from Kahan, D.M. The Cognitively Illiberal State. Stan. L. Rev. 60, 115-154 (2007).
The nature of political conflict in our society is deeply paradoxical. Despite our unprecedented knowledge of the workings of the natural and social world, we remain bitterly divided over the dangers we face and the efficacy of policies for abating them. The basis of our disagreement, moreover, is not differences in our material interests (that would make perfect sense) but divergences in our cultural worldviews. By virtue of the moderating effects of liberal market institutions, we no longer organize ourselves into sectarian factions for the purpose of imposing our opposing visions of the good on one another. Yet when we deliberate over how to secure our collective secular ends, we end up split along exactly those lines.
The explanation, I’ve argued, is the phenomenon of cultural cognition. Individual access to collective knowledge depends just as much today as it ever did on cultural cues. As a result, even as we become increasingly committed to confining law to attainment of goods accessible to persons of morally diverse persuasions, we remain prone to cultural polarization over the means of doing so. Indeed, the prospect of agreement on the consequences of law has diminished, not grown, with advancement in collective knowledge, precisely because we enjoy an unprecedented degree of cultural pluralism and hence an unprecedented number of competing cultural certifiers of truth.
If there’s a way to mitigate this condition of cognitive illiberalism, it is by reforming our political discourse. Liberal discourse norms enjoin us to suppress reference to partisan visions of the good when we engage in political advocacy. But this injunction does little to mitigate illiberal forms of status competition: because what we believe reflects who we are (culturally speaking), citizens readily perceive even value-denuded instrumental justifications for law as partisan affirmations of certain worldviews over others.
Rather than implausibly deny our cultural partiality, we should embrace it. The norm of expressive overdetermination would oblige political actors not just to seek affirmation of their worldviews in law, but to cooperate in forming policies that allow persons of opposing worldviews to do so at the same time. Under these circumstances, citizens of diverse cultural orientations are more likely to agree on the facts—and to get them right—because expressive overdetermination erases the status threats that make individuals resist accurate information. But even more importantly, participation in the framing of policies that bear diverse meanings can be expected to excite self-reinforcing, reciprocal motivations that make a culture of political pluralism sustainable.
Ought, it is said, implies can. Contrary to the central injunction of liberalism, we cannot, as a cognitive matter, justify laws on grounds that are genuinely free of our attachments to competing understandings of the good life. But through a more sophisticated understanding of social psychology, it remains possible to construct a form of political discourse that conveys genuine respect for our cultural diversity.