Reasonable Disagreement and the Neutralist Dilemma

Chambers, Clare, “Reasonable Disagreement and the Neutralist Dilemma: Abortion and circumcision in Matthew Kramer’s Liberalism with Excellence” in The American Journal of Jurisprudence (May 2018).

You can read the paper here.

Abstract: This paper starts by investigating the idea of reasonable disagreement. It then considers Matthew Kramer’s argument that there is no neutral solution available to the disagreement over abortion. The paper argues that Kramer’s account has wider application, and identifies a neutralist dilemma. The neutralist dilemma applies when, of two policy options available to the state, one is unreasonable. It follows that the state should enact only the reasonable policy. However, in a neutralist dilemma the fact of reasonable disagreement due to the burdens of judgment means that it is not possible for the state to act at all, whether legislating or not, without deviating from neutrality. The paper develops the concept of the neutralist dilemma and then applies it to another case discussed by Kramer: infant circumcision. The paper argues that the debate over infant circumcision can be framed as a neutralist dilemma, but that the most plausible resolution of the dilemma results in an argument in favor of the legal prohibition of the practice. This is a surprising result, since most liberal states do not restrict circumcision and since prohibition of circumcision might initially appear to be non-neutral or even illiberal; however it is consistent with the tenets of neutralist liberalism.

Conscience and Context

In Political Emotions: Toward a Decent Public Sphere, edited by Thom Brooks (Palgrave MacMillan, forthcoming).

In The New Religious Intolerance  Martha Nussbaum sets out an impassioned plea against that intolerance, which she sees as a pressing but almost entirely European problem. Although there are differences between European nations, Nussbaum argues, Europeans in general have a variety of problematic attitudes to religious diversity that are not found in the USA. These include “fear and mistrust,” inconsistency, “a concern for homogeneity that leads them to commit some errors in public argument that are troubling,” the desire that immigrants “fit in,” greater anti-Semitism than is found in the USA, and a refusal to debate, let alone embrace, “the free exercise of religion”. In place of this European foolishness “the American solution is urgently needed.” The New Religious Intolerance is thus at once a critique of the ‘European’ way of dealing with religion and a defence of the superior American way. Events since Nussbaum published NRI suggest that both Europeans and Americans have grounds for deep soul-searching and self-criticism concerning attitudes to immigration and diversity. In this paper I offer a critique not of the political implications of Nussbaum’s account, but rather of its philosophical underpinnings. My argument proceeds through analysis of her critique of a legal ban on the burqa which has been implemented in various ways in France, Belgium, and Italy

Against Marriage: An Egalitarian Defence of the Marriage-Free State

Clare Chambers, Against Marriage: An Egalitarian Defence of the Marriage-Free State (Oxford University Press, 2017)

Winner of the APSA David Easton Award 2018.

Available now from all good bookshops! Use the code AAFLYG6 at www.oup.com to buy the book at 30% off.

 Read the book on Oxford Scholarship Online here.

Follow the full coverage of the book, including links to reviews, articles, and other material, by clicking on “all posts on marriage” at the bottom of this page.

Synopsis

Against Marriage is a radical argument for the abolition of state-recognised marriage. Clare Chambers argues that state-recognised marriage violates both equality and liberty, even when expanded to include same-sex couples. Instead Chambers proposes the marriage-free state: an egalitarian state in which religious or secular marriages are permitted but have no legal status.

Part I makes the case against marriage. Chambers investigates the critique of marriage that has developed within feminist and liberal theory. Feminists have long argued that marriage is a violation of equality since it is both sexist and heterosexist. Chambers endorses the feminist view and argues, in contrast to recent egalitarian pro-marriage movements, that same-sex marriage is not enough to make marriage equal. Chambers argues that state-recognised marriage is also problematic for liberalism, particularly political liberalism, since it imposes a controversial, hierarchical conception of the family that excludes many adults and children.

Part II sets out the case for the marriage-free state. Chambers critically assesses recent theories that attempt to make marriage egalitarian, either by replacing it with relationship contracts or by replacing it with alternative statuses such as civil union. She then sets out a new model for the legal regulation of personal relationships. In the marriage-free state regulation is based on relationship practices not relationship status, and these practices are regulated separately rather than as a bundle. The marriage-free state thus employs piecemeal, practice-based regulation. Finally, Chambers considers how the marriage-free state should respond to unequal religious marriage. The result is an inspiring egalitarian approach that fits the diversity of real relationships.

Reviews

Against Marriage is “political philosophy at its most practical and readable.”

Andrew Harrop, General Secretary of the Fabian Society, in Fabian Review

“This is a distinct and important contribution to an increasingly crowded field of liberal political philosophy on marriage and the state and, perhaps most interestingly, to our understanding of the liberal project broadly. … Where other liberals seek more vigorously to balance competing demands of freedom and equality, or emphasize freedom, Chambers hews rigorously to an egalitarian position. You won’t find another book that does this so effectively or by way of such productive engagement with existing scholarship. Laying out the egalitarian case in such clear and compelling terms, Chambers highlights the challenges it presents to the liberal side of her liberal feminist equation. In so doing, Against Marriage leaves us wondering just how tenable the liberal feminist project is.”

“Chambers leads us to these questions by bringing us to the edge of the liberal feminist frontier. This alone would make Against Marriage a distinct and important contribution. But, of course, Chambers does more. She offers a compelling vision of why and how to move beyond marriage and points us in the direction of work that needs to be done. All with the grace and graciousness of an analytical philosopher running at full throttle.”

Tamara Metz, Political Theory

“Clare Chambers provides a clear, lucid and timely argument against state-recognized marriage based on the liberal principles of liberty and equality.

“Throughout, she is masterful at anticipating and responding carefully to potential objections to her arguments and proposals. Her anticipation of objections demonstrates a familiarity with a wide swath of literature from and conversations with both feminist and non-feminist scholars of marriage and family, both critics and advocates of marriage, and representatives of a range of liberal (and some illiberal) theoretical approaches. And her responses to those who might disagree with her proposals reveal a two-fold carefulness: as a philosopher, she is thoughtful, deliberate, precise, and meticulous; as a feminist, she is attentive, concerned, and compassionate — considering not only the philosophical justifications for her proposals but also their practical fall out for women and other vulnerable populations.

“I highly recommend Chambers’ book as an important scholarly and pedagogical resource. It is beautifully crafted and makes an important contribution to the literature in liberal political theory and, more specifically, to the philosophical literature on marriage and family. Chambers’ arguments against state-sponsored marriage are clear, persuasive, thorough and timely, as are her critiques of the most oft-supported alternatives, namely marital contracts and civil unions. Her discussions of recent feminist literature on marriage clearly delineate the differences among theorists and between their positions and her own. Finally, she models respect for her philosophical interlocutors through fair treatment of their positions and demonstrates respect for her readers through carefully crafted prose, clearly laid out arguments, and frequent summaries and reminders linking sections and chapters together. It was my distinct pleasure to read this book and be provoked by its arguments into a better understanding of both liberalism’s promise and its limitations with regard to its support of diverse forms of relationship.”

Shelley M. Park in Notre Dame Philosophical Reviews.

Contents

Introduction: “The Marriage-Free State”
Chapter 1: “Marriage as a Violation of Equality”
Chapter 2: “Marriage as a Violation of Neutrality”
Chapter 3: “A Liberal Defence of Marriage?”
Chapter 4: “The Limitations of Contract”
Chapter 5: “Regulating Relationships in the Marriage-Free State”
Chapter 6: “Marriage in the Marriage-Free State”
Conclusion

Chapter Outlines

Part One, “Against Marriage,” sets out objections to marriage regimes. Chapter 1, “Marriage as a Violation of Equality,” makes the foundational egalitarian case against marriage. It starts with a historical overview of feminist objections to marriage and notes that feminists tend to criticise marriage for being both sexist and heterosexist. This two-pronged attack looks puzzling. How can it be both bad for women to be married and bad for lesbians and gays to be unmarried? The discussion continues with an analysis of whether same-sex marriage is egalitarian. It concludes that, in a marriage regime, same-sex marriage is both required by and insufficient for equality. Finally, the chapter argues that reformed versions of marriage such as civil union still enact inequality between those who have and those who lack the relevant status. It follows that the abolition of state-recognised marriage best meets the myriad egalitarian objections to the institution.

Chapter 2, “Marriage as a Violation of Liberty,” considers liberal objections to marriage. Perfectionist or comprehensive liberals should reject state-recognised marriage as limiting autonomy in the service of an unappealing and restrictive model of human perfection. But political liberals should go further, and reject state-recognised marriage as prima facie incompatible with neutrality. The chapter clarifies the nature of political liberal neutrality, and establishes that there are many reasonable conceptions of the good that are not compatible with the state recognition of marriage. This fact means that marriage is not a neutral, political institution, and that promotion of it is an act of perfectionism.

The chapter then discusses the idea that political liberalism might be compatible with policies that are prima facie non-neutral if those policies can be supported by public reason. Political liberalism is ambiguous between two forms of neutrality: strict and lax. Strict neutrality allows state action only if sufficiently weighty public reasons can be adduced in favour of a policy; lax neutrality permits the state to act just as long as some public reason can be given. If political liberalism is to be an interesting philosophical approach it will defend strict neutrality, so any public reasons offered in support of state-recognised marriage must be weighty enough to overcome the non-neutrality of that institution.

This line of argument continues in Chapter 3, “A Liberal Defence of Marriage?” This chapter considers and rejects five potential liberal arguments in favour of marriage: arguments that, if successful, might work as public reasons for political liberals or might make marriage into an attractive account of human flourishing for perfectionist or comprehensive liberals. These arguments are based on communication, gender equality, care, the interests of society, and children’s interests. The chapter argues that, while these arguments do highlight legitimate public goods, they fail to show that state-recognised marriage is a necessary or acceptable way of achieving them.

If marriage is no longer to be recognized by the state, what should replace it? Part Two, “The Marriage-Free State,” answers this question. Many theorists defend relationship contracts. Some argue that enforceable relationship contracts should be available alongside existing or reformed state-recognised marriage, and available to either married or unmarried couples. Other theorists argue that relationship contracts are the best sort of legal regulation to replace marriage. It is this latter question that is the subject of Chapter 4: “The Limitations of Contract.” The chapter contrasts contract and directive models of regulation, and notes that contract appears more compatible with liberty than does directive. However this appearance is illusory since contracts can undermine liberty, directives can enhance liberty, and even a contract regime requires default directives. Moreover, there are various problems with the enforcement of relationship contracts. Specific performance is rarely appropriate in the relationship context. The alternative, fault-based compensatory alimony, risks causing injustice to vulnerable parties such as those who take on caring responsibilities (usually women) and children. Relational contract theory attempts to deal with some of these problems but has its own limitations. The chapter concludes that contract is not the best replacement for marriage.

Chapter 5, “Regulating Relationships in the Marriage-Free State,” sets out a new model for regulating personal relationships, one that relies on neither contract nor a holistic status such as marriage or civil partnership. Critics of marriage have suggested one of these two options, with most recent feminist and egalitarian work focusing on alternative holistic statuses such as Tamara Metz’s Intimate Care-Giving Unions or Elizabeth Brake’s Minimal Marriages. These new holistic statuses, while they improve on marriage, do not avoid a fundamental problem for egalitarians: an unjust distinction between those who have, and those who lack, that status. Instead, the chapter sets out three features of regulation in the marriage-free state. First, it is piecemeal not holistic: relationship functions are regulated separately, without assuming bundling or an ideal-typical relationship format. Second, it proceeds via practices not status: regulation applies to those who are acting in certain ways rather than being dependent on a status that must be formally acquired. Third, liberty is secured by opting out of default regulations rather than opting in. This model of regulation is compared with alternatives found in both political philosophy and legal practice.

Finally Chapter 6, “Marriage in the Marriage-Free State,” considers the extent to which the state should seek to regulate any private religious or secular marriages that citizens might enter into. In the marriage-free state citizens could still take part in religious or secular marriage ceremonies. This is why the marriage-free state is not a marriage-free society. It does not follow, however, that the state should take no interest at all in such marriages, since they may take place in the context of oppression or injustice. The chapter sets out the case for intervention in marriages that are not recognised by the state, drawing on the model of liberal intervention in cultural practices set out in my first book Sex, Culture, and Justice: The Limits of Choice.

Autonomy and equality in cultural perspective: Response to Sawitri Saharso

home_cover-2Feminist Theory Vol. 5 No. 3 (December 2004).

This paper criticises Sawitri Saharso’s argument that hymen repair surgery and sex-selective abortion can be both multiculturalist and feminist policies.

You can read the paper here.

Nation-building, Neutrality and Ethnocultural Justice: Kymlicka’s ‘Liberal Pluralism’

home_cover-3Ethnicities Vol. 3 No. 3 (September 2003).

This paper takes issue with Will Kymlicka’s arguments on ethnocultural justice. It argues that liberal nation-building is not the same thing as minority nation-building, and that the former need not cause injustice to minority ethnocultural groups.

You can read the paper here.

All must have prizes: the liberal case for intervention in cultural practices

Paul Kelly (ed.) Multiculturalism Reconsidered: Culture and Equality and its Critics (Polity Press, 2002).

This paper highlights a rare aspect of Brian Barry’s Culture and Equality that is not liberal enough: his assertion that unequal outcomes are unproblematic if they have been chosen. The paper argues instead that an ‘equality tribunal’ should be empowered to rule against certain forms of discrimination within groups.