintain that his theory of political morality qualifies as a “liberal” theory in view of the pride of place it gives “autonomy” considered as an intrinsic human good. Nevertheless, autonomy, according to Raz, is valuable only when exercised in the pursuit of morally upright ends. The principal point of contact between Raz's theory and leading antiperfectionist versions of liberalism is his endorsement of a qualified version of J. S. Mill's “harm principle.” Raz argues that, though the law can and should discourage “victimless immortalities” by noncoercive means, it should not criminalize victimless wrongdoing. The article argues that Raz's claims are strongest where his substantive position is weakest. Perfectionist conservatives and antiperfectionist liberals are correct to maintain that Razian perfectionism cannot supply a ground for rejecting coercive legislation to uphold public morality as a matter of principle.
Thanks are due to Amy Gutmann, Walter Murphy, Joseph Boyle, Germain Grisez, and Mark Brandon who read drafts of this article and offered, from their different perspectives, valuable criticisms and suggestions. Thanks are also due to members of the departments of philosophy, religion, and sociology of St. Olaf College who made the article the subject of a lively interdisciplinary faculty seminar. Finally, the author gratefully acknowledges the sponsorship of the American Public Philosophy Institute at whose 1990 Annual Meeting the article was first presented.
1. Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986), p. 133.Google Scholar
2. Ibid., p. 1.
3. See Dworkin, Ronald, “Liberalism,” in A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), p. 191.Google Scholar
4. See Michael H. V. Gerald D., 109 S. Ct. 2333, 2351 (1989) (Brennan, J., dissenting).Google Scholar
5. Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971).Google Scholar
6. For another noteworthy effort to develop a perfectionist liberal political theory, see the writings of Galston, William A., especially “Defending Liberalism,” American Political Science Review 76 (1982): 621–29CrossRefGoogle Scholar; and “Liberalism and Public Morality” in Liberals on Liberalism, ed. Damico, Alfonso J. (Totawa, NJ: Rowman and Littlefield, 1986), pp. 129–47.Google Scholar
7. Finnis, John makes the same point: “liberty and authenticity are goods, too. They will find their place in any accurate (i.e., ‘full’, non-emaciated …) theory of human good” (Fundamentals of Ethics [Oxford: Oxford University Press, 1983], p. 50).Google Scholar
8. Obviously, Raz's use of the term “facilitating” here does not imply the Brennanite notion of a “facilitative” political order that abstains from treating people's personal moral welfare as a reason for political action. Raz is simply proposing that there are sometimes noncoercive means of encouraging and enabling people to do what is morally good and avoid what is morally evil.
9. Morality of Freedom, p. 161.
10. Ibid. Raz's notion of “moral pluralism” has nothing to do with moral relativism. In speaking of “many morally valuable forms of life which are incompatible with each other” he is not supposing that there are actions which are “morally wrong” for people who happen to think that they are morally wrong but “morally right” for people who happen to think otherwise. Nor is he supposing that there are actions which are “morally right” for people who wish to perform them but “morally wrong” for others. He has in mind, rather, the idea that there are certain morally valuable possibilities (e.g., actions and ways of life) the choosing of which is incompatible with the choosing of certain other morally valuable possibilities. For example, the choosing of a life of consecrated celibacy, while morally valuable, is incompatible with the choosing of marriage despite the fact that marriage is morally valuable. Or again, the choice to devote an evening to conversation with friends, while morally valuable, is incompatible with the choice of spending that evening reading Shakespeare, reflecting on human finitude, or praying for wisdom despite the fact that these activities are morally valuable.
11. Morality of Freedom, pp. 140–44.
12. Ibid., p. 143.
13. Raz distinguishes autonomy in his sense, namely, “personal autonomy” from “the only very indirectly related notion of moral autonomy” (Morality of Freedom, p. 370, n. 2). Cf. Richards's, David reduction of moral autonomy to personal autonomy in various of his writings, e.g., Sex, Drugs, Death and the Law (Totawa, NJ: Rowman and Littlefield, 1982).Google Scholar For a critique of Richards see Finnis, John, “Legal Enforcement of Duties to Oneself: Kant v. Neo-Kantians,” Columbia Law Review 87 (1987): 433, sec. 3.CrossRefGoogle Scholar
14. Morality of Freedom, p. 369.
15. Ibid., p. 371.
16. Ibid., p. 154.
17. Ibid., p. 155.
18. Ibid.
19. Ibid.
20. Ibid., p. 154.
21. Ibid., p. 16.
22. Ibid., p. 381.
23. Ibid., p. 411.
24. Ibid., p. 18.
25. Ibid.
26. According to Raz, , “the very relationship between spouses depends… on the existence of social conventions. These conventions are constitutive of the relationship. They determine its typical contours. They do this partly by assigning symbolic meaning to certain modes of behavior” (Morality of Freedom, p. 350).Google Scholar
27. Ibid., p. 160.
28. Ibid., pp. 393–94.
29. Ibid., p. 410.
30. Raz usefully distinguishes between “weak” and “strong” forms of pluralism (ibid., pp. 395–99). “Strong” pluralism, which he endorses, is marked by the recognition of incompatible virtues that (1) “are not completely ranked relative to each individual,” and/or (2) “are not completely ranked by some impersonal criteria of moral worth,” and/or (3) “exemplify diverse fundamental concerns.” He explains that the incommensurability of values supports (1) and (2), and renders (3) highly plausible. It is noteworthy that the natural law theory adumbrated by Finnis, John in Natural Law and Natural Rights (Clarendon: Oxford University Press, 1980)Google Scholar, for example, is fully compatible with Raz's “strong” pluralistic perfectionism. This compatibility is undoubtedly to be accounted for in large part by Finnis's own belief in the incommensurability of the basic forms of human good that provide ultimate reasons for choice and action. Raz and Finnis both reject utilitarianism — even the “two level” and “indirect” forms of utilitarianism that may be morally pluralistic in a weaker sense and, as Raz points out, “may also accept the first two strong forms of moral pluralism [but] are incompatible with the third” (Morality of Freedom, p. 397).
31. According to Wojciech Sadurski, who criticizes Raz's political philosophy from an anti-perfectionist point of view, “[t]he major point of convergence between Raz's book and the ‘conventional’ liberal theory is the acceptance of the harm principle as a basis for restraining the exercise of coercive powers of the state.” “Joseph Raz on Liberal Neutrality and the Harm Principle,” Oxford Journal of Legal Studies 10 (1990): 122–33, 130.CrossRefGoogle Scholar
32. Raz's references to “harmless” immoralities in Morality of Freedom created some uncertainty as to the scope of his critique of morals legislation. Recently he has clarified the matter by making clear that he objects to the criminalization of “victimless” immoralities generally. See “Liberalism, Skepticism, and Democracy,” Iowa Law Review 74 (1989): 761–86, 785.Google Scholar
33. Summa Theologiae I–II, q. 96, a. 2, reply. Joel Feinberg has recently claimed that Aquinas' position qualifies him as a “liberal” on the question of the moral limits of the criminal law. Inasmuch as Aquinas clearly does not rule out morals legislation as a matter of moral principle, however, Feinberg's claim is mistaken. See George, Robert P., “Moralistic Liberalism and Legal Moralism,” Michigan Law Review 88 (1990): 1415–29, 1421–22.CrossRefGoogle Scholar
34. Morality of Freedom, p. 415.
35. Ibid.
36. Ibid., p. 418–19.
37. Compare Sadurski's criticisms of Raz's, argument in “Joseph Raz on Liberal Neutrality,” pp. 130–33Google Scholar, with mine in “Justice and Public Morality,” The World and I 5 (1990): 517–45, 537–43.Google Scholar
38. “Joseph Raz on Liberal Neutrality,” p. 132. For examples of “more radical perfectionists” making precisely the argument mentioned by Sadurski, see Finnis, , “Legal Enforcement of ‘Duties to Oneself’,” p. 437Google Scholar, and George, Robert P., “Individual Rights, Collective Interests, Public Law, and American Politics,” Law and Philosophy 8 (1989): 245–61, 256–58.CrossRefGoogle Scholar
39. “Joseph Raz on Liberal Neutrality,” p. 132.
40. Ibid.
41. Ibid., p. 133.
42. “Authority and Value: Reflections on Raz's The Morality of Freedom,” Southern California Law Review 62 (1989): 995–1085, 1084.Google Scholar
43. Raz rejects consequentialism on the ground that consequentialist methods of moral judgment rely on the mistaken assumption that basic values are commensurable in a way that would make aggregation and comparison of values possible. See Morality of Freedom, chap. 13. For a more radical critique of consequentialism based on the “incommensurability thesis,” see Finnis, John, Boyle, Joseph M. Jr., and Grisez, Germain, Nuclear Deterrence, Morality and Realism (Oxford: Clarendon Press, 1987), pp. 254–60.Google Scholar
44. It is also worth pointing out that even rationally motivated actions involve (in addition to reasons) emotions, feelings, imagination, and other aspects of ourselves as sentient, bodily beings.
45. See Morality of Freedom, pp. 140–43, 316, 389.
46. The sense in which intrinsic human goods provide ultimate reasons for choice and action has nothing whatsoever to do with the so-called “principle of sufficient reason” which, as formulated by Leibniz, holds that “no fact can be real or existent, no statement true, unless there be a sufficient reason why it is so and not otherwise, although most often these reasons cannot be known to us” (Leibniz, G. W., Monadology [1714], sec. 32).Google Scholar
47. In a situation of morally significant choice, a choice either way is autonomous; autonomy is on both sides of the equation.
48. I share with Raz the view that “[s]ignificant autonomy is a matter of degree” (Morality of Freedom, p. 154).
49. Free choice is paradigmatically between options each shaped by rational deliberation, i.e., options for each of which one is aware of reasons to choose it. For a full defense of free choice thus understood, see Boyle, Joseph M. Jr., Grisez, Germain, and Tollefsen, Olaf, Free Choice: A Self-Referential Argument (Notre Dame, IN: University of Notre Dame Press, 1976).Google Scholar
50. I have said nothing in this essay about Raz's very interesting treatment of the problem of political authority. His analysis of authority connects his earlier work in legal theory with his more recent writings in political theory. Readers who are interested in the matter should consult Part One of Morality of Freedom.
