Legislating Morality? A Review of Making Men Moral by Robert P. George

The idea of “legislating morality” is pretty unpopular these days. It grates against a widely shared assumption that people have a right to do whatever they want, as long as they don’t harm anyone else. The idea may also raise alarms about the danger of government overreach, perhaps even evoking images of a dystopian, totalitarian society—such as Margaret Atwood’s The Handmaid’s Tale—where any nonconformist thought or word is brutally suppressed. And this isn’t merely a concern of secularists; even many evangelical Christians today feel the need to distinguish between what they oppose morally and what they oppose legally. After all, they say, “What right do I have to impose my religion on others?” Or, “Shouldn’t we care more about changing hearts than changing behaviors?” Or, “Won’t it push people away from the gospel?” But what if these concerns are actually missing the point? What if there are good reasons for enforcing morality in some circumstances?

Although such a notion may sound rather offensive today, it has actually been the dominant view throughout most of western history. The idea is known as perfectionism—an unfortunate term, given its associations with neurotic overachievement or hyper-spirituality. In the context of political philosophy, perfectionism simply refers to the idea that governments should be concerned with the moral well-being of their citizens, and that there is no reason in principle why they may not use coercive means to promote virtue and discourage vice. Robert P. George, a Roman Catholic legal theorist, has sought to defend a pluralistic version of perfectionism in his book Making Men Moral: Civil Liberties and Public Morality (Clarendon, 1995). The book is now twenty-five years old, and since that time George has been able to develop a larger body of work dealing with specific matters of application and policy—for example, see my review of his defense of the traditional view of marriage. However, Making Men Moral still has continuing value for shedding light on the first principles of political action. The book is very dense, and the arguments can be a bit hard for the layperson to follow. As with my earlier review (or more accurately, analytical summary) of his book on marriage, my goal here is to make the book’s main arguments a little more accessible. In doing so, I especially hope to give socially conservative Christians a more coherent framework for political engagement—one that doesn’t reduce to simplistic biblical proof-texting or a buffet-style selection of secular values.

Introduction

Don’t let the title fool you. George doesn’t actually think that laws in themselves make anyone moral (which he admits in the opening sentence of the introduction). In fact, before elaborating what his position actually is, it would probably be helpful first to clarify what he is not saying:

• He is not saying that all vices should be outlawed.
• He is not saying which vices should be outlawed (though his frequent criticisms of promiscuity, prostitution, pornography, and drugs give the reader a fairly clear idea of his own views).
• He is not saying that laws should ever enforce beliefs (rather than merely behaviors).
• He is not saying that there are never prudential or pragmatic reasons against legislating morality.
• He is not saying that laws should be based on any particular religion or divine revelation.

That said, George agrees with the pre-liberal tradition that laws can sometimes play a supportive role in encouraging morality in the following ways:

• By preventing the further moral corruption that results from one’s own immoral choices;
• By preventing bad examples from influencing others’ choices;
• By preserving a proper moral ecology in which people make morally significant, self-constituting choices (this seems to be similar to Charles Taylor’s concept of social imaginaries or Peter Berger’s plausibility structures);
• By educating people (at least in an indirect way) about moral right and wrong.

In other words, our individual choices are not made in a vacuum. Our society and its laws exert a powerful influence in shaping what options are available and desirable to us. As evidence of the power of laws to influence people’s moral intuitions, one has only to consider America’s shifting attitudes on race, which resulted (in part) from legislation on slavery, segregation, and civil rights. While some are fond of saying that “politics flows downstream of culture,” the reverse can also turn out to be true; politics and culture are something more like a two-way street.

So it is no argument against morals legislation to claim that such legislation is futile. Nor will it work to call such legislation unjust on the relativistic grounds that there’s no such thing as moral truth. Such an objection would be self-defeating, since to call something unjust is by definition to appeal to moral truth. Instead, most liberal critics of perfectionism today object to morals legislation on the grounds that such legislation is objectively unjust. There are various forms of this objection, and George devotes most of his book to showing why all such objections ultimately fail. He begins, however, by setting the debate in historical context, first by summarizing the pre-liberal perfectionist tradition, then by analyzing a critical turning point in the history of morals legislation—the Hart-Devlin debate of the early 1960s.

George situates perfectionism within the context of the classical theory of natural law, which in very brief form teaches that humans are capable of acting reasonably (or unreasonably) according to (or contrary to) goods that are either instrumental or intrinsic. Intrinsic goods are rationally self-evident ends pursued for their own sakes; they are basic reasons for action that, unlike instrumental goods, cannot be explained with reference to other, more fundamental reasons. While there is no universally agreed upon set of such basic human goods, such a set reasonably includes life, knowledge, play, aesthetic experience, friendship, practical reasonableness, and religion. Pursuing and achieving these goods constitutes human flourishing, and moral norms result from reflection on how to act in accordance with these goods and how to avoid what is opposed to them. Over time, as one makes choices either in line with or against such norms, it shapes one’s character toward either virtue or vice.

Chapter 1 – The Central Tradition: Its Value and Limits

The above understanding of natural law provides the foundation for what George calls the “central tradition,” especially as defended by Aristotle and Thomas Aquinas. For Aristotle, political communities exist for the sake of human flourishing, which cannot be achieved without virtue. So the laws of a political community should do more than just guarantee men’s rights against one another; they should also encourage virtue. Governments have a necessary role to play in moral formation, because for most ordinary people of ordinary character, it is not enough simply to use sound moral arguments in order to produce moral action. While rational arguments might suffice for a philosophical elite, the masses need the additional motivation of coercion, since their passions will naturally draw them toward vice, and virtue may seem initially unpleasant. One may at this point raise the common objection, “but laws don’t change hearts.” Aristotle would grant that point but still argue that laws can at least help “settle down” our passions and give us a greater opportunity for rational reflection to seek virtue from right motives. Aristotle also appreciates the difficulty that parents face when trying to raise virtuous children in a society filled with temptations to immorality. Children respond with bitterness, often leading to rebellion, when they are subjected to rules that don’t apply to other families. For all these reasons, Aristotle believes that moral formation should be the concern of governments and not just of families.

Aquinas, writing about fifteen hundred years later, agrees more or less with Aristotle’s view but places it within a Christian framework. For Aquinas, the goal of political government is to support man’s chief end, which is the attainment of heaven. Obviously the government cannot (and should not try to) achieve this end on its own, but it can still play a preparatory role for men’s souls, much as a shipbuilder prepares one for a voyage but cannot himself get one to the destination—that’s the job of the ship’s captain. So the government must concern itself with creating the necessary material and moral conditions for its citizens to live virtuous lives. However, this doesn’t necessarily mean outlawing every vice, since most citizens are not naturally saints and could not reasonably bear such a demand. Laws should therefore only prohibit the most grievous vices, especially those that harm others. Notice, however, that Aquinas is making only a limited and prudential argument against outlawing vice. He says that governments should sometimes tolerate immorality, not because it would be unjust for them not to (as modern liberals claim), but rather to avoid undesirable consequences, such as when morals laws would be impossible to obey, or when they would lead citizens to break out into greater vice. Moral formation is after all a gradual process, and so a more corrupt society may require more relaxed standards for a time. (Translating this into our own modern context, one might reasonably argue that a complete ban on pornography consumption would be too burdensome for a population where most men are addicted to pornography, and yet banning its production and distribution may be a good place to start.)

While agreeing with the basic insights of Aristotle and Aquinas, George acknowledges a greater place for liberty, and especially religious liberty, within a perfectionist framework. Aristotle wrongly believed that there was only one single form of the ideal life, and that different people are naturally suited for different fixed stations in a social hierarchy. This elitist misconception can be corrected by a greater appreciation of the diversity of basic human goods and the equal dignity of all people. George also differs with Aquinas’s belief that governments can legislate religious faith, since religion as a “reflexive good” (like friendship) requires voluntary consent in order to have value. George also expands on Aquinas’ prudential reasons for limiting morals laws, such as:

• When such laws are likely to be abused by those in power;
• When they are likely to be undermined by a black market;
• When they are a diversion of resources away from more serious crimes;
• When they are likely to lead to prohibitions of morally permissible actions;
• When they create a climate of servile fear or mistrust.

George recognizes that morality is also a reflexive good, having diminished value when it is coerced. If I choose to do the right thing because it’s the right thing to do, that’s more virtuous than doing it simply because I don’t want to pay a fine or go to jail. And yet that does not mean that it is always wrong to outlaw vice. Such laws, while not in themselves producing moral good, can at least prevent moral harm by minimizing the temptations to vice. They also help create an environment where it is easier to do the right thing for the right reasons, and also to recognize the right thing when we see it.

Chapter 2 – Social Cohesion and the Legal Enforcement of Morals: A Reconsideration of the Hart-Devlin Debate

In 1957, the Wolfenden Report issued a recommendation to British Parliament to decriminalize homosexual behavior on the grounds that it is not the duty of law to concern itself with private immoralities. While this report successfully led to the passage of the Sexual Offences Act a decade later, the intervening years witnessed a significant debate over the status of morals legislation. The debate involved Lord Devlin, a leading British judge and critic of the report, and H.L.A. Hart, an Oxford legal professor and defender of the report.

Devlin’s main argument differed significantly from the central tradition. Rather than claiming that governments have a duty to enforce morals because such morals are in fact true, he claimed that they should enforce morals because they help preserve society. Devlin believed that societies organize themselves (in part) by a shared commitment to moral values, and when these values are undermined, the integrity of the society as a whole is undermined. But what if societies organize themselves around mistaken moral values? For Devlin, that’s not the government’s concern; the legal status of a vice should not depend on whether such a vice is actually wrong, but only on whether a society believes it to be wrong. Unsurprisingly, Devlin was a non-cognitivist with respect to morals; he didn’t think that moral truths are accessible to human reason, but are instead ultimately grounded on feelings.

But doesn’t this make Devlin’s position self-contradictory? After all, isn’t his claim that governments ought to ban what societies deem immoral, a moral claim? While Devlin doesn’t answer this problem himself, George tries to help him out. It would be incoherent for someone in Devlin’s position to attempt to rationally ground the claim that governments should enforce a society’s dominant (but ultimately irrational) morality. However, George thinks that someone in Devlin’s position could ground such a claim in the observation that social cohesion is a universally accepted value. Ultimately, all societies do value their continued existence (whether or not they have rational grounds for doing so), and this universal fact provides a reason for government action.

Hart, for his part, challenged Devlin’s claim that societies really depend upon a shared morality for their continued existence. He argued that such a claim is either empirically false or an irrelevant tautology. If social chaos really ensues whenever morals change, then that would be something to worry about—except that we don’t see that happening in real life. On the other hand, if “destruction of society” is defined as nothing more than a change in its morals, then who cares? On that definition, societies are being “destroyed” and “replaced” all the time. Is such change always wrong? In fact, might it not sometimes be change for the better?

George responds to this objection by interpreting Devlin according to the somewhat softer claim that, while the loss of a shared morality might not necessary lead to a breakdown in social order, it might still lead to a breakdown in social cohesion or integration. Such cohesion is still a valuable goal to pursue. As an analogy, consider a marriage where the spouses “drift apart.” They may still live together peaceably, and even coordinate their activities together; nevertheless, something valuable to their marriage has been lost. Something similar happens whenever a society loses a shared sense of morality. Meaningful bonds of community are weakened. Therefore, Devlin could argue that social cohesion makes morals legislation worthwhile. George calls this the “communitarian” thesis, which represents the best effort to rescue Devlin from his objectors.

Nevertheless, George thinks that this thesis ultimately fails to justify the legal enforcement of morals. Along with the central tradition, George believes that social cohesion can justify morals legislation only when a society coheres around morals that are in fact true. It is not good for societies to cohere around immoral values. This requires legislators to consider the reasonableness of any proposed morals law, and not just its popularity. Devlin objects that the central tradition paves the way for tyranny, but in fact his own view is more likely to lead to tyranny, whenever a majority in society happens to hold in common a moral value that is actually immoral. In such circumstances, social disintegration may actually be more desirable. Further, Devlin’s non-cognitivist view of morality rests on the mistaken assumption that morals can only be derived from religious beliefs which are themselves non-rationally grounded. But this assumption ignores the many moral norms that have historically been proposed on rational grounds. Even many religions claim to affirm moral norms that are grounded not only in divine revelation, but also in unaided human reason.

Chapter 3 – Individual Rights and Collective Interests: Dworkin on ‘Equal Concern and Respect’

Most modern liberals have rejected the utilitarian idea that human rights can be derived from consideration of what makes a community better off. Rights, it is generally agreed, should always be preserved—even when they might make a community worse off. And yet liberals are divided over how to ground such rights. Many opt for an “anti-perfectionist” approach, which aims for government neutrality with regard to competing conceptions of human well-being and flourishing. In chapters 3-5, George responds to arguments advanced by various liberal anti-perfectionist thinkers.

Chapter 3 focuses on Ronald Dworkin, who argues for a right to be treated by the government with “equal concern and respect.” Dworkin offers no rational grounding for this right (it is neither self-evident nor necessarily derived from self-evident principles), although his position depends crucially on its acceptance. He believes that it provides a limiting principle against the community’s “collective interest.” George and Dworkin have differing understandings of what the collective interest actually is. George takes it in the classical sense of the common good, which includes (and thus is fully compatible with) concern for the well-being of each individual. Dworkin takes it in an aggregative or utilitarian sense, such that the interests of the many might in some cases conflict with the interests of the individual. The problem with such a utilitarian conception of collective interests, as many critics of utilitarianism have noted, is the incommensurability of human goods: such goods cannot be quantified and ranked in such a way as to optimize outcomes (as if, say, saving ten lives is worth sacrificing one innocent life). Collective interests, properly understood, cannot infringe on individual rights; and conversely, individual rights by their nature cannot impede collective interests.

Building on his questionable conception of collective interests, Dworkin proposes that it is the role of judiciaries to uphold principles (individual rights), while it is the role of legislatures to advance policies (collective interests). Thus judiciaries serve to protect individuals by limiting how far legislatures can go. On the other hand, if George is correct that collective interests should be understood as the common good (which includes due concern for individual rights), then legislatures have just as much of a responsibility to uphold principles.

In our modern American context, liberals have largely succeeded in selling the narrative that they are the champions of individual rights, while conservatives are more concerned with collective interests. Unfortunately, even many conservatives have bought into this narrative. It supports Dworkin’s rationale for the so-called right to privacy, which is largely the product of legislation by judicial review and has been used to strike down much morals legislation in recent years. Dworkin ties privacy (or “moral independence”) to his above-mentioned principle of “equal concern and respect.” Governments, he argues, have no right to show favoritism when it comes to individuals’ differing conceptions of the good life, and therefore have no right to intrude in “private” matters of choice. Or as he has more recently stated it, they may not put forward legislation by virtue of arguments that would infringe on any citizens’ sense of self-respect.

George denies that an equal concern and respect for every citizen would imply any such kind of right to privacy or moral independence. In fact, morals legislation might be motivated precisely by a concern that every citizen not degrade himself with behavior that is unworthy of his humanity. Any loss of self-respect would have nothing to do with the legislation itself (if someone agrees with the law but fails to obey it, their loss of self-respect is their own fault; if they disagree with the law, then there is no loss in self-respect, whether they grudgingly obey it or exercise civil disobedience).

The problem is that Dworkin confuses respect for every person with respect for every choice. But not all choices are equal. Some choices result from failures in reasoning, weaknesses of will, or unintegrated desires. Dworkin has not shown that governments should remain indifferent to such choices when they undermine human well-being. George uses the example of anti-pornography legislation: there is no reason to think that such laws treat those who indulge in pornography with less concern or respect. In fact, such laws arguably show greater respect to such people than they show themselves. While this may sound paternalistic, George argues that there is actually nothing wrong with moral paternalism, rightly understood.

Chapter 4 – Taking Rights Seriously: Waldron on the ‘Right to Do Wrong’

Abraham Lincoln, in a famous series of debates with Stephen Douglas over the moral status of slavery, argued that a right to do a moral wrong is logically impossible. On the other hand, many liberal thinkers today have attempted to defend the moral right to commit not only (in the words of utilitarian philosopher John Stuart Mill) “self-regarding” wrongs, but also “other-regarding” wrongs. Contemporary philosopher Jeremy Waldron has made a forceful case for such a right. As it turns out, George sides neither with Lincoln nor Waldron. He believes that there are cases when one has a right not to be prevented from performing an immoral action. However, such a right, according to George, exists only in a very weak sense, as a “shadow” (or “side effect”) of governmental duties not to intervene, for reasons unrelated to any alleged right to do wrong.

George concedes that the moral wrongness of an action does not in itself entail the moral permissibility of interfering with someone’s doing that action. In such cases, there may be other decisive reasons for not interfering. In addition to Aquinas’s prudential reasons for non-interference (see above), George also points to an example offered by William Galston: the hypothetical case of an outbreak of looting, which can only be quelled by a draconian shoot-to-kill policy. In this case, it seems obvious that the wrongness of interfering has nothing to do with any supposed right to loot. Or, using the terminology of W.N. Hohfeld and his followers, the looter can be said to have a “claim right” that the government not interfere with his looting, but it does not follow that the looter has a “liberty right” to loot.

Waldron worries that government interference in private immoralities would reduce the range of available human choices to mere trivialities (like which flavor of ice cream to choose), but George shows that this is not the case. For one, it is impossible for anyone—including the government—to completely eliminate the possibility of performing immoral actions in all circumstances. For another, even in cases where immoral choices are ruled out, an individual may still have a wide range of permissible but morally significant, self-constituting choices available to them. George doesn’t give any examples of such choices, but they could reasonably include the choices of whether/whom to marry, which career path to pursue, how to serve in the community, etc.

Chapter 5 – Anti-Perfectionism and Autonomy

Although Waldron falters in making his case for a moral right to do wrong, it is more common for liberal critics of morals legislation to argue instead on the basis of a “right to autonomy.” Their arguments generally take one of two forms: anti-perfectionist and perfectionist. Anti-perfectionist liberals maintain that governments should remain neutral with respect to controversial questions of what makes for a morally good life. Such a view is usually supported by a strong version of Mill’s harm principle, which strictly rules out government interference in “self-regarding” or “victimless” immoralities. Perfectionist liberals, for their part, deny (rightly) that government neutrality in morals is possible. Instead, they claim that autonomy itself is an intrinsic moral good that limits government interference in immoral behavior. Perfectionist liberals also usually appeal to a less strict version of the harm principle—that is, they are more willing to acknowledge that supposedly “victimless” immoralities do sometimes harm other people. In chapter 5, George responds to the anti-perfectionist position of D.A.J. Richards, who builds substantially on the work of John Rawls.

Rawls’s influence on modern liberal thinking is hard to overstate. His theory of justice as fairness posits the hypothetical scenario (which need not exist in reality) of an “original position,” in which members of a society come together in order to establish the ground rules of their association. These ground rules require near-unanimous consent, and so they must exclude from consideration any controversial conclusions that individual members might or might not eventually reach about moral values. That is, we must imagine the members as standing behind a “veil of ignorance,” pretending (at least for the sake of argument) that they do not yet know where they will end up with regard to their respective religious or moral beliefs. Rawls thinks that behind the veil of ignorance, a “principle of equal liberty” would prevail, which would maximize the liberty of each individual to the extent that it does not infringe on the liberty of anyone else. Rawls imagines that people behind the veil of ignorance would be motivated by prudential self-interest not to choose perfectionist policies: if I (at least pretend that I) am undecided between, say, Protestantism and Catholicism and do not know which of the two traditions I will ultimately embrace, wouldn’t it be smarter to favor laws that favor neither tradition? Rawls believes that this provides a rationale for government neutrality in morality and religion.

George’s critique of Rawls is that his position presupposes a (highly controversial!) liberal, individualist view of the person, which entails a not-so-neutral view of the good, defined as getting what one wants provided that it doesn’t impede others from getting what they want. But why should this conception of the person and the good be privileged over other, non-liberal conceptions? The question itself exposes the inconsistency of Rawls’s claim to neutrality.

George also objects that Rawls fails to take into account the “transparency of reason” in the original position. That is, in real life, rational people don’t care about their beliefs because they are their beliefs; they care about them because they are (believed to be) true. But on Rawls’s account, people behind the veil of ignorance can’t act from consideration of the truth of their potential beliefs, but only from consideration of what potential beliefs might or might not be theirs. This means that people in the original position are permitted to act not from reasons, but only from sub-rational self-interest. They cannot even be motivated by concern for autonomy or fairness, but instead only by concern to ensure their own liberty to pursue whatever end—regardless of the truth of that end—they happen to choose when they finally come out from behind the veil. So in seeking to eliminate bias (and it cannot do even that), the original position eliminates rationality itself. It is far from obvious why justice must be grounded in a conception of the person as acting only from wants and not from reasons.

George focuses the remainder of the chapter on Richards, who considers himself a neo-Kantian Rawlsian. The self-description is not entirely accurate, as he goes well beyond Rawls in his understanding of the harm principle, and well beyond Kant in his understanding of autonomy. Unlike Rawls, Richards argues for the value and reasonableness of morally controversial choices (pornography, sodomy, drugs, suicide, etc.). Ironically, this seems to put Richards on the side of the perfectionists, though with his own very progressivist bent. He agrees that laws should protect behaviors that have moral value; he just thinks that traditional moralists have failed to see the moral value of perceived vices because of their religious prejudices. Richards goes so far as to call pornography a positive “celebration of the body,” and even drug addiction can be in the “critical interests of the person” (142-143). This would suggest that such activities should be legal because they are in fact good.

In order to avoid perfectionism, Richards would have to argue not that rights are grounded in goods, but rather that goods are grounded in rights. He attempts to do this by defending the right to “personal autonomy.” This differs from Kant’s teaching on “moral autonomy,” which is the freedom of individuals to pursue rationally objective moral goods—goods that rule out various self-regarding immoralities, which for Kant can even be legislated against (in agreement with the central tradition). For Richards, personal autonomy means the freedom to design one’s life according to subjectively chosen standards of value. On his account, not only the state, but also morality itself, is neutral with respect to our ends and visions of the good life. The only thing immoral is to violate the rights of others. So contrary to Kant, there can be no such thing as duties to oneself.

Now if we accept Richards’s subjectivist account of autonomy, then there can be no reasons for moral action, but only subrational motivations (desires, appetites, etc.). Someone in Richards’s position can call actions unreasonable only in the sense that they might frustrate an individual’s subjectively chosen ends, but the ends themselves could not be called reasonable or unreasonable. That is, actions (so long as they do not violate anyone else’s right to autonomy) can at most be considered imprudent, but not immoral. But this means that Richards cannot answer the fundamental question, why be moral? To ask the question is to imply that one can supply reasons for morality, which Richards insists we cannot do. If morality is ultimately motivated only by emotion and not by reason, then the same is true of Richards’s supposed right to personal autonomy. He can give no reason to respect this right. So in the end, Richards’s theory eats itself.

Chapter 6 – Pluralistic Perfectionism and Autonomy: Raz on “The Proper Way to Enforce Morality”

George then takes aim at a perfectionist version of liberalism. Liberal perfectionists agree with the critique of Rawlsian anti-perfectionism: it is hopeless for governments to aspire to neutrality on the basis of purely non-controversial premises. On the other hand, unlike non-liberal perfectionists, they see individual autonomy/liberty as among the goods necessary for human flourishing. For them, this good is secured only if individuals have the legal right to make immoral choices (excluding choices that would harm others).

A leading contemporary voice among liberal perfectionists is Joseph Raz. Of all of the authors whom George critiques, his sympathies are clearly closest to Raz. Raz denies (though inconsistently) that autonomy has any value when used to pursue immoral ends. Further, he recognizes that an individual’s choices are shaped by “social forms” or conventions of morality. Raz even believes the government may take non-coercive measures to promote particular social forms considered good for society, such as monogamous marriage. This is certainly a long way from Rawls or Richards.

In fact, one may question whether Raz even counts as a liberal. It is at this point that George offers his clearest definition of “liberalism” in the entire book: a liberal is one who believes that “there are strict moral norms (and not merely prudential limits) that exclude in principle moral paternalism and the use of coercion to prevent moral harm” (167). Using this definition, George critiques Raz’s liberalism on two key questions: 1) whether there is such a thing as harmless immorality, and 2) whether the government must limit itself to only non-coercive means in order to prevent such immoralities. Raz answers both questions in the affirmative, while George answers them in the negative.

Against Raz, perfectionists have historically recognized that choosing immorality is always harmful—first and foremost to the chooser, and usually to others as well. It is also difficult to discern precisely what would even count as a “harmless” immorality for Raz, since he (rightly) rejects Mill’s distinction between self-regarding and other-regarding immoralities. And yet Raz believes that any coercive governmental measures taken to prevent such immoralities would violate the intrinsic value of autonomy. However, as George shows, Raz cannot simultaneously say both that autonomy is intrinsically valuable and also that autonomy exercised in the pursuit of vice has no value.

In contrast to Raz, George believes that autonomy does indeed have value, but only in an instrumental rather than intrinsic sense. It is a good to be pursued not for its own sake, but rather for the sake of practical reasonableness (defined as freely deliberating on and choosing the good for reasons), which as a reflexive good depends on autonomy. Since practical reasonableness is an intrinsic good, one can appeal to it as an ultimate reason for choosing one course of action over another, but one cannot similarly appeal to autonomy as an ultimate reason. And yet the availability of immoral options is necessary neither for autonomy nor for practical reasonableness, since immorality is, by definition, practically unreasonable. Therefore coercive measures to prevent immorality do not violate any valuable form of autonomy. Raz also faces difficulty in explaining coherently why coercive measures can be legitimate for criminal laws, but only non-coercive measures can be legitimate for morals laws. The fact that crimes are violations of justice while vices are not does not in itself provide a reason against using potentially coercive means to prevent vice.

Chapter 7 – Toward a Pluralistic Perfectionist Theory of Civil Liberties

In the final chapter, George seeks to offer an account of how perfectionism might ground civil liberties. Some may still have serious reservations about perfectionism in practice, even if they cannot reasonably object to it in principle. Won’t it potentially open the door to a violation of liberties that we rightly value (religion, speech, privacy, etc.)? George offers only a preliminary sketch of how his own pluralist version of perfectionism would address such concerns.

Perfectionism accords a place to liberty, diversity, and privacy as instrumental goods but not as intrinsic goods. This actually places such goods on more secure ground. If such goods were treated as absolute, then they could never allow any exceptions, and we would be forced into the position of trying to rank and quantify the value of such goods whenever they come into conflict (for example, how can the government uphold a right to privacy but also protect a child from an abusive or neglectful home?). Given the incommensurability of goods, this position is a practical impossibility. Ironically, the very goods that liberalism hopes to achieve can be achieved only when they are treated not as ultimate ends but as means to our ultimate ends. (One thinks of C.S. Lewis’s comment in Mere Christianity: “Aim at heaven, and you will get earth thrown in; aim at earth, and you get neither.”)

On this basis, George seeks to make a perfectionist case for freedom of speech, freedom of the press, privacy, freedom of assembly, and freedom of religion. Speech, he argues, is valueless when it fails to advance any human good. On the other hand, it does have value when exercised for the sake of cooperation toward a worthy goal, and such cooperation can have intrinsic value even when it fails to achieve its goal (for example, even when a baseball team loses a game, it has still found value in teamwork). Clearly then, speech should receive protection as a necessary means to achieving certain human goods. And yet free speech has limits that most people recognize, such as when it causes (or intends to cause) direct harm or abuse. Measuring the costs of speech restrictions against the benefits of protecting other goods is often more art than science. In the end, some decisions about speech restrictions will boil down to a matter of feelings, accounting for differing social contexts, and taking care not to unfairly privilege or disadvantage any individuals or classes. These same principles also apply with respect to freedom of the press, which can be considered a subset of freedom of speech.

Likewise, the right to privacy has become a major dividing line between anti-liberal perfectionists and liberal anti-perfectionists. A problem lies in the ambiguity of the term “privacy.” George distinguishes between decisional privacy (do I have a right to make a choice that others perceive to be immoral?), spatial privacy (do governments have a right to enter my home or monitor my communications?), and informational privacy (do governments have a right to access my personal information?). The liberal case for privacy often equivocates between these different senses of privacy. Perfectionists, on the other hand, can acknowledge that the goods of a community are realized (in part) when individuals communicate by making their “interiority” (thoughts, feelings, desires) known. This interiority must be shared voluntarily; invading another person’s interiority undermines the possibility of realizing certain reflexive communal goods. George observes that the right to privacy is essentially the flipside of right of free speech—one is the right to communicate, and the other is the right not to communicate. Since both rights are merely instrumental rather than intrinsic goods, there may be rare cases where they need to be set aside for the sake of some other good (such as invading a home to stop the abuse of a child).

Lastly, George elaborates on his view that coerced religion is not truly religion at all. Religion, like friendship, is a reflexive good whose value depends upon its being freely chosen. Interestingly, George argues that religion is a basic human good—and thus an ultimate reason for action—even if God did not exist (similarly, one could say that friendship is a basic good, even if it turned out that other people were simply illusions). Governments may even non-coercively encourage religion, without violating the principle of religious liberty (for example, by funding or partnering with religious charities or providing chaplains to military/government personnel). In light of all of these considerations, perfectionism provides more than sufficient grounds to guarantee essential human rights.