John P. Anderson (Mississippi College School of Law) has posted Law Beyond God and Kant: A Pragmatist Path to Liberal Neutrality in Pluralistic Democracies on SSRN. Here is the abstract:
Western liberal democracies must maintain neutrality among competing comprehensive worldviews (both religious and secular) while officially justifying the law, and while adjudicating under it. This requirement of neutrality is dictated by the liberal principle of reciprocity: The exercise of political coercion is justifiable only when it is based on reasons all citizens can be expected to accept. The very possibility of liberal neutrality has, however, come under attack in an increasingly pluralistic post-secular world in which even foundational arguments for the liberal conception of persons as free and equal can no longer be taken for granted. This Essay offers a pragmatist path to legal justification and legitimation based on a "default and challenge" model of rationality that is rooted in social-linguistic practice. The proposed model for discourse and adjudication respects the liberal commitment to neutrality by avoiding appeals to controversial foundational commitments in the public political forum. The Essay uses the example of abortion to show how politicians and courts can apply this method to preserve liberal neutrality while addressing even the most controversial issues.