Linda C. McClain and James E. Fleming, both of Boston University School of Law, have published Respecting Freedom and Cultivating Virtues in Justifying Constitutional Rights.  The paper draws on the works of Dworkin (and other giants in liberal political theory such as Rawls) to critique the “communitarian” or “civic-republican”  perspective of Michael J. Sandel’s bestseller, Justice: What’s the Right Thing to do? (2009).  Professor Sandel rejects values-neutral conceptions of legal justice in socio-moral debates like that concerning the validity of gay marriage—arguments that emphasize individual freedom to act; rather, he argues that only arguments with a full-fledged consciousness of the actual, moral virtues—or lack of them—that such social institutions embody will satisfactorily resolve these cultural conflicts.

In contrast, McClain and Fleming argue that both values-neutral and values-based arguments—arguments for individual freedom of action as well as arguments about the virtue embodied in social institutions like marriage—have and will be instrumental to resolving such questions.  Please see the authors’ abstract after the jump:

What’s new in the long-standing debate between civic republicans and liberals about how best to understand and justify rights? This article picks up the thread with political philosopher Michael Sandel’s recent, internationally-renowned book, Justice: What’s the Right Thing To Do? The article evaluates the sharp contrasts his book draws between justice as cultivating virtues and justice as respecting freedom, using his example of contemporary arguments for and against opening up civil marriage to same-sex couples. Sandel contends that “liberal neutrality” and a public square denuded of religious arguments and convictions are impossible on this issue. Drawing on Aristotle, he contends that it is necessary to engage in substantive moral argument about marriage as a social institution, the virtues it honors and rewards, and whether gay and lesbian unions are worthy of the honor and recognition that, in our society, state-sanctioned marriage confers. Arguments rooted in freedom to choose one’s marital partner or in the right to equal access to marriage will not suffice. In this article, we offer a close reading of the Massachusetts marriage opinion, Goodridge v. Department of Public Health (2003), and the California marriage opinion, In re Marriage Cases (2008), to support our argument that Sandel draws too stark a dichotomy between virtue-based and freedom-based arguments about justice (and, in turn, between civic republicanism and liberalism), and that both strands feature in these opinions. Arguments about why marriage matters as a social institution fruitfully complement arguments about why marriage matters from an individual rights perspective, although the latter properly constrain certain appeals to religious arguments about civil marriage. We conclude with a brief consideration of how these arguments play out in the recent federal district court opinion, Perry v. Schwarzenegger, which held Proposition 8 (amending the California constitution to bar same-sex marriage) unconstitutional.


—DRS, CLR Fellow

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