Jon Mahoney

I argue that Habermas’s proposed system of rights fails to offer an adequate account of the relation between rights and moral injury. In providing a non-moral justification for rights, Habermas’s functional-normative argument excludes the moral intuition that persons are worthy of being protected from a class of injurious actions (i.e. false imprisonment, religious persecution). Habermas does offer clearly stated reasons for his proposed normative, yet non-moral foundation for a legitimate legal order, including the claim that the functional imperatives of modern legal systems cannot be reduced to morality. My positive thesis is that at least some rights are moral norms whose content and justification derive from a moral point of view informed by the idea of persons as free and equal.

Part I of this paper examines liberal toleration and its relevance to the debate on polygamy. The remaining sections consider Marci Hamilton’s claim that polygamy should not be accommodated. Hamilton’s position rests on three kinds of arguments which I call: 1) the argument from public reason; 2) the argument from democracy; and 3) the argument from exploitation. Each of these fails: 1) fails because Hamilton’s conception of public reason is too restrictive; 2) fails because it rests on a procedural test which attempts to balance claims about rights against claims about the public good—and thus presupposes a flawed conception of rights; 3) is the most compelling of Hamilton’s arguments but could be met in principle if one can show that the right design of background institutions can accommodate polygamy without sponsoring an exploitative form of marriage.

moral foundation of liberalism can be defended in one of three ways: (1) as a conception one accepts as a result of one’s affirmation of political liberalism, (2) as a conception one must affirm as a presupposition for political liberalism, or (3) as a philosophical truth about practical reason and persons. The first option makes it impossible to distinguish a moral consensus from a modus vivendi . The second renders the moral foundation of liberalism dogmatic because it affirms a moral foundation for which no justification is provided. Since there are good reasons for rejecting (1) and (2), that leaves option (3). I argue that (3) should be the preferred option for liberals who advance liberalism as a political doctrine with a moral foundation.