Perfectionist liberalism, tolerance and american law

Res Publica 8 (1):41-70 (2002)
I attempt to show that toleranceis part of the idea of American law: for any legalsystem must incorporate the capacity toaccommodate differences in order to meet theminimal standards necessary to apply a rule. There are multiple forms of tolerance, however, some ofwhich are inconsistent with liberal principles.By examining several lines of jurisprudencerelating to speech and privacy, I show thatAmerican law reflects elements of bothliberalism and conservative communitarianism. I attempt to reconcile these by suggesting they actuallyreflect a perfectionist foundation of liberalautonomy. That is to say, American law doesnot value moral autonomy and reasoned discoursebecause they protect neutrality betweendifferent ideas of the good life: rather, thelaw reflects an idea of the good life that seesmoral autonomy as advancing well being.This perfectionist liberal foundation oftolerance reflects the evolution of Americanlaw. Through slavery, sexism and the controlof erotic speech we see how it expanded theideas of who is capable of rationaldiscourse and what activities incorporatethe exercise of reasoned moral autonomy;and how the law imposes this autonomouscapacity on individuals as the price ofcitizenship, even if they belong to groups whodeny the value of reason or autonomy.
Keywords American law  autonomy  perfectionist liberalism  tolerance
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