INTRODUCTION I. THE CULTURAL COGNITION OF HARM II. THE PROBLEM OF COGNITIVE ILLIBERALISM A. "Culture Wars ": Facts, Not Values B. Now You See It, Now You Don't 1. Sodomy and drugs 2. Guns 3. Smoking 4. Nuclear energy & global warming III. A DISCOURSE NORM SOLUTION A. Against Public Reason B. For Expressive Overdetermination 1. What expressive overdetermination is 2. How expressive overdetermination works 3. Why expressive overdetermination is morally desirable CONCLUSION INTRODUCTION
Liberal ideals figure prominently in American law and political culture. The ban on state endorsement of partisan visions of the good animates dominant understandings of the individual rights provisions of the Constitution. (1) The duty of lawmakers, judges, and citizens to justify their positions on grounds susceptible of affirmation by persons of diverse moral persuasions--paradigmatically, the prevention of harm--is deeply woven into prevailing norms of legal and political discourse. (2) No thoughtful observer would assert that the United States is today a perfectly liberal state, but none could realistically deny the persistent (if uneven and contested) influence the aspiration to become one has had on the development of American institutions. (3)
My goal in this Article is to identify a distinctive ground for questioning the viability of the liberal project. Unlike many well-known critiques of liberalism, the concern I will raise does not question either the normative appeal or the conceptual coherence of the liberal commitment to neutrality. (4) I will suggest instead an important practical barrier to the attainment of this ideal. My objection to liberalism is neither metaphysical nor political (5) but cognitive: we lack the psychological capacity, I'll suggest, to make, interpret, and administer law without indulging sensibilities pervaded by our attachments to highly contested visions of the good.
The foundation of my argument is the phenomenon of "cultural cognition." (6) Cultural cognition refers to a collection of psychological mechanisms that moor our perceptions of societal danger to our cultural values. In appraising societal risks, for example, we rely critically on value-pervaded emotions such as fear and disgust. To minimize dissonance, we more readily notice and recall instances of calamity that appear to be occasioned by behavior we abhor than by behavior we revere. Where members of society disagree about the harmfulness of a particular form of conduct, we instinctively trust those who share our values--and whose judgments are likely to be biased in a particular direction by emotion, dissonance avoidance, and related mechanisms.
These dynamics confront the liberal aspiration with a special dilemma. As a result of cultural cognition, we naturally view behavior that denigrates our moral norms as endangering public health, undermining civil order, and impeding the accumulation of societal wealth. Under these circumstances, the promise not to interfere with the liberty of individuals except to prevent harm to others is likely to be rendered meaningless: whenever individuals deviate from dominant understandings of virtue, they will be perceived as sources of harm. Even lawmakers who honestly focus their attention only on promoting secular goods--ones of value to all citizens, irrespective of their worldviews--will be impelled to create a system of repressive regulation that expresses and reinforces a partisan moral orthodoxy.
This condition of cognitive illiberalism, I'm convinced, is endemic in our law today. Indeed, we can all readily perceive instances of coercive regulation that rest on empirical claims about harm accepted only because they are congenial to the partisan worldviews of those who favor such regulation. The problem is that we have highly polarized understandings of what those regulations are--criminalization of marijuana, the banning of (or refusal to ban) possession of handguns, exclusion of gays from the military, the moratorium on construction of nuclear power plants--precisely because we subscribe to competing cultural worldviews. The selective apprehension of cognitive illiberalism is part and parcel of the phenomenon itself.
Is there a solution? Although there is (I'm convinced) no effective "debiasing" technique for cognitive illiberalism, I will suggest a strategy to make citizens of diverse outlooks at least conscious of its impact and committed to constructing a regime of mutually agreeable regulation despite it.
Ironically, this strategy involves dispensing with a feature of our legal and political culture thought to be essential to liberalism: the norm of "public reason," which enjoins legislators, judges, and citizens to justify law in secular terms acceptable to persons of diverse cultural and moral persuasions. The intractability of cognitive illiberalism reveals the practice of public reason to be a conceit--a form of false consciousness that compounds the impulse to enforce a moral orthodoxy by enabling its agents to deny (to themselves even more than to others) that this is exactly what they are doing. I advocate in its place an idiom of expressive overdetermination, which, far from cleansing legal and political discourse of cultural values, self-consciously multiplies the cultural meanings that laws are susceptible of bearing. In a regime of expressively overdetermined law, there will be fewer occasions for disagreement as citizens of diverse cultural outlooks seek to identify policies that promote their collective interests, and more opportunities for all to find affirmation of their worldviews notwithstanding the conflicts that persist.
I'll develop this argument in three Parts. In Part I, I will examine the phenomenon of cultural cognition and the role it plays in our perception of societal harms. In Part II, I will examine the problem of cognitive illiberalism--the inevitable tendency, as a result of the cultural cognition of harm, for the law to embrace a partisan moral orthodoxy as citizens seek to identify the most efficacious means of achieving putatively secular ends. Finally, in Part III, I will discuss how the impact of cognitive illiberalism can be muted if not eradicated through a discourse norm of expressive overdetermination.
THE CULTURAL COGNITION OF HARM
The equation of vice with danger is a familiar characteristic of premodern cosmologies. Emperor Justinian banned sodomy in the sixth century to protect his subjects from pestilence, famine, and earthquake. (7) The ancient Jews observed the commandments of Yahweh lest he "strike [them] with consumption, and with fever and with inflammation and with fiery heat and with the sword and with blight and with mildew." (8) The Cheyenne believed the scent of a tribe member who had murdered a fellow tribe member would drive away the buffalo and thus spoil the hunt. (9) In the primitive world, "the laws of nature are dragged in to sanction the moral code: this kind of disease is caused by adultery, that by incest; this meteorological disaster is the effect of political disloyalty, that the effect of impiety." (10) In this way, "[t]he whole universe is harnessed to men's attempts to force one another into good citizenship." (11)
We moderns are no less disposed to believe that moral transgressions threaten societal harm. (12) This perception is not, as is conventionally supposed, a product of superstition or unreasoning faith in authority. Rather it is the predictable consequence of the limited state of any individual's experience with natural and social causation, and the role that cultural commitments inevitably play in helping to compensate for this incompleteness in knowledge. What truly distinguishes ours from the premodern condition in this sense is not the advent of modern science; it is the multiplication of cultural worldviews, competition among which has generated historically unprecedented conflict over how to protect society from harm at the very same time that science has progressively enlarged our understandings of how our world works.
Start with a puzzle: how do ordinary people figure out what sorts of activities are harmful, either for them individually or for their communities collectively? Personal experience--Did I (or my children) contract leukemia from living in the vicinity of a toxic waste dump? Did I get shot by a violent criminal because my state failed to adopt a "right to carry" law? Will my planet suffer catastrophic environmental consequences if global warming isn't reversed in the next decade?--provides necessarily inconclusive (not to mention untimely) guidance. Scientists have amassed a wealth of empirical data on many putative dangers. But very few people have the time or inclination to sort through such studies, or the capacity to understand the technical information they contain and to evaluate their relative quality when they reach conflicting results.
We nevertheless manage to form beliefs about harm--usually supremely confident ones--through heuristics. (13) Some of these belief-formation strategies are relatively straightforward and deliberate: confronted with competing claims about the hazards of a particular technology or medical procedure, or the efficacy of a disputed policy, we sample the views of those whom we have associated with, or defer to the opinions of experts whose judgment we trust. (14) Others are more complex and less observable. We instinctively impute danger, for ex ample, to activities that evoke negative emotions--such as fear, dread, anger, and disgust. (15) We form estimations of the relative magnitude of risks based on how readily we can recall or imagine instances of the harms with which they are associated. (16) While hardly foolproof, such mechanisms allow us to form judgments about hazards that we are unable to investigate in a more systematic and detached fashion.
The theory of cultural cognition posits that the heuristic processing of risk...