Inazu responds to Horwitz's review of "Confident Pluralism"

A few days ago, Paul posted his review - "Positive Pluralism Now" (U. of Chicago Law Review) -- of Prof. John Inazu's still-recent book, Confident Pluralism.  What follows is a guest-post response, by John, to that review:

Is Pluralism a Good Thing? 

Paul Horwitz has written a thoughtful and engaging review of my book, Confident Pluralism, for the University of Chicago Law Review.  Paul is an ideal interlocutor, having written widely about pluralism and the First Amendment.  I have a few comments in response, most of which have to do with his definition of pluralism. 

Paul notes that the term “pluralism” is “susceptible of multiple understandings—and to one big distinction: between pluralism as purely descriptive and pluralism as a good in itself.”  I tend to think of the “big distinction” somewhat differently: there is pluralism as a fact of the world (let’s call this Definition 1) and there is pluralism as a political response to that fact of the world (let’s call this Definition 2).  One can have normative views (positive or negative) about either of these meanings of pluralism. . . .

[More after the jump]

Paul calls himself a “positive pluralist” and suggests that positive pluralists seek “a shift away from thinking about pluralism as a fact to be managed . . . and toward a view of pluralism as a positive value and a good in itself.”  He suggests that I may be, or at least should be, a fellow traveler.   But I’m not so sure, in part because I’m unclear about what Paul means by pluralism being “a good in itself.”

Let’s start with Definition 1.  If positive pluralists view pluralism as a fact of the world as a “good in itself,” then I am not a positive pluralist.  As I write in the introduction to Confident Pluralism:

Not all of our differences are problematic. Most of us think some difference is good, that this variety of perspective makes life more interesting. I think the world is a better place because I pull for the Duke Blue Devils and some of my friends cheer for lesser basketball teams. March Madness would be less interesting if everybody liked Duke and nobody cheered against them. We might reach a similar conclusion about beauty, taste, and humor. Some of these differences enrich our lives. Some of them lead to sharper thinking and greater creativity.

On the other hand, most of us do not think that all difference is good. We can all name things that we think the world would be better off without. This is especially true when it comes to our moral beliefs. We might prefer a society in which everyone agreed about what counts as a justifiable homicide, a mean temperament, or a good life. To complicate matters, we also disagree over the nature of our disagreements, and over how much disagreement is a good thing. Moreover, at least some of our most important beliefs cannot be reconciled with one another. It cannot be the case that the act of abortion is both morally acceptable and morally intolerable. It cannot be the case that God exists and that God does not exist. And these differences matter far more than basketball allegiances.

My normative views about Definition 1 also come through in my characterizations of tolerance (which “does not impose the fiction that all ideas are equally valid or morally harmless”) and humility (which “should not be mistaken for relativism” and “leaves open the possibility that there is right and wrong and good and evil”) (pp. 88-89). 

Here’s another way to make the point: I would be perfectly content if everyone in the world were persuaded to share my views of right and wrong, good and evil, and ultimate things.  That doesn’t mean that I think everyone should hold all of my views about everything.  As I mentioned above, I think that some beliefs and preferences do not implicate morally significant questions.  And on some morally significant questions, I lack the information or wisdom to have reached a view with confidence.  But there are at least some questions about which I think I hold the correct view, enough to orient my life around the implications that follow from that view.  Because I believe the correct answers to these questions matter a great deal, and that they matter ultimately for everyone, I do not think that different views about them is a good thing.  In other words, at least with respect to many of our differences, I think Definition 1 is normatively bad—the fact of our deep differences is indeed a “problem to be managed,” rather than a “good in itself.” 

Let’s turn to Definition 2, which is pluralism as a political response to the fact of our differences.  More specifically, Definition 2 is a set of political arrangements that maximizes our ability to live peacefully given the fact of our deep differences.  Paul suggests that positive pluralists should be “forthright about advocating pluralism for its own sake, rather than as a kind of conflict resolution device.”  If this is right, then I am not a positive pluralist under Definition 2, either.  Pluralism “for its own sake” sounds like a positive pluralist would find Definition 2 intrinsically valuable.  My view is that Definition 2 is instrumentally valuable as what Paul calls “a kind of conflict resolution device” (or more precisely, conflict management, or conflict mitigation).     

One reason that I find instrumental value to Definition 2 is that I doubt we will overcome our deep differences short of transcendent intervention.  And left to our own devices, the method of engagement across difference matters to me.  Like many people, I prefer persuasion over coercion, even if that preference decreases the short-term likelihood of reducing the aspects of Definition 1 that I think are normatively bad.  And I am generally wary of state power, based both on my own family’s history (to which Paul alludes in his review) and the influence of intellectual mentors, including the theologian Stanley Hauerwas (whose connections to the law I explore in this volume of Law & Contemporary Problems).

Note that both the positive pluralist and I can view Definition 2 pluralism as normatively good.  For example, Paul writes that positive pluralists of an earlier era “saw smaller groups and institutions within the nation as having a value of their own, rather than wanting to set universal rules that would had a final victory to one side or the other.”  And he suggests that positive pluralism “moves away from . . . an overly state-centered approach to our social and political structures” and encourages “the possibility that the ‘official’ legal versions of these values do not apply everywhere or with equal strength or meaning in different legal and non-legal contexts.”  I think that both of these political arrangements are instrumentally valuable insofar as I believe that both of them facilitate our ability to live together across our deep differences.  But I would not characterize either as “a good in itself.”  I advocate for strong protections for the private groups of civil society, but not because I think the diversity of beliefs and practices represented in those groups is a good thing.  To the contrary, I think some of the private groups of civil society are terrible, and I think the world would be better off without them.  But I also think we need something like confident pluralism as a kind of mutual nonaggression pact.  I’m worried about the people in power, whoever they are, and whether they are closer to “my side” or “the other side.”  And I think a great strength of our country has been its capacity to check the people in power and work to persuade rather than coerce those with whom we disagree.   That doesn’t mean we always get it right.  Like Paul, I recognize that Definition 2 pluralism has at times been abused in the course of the American political experiment.  But I prefer it to other political alternatives.

There’s much more to Paul’s review, and I encourage you to read the whole thing.