Why the Law Matters to You: Citizenship, Agency, and Public Identity

276 Pages·2013·1.86 MB·English

by  Christoph Hanisch

Christoph Hanisch
Why the Law Matters to You
Practical Philosophy
Edited by
Herlinde Pauer-Studer, Neil Roughley,
Peter Schaber, and Ralf Stoecker
Volume 16
Christoph Hanisch
Why the Law
Matters to You
Citizenship, Agency, and Public Identity
ONTOS
ISBN 978-3-11-032395-5
e-ISBN 978-3-11-032456-3
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Acknowledgments
This book started as my doctoral dissertation at Bowling Green State University.
I want to thank my committee at BGSU. Albert Dzur, Neil Englehart, David
Shoemaker (now at Tulane University), and Michael Weber have provided in-
valuable feedback at various stages of the project. My deepest thanks go to my
advisor Fred D. Miller, Jr. who supervised my work during a challenging time for
the Philosophy department and during which he was in charge of coordinating
the work of many graduate students. Also the participants of Professor Miller’s
research group have helped me tremendously to understand the very different
perspectives concerning the issues dealt with in the dissertation and always
reminded me that there is no such things as neutral intuitions that one can un-
critically take as starting points in philosophical debates. A special thanks to
Fred Miller’s assistants Pamela Phillips and Jonathan Miller who compiled out-
standing notes during the group meetings. I am indebted to Zeth Campe, my
office mate, for important discussions on politics, history, as well as, philoso-
phy. I also want to thank Herlinde Pauer-Studer (University of Vienna) who
discussed drafts of my chapters during my stays in Austria. In particular, I want
to thank my wife Medea for supporting me and my work when she was in much
need of this kind of support herself. At later stages, work on the book manu-
script was funded by the ERC Advanced Grant “Distortions of Normativity.”

Contents
Introduction | 1
Part 1: A Challenge for Citizenship  
Chapter 1: Kukathas’s Challenge to Contemporary Liberalism | 14 
1.1 The Liberal Dilemma (Tolerance vs. Unity) | 14 
1.2 The Liberal Archipelago and Kukathas’s State | 20 
Chapter 2: The Liberal State and Liberal Citizens | 29 
2.1 Weber’s Conceptual Framework Revisited | 29 
2.2 Liberal Citizenship as a Thin Public Identity | 40 
Chapter 3: Initial Ad Hominem Reply to Kukathas | 48 
3.1 “Mini-states” vs. Individualist Anarchism | 49 
3.2 The Unavoidability of Public Authority | 56 
Part 2: Public Identity and Self-Constituting Action  
Chapter 4: Korsgaard’s Two Arguments | 66 
4.1 Practical Identity and The Sources of Normativity | 66 
4.2 Action and Self-Constitution | 73 
Chapter 5: Public Actions and Public Identities | 83 
5.1 The Structure and Form of Action | 84 
5.2 The Public Conditions of Self-Constitution | 90 
Chapter 6: Clarification and Objections | 108 
6.1 An Extreme State of Nature | 109 
6.2 Two Objections and Towards the Rule of Law | 123 
Part 3: Self-Constituting Action and the Law  
Chapter 7: Action and the Law | 141 
7.1 Against the Non-Interference Claim | 142 
7.2 The Total Law Thesis | 168
viii | Contents
Chapter 8: The Nature of Law Revisited | 181 
8.1 The Internal Rationality of Law | 182 
8.2 An Overly Demanding Conception of Citizenship? | 198 
Chapter 9: Reply to Kukathas | 218 
9.1 Kukathas and the Law | 219 
9.2 Law’s Integrity and Federalism | 227 
Conclusion | 243 
References | 253
Introduction
This book defends a Neo-Kantian account of the modern state and legal institu-
tions against an alternative view of social organization. This alternative view is
exemplarily presented by Chandran Kukathas’s ideal of a modern society, the
“liberal archipelago.”1 While not explicitly committing himself to this school of
thought, it is argued that Kukathas’s theory ultimately collapses into an indi-
vidualist anarchist critique of the Weberian state.2 The Neo-Kantian rejoinder to
this critique employs a constitutivist argument about individual agency. The
argument concludes that anarchism is incompatible with the provision and
maintenance of those very external conditions (first and foremost the law) that
are necessary for the achievement of a high degree of individual self-
constitution. Individualist anarchism (and Kukathas’s ideal society) in its ex-
treme form undermines its own prerequisites.
Kukathas attacks contemporary liberalism’s3 vision of political, social, and
legal unity, understood as a prerequisite for the peaceful coexistence under
modern conditions of thorough-going pluralism and diversity. The French niqab
||
1 Kukathas 2003. An important precursor of Kukathas’s view is to be found in the often ne-
glected third part of Nozick’s Anarchy, State, and Utopia. (See Nozick 1974, pp. 297‒334.) In a
recent publication, Kukathas discusses Nozick’s utopian framework explicitly and his conclu-
sions lend further support to my claim that Kukathas’s thought is much closer to individualist
anarchism than he admits. According to Kukathas, Nozick’s utopian framework (the minimal
state) is too statist and Nozick fails to show that his utopia cannot be had under anarchistic
conditions. In addition, Kukathas renews his main critique since “the purpose of the state is to
limit rather than enable people’s pursuit of diverse ends. It is a way of making the many live as
one. To the extent that those who do not wish to conform are compelled to do so, the state
suppresses rather than enables the pursuit of diverse ideals” (Kukathas 2011, p. 290).
2 Kukathas attempts to clarify his relationship to anarchism in a footnote: “My sympathies
with (some forms of) anarchism are quite evident. However, it should be made clear that, to the
extent that this work is about the nature of the state and its authority, it will be unacceptable to
anarchists for failing to condemn the state as incapable of having any legitimacy” (Kukathas
2003, p. 8). The contention defended in Part 1 of this book will be that Kukathas underesti-
mates the anarchistic implications of his own theory and the latter can, therefore, be used as a
representative of the view that this essay argues against, i.e., a view that regards the state as
neither necessary nor desirable. For an anthology of historical and contemporary classics of
individualist anarchist thinking, see Stringham 2007.
3 The label “contemporary liberalism” refers to the work of Rawls, Kymlicka, Dworkin and
others that are sometimes also referred to as “egalitarian liberals.” Kukathas considers his
alternative version of liberalism to be close to what is nowadays referred to “classical liberal-
ism” and “cultural libertarianism.” (See Mitnick 2006, p. 136.)
2 | Introduction
controversy4 and the court proceedings regarding the Amish communities’ edu-
cational policies5 are the kind of cases that Kukathas presents in order to moti-
vate his main claim that individual freedom and pluralism on the one hand and
the modern state, with its central feature of enforced constitutional cohesion,
on the other are necessarily in tension with one another. Kukathas’s alternative
(“liberal tolerationism”) places an unconditional requirement of respecting
individual conscience at the center of his account and puts it in place of what he
believes to be an unnecessary and dangerous obsession with social unity and
homogeneity, a pattern of thinking he sees exemplified in Rawls, Kymlicka,
Dworkin and other contemporary political philosophers. If the right not to be
forced to act against the dictates of one’s conscience is taken seriously, the
modern state necessarily seems to pose a threat to the former when it imposes
controversial legal norms on all of its subjects. The first part of this book (Chap-
ters 1‒3) is dedicated to spelling out this particular kind of criticism directed at
the modern state and, especially, its legal institutions. According to Kukathas,
contemporary liberalism faces a dilemma and is torn between respecting thor-
ough-going diversity and pluralism on the one hand and enforcing a stability-
guaranteeing conception of social unity on the other. In critically assessing
Rawls’s version of political liberalism, Kukathas summarizes this central point
of disagreement:
Yet stability and social unity […] can only be bought at the cost of toleration. This is be-
cause articulating a political conception of justice, and presenting it as the first principle
governing conduct in the public realm, subordinates toleration, entrenches a particular
comprehensive moral conception, and excludes certain moral ideals as unacceptable.6
The liberal archipelago is supposed to overcome this dilemma by rejecting the
goal of unity and by assigning individuals an unconditional right to live in ac-
cordance with the dictates of their conscience. The monolithic status of freedom
of conscience finds its political manifestation in an equally unconditional right
to exit the (by definition) voluntary religious, cultural, social, and political as-
sociations one is a member of.
Kukathas and the individualist anarchists’ vision of a world of maximum
individual sovereignty (and of a parallel decrease of the importance of the state)
is reflected in contemporary enthusiasm concerning globalization and the end
||
4 See Chrisafis 2011.
5 Concerning the decision to grant certain religious communities the privilege to opt out of the
public school system after 8th grade, the landmark decision remains Wisconsin v. Yoder, 406
U.S. 205 (1972).
6 Kukathas 2003, p. 133.