Contract Law and the Ethical Neutrality of the State: Some Thoughts About Liberalism and Communitarianism

Abstract

Communitarians and liberals disagree about the way the state should treat the phenomenon of moral pluralism, the phenomenon that the members of a modern society usually do not share the same moral outlook, but have different views about good and bad. Whereas liberals take the position that the state has to be neutral between the competing conceptions of the good, communitarians argue that the state ought to enforce that morality which is dominant within the community. The liberal view rests on the distinction between the right and the good¹ according to which the state is only entitled to enforce the principles of justice, but not — in a perfectionist way — any special conception of the good. According to the liberal view, the individual has the right to pursue any conception of the good and to hold any moral view as long as she does not violate the rights of her fellow citizens. Communitarianism, on the other hand, gives the state the right to discriminate between different views of the good; the state is entitled to give special treatment to that morality which is dominant within the community. The reason for this preferential treatment for the majority’s morality lies in its importance for the common good; according to Charles Taylor² the dominant morality helps to define the common good of a society, its form of life. Without the state’s support for this dominant morality society would run the risk of disintegrating. A different argument against ethical neutrality was put forward by Philip Selznick³. For him the dominant morality is important because it represents the objective criteria which enable the individual to decide between right or wrong. Without these criteria there would be no way for the individual to distinguish right from wrong.