Ethnicity and Group Rights: Nomos XXXIX

11. A Tale of Two Villages (Or, Legal Realism Comes to Town)

11 A TALE OF TWO VILLAGES (OR, LEGAL REALISM COMES TO TOWN) NOMI MAYA STOLZENBERG INTRODUCTION The debate between liberals and communitarians seems to be at an impasse. The communitarian charge that liberalism atomizes community has become a commonplace, so much so that our most prominent defenders of the liberal tradition openly concede that a liberal state will adversely affect the ability of some belief systems to survive. Thus, John Rawls, in expounding his theory of "political liberalism" has acknowledged that it is surely impossible for the basic structure of a just constitutional regime not to have important effects and influences as to which comprehensive doctrines endure and gain adherents over time; and it is futile to try to counteract these effects and influences, or even to ascertain for political purposes how deep and pervasive they are. We must accept the facts of commonsense political sociology .I Rawls's tone here is that of a rueful but resolute realist, a Darwinist with a heart, who "regrets" but stoically accepts the disappearance of certain beliefsystems as an inevitable fact, like death and taxes.2 (It is more difficult to adopt this attitude if you adhere to one of the threatened belief systems. Rawls never explains why those in 290 A Tale of Two Villages 291 the suppressed position "must accept the facts.") 3 Others are less apologetic. Joseph Raz unabashedly defends a "perfectionist" ideal of a liberal state that promotes individual autonomy, pluralism , and toleration at the expense of nonliberal cultures by enforcing a code of morality (albeit a "morality which regards personal autonomy as an essential ingredient of the good life, and regards the principle of autonomy . . . as one of the most important moral principles.") 4 Though "[a]utonomy requires that many morally acceptable options be available to a person," Raz states that "[t]he ideal of autonomy requires only the availability of morally acceptable options." Perhaps more important, Raz acknowledges that this ideal is "inconsistent with various alternative forms of valuable lives," and not just with morally unacceptable ones. This is because attaining an autonomous life "depends on the general character of one's environment and culture." Therefore , "[f]or those who live in an autonomy-supporting environment there is no choice but to be autonomous."s Rawls aims to present an alternative to the perfectionist ideal of promoting a liberal morality through political means. But, like Raz, he recognizes that a liberal state will necessarily be incompatible both with morally impermissible and some morally permissible (or "reasonable") ways oflife.6 In sum, Raz and Rawls agree with the communitarians that a liberal state will exclude certain belief systems. Remarkably, liberals concede the negative effects of liberalism on some communities. Indeed, they join with communitarians in extolling the positive value of community.7 Rawls and Raz both call for community values to be expressed and protected at levels that correspond to the conventional division between "private" and "public" realms. As pluralists, both insist that a liberal political order must allow "nonpublic" space for a sufficiently wide variety of rival belief systems to exist (notwithstanding the exclusion of some). Furthermore, both recognize that the liberal state itself embodies the values of a particular group of people. It is precisely because the liberal state reflects and enforces certain cultural values that it excludes some subcultures while sustaining others. Illiberal and antiliberal cultures, and more generally, cultures that do not abide by the division between public and private realms, would seem to be particularly vulnerable to the inevitable 292 NOMI MAYA STOLZENBERG demands of the liberal state. So it is not surprising that recent critics of liberalism have focused on the tensions between liberal principles and religious subgroups, especially "fundamentalist" ones, which actively oppose some of the tenets of liberalism, and seek to establish "group rights" to collective self-government and control over the transmission of beliefs. These critics lament what liberals concede: that the state enforcement of liberal principles has a "disproportionate impact" on the pursuit of such interests. Largely unnoticed in this debate is a curious fact. Yes, the implementation of liberal principles has a disproportionate effect on such subgroups, but sometimes that effect is positive. That is, sometimes liberal principles enable groups that appear to be most directly in conflict with them. It has long been recognized that principles of liberal government justify the protection of some private forms of collective power that result from the coordinated...