Liberalism's Errant Theodicy
Michael C. Dorf
Cornell Law School
March 1, 2013
Boston University Law Review, Forthcoming
Cornell Legal Studies Research Paper No. 13-71
Theologians and religion scholars use the term “theodicy” to refer to an argument that attempts to reconcile God’s omnipotence, omniscience and goodness with the existence of evil. One of the best known forms of theodicy invokes free will. Evil exists, the argument goes, as a by-product of the freedom of human beings to make important life-defining choices for themselves.
A central argument of Ordered Liberty, the insightful and powerful new book by James E. Fleming and Linda C. McClain, is a kind of secular theodicy. Fleming and McClain respond to a common set of charges against liberal individual rights made by civic republicans, communitarians, and their fellow travelers. Liberalism, the critics contend, elevates rights over responsibilities and therefore undermines the ability of government to inculcate community-minded virtue in citizens. Not true, Fleming and McClain respond. Liberalism does concern itself with and foster responsibility, albeit of a somewhat different sort from the critics’ notion of the concept.
Whereas the critics wish to see individuals held responsible to the community — what Fleming and McClain call “responsibility as accountability” — liberals argue that rights are premised on a conception of “responsibility as autonomy” or self-government. Fleming and McClain argue that a legal zone of individual autonomy permits each of us to deliberate about our own conception of the good. Or, as the joint opinion in Planned Parenthood v. Casey — which figures prominently in Ordered Liberty — states: “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”
Number of Pages in PDF File: 14
Keywords: self-government, the State, Ordered Liberty, James E. Fleming, Linda C. McClain, liberalism, communitarianism, constitutional rights, moral rights, individual rightsAccepted Paper Series
Date posted: March 2, 2013
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