Feb 11 2013

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Symposium for Ordered Liberty: Rights, Responsibilities, and Virtues

Posted at 4:04 pm under Law Library

The symposium for Professor Fleming and Professor McClain’s book,Ordered Liberty: Rights, Responsibilities, and Virtues(Reserve KF 4749 .F55 2012) took place this afternoon.  Professors Michael Dorf, Richard Fallon, and Marion Smiley critiqued the work, and Professor Fleming and Professor McClain had time to respond.  In case you did not have time to attend, here’s what you missed:

Professor Dorf began by summarizing the framework of the book.  It starts out with the claim by communitarians that liberals overvalue rights and undervalue responsibility.  Professors Fleming and McClain respond that liberals do value responsibility.  They argue that by granting individuals the freedom to make decisions, we celebrate the ability of those individuals to make decisions responsibly.  Professor Dorf took issue with the form of this argument, noting that people don’t need freedom to act responsibly, and that often times entities with authority (either the state or parents) limit the sphere within which individuals can make decisions (and demonstrate their responsibility).

Professor Fallon, who like Professor Dorf, highly praised Ordered Liberty, noted that Professors Fleming and McClain seemed to be pursuing two projects in this book: defending liberalism and developing a theory of ordered liberty.  Professor Fallon’s critique centered around what makes the book’s theory liberal.  Rawls and Dworkin at one time espoused the belief that commitment to neutrality was the defining feature of liberalism, yet Professors Fleming and McClain admit to being mild perfectionsts , believing that in some instances, the state should encourage people to do the right thing.

Professor Smiley was concerned that Professors Fleming and McClain did not suggest that critiques of rights generally might be better described as critiques of “rights culture.”  Professor Smiley also expressed concerns about the effects on racial minorities and women if the state is encouraging individuals to make responsible decisions, especially in the reproductive rights context.  Her fear is that when the state encourages responsibility, scrutiny will follow, and it’s important that safeguards are in place to make sure everyone is scrutinized equally.  She encouraged Professors Fleming and McClain to explore a sister theory of ordered responsibility.

Professors Fleming and McClain then had an opportunity to respond.  Professor Fleming acknowledged the challenge posed by Professor Dorf, admitting that although autonomy is central to the Constitution, unbounded autonomy is not.  Professor McClain then addressed the vulnerable populations argument, noting it is difficult to apply a theory of equal citizenship when the Supreme Court abortion jurisprudence (ex. Gonzales v. Carhart) includes a paternalistic message- that a woman cannot really understand what it means to terminate a pregnancy.

There was time at the end for questions from the audience, and many thought-provoking issues were raised, including whether liberals value freedom for its own sake.  To explore these ideas further, you can check out Professor Fleming and Professor McClain’s book in the Reserve Area (KF 4749 .F55 2012).

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