Some thoughts while preparing notes on G&T’s chapter 7 (on liberty):
*I wonder if G&T don’t unnecessarily lard down their theory, that it would in fact work better if it weren’t more open, closer to anything goes. One could hang on to reciprocity, accountability, and publicity, and, perhaps, toss the rest—or at least allow questions of liberty and opportunity to be subject to deliberation itself. In other words, make sure that everyone gets to take part, no one gets to kick anyone else out, and let those in the deliberation determine their own rules, rules which may violate G&T’s content principles, but work nonetheless for that group.
*It makes sense that G&T refer to real life cases and the legally relevant conditions—in the Stern/Whitehead case, that of the enforcement of contracts—but they seem unnecessarily tied to what is legally relevant. Yes, they do go beyond legality into moral considerations, but why not question the contract model itself? Couldn’t that be a consideration for deliberation? Classical Liberals (i.e., capitalists) may accept the inviolability of the contract and the liberty which inheres in the contract, but neither of these presumptions is incontestable. A radical, for example, may simply point to the practicality of contracts without granting their enforcement any particular moral claims.
*G&T have mentioned that evidence must inform all deliberation, such that the arguments be truly reasoned. That said, their move at this point [p. 245] seems to include ‘majority’ evidence and exclude ‘minority’ evidence. Perhaps in law-making it makes sense to rely upon majority evidence, but it’s not at all clear that deliberation itself should not also consider the minority evidence. So most woman who have served as surrogates are happy they did so—that ought to matter. But shouldn’t it also matter that some regret this decision? Maybe there isn’t any way to craft a law which takes both perspectives into account, but why not at least consider a way to deal with the latter case?
*G& T offer an incredibly weak response [p. 246] to the fact of class differences between surrogates & recipients. Again, this classical-Liberal response downgrades the significance of class differences, noting that because not all lower classes would participate in a particular activity, this must mean that such participation must be free. Apparently, anything which is not directly coerced is free; this seems a weak defense of the liberty—and integrity—of all, including members of the lower classes.
Furthermore, they seem to elide the differences which they highlighted earlier between the labor of pregnancy and that of other forms of labor. This might explain how they overlook considerations of the integrity of those in all areas who labor out of financial need.
*Re: the faulty bridge scenario [p. 264]. Is the issue that no real infringement of liberty, or that no real paternalism: The officer has more information and, in a direct and immediate emergency, acts on it. The paternalism might consist of continued detention if person nonetheless insists on crossing, but that’s a separate matter.
This whole chapter raises a question some in Macedo’s book have raised: Why bother w/actual deliberation, when G&T can set in motion a ‘thought-piece’ deliberation which leads to (their preferred) deliberatively-appropriate solution? They seem to have already concluded the right response to surrogacy, and simply reverse-engineered deliberation to lead to that outcome. Giancarlo’s suspicions seem borne out in full in this chapter.
So back to my first point: why so damned many conditions [on content]? Why not simply rely upon the principles which regulate the process (reciprocity, publicity, accountability) and let the deliberators hash out what conditions they would impose upon themselves?
I ask this as someone who dearly loves her Constitutional protections, i.e., that there are some claims on my behalf which I don’t have to argue or convince anyone else to accept: I can simply assert those claims with reference to a relevant Constitutional article or amendment. In other words, I don’t have to justify my being.
Nonetheless, there is sufficient and nasty dispute over the interpretation of those Constitutional protections that I wonder if by putting those disputes outside of the arena of deliberation (through recourse to the content principles) , that they don’t undercut the real power of deliberation to enhance democracy.
Jefferson may or may not have been glib in stating that a little revolution or bloodshed every now and then is a good thing, but I think taking the metaphor seriously—i.e., that we have to rethink periodically our first principles in order to keep them fresh—would enhance democracy.
And if it would lead to a lessened democracy, well then, maybe that’s all we would deserve.
In somewhat related (to surrogacy, anyway) news:
William Saletan of Slate, who continues to drive me crazy, offers another real-life scenario in the world of assisted reproductive technologies: couples who choose to terminate a pregnancy in which the wrong embryo was implanted.
G&T might approve of his suggestion, but I remain skeptical—tho’ perhaps because I’m in a moment of general allergy to anything Saletan suggests. . . .