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COPYRIGHT 2007 Stanford Law School
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.
I. 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 information interacts decisively with individuals' defining group commitments. (17) Whether we regard putatively harmful activities (deviant sexual practices, gun possession, nuclear power) with fear or admiration, with disgust or equanimity, with dread or indifference, expresses the cultural valuations we attach to those activities. (18) Accordingly, to the extent that it is driven by affect, risk perception is necessarily conditioned by culture. (19)
Culture likewise interacts with the contribution that ease of recollection, or "availability," makes to estimations of risk. To avoid cognitive dissonance, we are much more likely to take note of and assign significance to instances of harm associated with behavior we despise than those associated with conduct we revere. (20) We thus end up with culturally skewed inventories of readily recalled and imagined misfortunes, and as a result naturally form culturally biased estimations of the danger of deviant behavior. (21)
Finally, and most importantly, culture interacts with the role that social influence has in formation of perceptions of harm. Individuals generally conform their beliefs to those held by their associates--both because those are the persons from whom they obtain most of their information and because those are the ones whose respect they most desire. (22) The people we are most inclined to associate with are those who share our cultural outlooks. The predictable result is highly uniform views of societal harms among persons of shared cultural persuasions. (23)
This tendency is reinforced by the link between culture and credibility. We naturally impute credibility--including knowledge and shared interests--to putative experts whose cultural outlooks are congenial to our own. (24) Accordingly, to the extent we defer to credible experts when sorting through competing claims about societal dangers, we are again drawn to beliefs that cohere with our cultural commitments.
The link between perceptions of harm and cultural outlooks, moreover, is unlikely to be severed by disconfirming empirical information. Real-world people tend to be anti-Bayesians: rather than update their prior beliefs based on new information, they tend to evaluate the persuasiveness of new information based on its conformity to their experience. (25) Known as "biased assimilation," (26) this tendency also has a straightforward cultural explanation: ordinary persons aren't in a position to identify when new information is credible, and thus a ground for updating their prior beliefs, without recourse to the very same cultural heuristics that have generated their existing beliefs. (27)
Biased assimilation is especially strong when the belief under challenge is one that is predominant within a group--such as a cultural one--that is central to a person's identity. In that situation, acceptance of the new information threatens to drive a wedge between a person and others whose judgment she respects and whose good opinion she values. (28) Accordingly, if the source of the new information is someone perceived to hold cultural commitments opposed to one's own, the pressure to reject that information is all the more intense. (29)
This account of how culture contributes to the perception of societal harm is supported by a considerable body of empirical research on risk perception. Much of that work grows out of the "cultural theory of risk." (30)
Studies in this family measure individuals' cultural outlooks with scales patterned on a scheme devised by anthropologist Mary Douglas. Douglas classifies cultural "worldviews," or preferences about how society should be organized, along two cross-cutting dimensions: "group" and "grid." (31) Persons who are "high group" favor a communitarian social order in which the needs and interests of individuals are subordinated to the collective, which in turn is assigned responsibility for securing the conditions of individual well-being. Persons who are "low group," in contrast, prefer an individualist society, in which individuals are responsible for securing their own well-being without collective assistance or interference. (32) Persons who are "high grid" support a relatively hierarchical social order, in which goods, opportunities, offices, and obligations are distributed on the basis of largely fixed social attributes, such as gender, ethnicity, lineage, and class. Persons who are "low grid" seek an egalitarian society in which attributes of those sort play no role in the distribution of goods, opportunities, offices, obligations, and the like. (33) These divisions are related to but cut across conventional left-right ideological classifications (such as "conservative" and "liberal"), and perform a more basic function than those schemes in orienting individuals' political preferences. (34)
Individuals, this work shows, form perceptions of risk that cohere with their cultural appraisals of putatively dangerous activities. Egalitarians and communitarians, for example, worry about environmental risks (nuclear power accidents, global warming, air pollution, etc.), the abatement of which would justify regulating commercial activities that generate inequality and legitimize the unconstrained pursuit of individual self-interest.
Individualists, in contrast, reject claims of environmental risk precisely because they cherish markets and private orderings. They worry instead that excessive gun control will render individuals unable to defend themselves--a belief congenial to the association of guns with individualist virtues such as self-reliance, courage, and martial prowess.
Hierarchists fret about the societal risks of drug use and promiscuous sex, and the personal risks associated with obtaining an abortion or smoking marijuana--forms of behavior that denigrate traditional, stratifying norms. For similar reasons, they worry that mandatory vaccination of school-age girls against the human papillomavirus (HPV) will induce young people to engage in higher rates of unprotected, premarital sex and thus increase the incidence of other sexually transmitted diseases. (35)
Such associations, (36) which researchers find explain risk perceptions more powerfully than any other individual characteristic, (37) are the statistical smoking gun of cultural cognition. There is no reason to believe that hierarchs and individualists have better or worse access to information about societal harms than egalitarians or communitarians, or that any one of them is more or less reliant on heuristics in interpreting such information. The only cogent explanation for the clustering of beliefs among persons who share such orientations is that culture is indeed entering into the cognitive processes that determine their perceptions of risk.
A popular theme in the history and philosophy of science treats the advancement of human knowledge as conjoined to the adoption of liberal democratic institutions. It is through incessant exposure to challenge that facts establish themselves as worthy of belief under the scientific method. Liberal institutions secure the climate in which such constant challenging is most likely to take place, both by formally protecting the right of persons to espouse views at odds with dominant systems of belief and by informally habituating us to expect, tolerate, and even reward dissent. (38)
But at the same time that liberalism advances science, it also ironically constrains it. The many truths that science has discovered depend on culture for their dissemination: without culture to identify which information purveyors are worthy of trust, we'd be powerless to avail ourselves of the vast stores of empirical knowledge that we did not personally participate in developing. But thanks to liberalism, we don't all use the same culture to help us figure out what or whom to believe. Our society features a plurality of cultural styles, and hence a plurality of cultural certifiers of credible information.
Again, the belief that science will inevitably pull these cultural authorities into agreement with themselves reflects unwarranted optimism. In accord with its own professional norms and in harmony with the social norms of a liberal regime, the academy tolerates and even encourages competitive dissent. (39) As a result, cultural advocates will always be able to find support from seemingly qualified experts for their perception that what's ignoble is also dangerous, and what's noble benign. (40) States of persistent group polarization are thus inevitable-almost mathematically so (41)--as beliefs feed on themselves within cultural groups, whose members stubbornly dismiss as unworthy insights originating outside the group.
Because we have the advantage of science, we undoubtedly know more than previous ages about what actions to take to attain our collective well-being. But precisely because we tolerate more cultural diversity than they did, we are also confronted with unprecedented societal dissensus on exactly what to do.
II. THE PROBLEM OF COGNITIVE ILLIBERALISM
This constraint on scientific enlightenment, in turn, constrains the progress of liberalism. The quieting of open and violent sectarian rivalries aimed at aligning the state with partisan cultural orthodoxies is liberalism's great achievement. (42) But those rivalries, cultural cognition suggests, have not been genuinely extinguished, only relocated; they persist, not so much in disputes over the morally sectarian visions to be expressed by the law, but in contestation over the means to be employed to attain society's secular ends.
This is the problem of...
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