THE PUBLIC AND PRIVATE DOMAINS
13.1. The foregoing analysis raises the question what the state may proscribe to citizens, or, in other words, to what degree the public domain should be allowed to intervene in private domains. Such an intervention is warranted in any situation in which three conditions are met: (1) there are various worldviews; (2) these worldviews’ adherents express their convictions; (3) the acts of expression cannot reasonably be ignored by citizens who are harmed by them (‘harm’ being taken in the broad sense specified in chapter 10).
So long as no harm is caused, various groups of people may live side by side, sharing no ‘common identity’, interacting only to a necessary minimum (when the services of those that are not included in one’s group are needed or can be obtained at a lower price from them than from those who do belong to one’s group). Problems only potentially arise once this minimum is exceeded. I say ‘potentially’ since an interaction need not be antagonistic: a dialogue between adherents of different worldviews may take place in friendly terms. Still, problems may arise through a negative interaction between members of different groups or through an infraction from the public domain. To provide an example of the first situation, Muslims may be insulted by an atheist (or another non-Muslim) if cartoons are produced in which a person or deity revered by them is mocked. In the second situation, the various private interests are unified (abstractly). For example, if a person is murdered, it is in the general interest that the murderer be punished (on the basis of both specific and general deterrence). In this case, in contrast to the first one, the worldview of the person(s) harmed is no relevant issue.
13.2. If the issues of prescriptive equality and freedom are considered in light of this state of affairs, an obvious question emerges: how much room, if any, should be left to those who deny the prevalent specification of basic equality in a liberal democratic state, and who a fortiori fail to acknowledge prescriptive equality corresponding to that specification? (I will in this chapter presume, in accordance with what I have argued throughout this study, that basic rationality is the most viable specification of basic equality, but the argumentation does not depend on this specification; basic rationality may, accordingly, be exchanged for another specification here.)
There are four options: (1) basic rationality must be acknowledged by every citizen, irrespective of his worldview; (2) it does not have to be acknowledged, with maximal consequences (e.g., an imam may call for the death of all infidels); (3) it does not have to be acknowledged, so long as the ignore principle is observed (e.g., citizens may propagate discriminatory views on the basis of racial differences); (4) it does not have to be acknowledged, but this may not have any actual consequences (everyone may think what he wants, but has to accept every decision to limit his freedom to act, even if he doesn’t agree with such a decision). The last option will in practice mean the same as the first one (since in the first situation, the freedom to think is not curtailed either). Basic rationality is not necessarily acknowledged in the fourth option, but since the demands of prescriptive equality are met, as far as outward acts are concerned, there is no difference.
If one opts for the first (and – thus – the fourth) option, there seems to be no room to practice one’s worldview, and freedom of expression (and thus the freedom to act according to one’s beliefs) will in the most extreme case disappear (viz., if a majority should decide that one’s worldview may have no consequences – one is not allowed to discriminate, or express one’s view if this may cause offence). The second option can be ruled out on the basis of the ignore principle. The third option seems, in line with what was argued in the previous chapter, the one that is best compatible with liberal democracy.
One may wonder, though, whether this is sufficient. The position just outlined allows worldviews that promote discrimination between men and women, religious denominations and races; their adherents would only refrain from acting upon them because of the sanctions imposed on them if they were to do so. Would it not be more in line with the demands of liberal democracy to try to convince such adherents of the incorrectness of their worldviews, or at least allow them less freedom of expression than those who do not hold such views1?
13.3. It is clear that what prescriptive equality demands places a greater burden on some worldviews than it does on others. In fact, in some cases there is no intrusion whatsoever from the public domain, which is the case if what a worldview promotes corresponds with what is prescribed and proscribed in the public domain (by the state). It may be the case that this happens from a different motivation, but that is no relevant factor since only the outcome (equal treatment) can be observed. So some worldviews are more facilely reconcilable with the demands of the public domain than others.
In general one may say that the more room is included in a worldview for citizens to disagree with it, the less conflict there will be with the public domain. This is easily understood with the observations of chapter 12 in mind. To illustrate this, I point to the fact that some worldviews leave people free to adhere to a religious outlook or not, so that that aspect is not part of those worldviews, while a religious worldview does stipulate people to do so, leaving people less freedom. A corollary of the fact that these worldviews leave relatively much room to form an outlook is that they face the threat of being devoid of content (cf. sections 12.7 and 12.8). Vice versa, the more substantive an outlook is, the greater the conflict with the public domain will be.
To illustrate: a Christian who is willing to abstain from any act that is forbidden by the public domain does not sacrifice anything (provided he actually agrees with this and does not merely comply from an external motivation, e.g., the fear of being punished if he breaks the law). By contrast, a Christian who does not agree with, e.g., an obligatory vaccination policy does face such a conflict. This is caused by the fact that his outlook may be said to be more substantive than that of the first Christian: the difference lies in an aspect – the view on vaccination – that is part of the worldview of the second Christian but not of the first, who considers this something to be decided by citizens individually, or the state in their place.
Incidentally, I do not express approval or disapproval by qualifying the matter thus. Specifically, I am not saying here that the second person is an example of someone who keeps true to his faith whereas the first does not, but rather note that they experience their faith in different ways. Should ‘more substantive’ (inappositely) be understood to have an evaluative meaning, I would instead simply say that for the second Christian, more is at stake than for the first. For the reason mentioned in section 10.9 that ‘religion’ is no principally delimited term, the present analysis applies to both religious and nonreligious outlooks.
In addition to possible conflicts between worldviews and the public domain, worldviews may conflict amongst themselves. If, for example, a female Muslim insists on wearing a headscarf in an area where she is not allowed to do so, and a non-Muslim (whatever his or her worldview is), or even a Muslim, interpreting his or her religion differently than the female Muslim just mentioned, opposes this, a conflict will ensue between, on the one hand, the Muslim’s private domain and, on the other, both the public domain and the non-Muslim’s private domain (and of course there may be a conflict between several private domains at the same time)2.
13.4. I have hitherto identified the various interests that are at stake. I will now present the position I consider to be the most viable to accommodate those interests. With respect to the worldviews vis-àvis the public domain, there are three possibilities: (1) the private domains are completely separated from the public domain; (2) the private domains and the public domain completely overlap; (3) there is some, but no complete, overlap between the private domains and the public domain.
The first situation – a complete separation – only appears if all private domains are liberal: no one would seek to interfere with what others – from other private domains – think; everyone would accept the existence of the various domains and their differences, and would allow expressions with which they do not agree (so long as the demands of the ignore principle – or a similar principle – are met). Even in that case, however, it must be deemed an unreachable ideal (if one should consider it an ideal at all), for the risk of one or more parties representing themselves at first as liberal but operating under a hidden agenda, enforcing the (actual) view on the public domain once the circumstances are in its favor, must be taken into account. After all, only if the worldview is fully liberal, i.e., not substantive at all and thus devoid of contents, will there be no conflict, but such a worldview provides too little substance (namely, none) to be of any political interest.
Apart from that, it would be an illusion to think that a party can be so liberal that it may really not come into conflict with other private domains and/or the public domain unless – again – the view of that party is without content. For example, a liberal party that considers women and men equal, so that they should both have the right to vote, must come into conflict with, on the one hand, a party that considers them unequal and on that basis maintains that only men or only women should have that right, and, on the other hand, a party that also considers itself liberal and, interpreting ‘liberal’ radically, grants the right to vote to whomever is able to claim it, by force or otherwise. Clearly, the first liberal party just mentioned is no mere liberal party but has incorporated a substantive element into its outlook, namely, that men and women are equal, or should at least be treated equally.
The second situation – a complete overlap – is not possible in a liberal democratic state: it is what constitutes a totalitarian state. It would even be misleading to speak of a complete overlap of the private domains and the public domain, for effectively only a single private domain would remain, or perhaps rather none. The third situation is the most balanced one, and, considering the problems involved in the first two, the only one that can be said to apply in a liberal democratic state.
13.5. As for the question to what extent the public domain should be allowed to intrude on the private domains, the ignore principle dictates that in some cases an intervention is warranted. An example is male circumcision in the case of children (vide section 10.12). The ignore principle must be used with caution, however, and only be appealed to if necessary, i.e., if actual harm that cannot reasonably be ignored is likely to take place3. The interference should be minimal. Imposing a view from the public domain on citizens, so that they are to incorporate it into their private domains means – paradoxically – that a totalitarian state will be realized.
13.6. In case the last remark should be perceived as a slippery slope, suppose, for example, that someone does not consider women and men as equals but rather considers women inferior, but that this does not affect his outward acts. In all aspects of life he behaves as if women were equal to men, acknowledging the legislation that guarantees such equality, knowing he is not powerful enough to enforce his will. His legal duty, however, i.e., the concretization of prescriptive equality, leading to the demands of formal equality, is limited to his acting as if women were (basically) equal to men, which is precisely what he does. This is, then, a fiction which may be qualified a ‘legal fiction’ (‘juristische Fiktion’) in Vaihinger’s sense4: “Since the laws cannot encompass all individual cases in their rules, individual, special cases of a deviant nature are considered as if they belonged to them. Alternatively, from a practical motive, an individual case is subsumed under a general concept to which it does not in fact belong”5.
Indeed, it is a fiction rather than a presumption. As Vaihinger puts it: “The presumption is a surmise; the fiction is an intentional, a conscious fabrication”6. After all, a fiction is distinguished from a hypothesis on account of the fact that the latter stands to be corroborated (or refuted)7. A fiction applies here: it is not the legislator’s or judge’s task to determine whether someone actually believes that equal treatment should be the case (and if this were their task, a hypothesis being the applicable means, it would be clear beforehand that it would be refuted; and if this were not the case (viz., if everyone already considered equal treatment the norm), any legislation to enforce the norm would be redundant). If a political party exists that does promote such inequality, the individual mentioned above will vote for it, but so long as such a party is absent or has gained too little support to realize the changes it promotes, the law is the way it is, and he will comply (or be penalized), contrary to his own convictions8.
This train of thought is less outlandish than it may be taken, at a first approximation, to be. It applies to many, if not all, laws, as a mundane example will easily show. Someone who pays his taxes merely because such behavior is prescribed (and enforced) is presumed to accept the laws prescribing paying taxes, even though he may not agree with all of them, especially not with every detail9. That does not matter, however, insofar as the practical effects are concerned. He will be able to cast his vote for a party intent on changing these laws in accordance with his wishes, but as long as they are in force, he must comply with them, as if he agrees with them10. Whether he also agrees with their contents is no issue for the legislator or the judge: so long as his outward acts correspond with the rules’ demands, he is allowed to think what he wishes about them (and – on the basis of the ignore principle – to say why he considers them incorrect), so that the fiction that he does agree with them applies here (as it does in the case of every other citizen).
13.7.