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 REVIEW ESSAY

Liberal Jacobinism*

Jacob T. Levy

A decade and a half has passed since Will Kymlicka’s Liberalism, Com-
munity, and Culture brought multiculturalism and ethnicity to the fore-
front of academic liberal political theory. It has been a decade or so
since Yael Tamir, Allen Buchanan, Charles Taylor, Chandran Kukathas,
Jeremy Waldron, and Iris Marion Young made their respective best-
known contributions on questions of multiculturalism and nationalism.1
The literature has subsequently proliferated; thoughts about how, if at
all, liberal or democratic theory and practice ought to be restructured
in light of the facts of ethnic, cultural, linguistic, and religious pluralism
have filled dozens of books and countless articles.
“In my naive rationalistic way,” Brian Barry tells his readers, “I used
to believe that multiculturalism was bound sooner or later to sink under
the weight of its intellectual weakness and that I would therefore be better
employed in writing about other topics” (p. 6). Since the predicted col-
lapse did not seem to be coming about spontaneously, Barry took it on
himself to hurry things along with Culture and Equality. The book aims to
provoke and succeeds. The controversy around the book is less than
entirely spontaneous, but Barry has clearly stirred things up; Culture and

* A review of Brian Barry, Culture and Equality (Cambridge: Polity, 2000–2001). Parts
of this commentary were first offered in an “Authors as Critics” roundtable with Barry,
Ayelet Shachar, Bhikhu Parekh, and myself at the 2000 annual meeting of the American
Political Science Association (Washington, D.C., August 31–September 3, 2000).
1. Will Kymlicka Liberalism, Community, and Culture (Oxford: Oxford University Press,
1989); Yael Tamir, Liberal Nationalism (Princeton, N.J.: Princeton University Press, 1993);
Allen Buchanan, Secession (Boulder, Colo.: Westview, 1991); Charles Taylor, “The Politics
of Recognition,” in Multiculturalism and “The Politics of Recognition,” ed. Amy Gutmann
(Princeton, N.J.: Princeton University Press, 1993), pp. 25–73; Chandran Kukathas, “Are
There Any Cultural Rights?” Political Theory 20 (1992): 105–39; Jeremy Waldron, “Multi-
culturalism and the Cosmopolitan Alternative,” University of Michigan Journal of Law Reform
25 (1992): 751–93; Iris Marion Young, Justice and the Politics of Difference (Princeton, N.J.:
Princeton University Press, 1990).

Ethics 114 (January 2004): 318–336

! 2004 by The University of Chicago. All rights reserved. 0014-1704/2004/11402-
0005$10.00

318
 Levy Liberal Jacobinism 319
Equality will probably stand for some time as the most prominent criticism
of the turn to multiculturalism in political theory and philosophy.2
But Barry has offered a strange sort of book. It adopts the polemical
tone and sweeping generalizations of some kinds of public intellectual
writing, but it is a dense academic monograph that aims its polemics
primarily at other academics in whom the general public has little in-
terest. Its various topics and targets have little in common with each
other except that Barry considers them all examples of an antiuniver-
salist abandonment of liberalism. Often a chapter will begin with a
ringing statement of principle that has the virtues of clarity and sim-
plicity and will proceed to some commentary on the fools or knaves
who disagree with the principle, only to conclude with modifications
and qualifications that leave the principle far more reasonable but much
less simple and not actually very different from the views of Barry’s
targets.
There are many bad arguments in the world, and Culture and Equal-
ity makes mincemeat of some of them. It also attacks views that are
plainly not held by the persons to whom they are attributed and engages
in serious and misleading distortion of the arguments that they do make.
I will return to these problems in the final section of this essay but will
first try to engage some of Barry’s primary arguments in favor of a
particular kind of universalist liberalism and against, well, everything
else.

I. MULTICULTURALISM AND ENLIGHTENMENT

Barry offers an astonishing intellectual prehistory of multiculturalism
and of liberalism; it is quick but is worth examining in some detail. The
ways in which it is wrong have a close connection with what goes wrong
in his argument as a whole. He sees himself as carrying the banner of
Enlightenment against those who are eager to undo or forfeit the ac-
complishments of liberal democratic equality.
The French Revolution swept away the special privileges of the
clergy and the nobility, and abolished the innumerable special
arrangements with respect to taxation extorted by towns and cities
over the centuries in exchange for temporarily relieving the fi-
nancial embarrassments of the King. In the face of all these com-
plex traditionally sanctioned differences, it introduced a system of
uniform laws and taxes. Similarly, the Revolution introduced a
uniform system of weights and measures, which facilitated trade

2. A volume of essays about Culture and Equality was commissioned and the chapters
drafted before the manuscript itself took its final form, much less before the book was
published (P. J. Kelly, ed., Multiculturalism Reconsidered: Culture and Equality and Its Critics
[Cambridge: Polity, 2002]).
320 Ethics January 2004
between different areas and also circumvented the problem that
the local measures were subject to manipulation. Previous efforts
by the French state to standardize had foundered on the lack of
common citizenship. . . . In the same spirit, the Revolution swept
away the patchwork of historic jurisdictions and replaced it with
the uniform grip of départements that still survives today virtually
unchanged. All of these examples of administrative rationalization
were anathema to conservative critics of the Revolution as an out-
ward expression of the spirit of the Enlightenment. Their contem-
porary heirs have no principled objection to the creation of a mass
of anomalies and special cases to accommodate cultural minorities,
because they are well aware that uniformity of treatment is the
enemy of privilege. . . . In advocating the reintroduction of a mass
of special legal statuses in place of the single status of uniform
citizenship that was the accomplishment of the Enlightenment,
multiculturalists seem remarkably insouciant about the abuses and
inequities of the ancien regime which provoked the attacks on it by
the Encyclopaedists and their allies. It is not so much a matter of
reinventing the wheel as forgetting why the wheel was invented
and advocating the reintroduction of the sledge. (P. 10)

Barry is right to think that there is a real relationship between the

eighteenth-century debates and events he identifies and the contem-
porary arguments about multiculturalism. The state that standardized
weights and measures, created a rational calendar without months
named for Roman gods or years numbered according to Christianity,
redrew the map of France with a straightedge, abolished feudal privi-
leges, and created equal citizenship was also the one that inaugurated
the French state’s two-century-long coercive suppression of minority
languages. Sometimes the privileges the Revolution demolished were
not just analogous to the special protections sought by cultural and
linguistic minorities; sometimes they were such protections. Barry accuses
his opponents and those who caricature the Enlightenment of conflating
equal legal treatment with coercive cultural uniformity, but it was surely
the French Revolutionary governments that conflated these first.
This book shows remarkable insouciance about the abuses and in-
equities of the Jacobin regime that brought this newly equal world into
being. But those involved with these debates in the eighteenth and
nineteenth centuries did not. The only critic of Revolutionary uniformity
Barry quotes is de Maistre, which allows him to blur the differences
among opposition to the Revolution, to moral universalism, to the En-
lightenment, and to liberal freedom. But the uniformity Barry celebrates
as an obvious liberal triumph was viewed with considerable ambivalence
by figures much less disreputable than de Maistre. Burke’s critique is
the most famous, but those of Benjamin Constant and Alexis de Tocque-
ville are more devastating, and Montesquieu’s attack on the Encyclo-
 Levy Liberal Jacobinism 321
paedists’ then-yet-to-be-implemented doctrine of uniformity was uncon-
taminated by any of Burke’s affection for the Bourbons.3
Constant was a (late) Revolutionary himself and was unquestionably
an intellectual progeny of the Enlightenment. Tocqueville’s views of the
Revolution and of liberal democracy are of course conflicted, but in
the final accounting he is certainly a modern and a liberal democrat,
not a premodern feudalist. But the important point is not a biographical
one. It is that Montesquieu, Constant, and Tocqueville (like Burke, and
unlike de Maistre) perceived a link between despotism and the spirit
of uniformity, and a link between freedom and a tolerance for insti-
tutional variety. Tocqueville argued that the prerevolutionary privileges
of the clergy, however unjustified in principle, taught the clergy inde-
pendence and love of liberty, while the clergy of his own day were mere
apologists for and dependents on the state. Constant granted that a
patchwork of jurisdictions would make no sense if created from scratch
in a socially and culturally uniform society. He maintained, however,
that where such jurisdictions already existed, they might serve useful
political functions, and that in any event people’s attachment to them
would mean that a just and decent government would not sweep them
away. In addition to arguing that a variety of intermediate bodies and
institutions could help to check the power of the central state, Mon-
tesquieu thought that there was a strong affinity between the desire for
uniformity in institutions and laws, on the one hand, and in society,
culture, and mores, on the other.
None of these arguments required or involved de Maistrean attacks
on reason. None of these thinkers was an opponent of enlightened
eighteenth-century thought (Montesquieu can only be counted as an
enemy of the Enlightenment if it is reduced entirely to the Encyclo-
paedists and the physiocrats). All thought that there was something
desirable from the perspective of freedom in the institutional jumble
Barry and the physiocrats despise, and something tyrannical in the psy-
chology of those who would sweep it all aside.
That is not to say that they were right in every case; it is not nec-
essarily to say that they were right at all. It is to say that the Encyclo-
paedists do not exhaust the intellectual heritage of liberalism, consti-
tutionalism, Enlightenment, or justice. There is a liberal tradition of
worrying about the standardization Barry treasures, and about the links

3. See Benjamin Constant, The Spirit of Conquest and Usurpation, in Political Writings,
ed. and trans. Biancamaria Fontana (Cambridge: Cambridge University Press, 1988), pp.
43–167; Alexis de Tocqueville, The Old Regime and the Revolution, ed. François Furet and
Françoise Melino (Chicago: University of Chicago Press, 1998); Charles Secondat de Mon-
tesquieu, The Spirit of the Laws, ed. Anne M. Cohler, Basia Carolyn Miller, and Harold
Samuel Stone (Cambridge: Cambridge University Press, 1989).
322 Ethics January 2004
between the liberating aspects of such standardization and the despotic
ones. And that tradition is much friendlier to institutional protections
of cultural variety and cultural practices than is the Jacobin version of
the Enlightenment Barry offers us. To argue in defense of multicultural
policies today, one does not have to sign up as a soldier in the war
against reason or to give aid and comfort to the enemies of liberalism.4
And it seems to me that the multicultural turn in liberal theory has
had, at its best, something of this character, struggling to uphold the
legacy of Montesquieu and Constant. Against the Jacobin syllogism that
universalism at the level of foundational morality and justification must
generate rigid uniformity at the level of institutions, it has argued for
political accommodation and protection of cultural minorities in univ-
ersalist liberal terms. Kymlicka has sought a general justification of spe-
cial political protections for minority cultures as such. Others, including
Joseph Carens and Jeff Spinner-Halev, have defended such institutions
in more contextually and historically specific ways, for example, with
reference to histories of injustices against particular groups.5 And still
others, including Kukathas and William Galston, have argued that the
fact of cultural pluralism in the world helps to shape our understanding
of what a justifiable general liberal theory looks like. Each of these
approaches resists the call of cultural relativism and offers an argument
that does not, as it were, contain proper nouns at the level of justifi-
cation. Yet each also resists the justice by straightedge and compass that
Barry blithely maintains is the whole of liberalism.
This is not a book about the history of ideas, but Barry’s introduc-
tory tour of intellectual history provides an important substratum of the
argument that runs throughout the book. He simply assumes that there
are unbreakable connections among liberal justice, reason, modernity,

4. I should note that some of Barry’s fury here seems to be motivated by specific
arguments of James Tully’s, and that Tully does seem to think that we need to reach
around and behind modern liberal constitutionalism in order to avoid the perils of coercive
uniformity (see his Strange Multiplicity [Cambridge: Cambridge University Press, 1995]).
That is, Tully, like Barry, falsely equates modern liberal constitutionalist thought with
rationalism and uniformity. I should also note that Barry accurately attacks the idea that
there was or is some single Enlightenment project, but he then signs onto the critics’
caricature of what the Enlightenment was, and he maintains—inaccurately—that his un-
derstanding of institutional regularity and the demands of reason was shared by all of
those we think of as Enlightenment figures. Barry’s recognition of the complexity of the
Enlightenment lasts only long enough to score some points against those he sees as reason’s
enemies.
5. See Joseph Carens, Culture, Citizenship, and Community (Oxford: Oxford University
Press, 2000); Jeff Spinner-Halev, “The Universal Pretensions of Cultural Rights Arguments,”
Critical Review of International Social and Political Philosophy 4 (2001): 1–25, and “Land,
Culture and Justice: A Framework for Group Rights and Recognition,” Journal of Political
Philosophy 8 (2000): 319–42.
 Levy Liberal Jacobinism 323
and uniformity. To challenge the last of these—as multiculturalists more
or less necessarily do—is to abandon all of them. This gives institutional
uniformity a decisive, and an unwarranted, weight of presumption in
its favor. That some critics of liberalism (and of modernity, etc.) have
conflated all of these does not justify Barry in living down to their
caricature.

II. TOO LITTLE AND TOO MUCH

The naive rationalistic alternative to multiculturalism rests on many
reiterations of a peculiar kind of argument. Begin with an example:
Barry’s arguments about nationhood and nationalism. He recognizes
two important facts about nationality and national identity. One is that
states have ongoing reasons to seek a sense of nationality among their
citizens. He does not evade the issue by trying to distinguish between
nationalism and patriotism, and he is quite clear that mere shared mem-
bership in a polity cannot fill in for nationalism and national identity.
The drive for a shared sense of nationality is not something states can
simply abandon; there are strong reasons for that drive associated with
the structure of modern and, especially, modern democratic states.
These include military imperatives first made evident by the triumph
of the French Revolutionary army over its rivals, political pressures for
linguistic uniformity in states whose citizens are supposed to govern
together, economic pressures for such uniformity in a single labor force,
and the fragility of a polity that cannot draw on citizens’ attachments
to something deeper and more enduring than a particular form of
government.6
The other fact that he carefully recognizes is that assimilation to a
common national identity has often been an unjust, coercive, and violent
project. “Assimilation may be brutally enforced, and a great deal of
assimilation . . . has been of this kind all through history” (p. 75). He
is admirably forthright on this point; he seeks to defend a project of
national assimilation without denying what it is that worries people about
such projects. But he never brings these two facts into engagement with
each other. He prescribes that states should seek just the right amount
of shared national identity—too much would be illiberal while too little
would jeopardize the effectiveness of necessary state functions.
This is an unhelpful and indeed extremely hazardous kind of advice

6. I discuss these themes further in “Language Rights, Literacy, and the Modern
State,” in Language Rights and Political Theory, ed. Alan Patten and Will Kymlicka (Oxford:
Oxford University Press, 2003), pp. 230–49. See more generally, inter alia, Ernest Gellner,
Nations and Nationalism (Cambridge: Cambridge University Press, 1983); James Scott, Seeing
Like a State (New Haven, Conn.: Yale University Press, 1998); Margaret Canovan, Nationhood
and Political Theory (Cheltenham: Elgar, 1996).
324 Ethics January 2004
to give about nationalism. Much of the work of political theorists would
be quite simple indeed if we could simply say that states ought to do
what is right and not what is wrong, that they should pursue a goal or
an end neither too much nor too little but just the right amount. But
unlike Goldilocks, states can create all sorts of trouble if they experiment
with too hot and too cold on their way to figuring out what is just right,
and we are never quite sure that the states are actually aiming to get
things just right. So we worry about predictable biases. We pay attention
to tendencies that need to be resisted and winds that must be leaned
against. And we suggest institutional designs and systems of legal rights
with an eye on the tendencies in politics that push us away from just
outcomes. To suggest an image from a different tale: we try to navigate
between Scylla and Charybdis, which requires not steering the middle
course (“lest one be sucked altogether into [Charybdis’s] prevailing
current”) but rather overcompensating a bit, steering somewhat farther
away from the danger that exerts a pull.7
Because states have an ongoing drive to create a shared national
identity among their citizens, and because states have at their disposal
the tools that they do, we need to worry on an ongoing basis that they
will pursue violent, unjust projects of assimilation. And some institutions
of minority cultural rights are likely to be part of leaning against that
wind. Barry wishes to be able to say that states that pursue assimilationist
policies through unjust means are acting unjustly, and so they are. But
there is more that could be said, namely, about how to discourage such
injustices rather than awaiting the chance to condemn them after the
fact.
Of course, this kind of argument is importantly different from one
that sees special cultural rights as demanded by principle in the first
instance. In my view Barry is at least often right to reject that kind of
argument. But he is not right to endorse the civic nationalist project
without noticing that that project is systematically likely to be pursued
in the unjust ways he condemns.
Barry insists that adherence to liberal principles of liberty and equal-
ity does all that needs to be done with regard to the legitimate interests
of members of ethnic and cultural minorities. But much of that insis-
tence has this same not-too-little, not-too-much quality. As regards the
illiberal practices of many cultural minorities, he says that the state ought
to intervene so far as is necessary to protect the rights of members and
not so far as to violate legitimate freedom of association. Now, this is
the outcome that justice demands, and Barry has advanced over some

7. Patrick J. Deneen, The Odyssey of Political Theory (Lanham, Md.: Rowman & Littlefield,
2000), p. 212; I am grateful to Deneen for pointing this image out to me, as it captures
the idea perfectly.
 Levy Liberal Jacobinism 325
of the literature by stating that clearly. Indeed in some ways he adds
crucial clarity to understanding what freedom of association does and
does not in justice demand. But he is unworried by or uninterested in
the idea that a state, even a liberal democratic state acting in good faith,
may have systematic trouble striking that balance or that cultural mi-
norities have reason to distrust the state’s ability to do so.
“If there are sound reasons against doing something,” Barry tells
us, “these cannot be trumped by saying—even if it is true—that doing
it is a part of your culture” (p. 258). Certainly not. But the soundness
of the reasons proffered by the state when it prohibits an activity is not
self-evident. In evaluating that soundness, we consider whether the law-
makers are constraining themselves and most of their constituents or
only a disfavored minority, few of whose members are in the policy-
making class. We consider whether the activity has been genuinely and
fairly understood by the relevant agents of the state. We consider the
degree to which the reasons are local and particular; internal to a par-
ticular community and, hence, not necessarily applicable to those out-
side that community; and the degree to which the reasons are general
and universal. The cultural character of a practice, the relationship
between the cultural community[ies] practicing it and that (or those)
prohibiting it, are relevant to all of those considerations when we are
evaluating the soundness of a particular state’s reasons for a particular
prohibition. Culture is not a trump, not a dispositive reason. But neither
can it be removed from our considerations of reasons, not in real po-
litical settings.
Barry firmly maintains the distinction between who should decide
what to do and what the right thing to do is. A theory of substantive
justice, he thinks, should not be confused with a theory of procedures,
and when the question is “What should be done?” an answer about who
should decide is unresponsive. In other contexts this could be a criticism
of substituting talk about democracy for talk about justice. One way that
it arises in this book is by way of saying that a cultural practice that is
morally wrong does not become right by virtue of being an authentic
cultural practice, an argument that is clearly correct.
But agreement on that claim does not dispose of procedural ques-
tions or arguments about who should decide. Sometimes even if some-
thing is the right thing to do, it is wrong for a particular agent to do
it. Not just any agent has the right to right just any wrong. Barry dismisses
notions such as these out of hand. Kymlicka and Carens, for example,
have each developed the idea that the governments of settler states such
as Canada and the United States might be exactly the wrong agents to
try to force Native American tribal governments to respect the rights
of their members, because those goverments have very little credibility
as anything other than great violators of those rights themselves. This
326 Ethics January 2004
might not be right, but it is a plausible enough argument of a kind that
needs to be confronted.
By the same token, Barry summarily denies that Kymlicka is a liberal
at all, because Kymlicka fails to endorse forceful intervention in states,
or in minority nations, that violate the rights of their members.
Political philosophy is not about what we may think it would be
nice for people to do but what, at any rate in principle, they can
be made to do. A theory that has the implication that nationalities
(whether they control a state or a sub-state polity) have a funda-
mental right to violate liberal principles is not a liberal theory of
group rights. It is an illiberal theory with a bit of liberal hand-
wringing thrown in as an optional extra. . . . Kymlicka wishes to
distinguish himself from [cultural relativists] by saying . . . that
liberal principles have universal validity. But his bottom line is
exactly the same as that of the wholehearted cultural relativists.
For he agrees with them that it would be “cultural imperialism”
for liberals to bring pressure to bear on regimes that violate human
rights in an attempt to increase the number of people in the world
who enjoy their protection.8 (P. 140)
This is not even to say that “who decides” and “what is to be done”
are distinct questions. It is to deny that the former is a question for
political philosophy at all. This leads to serious inaccuracies in Barry’s
portrayal of other thinkers: it is not Kymlicka’s view that nationalities
have a “fundamental right” to violate liberal principles; he has not enun-
ciated a principle that Saudi Arabians may, “at any rate in principle,”
be forced to be Muslims and follow Wahhabi rules. Rather, he has of-
fered the thought that there may be no right inhering in outsiders, or
at least in some particular outsiders, to liberate by force those whose
rights are being violated.
Barry will have none of it. He simply maintains that if a practice is
wrong, then it ought to be stopped; if it is unjust, it ought to be banned;
and if it ought to be banned, then the state—any state attempting to
live up to liberal principles—ought to ban it. Because liberal principles
are universal, the liberal state on Barry’s account appears to be just the
armed active agent of universal principles. Barry argues that members
of cultural minorities are wrong to see states as deeply culturally par-
ticular. After all, he rightly points out, civic national identities such as
American or British are themselves multiethnic and include a great deal
of internal diversity. Liberal principles are not just the unreflective values
of the majority cultures; they have overridden and transformed many

8. I think that the quotation marks around “cultural imperialism” are scare quotes;
at least Barry does not cite any particular instance of Kymlicka using the phrase. I do not
know of any place where Kymlicka does so.
 Levy Liberal Jacobinism 327
long-standing and deeply held values of those cultures. Some of that is
true, and a useful corrective to relativism of the John Gray variety.9
But it does not mean, as he suggests, that a particular liberal state
is particular only in being liberal. Members of cultural minorities may have
very sound, very long-standing, reasons to view the states in which they
live as culturally particular in a very illiberal way, as most indigenous
peoples and many linguistic minorities do. Barry wishes throughout to
dismiss jurisdictional questions regarding who should have the authority
to make what decisions. So far as he is concerned, a state that is trying
to do the right thing should be able to do it. But cultural minorities
may have very sound reason for hanging onto jurisdictional issues, even
in the face of a state genuinely trying to act liberally. They may need
their jurisdictional and procedural protections the next time the polit-
ical winds of the state turn illiberal, the next time there is a mistake in
cross-cultural interpretation of practices, or even the next time that the
state undertakes a general policy without noticing at all the special costs
the policy places on the minority. On that last point, Barry is critical of
religious exemptions from generally applicable state rules, because ei-
ther a rule is a violation of liberty and should be repealed or it is justified
and should be upheld. (I consider this category of cases in depth in
the next section.) Again, the Goldilocks move: one ought to restrict
activities that it is right to restrict and not ones that it is wrong to restrict.
But here again there is real room for multicultural accommodation, in
this case in the form of exemptions, on the expectation that the state
will otherwise err on the side of infringing minority liberty, that it won’t
simply get matters just right.
One of the animating concerns of Barry’s project is the distraction
that multiculturalism and identity politics provide from a proper class-
based redistributionist leftist politics. The political achievement of (as
he sees it) distributive justice is recognized to be a challenging task,
one that requires a certain sense of solidarity among the citizenry as
well as a certain shape of politics on the left. Here, at least, Barry is
interested in the question of how justice comes about. Egalitarian pol-
icies do not simply happen; they are brought about by deliberate politics
aimed at them, and that politics can be unintentionally weakened by
an embrace of other causes on the left.
Perhaps this is not surprising in a book that is titled Culture and
Equality rather than Culture and Liberty, but the argument about realizing

9. See, e.g., John Gray, Enlightenment’s Wake (New York: Routledge, 1995). Gray’s turn
to relativism, and his attempt to associate that turn with Isaiah Berlin’s pluralism, have
been ably critiqued before. See, e.g., Daniel Weinstock, “The Graying of Berlin,” Critical
Review 11 (1997): 481–501; Pratap Mehta, “Pluralism after Liberalism?” Critical Review 11
(1997): 503–18.
328 Ethics January 2004
distributive justice introduces a serious asymmetry into the book’s dis-
cussions of the two pillars of liberal justice. Liberty can apparently be
trusted just to happen. Equality cannot. Or, to put it more precisely:
when equality fails to just happen, Barry is ready with an analysis of the
political circumstances that have brought that about and a proposed
remedy. When liberty fails to just happen, he tells us that this is a shame
and moves on. Others, however, have argued that the recurring and
predictable failure of states to adequately protect the cultural and re-
ligious liberty of minorities might call for a remedy as well. Many real
and proposed multicultural policies can be understood as attempts to
strike a better balance than is likely to arise out of the usual course of
politics. Exemptions are, in this way, exemplary.

III. RULES AND EXEMPTIONS

Among the most common, and commonly thought to be among the
least controversial, accommodations that liberal states make to religious
and cultural minorities is the exemption from a generally applicable
law that incidentally burdens a minority practice or tradition.10 Laws
against the ingestion of alcohol or hallucinogens make exceptions for
the ceremonial use of wine by Catholics and Jews, or for the religious
use of peyote by Native Americans. Laws stipulating dress codes or pro-
tective headgear are waived in their application against religious gar-
ments such as Jewish yarmulkes, Sikh turbans, and Muslim head scarves.
And so on.
These are individual negative liberties but are provided on a group-
differentiated basis. They do not require “groups” to hold or exercise
rights, and they sit comfortably within a very old strain of Anglo-American
liberal understandings of religious freedom; exempting the “religiously
scrupulous” from bearing arms and serving in general militia duty can
be found in the earliest constitutions of American states. They can be
provided at relatively little cost to the public purse; they typically neither
give some group members power over others nor give the group power
over outsiders. Whether provided by courts, statutes, or administrative
regulations, such exemptions have often been offered with little of the
acrimony that surrounds other kinds of cultural rights policies. If ex-
emptions are not justifiable on a liberal theory, then one might have
pretty good reason to think that no cultural rights are. For this reason,
Barry devotes a great deal of energy to arguing that it is “virtually im-
possible to provide an intellectually coherent rationale for the rule-plus-
exemption strategy” (p. 42).
The core of Barry’s position is as follows: the laws to which ex-

10. See my “Classifying Cultural Rights,” in Ethnicity and Group Rights, ed. Will Kymlicka
and Ian Shapiro, Nomos no. 39 (New York: New York University Press, 1997), pp. 22–66.
 Levy Liberal Jacobinism 329
emptions are being offered interfere with negative liberty. They restrict
the actions of persons. This in general ought not to be done without
sufficient reason; in the absence of good justification for coercive restric-
tions, persons ought to be free to act. A given rule—say, the rule requiring
construction workers to wear helmets—either is or is not sufficiently jus-
tified. If it is not, if it represents an illegitimate paternalistic or moralistic
interference in individual liberty, then it ought to be repealed for ev-
erybody. If it is justified, then it is justified. Culture and religion do not
enter into it. With respect to any particular law the only coherent positions
are repeal or general application, not rule-plus-exemption. Barry offers
generous helpings of his own opinions about the justifiability or oth-
erwise of a number of rules that have been the topics of exemption
disputes, along with opinions about the religious practices at stake. Laws
governing animal cruelty and butchery are justified, and so the inci-
dental prohibition of kosher and halal butchery is justified; laws pro-
hibiting the use of hallucinogens are unjustified, and so peyote ought
to be permitted to everyone, regardless of religion.
Another argument seems to me to be secondary, though Barry
clearly relishes making it. A law requiring the wearing of motorcycle
helmets (whether justified or not overall) cannot be understood as any
kind of limitation on religious freedom, even as applied against, for
example, Sikhs. They remain free to practice their religion and to wear
turbans. All that they are not free to do is to ride motorcycles; it is the
freedom to ride motorcycles that has been limited. If kosher and halal
butchery are prohibited, then the religious freedom of Jews and Muslims
is unaffected; they are free to be vegetarian Jews and vegetarian Muslims
and have lost only the freedom to eat the kind of meat they want.
Whenever the laws in question and one’s religious duties can be jointly
satisfied—there is no religious obligation to eat meat or to ride motor-
cycles—then Barry classifies the case as not relevant to religious freedom
at all. In some of the cases at hand, however, this “let them eat vegetarian
cake” response is unavailable, because the laws and religious obligations
cannot be jointly satisfied—the law prohibits behavior that is religiously
compulsory (the carrying of ceremonial knives, for Sikh men) or com-
pels behavior that is religiously prohibited (military conscription for
Quakers). And the treatment of these cases does not differ. Barry’s view
of the merits of exemptions seems entirely unaffected by whether the
liberty at stake is a religious liberty according to his narrow understand-
ing or some other liberty (the freedom to ride motorcycles or eat meat).
The argument seems to be there chiefly for the opportunity to make
light of the burdens that exemption-seekers claim. The real argumen-
tative work is done by the idea that laws are either justified or not, in
toto.
Barry sounds a very useful cautionary note. Exemption claims are
330 Ethics January 2004
often made against laws that are paternalistic or moralistic in their jus-
tification. There are cases of exemptions being claimed from laws against
violent crime—the so-called cultural defense cases—but these are (in
the liberal democracies of the West) comparatively rare. And most states
enact more paternalistic and moralistic legislation than is justifiable
under a liberal theory of freedom. Barry is surely right to say that it is
better for unjustified laws to be repealed than for them to be selectively
enforced. Sabbatarian laws offer a particularly stark example: once jus-
tifications for exemptions are offered—that Jews and Muslims do not
share the Christian Sabbath—the lack of a suitably secular justification
for the laws at all becomes clear. That being said, there is less to the
argument from consistency and uniformity than meets the eye.
Indeed the argument is at times oddly inconsistent. Barry simul-
taneously suggests that only legislatures, not courts, are competent to
make the tradeoffs that are needed when weighing a claim for an ex-
emption against the need for the general law (e.g., pp. 184–87) and
that legislatures are distinctively incapable of doing so, for the public
choice reason that the minority with an interest in the exemption will
be better organized for lobbying than the rest of society (p. 39). He
finds it grossly offensive to liberal equality that persons should have
formally unequal rights on the basis of religion, save that he finds it
tolerable for this to be true of some religions and not others in the
same society, so that one set of exemptions can be granted for the sake
of prudence but denied precedential value for the granting of others
(p. 51). He recognizes that some legal concepts call for filling in cultural
and relgious context, such as the requirement of “good cause” for em-
ployment dismissal, but suggests with no particular evidence that the
criminal law lacks such concepts, though intent and mens rea have been
important parts of the “cultural defense” debate. He engages in a fairly
arbitrary, ad hoc, and unpersuasive assignment of reasons into argu-
ments of justice and arguments of prudence or generosity, then—having
put all the arguments for exemptions he finds plausible into the latter
two categories—berates theorists and courts who have thought that there
could be demands of justice. Yet, regardless of whether one calls them
reasons of justice or of prudence, he does not fully engage the argu-
ments such theorists and courts have offered.
The argument rises or falls on the notion that if there is sufficient
reason to restrict liberty in the first place, then there is sufficient reason
to restrict it for everyone. And, when it comes to ordinary talk about
reasons, Barry abandons his absolute position in favor of one that is
more nuanced, more reasonable, and entirely similar to the justifications
for exemptions that have been offered by theorists and political actors
alike. He ultimately concludes that many of the best-known exemptions
 Levy Liberal Jacobinism 331
are justified according to “balance of advantage” prudential policy
considerations.
Consider, however, the structure of justification in the American
constitutional jurisprudence on religious exemptions that preceded
Oregon v. Smith (1990).11 Religious exemptions to generally applicable
laws that incidentally burdened religious practice were not automatically
granted as a matter of constitutional right. Instead it was held that,
insofar as a statute created such an incidental burden, it faced a higher
burden of justification. Whereas liberty in general may be restricted
provided that there is a rational relationship to a legitimate state interest,
religious liberty may only be restricted when there is a necessary rela-
tionship to a compelling state interest. The pre-Smith jurisprudence ap-
plied that test to the application of general statutes insofar as they
burdened the free exercise of religion. This was a balancing test—one
in which the scales were weighted in a particular way, in light of the
particular importance of religious liberty.
The argument for this kind of weighted balancing goes something
like this. It takes a certain amount of justification to restrict the liberty
of individuals by state coercion legitimately. There have to be important
reasons for doing so, and liberals think that they have to be reasons of
certain kinds, including the prevention of harm to others, collective
action problems, and certain kinds of impaired judgment. But, accord-
ing to the U.S. Supreme Court as well as many liberals including Ronald
Dworkin and the later John Rawls, not all restrictions on liberty are
equally severe, and not all require the same level of justification. In the
Supreme Court’s language, many kinds of restrictions are pretty mun-
dane and so only require a rational relationship to a legitimate state
purpose. Dworkin characterizes this as the large field of policy, in which
utilitarian justifications are often sufficient. Restricting my liberty to
drive the wrong direction on Lexington Avenue is like this. So, according
to Dworkin and the Supreme Court, are most restrictions on economic
activity—manufacturing and marketing, buying and selling, and em-
ploying and working.
But other freedoms are more central to a person’s integrity and

11. Employment Division, Department of Human Resources of Oregon v. Smith, 484

U.S. 872 (1990). Justice Scalia, writing for the majority, held that there was no religious
liberty right to an exemption from a facially neutral statute regulating hallucinogenic
drugs and that the burden the statute incidentally placed on the religious practices of
Native American Church did not require the court to subject the statute to strict scrutiny.
In the view of most commentators and in my view, this reversed some twenty-five years of
precedent requiring strict scrutiny in such circumstances, but Scalia denied this. Congress
attempted to restore the status quo ante with the Religious Freedom Restoration Act of
1993, but that act was struck down in turn in City of Boerne v. Flores, 117 S. Ct. 2157
(1997).
332 Ethics January 2004
dignity. Freedom of speech, freedom of movement, and—centrally for
our purposes here—freedom of religion fall into that category. It is not
that these can never be restricted. But laws restricting these liberties are
held to a much higher standard of justification, requiring that they be
necessary to the furthering of a compelling state interest. The argument,
by the way, does not actually require any institution like judicial review,
though Dworkin seems to think that it does. It might only describe the
correct moral standards to which citizens and legislators ought to hold
proposed laws. In any event, the argument so far is compatible with
saying that a law is either justified or not; the argument just says that
different laws have to meet different levels of justification.
A law that is only intended to be of the policy sort, a law restricting
the less important liberties of most people, might incidentally violate
the more basic religious freedom of a minority. Prior to 1991, American
constitutional jurisprudence held that the law was valid as applied
against the majority if it met the rational basis test, but as applied against
the minority it had to meet the compelling interest test. For most people
a motorcycle helmet law restricts only a minor liberty, but for Sikhs it
restricts a major one. And this is not simply a matter of some delicacy
of feeling or oversensitivity on the part of Sikhs; it really is the case that
the same law burdens a fundamental and basic liberty of theirs while
restricting less vital freedoms for others.
This line of argument is not immune to criticism, either as a matter
of political morality or as a matter of constitutional law. Many libertarians
have argued that the distinction it draws between economic and per-
sonal freedom is both artificial and arbitrary. But the argument at least
makes some sense; it is not obvious gibberish, even if it is not ultimately
successful. And even the most thoroughgoing libertarian can accept the
distinction between more and less morally fundamental freedoms; there
is no paradox in thinking that motorcycle helmet laws are wrong in
general but that they are especially wrong as applied to Sikhs, and that
if full repeal is not available, exemptions are preferable to the absence
of exemptions.
Barry could maintain that this differentiation between the freedom
to practice one’s religion and the general freedom to kill animals as
one pleases, ride motorcycles without helmets, use narcotics, and oth-
erwise do as one wishes is illegitimate. But no argument is provided to
that effect. He might want legislatures rather than judiciaries to be the
agents that grant exemptions, but he does not say why that would be a
matter of fundamental importance. He discusses collective action cases
such as vaccination and conscription, where it is tolerable or even nec-
essary that some people not take part even though it is also necessary
that most people do. He suggests that it seems “expedient” to let that
slack be taken up by religious minorities who are opposed to vaccines
 Levy Liberal Jacobinism 333
or military service. Where exemptions already exist for Sikh practices
in Britain, he suggests that it would be politically more trouble than it
is worth to repeal them.
Somehow it seems to be terribly important to Barry that exemptions
not be claimed as a matter of principle, even if they are then allowed
or maintained on a muddling-through basis. This distinction seems to
matter a great deal to Barry primarily because “principle” gets equated
with “absolute”—at least when it comes to the construction of multi-
culturalist arguments to be demolished. In the heat of ethnic political
rhetoric, someone might even have articulated the absolute principle
Barry rightly dismisses. But most of the arguments made for particular
exemptions, whether in law or in political theory, have both appealed
to principles and recognized principled limits to exemptions (e.g., “com-
pelling state interest”). Here and elsewhere, the moderate position Barry
endorses as an accommodation to political reality is defensible as a
matter of justice. Indeed it can be better defended by recognizing that
a set of principled reasons, not sheer politically troublesome intransi-
gence, lies behind the insistence on (some) exemptions.

IV. PERSONS AND PRINCIPLES

In a famous review of Nozick’s Anarchy, State, and Utopia, Barry main-
tained that
the intellectual texture is of a sort of cuteness that would be wear-
ing in a graduate student and seems to me quite indecent in
someone who, from the lofty heights of a professorial chair, is
proposing to starve or humiliate ten percent or so of his fellow
citizens (if he recognizes the word) by eliminating all transfer
payments through the state, leaving the sick, the old, the disabled,
the mothers with young children and no breadwinner, and so on,
to the tender mercies of private charity, given at the whim and
pleasure of the donors and on any terms they choose to impose.12

One might extract from Barry’s comment on Nozick the idea that a
theorist has some duties to treat great questions of morality and justice
soberly and carefully, that the duty to proceed seriously and “decently”
increases as a theorist proposes dramatic changes to institutions that
many view as demanded by justice, and that some regard is due those
whose lives would be disrupted were one’s argument accepted. On the
evidence of Culture and Equality however, if Barry ever thought these
things he thinks them no longer.
Intellectual texture is a difficult thing to put one’s finger on. But

12. Brian Barry, review of Anarchy, State, and Utopia, by Robert Nozick, Political Theory
3 (1975): 331–36, pp. 331–32.
334 Ethics January 2004
a general sense of the texture of Culture and Equality can be given with
a few examples: the central metaphor of Tully’s Strange Constitutionalism
becomes “Up the Creek in the Black Canoe,” Kymlicka’s book Finding
Our Way is mocked with the section heading “Losing Our Way,” and
Kymlicka’s argument about the relationship between nations and cul-
tures is subjected to the hoary old reductio ad Hitlerum (p. 309). Rawls
has “abandoned most of the ideas that made A Theory of Justice worth-
while. . . . Rawls’ current position, embodied in The Law of Peoples,
amounts to a rather muddled version of Michael Walzer’s anti-Enlight-
enment particularism” (p. 331). The world is filled with “foolishness,
and sometimes bestiality, perpetrated . . . in the name of multicultur-
alism” (p. viii), and, as noted above, Jews and Muslims are offered veg-
etarian cake. Neither the theorists he discusses, nor the religious be-
lievers and cultural adherents whose rights are at issue, are spared a
kind of mockery for its own sake.
Some distinctions are in order. Bad arguments, bad ideas, have no
claim to respect. The degree of scorn to attach to one’s dismissal of
bad ideas is a matter of taste and style. The fact that a bad argument
has been put forward by some identifiable academic does not require
that it be treated any more gently, though in slipping from a discussion
of the argument to a discussion of the person one must at least be very
careful to characterize the argument correctly. I am not sure that much
is gained by adopting a stance of ridicule even toward views that are
genuinely wrong; I am sure that ridicule is no substitute for getting the
argument right.
For instance, Barry devotes pages 310–12 of Culture and Equality to
an attack on Kymlicka for disregarding and ignoring the injustice of
allowing a minority nation self-government within a federation without
limiting that minority nation’s say in the federal government—the so-
called West Lothian question, which Barry incorrectly calls the “East
Lothian question,” named for the district of the British M.P. who raised
it with respect to Scotland. “Never once [in two chapters of Politics in
the Vernacular] does he mention, let alone address, the obvious inequity
inherent in allowing Quebec to opt out of institutions that operate in
all the other provinces. This is that representatives from Quebec take
part in voting in the national parliament on issues that do not affect
their constituents” (p. 311). This is, I would guess, because in the earlier
Multicultural Citizenship Kymlicka had already given the West Lothian
question extended consideration and came to just the conclusion on
which Barry irately insists: that special self-government rights ought to
in some way vary inversely with representation at the center.13

13. Will Kymlicka, Multicultural Citizenship (Oxford: Oxford University Press, 1995),
pp. 142–44. To be precise, he argued that self-government rights imply a limit on partic-
 Levy Liberal Jacobinism 335
Conceptual clarity is of course one of Barry’s strong suits, and in
this book he carefully takes apart many bad arguments and draws crucial
distinctions. For example, he offers one of the best treatments to date
of exit costs and of the ways in which it does and does not make sense
to talk about illiberal associations and communities violating the rights
of their members. In chapters 4 and 5, Barry develops an account that
recognizes the intrinsic costs of disassociating from or being expelled
by a community while distinguishing these from what he calls “associative
costs”—losing the friendship or love of those who remain committed
members—and “external costs,” like firing an apostate from a secular
job. This discussion is essential reading for those working on the ques-
tion of illiberal communities and associations in a liberal state. If these
distinctions are carefully observed, then we can spare ourselves at least
one kind of muddy and unproductive conversation that has been going
on in the literature for some time now.
And yet even Barry’s contributions to conceptual clarity are dimin-
ished by his dismissive scorn of other points of view. He distinguishes
among intrinsic, associative, and external costs (Culture and Equality, pp.
150–51). He illustrates the trichotomy with reference to excommuni-
cation from the Roman Catholic Church. Intrinsic to departure from
the church (voluntary or otherwise) is the loss of the good of mem-
bership in the church, with all that that entails. To a believer, joining
in communion with the true church entails a good of a terribly impor-
tant kind: “The cost could be described as infinite [but] it is not one
that can be detached from the phenomenon of excommunication itself;
it cannot be altered by the actions of states or anybody else.” Leaving
the church (will-ye or nill-ye) may also prompt those who are still mem-
bers to “break off social relations with you”; this is not intrinsic to ex-
communication but is rather a deliberate choice to disassociate on a
personal level. These associative costs may also be very high—the loss
of family, friends, and loved ones is a personally serious matter—but
“people in liberal societies cannot be prohibited from being narrow-
minded and sectarian in this way.” External costs are those “not legiti-
mately imposed,” “gratuitous” losses that the church or church members
have “no right to impose” (Culture and Equality, pp. 150–51). The ex-
ample that Barry offers is being fired by a Catholic employer, or even
by an employer owned by the church, if one’s job does not (like being
a priest) intrinsically depend on church membership.
At this point, of course, this classification becomes question beg-
ging; associative and external costs are distinguished by moralized fiat.
ipation in the legislature that governs other parts of the country but not the region in
question; however, that self-government may call for some guaranteed participation in
bodies that adjudicate disputes between the region and the center, e.g., the Canadian
Supreme Court.
336 Ethics January 2004
If we knew ex ante which costs were “not legitimately imposed,” then
we would hardly need a classification on which to build a theory. In
other words, Barry’s definitions make it impossible to offer an argument
in favor of the freedom to impose “external costs”; they are ex hypothesi
illegitimate. The intuition on which he is building is a plausible one.
An argument might have as its conclusion that legitimate exit costs were
imposed when former friends and family dissociated from the person
who exited, while the exit costs imposed when institutions dissociated in
certain ways (i.e., firing the apostate) were illegitimate. But building
such a conclusion into the definitions of the categories is unhelpful.

V. PROGRESS AND REGRESS

Not everyone Barry calls a relativist or accuses of giving up on justice
and impartiality really is or does, but some arguments are and do. Critics
of liberalism have often accused it of being unable to come to terms
with variety, difference, or pluralism, because of its supposed commit-
ment to blind uniformity. Barry is right to stand up for justice and to
insist that the fair equal protection of liberal rights such as religious
liberty and freedom of association accomplishes much more than these
critics often suggest. He is wrong to think, as they do, that liberal justice
demands a strict uniformity of institutional forms and of legal categories.
He, like them, has conflated universalism at the level of justification
with sameness at the level of politics. No doubt there is much that
remains unsatisfactory in the literature on multiculturalism, and much
work remains to be done. But the liberal multiculturalist project Kym-
licka revitalized, offering arguments grounded in liberal justice for pol-
icies of cultural accommodation and variety, will and ought to continue.