Plato’s Laws and Liberal Neutralism

In Plato’s Laws the character of “the Athenian” notes that laws are much more effective if they have preambles which lay out why following the law is something worth doing, rather than just simply prohibiting some act. These preambles will often involve eloquently explaining why an admirable person would obey such a law, and why it is disgraceful, not simply imprudent, to disobey the law. The Athenian’s reasoning for this argument is that persuasion should be an element of law, and these preambles will persuade people to follow the law cooperatively, and learn from the teachings of the law.

This argument raises an important problem for contemporary liberal political philosophy. A dominant approach within contemporary political philosophy in the academy is liberal neutralism, and according to certain variants of this approach to political thought it would be inappropriate for the state to use such preambles in its laws, as this would violate state neutrality. Such preambles would violate state neutrality, as any preamble which justifies a law by reference to an ideal of character or the inherent worth of a particular set of acts will imply a particular sectarian belief about the good and according to the principle of state neutrality the state must have laws that do not rely on any particular conception of the good. But, if the laws include reference to a particular conception of the good, they quite clearly violate the state neutrality requirement. Consequently, for these particular varieties of liberal neutralism, let’s call these varieties strong neutralism, the Athenian’s approach to the writing of laws is clearly prohibited. So the question becomes how does such a state persuade its subjects? It can of course draw upon reasons that are independent of a particular conception of the good, such as that long term self-interest is best secured by obedience to the laws, but it will not be able to say that citizens should obey the laws because it is an intrinsically valuable part of life to be an obedient citizen. This approach to state neutrality avoids the evil of the state imposing a good on its subjects, but is the cost in terms of its lack of ability to draw upon an image of the good to persuade its citizens a cost that it makes sense to endure? The answer to this question is not completely clear to me, although I certainly prefer the evil of having a state that is unable to draw upon images of goodness to inspire fidelity to law, over the evil of having the state which is in danger of imposing a sectarian conception of the good on its people by persuading them that a particular conception of the good is correct.

There is another approach to liberal neutralism, let’s call it weak neutralism, which would in principle allow for such preambles, but nonetheless even for this approach the Athenian’s preambles would be deeply problematic. For this approach laws need to be justifiable on the basis of reasons that do not rely on a particular conception of the good, but this approach is silent as to how the laws are to be presented to the subjects. For example, with this approach you could have a law against theft that was justified because no matter what a person’s conception of the good is they have an interest in having their property secure from theft. However, the law might be presented in terms of the fact that a good person respects the right of his fellow citizens’ right to property. However, if a state were to take this approach the question arises as to why neutrality is required for the reasons justifying a law, but not required in terms of the presentation of the law to the people? It seems arbitrary to say that neutrality is important in justification of law, but not in terms of the presentation of the law to the people. So, it seems that weak neutralism is faced by the same dilemma as strong neutralism, in that it must choose between maintaining its commitment to neutrality and having the option of drawing on particular images of the good to persuade citizens of the importance of obeying the law.

What this tells us is that liberal neutralism, has a cost in terms of forbidding the state from persuading its citizens by reference to particular images of the good. It may seem obvious that liberal neutralism requires the state to refrain from such techniques of persuasion, but yet within liberal democracies the rhetoric used to justify laws to the public often draws on particular images of the good. And is it quite probable that full commitment to neutrality would require us to be distrustful of such rhetoric, for if we use rhetoric to justify laws that draws on particular image of the good, we are saying that the state should be in line with one particular conception of the good, rather than all of the others that exist, and this seems to violate the principle that the state should be neutral between conceptions of the good. Thus, a commitment to state neutrality would require us to drastically change our mode of every day political operation by marginalizing state rhetoric that relies on particular images of the good, and thus while liberal neutralism seems intuitively plausible, it may have greater costs than it appears to have at first glance.

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