A NEUTRAL VIEW OF THE STATE?
12.1. Hitherto the rights of citizens amongst themselves have been dealt with; it appeared that there should be much room for them to express themselves, not being bound in this respect to prescriptive equality’s stipulations. Chapter 13 intends to show that, while citizens are to adhere to prescriptive equality’s demands externally (meaning that their outward acts may not conflict with these demands), this does not entail that they must also agree with the contents of this stipulation. The present chapter provides a precursory analysis to support that claim. In particular, it will be inquired whether a neutral view can be taken by the state when the issue of freedom of expression is concerned.
12.2. Citizens must act in accordance with the stipulations of the ignore principle, but this demand appears to leave them much room to express themselves, having to heed only what cannot reasonably be ignored by those (identified through basic equality) that might be affected by their actions. The question looms whether the same perspective can be taken when the state as a whole is considered. In other words: should the state operate from the presumption that no perspective is superior to any other? In that case, only manifestations are judged, citizens having the freedom to think whatever they want of each other so long as they refrain from acting in ways that cannot reasonably be ignored by others. The answer to the question of whether the state can take such a detached stance is to be found by simultaneously inquiring the meaning of the neutrality of the state. Can a state operate from a neutral position, and, if so, is such a position desirable?
First of all, it is misleading to speak of ‘the state’ as if it constituted a stable unity, which is a prerequisite for a state to have a view, at least if this is to be of any use: a view that may change from one moment to the next is without value, at least if this may happen capriciously1. This does not mean that great changes, such as revolutions, occur frequently, but gradual changes are still changes. If they are very gradual, they may hardly be noticed, except by historians who survey long periods of time. This raises the question what the identity of a state might be, in the same way as uncertainty exists regarding the identity of Theseus’s mythical ship, all its parts having gradually been replaced, no original part remaining.
In addition, it is important to determine what a state is. Conceptions of states that define them by means of some top-down structure, such as Hegel’s, whose conception of the state has an ‘ethical’ character to boot2, are possible but difficult to uphold. In any event, I will interpret a ‘state’, presumably uncontroversially, as a defined territory with a (permanent) population and a government3. As such, if the state has a view, it can in the case of a liberal democratic state be no other than that of a majority of its citizens, the lack of stability being evidenced by the oftentimes fickle nature of majorities. In this case I say ‘a majority’ rather than ‘the majority’ since some items may be supported by different majorities (although mathematically at least some overlap is necessary in each case, of course)4. For example, the majority that agrees with the expansion of freedom of expression may be constituted differently than the majority that agrees with the increase of the minimum wage. In representative democracy, such issues need not arise in the periods between elections, but that points to a procedural aspect and does not remove the problem of ‘the state’ having a view. In states where referenda are used, the aspect of effectiveness may be said to be sacrificed to the democratic aspect, but there, too, majorities are decisive and not, in addition to or instead of them, the state as some separate entity.
Such concerns are sufficient to be skeptical when the issue of whether the state may be neutral or not is assessed. However, a systematical inquiry warrants a more thorough analysis than this, in which the state may be treated as if it indeed constituted a stable unity with a simple majority, the more so since the latter element – the majority – is no problematic element in this place: only one issue – freedom of expression – is dealt with here. I will, then, proceed from such a fiction, but remark here that it follows from my minimalistic interpretation of the concept of ‘state’ that even in this conception the views the state holds cannot be considered separated from (the majority of) its citizens’ reasons to promote or at least agree with basic and prescriptive equality, in accordance with what was said in chapter 6.
12.3. The absence of a neutral stance does not mean that some worldview5 is decisive, precisely because no stable majority is guaranteed and anyone may belong to a relevant minority, so that those whose view is treated favorably, in that they encounter relatively few hindrances in expressing it in the present circumstances, are motivated to grant propagators of other views the same room they are allowed (as they understand that the circumstances may change). That does not mean that anything may be expressed: the ignore principle’s demands rule out some expressions, namely, those which cannot reasonably be ignored by one or more citizens. The lack of neutrality is evinced, then, precisely where ‘reasonably’ is specified.
This makes a position such as Raz’s problematic, who states: “If the state is subjected to a requirement of comprehensive neutrality and if its duties to its citizens are very wide-ranging then the principle of comprehensive neutrality is a principle of neutrality indeed. On those assumptions the state can be neutral only if it creates conditions of equal opportunities for people to choose any conception of the good, with an equal prospect of realizing it”6. That the ‘neutral’ position of granting people ‘an equal prospect of realizing their conception of the good’ cannot be supported becomes clear when the differing consequences of the various conceptions are brought to the fore. Gender discrimination or performing a male circumcision on the basis of a religious conviction are outcomes of some worldviews while exponents of others refrain from such actions.
On the basis of the ignore principle, or a similar principle, such actions cannot be allowed, which means that some worldviews will face more restrictions than others. (This issue will be treated in more detail in the next chapter.) More specifically, those worldviews that are relatively liberal will face relatively few restrictions. (This outcome may be related to the character of ‘liberalism’, an issue that will be dealt with in sections 12.7 and 12.8.)
12.4. The state is not neutral if it accepts prescriptive equality as a directive, since prescriptive equality is always based on some specification of basic equality, which is not neutral. In the case of basic rationality, this follows from the fact that rational beings stipulate that rational beings should be treated equally. A consequence of this observation is that what I have argued is not neutral. One may argue that since every citizen is treated equally on that basis, prescriptive equality testifies to a neutral stance, but such a conclusion would rest on a superficial analysis of the issue. I do not merely mean to address here the fact that the demand that citizens should be treated equally already means that a selection has been made, namely, that animals and people who are not citizens should not, or, more precisely, not necessarily, be treated equally, but also argue that prescriptive equality demands far greater sacrifices from some views than it does from others, as will be shown in chapter 13. That such sacrifices should have to be made in the first place can be defended, on the basis of my analysis in the previous chapters, or a similar one, but that takes away nothing from the fact that no neutral stance is taken here.
Should it surprise the reader that equal treatment is based on a non-neutral starting point, it should be reminded that prescriptive equality insofar as it can be identified with formal equality, presuming that basic equality is specified by basic rationality, is based on a number of starting points that are difficult to reconcile with some worldviews, such as the equality of men and women. This is a proper place to revisit the notion of ‘material equality’. I said in the introduction that it has no bearing on the analysis undertaken in this inquiry, referring there to the economic meaning of that variety of equality. Similarly, material equality, taken broadly as defined there, is no directive in this instance. If it were, the consequences of legislation should have the same outcome for every worldview, and, apart from the question of whether a pluralistic society would be possible in such a case, it is obvious that prescriptive equality would, in such a confrontation with material equality, become devoid of meaning7. One may accordingly say that neutrality presupposes a lack of content. As Fish puts it: “A real neutral principle, even if it were available, wouldn’t get you anywhere in particular because it would get you anywhere at all”8.
12.5. To illustrate my point I present two cases: (1) a worldview according to which only people of a certain race and religious denomination are considered basically equal, and accordingly treated differently than others, by denying those others (some of) the rights that are granted on the basis of formal equality, and (2) a worldview that not only observes the stipulations presented in chapter 6, according to which basic rationality is the specification of basic equality, but actually accepts them as part of its outlook. Neither position is neutral. A greater number of citizens have the right to express themselves in the second case than in the first, but that only says something about the extent of the subjects, not about the contents of the respective worldviews, which are both nonneutral. In the first case, part of the worldview is that some races and religious denominations are inferior to others, while in the second, part of the worldview is that they are equal9.
From the perspective of the public domain – while acknowledging that, strictly speaking, the state does not itself have a view (cf. section 12.2) – what should be decisive is that citizens should be treated equally rather than that they are equal10. Such a stance is also taken in the first case, with the only difference that the criteria that are used are more restrictive, in the sense that fewer subjects are included. ‘Neutrality’ would in the first case mean that the way people are constituted (their race) and their outlook are relevant factors, while any other aspects, such as their social standing, are not taken into account. In the second case, the standard of ‘neutrality’ would be applied in a similar way, with the crucial difference that a greater number of aspects are disregarded, to such a degree that rationality remains as the only criterion, and the absence of reasonably ignorable harm remains as the only criterion with regard to the question of whether a view is acceptable11.
If this is how ‘neutrality’ is interpreted, it is clear that it resembles a black hole in the sense that its manifestation consumes what is salient in any outlook, leaving in the most extreme case nothing. (In other words: if it is consistently applied, there are no criteria to decide what would be acceptable.) Such a description applies to neither case. This does not have to be demonstrated in the first case, while in the second case, rationality at least is still a decisive criterion, the nonneutrality most obviously being demonstrated by pointing out that animals are still treated differently than people (cf. section 12.4). Actual neutrality would amount to the absence of criteria to distinguish between beings and between (the outcomes of) worldviews.
In section 12.3 I distinguished between merely taking a – nonneutral – stance and expressing a worldview. The state acts (justifiably) non-neutrally if it favors a worldview over another on the basis of the fact that one acknowledges some specification of basic equality while the other does not, the non-neutrality consisting in the fact that the criteria to establish that specification (and thus to indicate which beings are to be treated equally in accordance with prescriptive equality) do not result from a neutral process. This does not mean that such a stance necessarily constitutes a worldview. It may constitute a worldview, namely, if the criteria are based on an outlook that purports to establish the ‘truth’ regarding some matter. For example, if the (non-neutral) stance of treating men and women equally is based on their both being equally ‘moral’ beings, or equally having ‘dignity’, the state acts on the basis of a worldview. The state having a worldview is not a necessary given, however, not even if it acts non-neutrally. Indeed, what I proposed in chapter 6 does not itself constitute a worldview12, but merely a (and I would aver the most viable) way to ensure the continual enjoyment of the rights granted on the basis of formal equality, ‘basic rationality’ being a political rather than a ‘moral’ criterion. The ramifications of this stance will be presented in the next chapter.
It may be objected that freedom of expression points to a domain of neutrality. In light of the considerations presented hitherto, the meaning of ‘liberalism’ warrants an investigation.
12.6. There are two ways in which ‘liberalism’ can be approached13. First, it may be considered to constitute a worldview, and as such not to be a neutral position, if only because of the way in which citizens are considered. This is argued by, inter alios, Dworkin (cf. section 9.2) and, from another perspective, MacIntyre: “My thesis is not that the procedures of the public realm of liberal individualism were cause and the psychology of the liberal individual effect nor vice versa. What I am claiming is that each required the other and that in coming together they defined a new social and cultural artefact, ‘the individual’”14.
12.7. A second way to approach ‘liberalism’ is to focus on what its proponents argue. Liberalism defends a minimal interference in people’s actions, including their expressions, by the government or by other people. Freedom does not, as was shown in the introduction and section 7.2, testify to any contents but rather points to an absence.