Steven D. Smith on "Smuggling"

Below is an excerpt by one of my favorite authors, Steven D. Smith, from his book The Disenchantment of Secular Discourse (Cambridge, MA: Harvard University Press, 2010), from pp. 26-33 (endnote numbers in parentheses--because I don't know how to make them look endnote-number-ish in this blog).  Smith is a law professor at the University of San Diego.  His works show a remarkable ability to scrutinize modern secular concepts and show their frequently question-begging nature.  (For example, see this article attacking the concept of legal religious neutrality and this article examining the emptiness of the famous "Harm Principle" as it is used in law.)  Dr. Smith's books can be found here, and a list of free online articles can be found here.

In this excerpt, Dr. Smith reveals how loaded terms and ideas are often used in modern social-political discourse to "smuggle in" substantive ideas without having to acknowledge their sources or argue for them substantively.  He examines briefly the concepts of "freedom," "equality," and "reciprocity" (the idea that we should treat others as we would like to be treated) and points out how they can be used and often are used to "smuggle."

(Reprinted by permission of the publisher from THE DISENCHANTMENT OF SECULAR DISCOURSE by Steven D. Smith, pp. 27-33, Cambridge, Mass.: Harvard University Press, Copyright © 2010 by the President and Fellows of Harvard College.)

   Such smuggling is, I happen to think, ubiquitous in modern public discourse.  Some of it is small scale and idiosyncratic--the work of random discursive privateers (like, say, Ayn Rand).  Much of it occurs under the auspices of large and powerful families of terms, concepts, and rhetorical tropes.  As it happens, in the public discourse of present-day America, we have two dominant normative families--not the Corleone and Tattaglia families, but rather the autonomy-liberty-freedom family and the equality-neutrality-reciprocity family.  These powerful and eminently respectable normative families do a great deal of legitimate business, for which we may all be grateful--I certainly am--but they also run extensive smuggling operations.  (Sometimes the two families team up for these purposes, as in the Eisgruber-Sager "Equal Liberty" principle, which we will bump into in Chapter 4.)
    I am far from the first to observe the workings of these operations.  Take the autonomy-liberty-freedom family.  "Freedom" is a term that inspires respect, even reverence.  In the abstract, everyone admires it: who goes around proclaiming, "I'm against freedom"?  (Not me, certainly.)  And no doubt a vast amount of good has been accomplished under the banner of freedom.  Consequently, there is ample scope for advocates to wrap their favored agendas in the flag of freedom.  But, of course, there are different kinds or conceptions of freedom: "negative" versus "positive" freedom, "individual" versus "civic" or "political" freedom.  Moreover, an expansion of one person's freedom often means a contraction of other people's freedom: if we recognize and protect the freedom of the pornographer to market pornographic materials, we simultaneously reduce the freedom of people to live and raise their children in a pornography-free community.  Hence, appeals to "freedom" can easily be--and often are--question-begging: freedom becomes an honorable label used to smuggle in an advocate's particular agenda or conception of what is good and valuable.
    In this vein, reviewing a history by Eric Foner of the various uses of "freedom" in American politics, Michael Klarman comments that "by demonstrating the infinite contestability and malleability of freedom, Foner has proven that the concept does no serious work in the various debates in which it is invoked."

This is not to say, of course, that all arguments about freedom are equally convincing.  It is to say that the reason some such arguments are more persuasive than others has nothing to do with their merit as arguments about freedom, but rather is attributable to the attractiveness of the substantive cause on behalf of which they are mustered.(70)

And Klarman concludes that

[f]reedom . . . is an empty concept.  To say that one favors freedom is really to say nothing at all.  As is so often the case in constitutional law, one ultimately cannot avoid taking a position on the merits.  Whether freedom is good or bad depends entirely on the particular substantive cause on behalf of which freedom is invoked.(71)

    To be sure, theorists and advocates attempt to supply substantive criteria to fill in this emptiness.  Probably the most powerful and persuasive such filler, at least in Anglo-American discourse, has been the famous "harm principle" proposed by John Stuart Mill.  We will look at that principle more closely in a later chapter, and we will see that to a large extent, the principle has served as an immensely effective vehicle for . . . smuggling.
    Or consider the equality family, which in recent decades seems to have muscled aside even the venerable freedom family at the center of American public discourse.  More than a quarter century ago, Peter Westen published an article called "The Empty Idea of Equality" in the Harvard Law Review.(72)  Westen's basic point was simple: as a normative value, equality is a formal notion, meaning simply that "like cases should be treated alike" and "unlike cases should not be treated alike."  Those propositions are hardly controversial; what is controversial is whether particular instances actually are alike in relevant respects.  That question cannot be answered by invoking equality, however, but only by reflecting on the substantive values or criteria that apply or should apply to a particular issue.  Blind people are like those who are not blind for some purposes (voting, for example) because blindness is not relevant to the substantive criteria governing voting.  But blind people are unlike those who are not blind for other purposes (for example, driving a car) because ability to see is relevant to the substantive criteria that govern the ability to drive.
    Westen suggested that if we know what the relevant substantial criteria are, we do not need the idea of equality; we can simply treat each case as the relevant substantive criteria dictate.  We do not need to insist on treating the blind and the sighted "equally"; if we simply determine the appropriate criteria for voting eligibility and for drivers' licenses and apply these criteria consistently, then without ever intoning the word we will ipso facto be treating these groups as equality requires.  Conversely, if we do not know what the relevant substantive criteria are, the idea of equality is no help, because we have no way of determining whether particular instances are relevantly like or unlike.  "So there it is," Westen concluded:

Equality is entirely "circular."  It tells us to treat like people alike; but when we ask who "like people" are, we are told they are "people who should be treated alike."  Equality is an empty vessel with no substantive moral content of its own.  Without moral standards, equality remains meaningless, a formula that can have nothing to say about how we should act.  With such standards, equality becomes superfluous, a formula that can do nothing but repeat what we already know.(73)

    Westen's conclusion may have overreached in some respects, as his critics argued.(74)  But a mildly more modest conclusion seems sound, and also tremendously important:  in any genuine controversy, the notion of "equality" cannot carry us far toward any particular resolution.  If there is sincere disagreement about, say, whether same-sex marriage should be legalized, then insisting on "equality" is merely a distraction (albeit a polemically potent one, as we have recently observed).  More generally, when we observe an advocate placing a great deal of weight on "equality," we have cause to suspect that something sneaky is going on.
    Westen's article has been widely discussed, and most legal scholars will purport to acknowledge the central point.  Moreover, advocates typically understand that they must say something about the substantive criteria or values they are invoking.  Yet it remains common to observe even the most prominent and sophisticated theorists and advocates today featuring appeals to equality as their central discursive strategy on a whole range of issues, from same-sex marriage to religious freedom to free speech to just about any major issue you can name.  And whenever we observe this strategy in action, we have reason to suspect that the real operative values are being smuggled in--or at least heavily subsidized--under the auspices of the venerable family of "equality."
    Or if "equality" happens to be indisposed, the close family relations of "neutrality" or "reciprocity" can often be employed to do the same work.  Consider Jürgen Habermas's claim that a "universal" ground for religious toleration (as opposed to more local and prudential grounds) can be found in the idea of reciprocity.  Citing Pierre Bayle's classic argument, Habermas argues that reciprocity precludes Christians from forbidding Muslim proselytizing in Christian Europe while at the same time objecting to the suppression of Christian evangelization in Japan.(75)  To those of us for whom a constitutional commitment to religious toleration has become close to axiomatic, this argument is likely to pass without objection.  Of course religious toleration is a good thing--who today worth paying attention to doubts this?  So a denial of toleration would be a clear violation of reciprocity.  Wouldn't it?  And wouldn't it seem merely churlish, and maybe a bit medieval, to quibble with Habermas's argument?
    So then did the people in premodern Europe who resisted religious toleration--the Thomas Mores, the John Calvins--somehow fail to grasp or accept the idea of "reciprocity"?  Not at all.  Or at least they need not have opposed the idea.  Rather, they might cheerfully acknowledge the legitimate demands of "reciprocity," and they might further concede that, if Christianity, Islam, and, say, Shintoism are relevantly similar, then if Christians expect to be permitted to evangelize in territories dominated by Islam or Shinto, they likewise ought to allow representatives of those religions to proselytize in Christendom.  But that premise--namely, that these religions are relevantly similar--is precisely what the premodern believers emphatically denied.  In their view, one of the religions leads to salvation, while the others lead to damnation: that is hardly equivalence.  And what could be more perverse than to insist that reciprocity requires truth to be treated in the same way as falsehood?  It is as if a student were to argue, on grounds of reciprocity, that if the school gives credit for true answers on a test it must give equal credit for false answers.
    To be sure, even the most devout adherents to the different religions might acknowledge that the religions are similar in the sense that their own followers believe them to be true.  But is that similarity dispositive for the question of reciprocity?  Well, it may be, if we assume, for instance, that belief, not actual truth (or salvific efficacy), is the relevant factor.  And that assumption may seem natural enough--even obvious--to, say, a modern skeptic who supposes that none of the faiths is actually true in any strong sense anyway, or that in any event their truth in unknowable to us.  Conversely, to a premodern true believer--to a Thomas More, once again, or a John Calvin--that assumption would likely seem as odd as would a claim by a failing student that since all humans (including teachers) are fallible, what should matter in determining grades is not whether the answers on an exam are actually correct (about which we can never be absolutely confident anyway) but whether the student sincerely believed those answers.
    We need not take sides in this particular disagreement here.  The crucial point is simply that the division between partisans and opponents of religious toleration is not over the obligation of reciprocity--both sides may happily and wholeheartedly embrace that idea--but over whether reciprocity should be keyed to truth or instead to something like sincere belief.  Piously insisting on "reciprocity" only serves to conceal that fundamental disagreement.  Consequently, upon hearing the Habermasian argument (or similar arguments made by Rawls(76) or any number of other advocates), the opponents of religious toleration might say just what Dworkin says of public intellectuals today, and what Priel says of Dworkin:  "You purport to be offering an argument, but in fact you aren't.  You are simply begging the question, and your 'argument' is just a way of packaging the problem so as import--to smuggle in--the conclusion you were determined from the outset to reach."

For more, see here and here.