ARPA: The Liberal's dilemma

Seyla Benhabib The Claims of Culture: Equality and Diversity in the Global Era, Princeton and Oxford, Princeton University Press, 2002 (245 pp). ISBN 0-69104-862-2 (paperback) RRP $48.00.

Carol Weisbrod Emblems of Pluralism: Cultural Differences and the State, Princeton and Oxford, Princeton University Press, 2002 (222 pp). ISBN 0 69108-925-6 (paperback) RRP $50.00.

What is required for the just treatment of the members of religious, cultural and other minority groups in a liberal democracy? Consider this case reported by Seyla Benhabib in The Claims of Culture:

The traditional liberal response to this case would be to regard the man’s action as a gross breach of the woman’s basic civil rights and to hold him criminally and civilly responsible regardless of his cultural affiliations. On this view individual human beings possess a fundamental equality of moral worth which translates in the political realm into the ascription of equal rights. All citizens have the same rights and responsibilities under the law irrespective of their religious or cultural or sexual identity. These basic rights override the claims of culture.

In recent times, however this standard liberal doctrine has been increasingly challenged in theory and often qualified in practice. Post-war resettlement, decolonisation, and globalisation have made Western populations more culturally heterogeneous than ever before. Liberal-democratic states have become home to religious and cultural minorities, often from the developing world, whose beliefs and values are very different from those of liberalism. How far can these differences be accommodated? In the Hmong rape-marriage case, the accused presented a ‘cultural defence’ to the effect that his conduct should be judged according to his own cultural standards. The court seems to have agreed in part, sentencing the defendant to 120 days in jail and the payment to his victim of $900 in reparations.

Herein lies ‘the liberal’s dilemma’ (Coleman, cited by Benhabib, p. 88). Liberalism stands for respect for the individual. But to respect the individual is to respect who he is, and this is determined at least in part by his cultural background. Does respect for the person bring with it respect for that person’s cultural identification even when this is grossly illiberal, involving for example the denial of equal rights to women? Answers to this question fall between two extremes. On the one hand are those who staunchly maintain the Enlightenment tradition under which the proper treatment of human beings everywhere and always requires the upholding of a set of universal and generally uniform rights regardless of the claims of local politics and culture. At the other extreme are those who interpret respect for persons as involving respect for their religious or cultural beliefs and practices, even where these run counter to the traditional liberal concept of human rights.

In Emblems of Pluralism, Carol Weisbrod adopts a similar polarisation as a framework for discussion. Weisbrod, a Professor of Law, is interested in the multiple sources of law understood broadly to include not only the commands of the central state but many other kinds of normative rule. With this multiplicity in mind she divides modern approaches to cultural difference into two broad camps: vertical or hierarchical, and horizontal or pluralist.

Hierarchical approaches tend to see law as emanating primarily from the sovereign state and as legitimately imposed on social groups, which are conceived as occupying subordinate levels of society. Weisbrod’s examples of hierarchy include the suppression of Mormon polygamy under United States federal law, and judicial hostility to the Amish practice of meidung, or the shunning of dissident members.

Weisbrod avoids making explicit judgements about the rights and wrongs of these cases, but it is clear enough that she dislikes the hierarchical approach on the whole. On her account there is little genuine cause for objection to Mormon polygamy, and the federal government could be accused of double standards when it simultaneously endorsed the ‘serial polygamy’ implied by divorce (p. 53). She finds the claim that polygamy unfairly empowers men is represented by 19th century arguments that lack sufficient substantiating detail (p. 55). Weisbrod describes Amish shunning as essential to the group’s distinctive identity. She cites without dissent the judgement of a pro-Amish commentator that the condemnation of the practice by the civil courts was an ‘interference’ the only effects of which ‘were truly tragic’—property had to be sold to meet the award of damages, and the shunned person who brought the action ended up hanging himself (p. 72). Weisbrod seems to imply that the problem could have been solved more readily if the ‘victim’ had exercised a degree of ‘self-help’ and simply moved away (p. 75).

Again, although she doesn’t offer explicit endorsement, it is fairly clear that Weisbrod prefers horizontal or pluralist approaches to such problems. In general these involve rejecting the idea of a single sovereign source of law and accepting multiple sources as having equal or comparable authority. These plural sources may stand in various relations to one another: concurrent or consecutive, parallel or overlapping, with or without an overarching state. The examples she gives include the efforts of the League of Nations to regulate the treatment of national minorities, and the division of responsibilities and rights over the education of children between the state and parents.

Weisbrod considers a range of pluralist theories, including those of the religious conservative Kuyper, the communist anarchist Kropotkin, the English pluralists Figgis, Cole, and Laski, and the Jewish legal theorist Pekelis. She admits that all of these theories have problems. The English pluralists, for example, seem to assume ‘a society based on fundamental value consensus’ (p. 114), which looks like a denial of the very problem their work is being invoked to address. Pekelis’s observation that ‘private governments could escape constitutional control’ (p. 117) and thereby threaten the rights of the individual is another damaging concession. Nevertheless Weisbrod insists that commitment to pluralism requires serious engagement with ‘historical pluralist thought’ (p. 114).

What does all this add up to? The general impression Weisbrod leaves is of a rich multiplicity and variety of situations, problems, and possible responses. But the really interesting and urgent question is whether any of these approaches are better than others. Apart from her implicit and unargued preference for pluralism, Weisbrod never really tells us. No doubt there is no single, neat answer to this question. No doubt different cases require different solutions, and many of these will contain elements of both hierarchical and pluralist tendencies. But this book gives us little guidance on how to think systematically about these matters. The presiding images of hierarchy and plurality are loose motifs rather than clearly defined analytical categories—or at any rate they do little real work. At one point Weisbrod reflects that her two categories may turn out to be ‘a false dichotomy’ after all (p. 100). This wistful thought she neither accepts nor denies but leaves open for the reader to reflect on. Her final rumination is that her ‘feeling for pluralism reduces itself more to a stance, or a mind-set, than it does to an agenda or an answer’ (p. 209). This is not helpful.

Part of the problem may be that Weisbrod’s judgement is paralysed by an underlying cultural relativism. This is the view that each culture has its own ethical standards and that there is no universal moral perspective from which these group-relative norms can be second-guessed. If Weisbrod believes that groups are morally sovereign and their practices and outlooks cannot be disputed, then that would account for both her favouring of pluralism and her failure to offer any reasoned defence of it. Pluralism on this view is just a fact, a description of multiple moral and legal sources, rather than a moral principle. One can be more or less ‘sympathetic’ with groups and their members (p. 75), but one cannot legitimately evaluate their conduct against criteria other than their own.

Consistently with this view, Weisbrod congratulates Julian Huxley, the scientific humanist and educator, for abandoning his initial belief in the need for ‘a working hypothesis concerning human existence and its aims and objects’ (p. 139). ‘Presumably’, Weisbrod writes, ‘Huxley had come to see what is so obvious to us, that is, the necessary particularisms involved in this version of universalism’ (p. 140). The smug ‘so obvious to us’ is especially grating. Never mind that a consistent relativist would have to allow that Huxley’s universalism is just as true for him as Weisbrod’s relativism is for her. Is it ‘so obvious’ that Huxley’s universalism must be particularism in disguise?

One critic who would disagree is Seyla Benhabib. A central theme of The Claims of Culture is that strong forms of cultural relativism lie at the bottom of much that is seriously misguided in contemporary multiculturalism—such as the Hmong ‘cultural defence’ case. These cases are instances of a widespread insistence that ‘cultures’ must be preserved as a matter of public policy because they are essential to the well-being of their members. This view assumes what Benhabib calls the ‘strong incommensurability’ of cultures, the idea, influentially expressed by the 18th century German philosopher Herder, that each human culture possesses a unique ‘personality’, sharply distinguished from that of other cultures but internally ‘unified and homogeneous’ (p. 3). The individual can live well only by developing the distinctive identity offered by her own culture.

For Benhabib, this is both bad sociology and bad philosophy. It’s bad sociology because cultures are not internally univocal but subject to dissent and contestation by their members as well as by outsiders. People do not form their identities by realising some pre-existing cultural essence. Rather identities emerge through continuing dialogue among many different individuals and groups bearing different and often conflicting descriptions of, and prescriptions for, themselves and others. This identity-forming dialogue is carried on across cultures and within them. The boundaries between cultures are not as sharp, nor their internal elements as harmonious, as the strong incommensurability thesis supposes.

Strong incommensurability is bad philosophy because it is logically incoherent. If cultures were really as radically distinct as the thesis supposes, each constituting its own discrete mental world, we would not even be able to have this thought, because we would not recognise other such worlds as having enough in common with our own to count as ‘cultures’ at all. Benhabib uses one or other of these arguments to criticise some prominent multiculturalists, including Charles Taylor (1994) and Will Kymlicka (1995). Both, in her view, place too much emphasis on the preservation of existing cultures, and that is because of their background commitment to cultural essentialism.

Nor, however, is Benhabib entirely happy with some of the more universalist alternatives currently on offer. For example, the ‘liberal egalitarianism’ of Brian Barry (2001) is a defence of the traditional Enlightenment insistence on equal treatment by way of identical rights. The trouble with this view, Benhabib argues, is that it fails to acknowledge distinctively cultural forms of disadvantage that cannot be fully explained in terms of economic or legal inequality. To withhold positive recognition from a person’s group identity may be to harm that person in a way that cannot be compensated by formal legal equality and economic redistribution alone. In this respect multiculturalists like Kymlicka and Nancy Fraser (1997) have identified a genuine problem that liberalism does not address in its classical form.

Similarly, John Rawls’s reworking of liberal theory does not go far enough according to Benhabib. At the centre of Rawls’s ‘political’ liberalism (1993) is the idea of the ‘overlapping consensus’, where the citizens of a liberal democracy can agree on its most fundamental principles although for different reasons drawn from different moral and cultural sources. The area of consensus will generate the principles that inform the polity’s public institutions, while the more controversial values and ways of life that lie outside the consensus will be expressed only in the private realm. Like many other critics, Benhabib is sceptical of the prospects for such a consensus being reached under conditions of contemporary multicultural diversity. In particular she sees this as unlikely in advance of the kind of public discussion, involving appeal to controversial religious and cultural beliefs, of the kind that Rawls wants kept out of public discourse.

This is where Benhabib’s own proposal comes in. In contrast to Rawls’s privatisation of culture and filtering of ‘public reason’, she emphasises the value of public dialogue and debate. In short, her response to multiculturalism is ‘deliberative democracy’. Controversial issues of public policy should be decided through a process of open discussion in which all the affected parties have a voice and are expected to justify their positions by giving reasons that can be understood by the other parties. Deliberation requires actual public debate, and so contrasts with conventional liberal reliance on constitutional principles, and also with relativist reifications of cultural boundaries, that settle issues prior to debate.

Deliberation also contrasts with more familiar forms of democracy in that it requires an attempt to persuade opponents by means of reasoned argument rather than the mere assertion of interests and prejudices backed by power-plays and horse-trading. Deliberative democracy is therefore a universalist position so far as it appeals to the possibility and authority of disinterested reason. In Benhabib’s case this reflects her commitment to the ‘discourse ethics’ of Jurgen Habermas (1984), in which universal principles of respect and reciprocity are presupposed by the notion of unforced and unbiased discussion.

For Benhabib, deliberative democracy is a natural solution to the problem of multicultural coexistence. In a multicultural deliberative system the members of cultural, religious, and other groups will negotiate their place in the larger society by sharing in a free and fair dialogue. Through such a dialogue the contours not only of public policy but also of minority-group identity are open to discussion and revision. The hallmark of this arrangement will be its flexibility, in contrast with the rigidity of both relativist and universalist alternatives.

Benhabib’s reasoned and balanced case raises many questions, and I can mention only two of these here. First, how should deliberative democracy be institutionalised? What practical arrangements will ensure that multicultural (and other) dialogue is actually ‘deliberative’ rather than merely reflective of group interests and prejudices? Benhabib has little to say about this apart from gesturing towards the need for ‘institutional experimentation and redesign’ (p. 184). Among the concrete measures she does suggest are ‘certain land, language and representation rights for indigenous populations’, and the containment of rising fundamentalisms by ‘the splitting of the private spheres of family and religious observance from politics and the economy’ (p. 185). These suggestions are reasonable but scarcely new. Indeed they are identical with policies advanced by writers whom Benhabib earlier criticised, respectively Kymlicka and Rawls. Nor do they seem to have much to do with deliberative democracy.

A second problem is with the goal of deliberative democracy itself, which hovers uneasily between two tendencies. On the one hand the ‘democratic’ emphasis suggests an affinity with the old republican ideal of political participation. But participation, especially mass participation, has a spotty record and dubious prospects from a liberal point of view, since popular political movements have often trampled on the rights of individuals and minorities. In Australia, the fate of the refugees in mandatory detention is a case in point. Public ‘dialogue’ therefore seems to be no guarantee of just and desirable political outcomes.

On the other hand, as its supporters will no doubt reply, deliberative democracy stands not for unqualified popular participation but for deliberation, that is, public decision-making by reasoned argument. Reasoned argument might indeed help the refugees in Woomera. But this deliberative aspect of the ideal is in obvious tension with its ‘democratic’ dimension, since reasoned argument is seldom the currency of public political engagement even among group representatives and elites. For deliberative democracy to work, public debate would have to be disciplined in ways that would be new and perhaps alien to most contributors. This problem is only amplified by the addition of a multicultural dimension in which some parties to the conversation are traditionally disinclined to accept its most basic assumptions, such as equality of respect.

Benhabib is well aware of these difficulties and tries to meet them with her notion of a ‘dual-track’ approach, in which deliberation takes places mainly in the ‘public sphere, situated within civil society’, and is hedged about by the standard rights and institutions of liberal democracy (p. 106). But in that case one wonders whether Benhabib’s proposals amount to anything very different from the liberal-democratic status quo. In effect, her position comes down to a plea for greater and more sensitive public dialogue among groups and individuals within civil society. It is not obvious how this would make much difference to the way the Hmong rape case was decided, or the Amish shunning case. Once the various voices have been heard, what then? A decision will still have to be made, and on Benhabib’s own account will be made by the existing institutions, the courts, and the legislatures.

Still, Benhabib’s book has many merits. Her dismantling of the dogma of cultural relativism is powerfully stated. The link she constructs between a sensible multiculturalism and deliberative democracy, although presented in too compressed a form to be fully persuasive, is worth investigating further. This is a valuable contribution to a field in which both questions and schemes abound but systematic arguments are at a premium.

REFERENCES

Habermas, J. 1984, The Theory of Communicative Action, trans. T. McCarthy, Beacon Press, Boston.

Kymlicka, W. 1995, Multicultural Citizenship, Oxford University Press, Oxford.

Taylor, C. 1994, Multiculturalism and the Politics of Recognition, Princeton University Press, Princeton.

George Crowder is Senior Lecturer in Political Theory at Flinders University, Adelaide. He is the author of Classical Anarchism (1991, Oxford: Clarendon Press), and Liberalism and Value Pluralism (2002, London and New York: Continuum).

View other articles in this symposium:

Howard, Tampa, and the Politics of Reactionary Modernisation Kanishka Jayasuriya
Civilising Political Theory Paul Corcoran

View other articles by George Crowder:

Are Postmodernists Fascists? (Digest, 25 Oct 2004)
Tolerant to a Fault (Digest, 26 Sep 2002)
Philotyrants, Inc. (Digest, 23 Jan 2002)

The Liberal’s dilemma

REFERENCES