Vol. 10 No. 7 (July 2000) pp. 408-409.

MORAL CONFLICT AND LEGAL REASONING by Scott Veitch. Oxford: Hart Publishing, 1999. 219 pp. Cloth $45.00.

Reviewed by Lawrence E. Rothstein, Department of Political Science, University of Rhode Island.

Scott Veitch, in this version of his 1998 European Legal Theory Award winning doctoral dissertation, enters the debate over the failure of liberalism and liberal legalism. In particular, he targets Alasdair McIntyre's argument that liberalism has failed because it can provide no way to conduct moral argument as there are no longer any common understandings between the many value systems that exist in the world or, for that matter, in any modern society. McIntyre, according to Veitch, traces this failure to what he calls the "Enlightenment project." The first part of the project was the destruction of localized and insular traditionalism. Here the
Enlightenment succeeded in robbing religion, tradition and Aristotelian teleology of their power to impart a common language and a moral purpose to community life. Where the project failed, however, was in establishing new forms of community and morality based on reason. What is left in modern life, according to McIntyre via Veitch, is highly conflictual and interminable moral disagreement based on emotivism, the doctrine that all moral judgments are ultimately statements of personal preference, feeling or attitude.

Liberal legalism, in both its communitarian (e.g. Ronald Dworkin) and positivist (e.g. H. L. A. Hart) manifestations, is robbed of its legitimacy by the lack of shared moral values and, worse, courts, in order to make final, binding decisions, must resort to covert, but sweeping, arrogations of power to channel and suppress the pervasive and irresolvable moral conflicts. Dworkin, by seeking legal rules in hard cases in the political structure and legal doctrine of a "community of principle", a "genuine political community", assumes away the fundamental and intractable moral conflicts and the reality that there are no agreed upon community standards of justice. Even positivist theories, looking ultimately to legislation as the source of legal rules, must assume a unified moral voice expressed in the law in order
to interpret it definitively.

Veitch, wishing to save liberalism from liberal legalism, turns to the "radical liberalism" of Isaiah Berlin that recognizes that conflicts of values, which cannot be philosophically resolved, are necessary for politics. Government by authorities, who assume that conflict is the result of the inadequate understanding of values or their implications or the irrationality of some, but not all, positions, is ultimately oppressive. Communities, for Berlin, are created not by shared values, but by sociological factors and, most importantly, by pragmatic trade-offs with which the parties can live. The trade-offs are always provisional. This is the realm of politics. Veitch also notes that post-modern theorists such as Richard Rorty and Jean Lyotard take many of Berlin's ideas concerning the incommensurability of
fundamental values up. Veitch then argues that liberal legalism is incompatible with

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radical liberalism in that legalism's role is to channel, suppress and resolve definitively and in principle fundamentally irresolvable conflicts. It is liberal legalism, according to Veitch, that has discredited genuine liberalism.

Unfortunately, neither Veitch, Berlin nor the post-modernists provide new types of, or justifications for, legal systems which do not funnel fundamental moral conflicts into a legal process that transforms them and then resolves them according to principles deemed to be derived from reason and/or shared community values. It appears to me that Veitch has ignored thinkers, such as W. B. Gallie (1956), Charles Taylor (1967), William Connolly (1983), and Michael Perry (1997) that have more clearly than Berlin expressed the "essentially contested" and provisional nature of important moral, political and legal concepts and sociologists that have developed the role of the sociological/political/pragmatic aspects of value conflict associated with legal issues such as the death penalty.

Despite this last reservation, the critique of liberal legalism and post-modern attempts to revamp it presented by Veitch was very clear and cogently argued. In Alasdair McIntyre he picked a fascinating and formidable opponent to argue against. His attempted resurrection of Berlin, while somewhat quirky, certainly brought to my attention that liberalism often forgets to be liberal about granting authenticity to many widely and strongly held values and to conflicts over them. Most important, the book made me think through my own arguments with liberal legalism.

REFERENCES:

Connolly, William E. 1983. THE TERMS OF POLITICAL DISCOURSE, 3rd ed. Princeton
University Press.

Gallie, W. B. 1956. "Essentially Contested Concepts." PROCEEDINGS OF THE
ARISTOTELIAN SOCIETY. 56: 167-220.

Perry, Michael. 1997. "Contested Concepts and Hard Cases." ETHICS.88: 20-38.

Taylor, Charles. 1967 "Neutrality in Political Science." PHILOSOPHY,
POLITICS AND SOCIETY, 3RD SERIES. Ed. Peter Laslett and W. G. Runciman.
Oxford: Clarendon Press.