Should liberal states compel their citizens to adhere to liberal values? The failure of the UK and France to protect ethical independence and equal civic status in relation to freedom of education and other fundamental rights.

Abstract

Abstract The central argument of my thesis is that a liberal state should adopt a ‘principle of restricted neutrality’, as defined below, when enacting laws, making administrative decisions or adjudicating upon disputes. Toleration and neutrality The concept of ‘toleration’, for beliefs which conflict with those favoured by the state, originated in the European Wars of Religion of the seventeenth century as an alternative to suppression of dissent by coercive means. It has been regarded as laying the foundation for the modern idea of state ‘neutrality’. Whilst there has been no formal abandonment of this latter concept in twenty-first century European democracies, its meaning has become increasingly ambiguous. Does state ‘neutrality’ encompass actions or omissions by public bodies signifying a preference for certain types of beliefs, or for citizens who adhere to such beliefs; or does it exclude such actions and omissions? Building on the theories of, inter alia, John Rawls, Ronald Dworkin and Cecile Laborde, I argue that, properly construed, state neutrality must mean a commitment to three requirements, which together constitute a principle of restricted neutrality: i. first, that public bodies ensure their decisions are underpinned by reasons which all reasonable citizens can engage with, if not endorse (the requirement of accessibility); ii. secondly, that public bodies ensure their decisions reflect a conception of liberty which is compatible with the freedom of individuals to form, review and revise their own conceptions of the good (the requirement of ethical independence); and iii. thirdly, that public bodies ensure their decisions reflect a conception of equality which is compatible with all individuals’ equal standing in the public forum: in particular such bodies must not, by their actions or omissions, create a hierarchy of favoured and disfavoured individuals by reference to their beliefs (the requirement of equal civic status). The rejection of restricted neutrality in the UK and France Taking the UK, a liberal democracy, and France, a republican democracy, as case studies, I seek to show that a fear of ‘extremism’ in the former, and ‘separatism’ in the latter, has driven a rejection of the principle of restricted neutrality in both states, as indicated by the decisions of their executives, legislatures and courts. In each case, the concepts of ‘extremism’ and ‘separatism’ are not confined to acts of terrorism, but extend to various non-criminal practices and beliefs: all of which are perceived to be at odds with the majority’s values and preferences. The need for reform I argue that the movement towards perfectionism within both the UK and France is a hazardous development: to qualify as ‘liberal’ or ‘republican’, each state must provide a minimum level of protection to the liberty and equality interests of those who dissent from favoured conceptions of the good. In order to do so, the British and French courts must apply a much higher standard of review than is apparent in their recent jurisprudence. I argue for the application of a form of enhanced proportionality test by the British and French courts, and an anti-perfectionist interpretation of key concepts within other grounds of review, when adjudicating upon relevant cases.