(Note: this paper was written for the context of Australia's current soul-searching about its future, but I believe that it is applicable, with very little change, to every contemporary (supposedly) liberal society.)
DO WE WANT A TRULY LIBERAL SOCIETY? AUSTRALIA'S STARK CHOICE
Russell Blackford, School of Philosophy and Bioethics, Monash University
A key question that Australia now faces as a nation is whether we are prepared to build a truly liberal society in the twenty-first century, or whether we will continue on a path where individual liberties are at the mercy of the political process. We are confronted with a stark choice.
One spur to thought about this question is the hysterical response in recent years to the prospect of new biomedical technologies. Much of this was provoked by the 1997 announcement in Nature that scientists in the UK had succeeded in cloning an adult sheep using what is known as somatic cell nuclear transfer ("SCNT") (for the announcement, see Wilmut et al. 1997). This announcement immediately led to moral panic about the prospect of human reproduction by the use of SCNT. Since then, Australia has been one of the many nations that have taken a highly illiberal approach to the regulation of new or emerging biotechnology.
Commentators on new biomedical technology often appear to believe that we are faced with Frankensteinian possibilities that cry out for a regulatory response. This, however, is getting things exactly back to front. On the contrary, the problem that we currently face is that widespread fear of new technologies has created an atmosphere in which liberal tolerance is under challenge. In the field of bioethics, what we need right now is a truly liberal response.
I suggest that our approach should identify genuine dangers and concerns, but deal with them strictly in accordance with liberal values.
Before going any further, I must stress that the recent illiberal tendency in public policy cannot be confined to bioethical issues. Once the idea of liberal tolerance is abandoned, many practices may be suppressed by the coercive power of the state, should they fail to gain acceptance within the political process.
Thus, just as arguments can be put that human reproductive cloning should be suppressed because it is somehow "interfering with nature" or "playing God", arguments can be put for suppressing certain consensual sexual practices as "unnatural", for suppressing certain speech as "blasphemous" or "offensive", or simply "inappropriate". And so on. Much of our policy framework for dealing with recreational drugs seems to be driven by an illiberal moralism, rather than a concern with liberty (or even harm reduction).
Liberal societies should give no credence to any such arguments that are based on contested values and moral beliefs.
THE IDEA OF A LIBERAL SOCIETY
A liberal society embraces pluralism, in the sense that it does not seek to impose any one vision of what it means to be virtuous or to lead a good life. Within such a society, approval is commonly expressed for John Stuart Mill's view that "experiments in living" should not be merely tolerated, but actually welcomed and celebrated (Mill 1974: 120).
As Max Charlesworth writes, "In a liberal society personal autonomy, the right to choose one's own way of life for oneself, is the supreme value." He adds that this includes what he calls ethical pluralism: members of the society are free to hold a wide range of moral, religious, and non-religious positions, with no core values or public morality that it is the law's business to enforce (Charlesworth 1993: 1). Accordingly, a liberal society makes a sharp distinction between the sphere of personal moral views and that of the law; no one can use the law to impose their beliefs on others (16-20).
Admittedly, it is sometimes difficult to define the boundaries of liberal tolerance, and the broad idea has been formulated in different ways, even by its prominent defenders in the current debates about bioethics.
John Harris, for example, writes of what he calls "the democratic presumption", which he elaborates as the principle adopted in liberal democracies that the freedom of citizens not be interfered with without good and sufficient reasons. According to Harris, citizens should otherwise be at liberty to make their own choices, based on their own values; some serious real and present danger, whether to other citizens or to society, is required to rebut the presumption (Harris 2007: 72-73).
Similarly, Gregory E. Pence defends what he calls the "classic liberal view", though he notes that the label is confusing.
This is the idea that we do not try to dictate decisions about the good to others, but leave them alone as long as they leave us alone. For Pence, the justification for this approach is simply that all the alternatives have led to disaster (Pence 2000: 167).
In a recent defence of liberalism, Paul Starr offers a richer description of the liberal ideal. Liberalism as Starr understands it has allowed people with different religious and moral commitments not just to live side by side, but to flourish together. A liberal state will not require everyone to worship in the same way, follow the same way of life, or profess an official ideology, but it expects citizens to show reasonableness and openness to ideas. It is not neutral about such values as disease and health, sloth and effort, deceit and integrity, cowardice and courage. There are, he suggests, excellences that it must promote to survive (Starr 2007: 176-77).
Nonetheless, Starr argues, a liberal state is neutral where divisions over the nature of the good life are deep and irreconcilable. Most crucially, the state apparatus of a liberal society allows a diversity of cultural and moral practices that cause no harm to others; this provides a framework for individuals' free development (Starr 2007: 22-23).
On such an account, liberalism can welcome any worldview that is able to endorse such ideas as mutual tolerance and the free development of autonomous individuals.1
As Starr points out, modern liberalism has also adapted to growing agglomerations of private power, the harsh collective and individual impacts of unregulated markets, social changes, economic crises, and unprecedented scales of warfare (Starr 2007: 85-116). As a result of social and economic change, the apparatus of the state now exercises extensive powers for the purposes of social coordination and to ameliorate the harshness of economic outcomes that would arise under a system of unbridled capitalist competition (see, e.g., Atiyah 1979: 571-779). However, these powers are explained in liberal thought on the basis that their use is meant to extend, rather than reduce, the practical autonomy of individual citizens (Lee 1986: 16-17; Raz 1986: 414-18).
Unless some kind of harm can be identified, a liberal society is generally reluctant to restrict the liberty of individuals to act as they wish with the resources available to them. Even the idea of harm is usually restricted to direct, significant, and wrongful harm to others. In particular, the harm described must be to secular interests, not to theological ones such as interests in personal salvation, holiness, purity from sin, or conformity to the will of a deity.2
As Charlesworth describes the position, in a liberal society there cannot be a consensus on such matters as the alleged superiority of heterosexual, monogamous marriage, or the idea that deliberately ending one's life is against God's will, or that organ transplants violate bodily and spiritual integrity, or that abortion is equivalent to murder of the innocent (Charlesworth 1993: 163).
In a liberal society, the coercive power of the state is brought to bear against individuals only with reluctance. Where individuals' personal lives and life plans are at stake, including their ability to express themselves freely, have consenting sexual relations, and make reproductive decisions, the state will be particularly solicitous of freedom of choice, unless a compelling reason can be found to do otherwise.3 Prima facie, the infliction or threat of force by the state is considered objectionable, especially so when very personal interests are at stake, as with choices about sexual relationships and family formation.4
BIOETHICS AND THE CHALLENGE TO LIBERAL TOLERANCE
This somewhat idealised picture of a liberal society and its ethos of mutual tolerance might suggest that a forbearing, if not welcoming, attitude would be taken to new or postulated forms of biomedical technology. For example, reproductive cloning might, one would think, be welcomed by a liberal society as an acceptable personal choice - particularly, but not solely, as a legitimate response to male infertility (and the preferences of some lesbian couples).
Admittedly, reproductive cloning is not currently a safe method of reproduction, in the sense that it would involve a high risk of congenital malformation. It is arguable that even the most liberal society has good reason not to tolerate the use of a method of reproduction that is unsafe in that sense. Such safety arguments, as they might be called, could also apply to other technological interventions, such the genetic engineering of human embryos.
However, the policy debate since the cloning of Dolly the sheep by Ian Wilmut and his team has been remarkable for the way that many participants have ignored, or even rejected, the liberal idea that experiments in living are to be welcomed. Prima facie, this Millian idea should apply to decisions about the full gamut of technological innovations, even though Mill himself could hardly have foreseen them. In the absence of some argument based in liberal values, liberal societies should allow individuals to decide whether or not to bear and raise children created by the use of SCNT.
Arguments about safety, or even about the welfare of growing children, do not explain the character of the actual debate or the real-world policy responses of liberal societies. The debate appears to be motivated in large part by a wish to impose certain moral or quasi-religious, ideals as social norms, and by a fear of the potentially strange directions that societies might take as biomedical technology develops.
In the early 1990s, Max Charlesworth complained about a gap between liberal ideas and the widespread hostility, within liberal societies, to a range of practices in health and medicine. On Charlesworth's account, one would expect to see liberal societies treating personal autonomy as central to ethical discussions about new reproductive technologies, and drawing a sharp line between the morality and legality of biomedical innovations. However, Charlesworth argued, the experience was that many of the policy responses of the time were illiberal - often authoritarian or paternalistic (Charlesworth 1993: 1-2).
The years since - and particularly those since the cloning of Dolly - have only made the gap identified by Charlesworth more obvious. We have seen the emergence of widespread and politically-influential opposition to many real or mooted technologies (e.g. embryonic sex selection, reproductive cloning, human genetic engineering, and radical forms of life extension). More than ever, we should heed Charlesworth's contention that those engaged in bioethical discussion, within liberal societies, must take account of the fact that they are, indeed, living in liberal societies and of a liberal society's basic values (Charlesworth 1993: 27).
In Australia, one outcome of the debate over new biotechnology has been the enactment of the Prohibition of Human Cloning for Reproduction Act 2002 (Cth). In its current form, as amended, this specifies a raft of criminal offences with maximum terms of imprisonment of fifteen years. These offences include any deliberate alteration of a human cell that would be inheritable, and intended as such (section 15), and any action that involves placing what the Act calls "a human embryo clone" in the body of a human being or another animal (section 9). The legislation proscribes germ-line manipulation of embryos for any reason, along with actions needed for reproductive cloning; further, it imposes prison sentences appropriate only for major crimes.
This federal statute operates in conjunction with numerous other restrictions under state legislation and guidelines issued by the National Health and Medical Research Commission ("NHMRC"). In particular, the use of PGD for embryonic sex selection, a technology that is already available, is proscribed by NHMRC guidelines and prohibited by some state provisions such as Victoria's Infertility Treatment Act 1995 (Vic.), which provides a maximum two-year penalty for any attempt to predetermine the sex of a child by technological means, except where necessary for medical reasons (section 50).
I submit that little of this can be justified on grounds that would be acceptable under the Millian harm principle or any principled extension of it, such as might be found in the comprehensive review in Feinberg's four-volume The Moral Limits of the Criminal Law (Feinberg 1984, 1985, 1986, 1988).
While the focus of this paper is on bioethical issues, where my recent research has largely been concentrated, it has implications that go far wider. A truly liberal society would be reluctant to interfere in many issues relating to sexuality, free speech and expression, family formation, and other matters involving deep disagreement about values and the good life. Once a society goes down the path of allowing law-makers to impose their views about these matters (or the views of an electoral majority), liberty is threatened across the board. Such an approach cannot be confined to one set of issues, such as bioethics.
We can expect the future to bring new political issues of many kinds. Some of them will provoke anger, fear, and other strong emotions, as did the cloning of Dolly and the prospect of reproductive cloning for human beings. Next time such an issue emerges, and grants law-makers in liberal societies, such as Australia, the opportunity to demonstrate their credentials as successors to Locke and Mill, they should not squander it.
A good start would be for opinion leaders to begin right now in identifying the issue of whether we want Australia to develop as a truly liberal society. This is, I submit, an idea whose time has come.
1 This is a central theme of John Rawls's Political Liberalism (Rawls 1993).
2 An early version of this idea can be found in John Locke's A Letter Concerning Toleration, in which Locke assigns to the civil magistrate protection of "things belonging to this Life" but not "the Salvation of Souls" (Locke 1983: 26).
3 In so doing, the governing philosophy of a liberal society will foster autonomous choices, even where this requires a redistribution of economic resources. In this respect, it differs from political libertarianism.
4 Compare Hart (1963: 21-22), which emphasises the importance of sexuality to individuals. The same point can be made about individuals' reproductive decisions.
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