Boston University School of Law
This article takes up the gauntlet thrown down by Professor Abner Greene’s recent book, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy, to those scholars, politicians, and activists who believe that realizing the ideal of e pluribus unum (out of many, one) as well as constitutional principles of liberty and equality require a robust role for government. Government, Greene argues, is just one source of authority among many others, and citizens – or even public officials – have no general moral duty to obey the law. The political and constitutional order of the United States, he contends, is profoundly antifoundationalist and one of "multiple repositories of power." Because the state’s laws are not the only norms by which we live, it should provide robust exit rights so we can honor our plural obligations. Greene premises his argument on an "agnosticism of value" about not only "the good," but also about "the right" or "the just." This Article argues against the latter form of agnosticism as well as against his relegation of the state to simply one source of authority in competition with others. After identifying some general points of agreement and disagreement with Greene, the Article focuses on children, a group that receives little attention in his book, inquiring about the consequences for them of Greene’s agnosticism and argument "against obligation." Children, as he acknowledges, pose challenges for any argument that rests a robust right to exit on a baseline of knowing and voluntary choices (by adults). The constitutional order divides authority over children between parents and state, but also recognizes children as rights-bearers. I evaluate the specific examples Greene provides of how his theory would apply to children: education and exit rights of illiberal groups. I then consider a context Against Obligation does not address: the ways institutions respond to child sexual abuse and to their obligations under mandatory reporting laws. How would Greene’s argument against a general obligation to obey the law and in favor of maximum accommodation of "nomic" (normative, norm-making) communities address the fact that children suffer forms of physical abuse, particularly sexual abuse, within institutions to which parents frequently entrust their children? How would it address the fact that those institutions often ignore mandatory reporting laws, conceal the abuse, and fail to protect children? I offer several recent examples, involving religious institutions (the Catholic Church and an ultra-Orthodox Jewish community), youth organizations (the Boy Scouts of America), and programs undertaken at educational institutions (Penn State). Investigations into how such institutions responded to child sexual abuse and failed to comply with child protection laws reveal some of the risks of allowing normative communities to live by their own "laws" and, as Greene puts it, "escape the clutches" of the state.
Linda C. McClain,
Against Agnosticism: Why the Liberal State Isn't Just One (Authority) Among the Many,
Boston University Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/114