[Paleopsych] TLS: John Gray: Rights are not enough

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John Gray: Rights are not enough
The Times Literary Supplement, 99.1.22
http://the-tls.co.uk/archive/story.aspx?story_id=2098008&window_type=print

    FREEDOM OF ASSOCIATION. Amy Gutmann, editor. 382pp. Princeton
    University Press; distributed in the UK by Wiley. £40 (paperback,
    £13.95) - 0 691 05758 3.

    Liberal democracies pride themselves on the freedom of association
    enjoyed by their citizens. The absence of that freedom is one of the
    surest signs of oppression. It is part of being a free person to join
    together with others of like mind. When people cannot exercise that
    freedom, their liberty is radically diminished. At the same time, the
    presence of freedom of association is a marker for a healthy
    democracy. Since Tocqueville's writings on American democracy, it has
    been a liberal orthodoxy that flourishing associations and strong
    democracy go together.

    Indisputably, freedom of association is a Good Thing. Like every other
    great political good, however, it is attended by numerous
    inconveniences, and sometimes it can engender serious evils. Free
    association for some may mean disrespect and exclusion for others.
    Schools and clubs which limit admission by ethnic origin or sexual
    orientation can claim to be exercising their freedom to associate with
    others of their choice; but the effect of such choices is to express
    contempt for those who do not meet the required criteria and,
    arguably, to limit the freedom of association of those thereby shut
    out. In an admirably lucid and balanced essay introducing an
    exceptionally valuable collection of essays on the subject, Amy
    Gutmann discusses the case of Bob Jones University v United States.

    The case concerned the US Internal Revenue's withholding of tax-exempt
    charitable status from the Bob Jones University on the ground that, in
    prohibiting interracial dating among its students, it was practising
    racial discrimination. The Bob Jones University could claim that it
    was exercising freedom of association, in that the university was a
    voluntary religious association based on an interpretation of the
    Bible in which miscegenation is forbidden. On the other hand, it could
    be argued that any policy that proscribes interracial couples is a
    limitation on free association - and a highly discriminatory one at
    that. At this point, freedom of association may seem a somewhat
    paradoxical good, inasmuch as it can be intelligibly invoked to
    justify contradictory policies.

    Gutmann comments that the Supreme Court was reasonable and right to
    uphold the Internal Revenue's denial of tax-exempt status to the Bob
    Jones University. She cites the judgment that a limitation of
    religious liberty may be justified if it is essential to accomplish an
    overriding governmental interest - in this case, overcoming racial
    discrimination in American education. Gutmann is right to endorse the
    Supreme Court's decision in this case. Yet neither she nor the
    majority of the other contributors to Freedom of Association have
    asked themselves whether the theoretical perspective from which they
    make such judgments - a theory in which free association is one
    element in a system of fundamental human rights - can do justice to
    the complex issues surrounding freedom of association in the modern
    world. Only four or five of the book's thirteen distinguished
    contributors show clear signs of understanding the severe limitations
    of a rights-based, juridical approach to the subject.

    This curious oversight arises partly from the fact that most
    contributors to Freedom of Association treat the subject primarily, if
    not solely, as it has arisen in American constitutional history, in
    which a discourse of fundamental rights has long been hegemonic. It is
    true that a great deal that is useful and enlightening can be said
    within this limited context. In a characteristically probing, rigorous
    and uncompromising paper on "The Value of Association", George Kateb
    argues that freedom of association is indeed a fundamental right that
    should not be compromised for the sake of mere gain to society. "The
    issue", he writes, "is whether a given activity that is alleged to be
    an exercise of a fundamental right injures the vital claims of others,
    and hence, is not in fact an exercise of a fundamental right."
    Deploying this understanding of rights, Kateb reaches the "painful
    conclusion" that governmental interference in the membership policies
    of social clubs for the purpose of compelling admission of blacks is
    inconsistent with freedom of association.

    So long as one remains within the narrow confines of Kateb's argument,
    it is hard to fault. But why should anyone feel obliged to accept the
    rights-based theory which leads him to his painful conclusion? It is,
    in the first place, only a local truth within American jurisprudence
    that fundamental rights cannot conflict with one another. Many other
    constitutional traditions, such as Canada's, recognize that
    fundamental rights can and do clash. When rights clash, a decision
    must be reached about which is more important, and one relevant test
    of importance is the public interest. Most constitutions resolve
    conflicts of rights in this way. Many are ready to impose restrictions
    on freedom for the sake of a public interest that the American
    Constitution does not allow, including some that have a direct bearing
    on freedom of association; nearly all European states have legislation
    prohibiting racist speech. Kateb's argument for a fundamental right to
    free association proceeds in part by analogy with the near-absolute
    protection conferred on free expression in the American Constitution.
    But that is an argument which no one who does not already accept
    American constitutional conventions on free expression (as recently
    interpreted) will find compelling. For many of us, indeed, Kateb's
    painful conclusion is a reductio ad absurdum of the peremptory claims
    about rights that are its point of departure.

    The limitations of the rights-based approach to freedom of association
    are recognized by several contributors. In one of the book's subtlest
    contributions, "Revisiting the Civic Sphere", Yael Tamir contends
    persuasively that a liberal, rights-based account which focuses on its
    importance in exemplifying the autonomy of civic associations is in no
    way inconsistent with a communitarian argument invoking the forms of
    common life that free association makes possible. Will Kymlicka's
    essay on "Ethnic Associations and Democratic Citizenship" is a robust
    argument that many multicultural policies can be defended as promoting
    associational life and thereby the kind of civic engagement that
    underpins active democratic citizenship. Alan Ryan's contribution on
    "The City as a Site for Free Association" is a useful corrective of
    views which ground association in individual engagements and neglect
    the role of social institutions such as cities. Stuart White's essay
    on "Trade Unionism in a Liberal State" has a broad theoretical
    interest in arguing that liberal states are not bound to adhere
    strictly to a principle of respecting the organizational autonomy of
    trade unions and other secondary associations. Michael Walzer's
    contribution on "Involuntary Association" is a thoughtful exploration
    of the cultural preconditions of association, voluntary or not.

    The essays by Tamir, Kymlicka, Ryan, White and Walzer are exemplary in
    directing attention to the social, cultural and political contexts in
    which the life of associations arises. In different ways, each can be
    read as an argument against the strange notion that debate about
    freedom of association can be confined within the Procrustean
    framework of rights theory. Perhaps it is beginning to be understood
    that a parochial legalist discourse of rights may not be the best
    language in which to frame the central questions of political thought.
    If this is indeed so, it is not before time.