Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Saturday, September 7, 2019

Should Conservatives Embrace or Reject "Liberalism"?

In 1993, when I was an untenured assistant professor, Oxford University Press published my book Making Men Moral: Civil Liberties and Public Morality. In that work, I aggressively challenged the form of "liberalism" that had dominated academic political theory since the early 1960s, and especially since the publication of John Rawls' profoundly influential book A Theory of Justice in 1971. That form of liberalism was of more than merely "academic" interest. It informed and guided political action and, perhaps even more importantly, constitutional jurisprudence among those who, in those days, styled themselves as "liberals." They had enormous success, especially in the courts.

My principal complaint against the liberalism of Rawls and others (e.g., Ronald Dworkin) was that it proposed a standard for the identification of principles of political morality and the design of political institutions--and for lawmaking and the formation of public policy--that it did not, and could not, itself meet. That standard, which Rawls labeled "anti-perfectionism," excluded as in principle unjust, at least when it came to constitutional essentials and matters of civil rights and liberties, predicating public decision-making on controversial beliefs about what makes for, or detracts from, a valuable and morally worthy way of life. Dworkin framed the requirement in terms of the duty of the state to adopt a stance of "neutrality" on such questions. I argued that such neutrality is undesirable and, indeed, strictly speaking impossible. And I proposed to show that liberal theorists themselves (inevitably and unavoidably) smuggle into their arguments precisely the sorts of controversial ideas about the human good that their theories officially exclude. One saw this, for example, in their arguments about pornography, abortion, and marriage.

But Making Men Moral was meant to be more than a critique of what Rawls came to call "political liberalism." It also proposed to show that a "conservative" alternative to liberalism needn't--and shouldn't--be illiberal. Although there were things to be learned from the broader liberal tradition on which people like Rawls ad Dworkin drew and built, that tradition did not invent freedom of religion, freedom of speech, the principle of inherent and equal human dignity, and other desirable political principles; nor did or does it supply us with the most compelling arguments for them. A better case for them could be made, I argued, on natural-law, "pluralistic perfectionist" grounds--a case that identified the ways in which respecting these principles served integral human well-being.

"Liberals," now re-styled as "progressives," have moved on. Many are embracing illiberalism, often without embarrassment or so much as a glance backward to the theory that they, or their tradition, deployed for more than fifty years to defend what they deem to be "rights" to pornography, divorce, abortion, same-sex marriage, etc. If they think of that theory at all, it is probably as something that served at the time as a useful tool in dislodging the pre-existing public morality--the fabric of legal and social norms--that had been shaped by biblical religion and classical philosophy.

Interestingly, however, some conservatives today invoke something like (or, perhaps better, some aspects of) the old "political liberalism" in attacking the illiberalism of contemporary progressives. But this draws the ire of other conservatives who see it as a sell-out of conservatism (and a rear-guard action that is bound to fail anyway). In response, conservatives in the former camp accuse those in the latter of falling into illiberalism (even proposing theocracy), as well as of undermining the constitutional basis for protecting the religious freedom and conscience rights of devout Christians, observant Jews, and others who are under pressure from illiberal progressives to conform to norms of progressive ideology.

And so we have the celebrated debate between two admirable conservatives, both of whom are friends of mine: David French and Sohrab Ahmari. A number of people have asked where I stand in the dispute. It would not be false to say I gave my answer twenty-six years ago in Making Men Moral: (1) anti-perfectionism is a mistake, let's not make it; (2) liberty is valuable, but not unconditionally or intrinsically, but rather instrumentally and as a condition for the realization of substantive human goods (some of which such as friendship and marriage and family life are inherently social); (3) procedural justice (like liberty itself) is important--critically so--and even properly understood as itself a requirement of substantive justice; but (4) procedural justice is not the whole of substantive justice, all that the common good requires, so achieving even perfect procedural justice does not ensure a substantively just polity or society; (5) so working for procedural justice--including in a system like ours by vindicating constitutionally and statutorily guaranteed rights by litigation--is good, but it is not enough; (6) still, we mustn't short circuit procedural justice in our zeal to achieve substantive justice--the ends do not justify the means; (7) so we need to avoid supposing that the alternative to "liberalism" (considered as the ideology that has been dominant on the left in our lifetimes) is some form of illiberalism (theocratic or otherwise); (8) and we must avoid throwing the baby (religious freedom, freedom of speech, other basic civil rights and liberties) out with the bathwater (anti-perfectionism, neutralism, the purely procedural conception of justice, together with misguided policy ideas like "rights" to pornography, abortion, etc.); (9) the way to think about civil rights and liberties (and all other questions of justice and political morality) is in relation to basic human goods--the constitutive aspects of the well-being and fulfillment (the thriving, the flourishing) of flesh-and-blood human beings and the communities we constitute and which in part constitute us (beginning with the family); and finally (10) such thinking in the cause of the overall common good will begin with basic universal moral and other practical principles, but will necessarily include, in many cases, prudential judgments that are not themselves universal ("always and everywhere") truths--judgments that take into account contingent circumstances, histories, traditions, opportunities, challenges, and the like--and which require practical wisdom of the sort that comes from a combination of experience, knowledge (including sometimes technical expertise), and sober, critical thinking.

Now, I don't expect everyone to go out and buy copies of Making Men Moral (though I do intend to send copies to Sohrab and David together with a note saying: "Why are you guys arguing when I sorted this whole business out when I was a kid--taking my professional life into my hands by publishing such a thing while I was coming up for tenure?" Just kidding!). So Ryan T. Anderson and I have an essay entitled "The Baby and the Bathwater" coming out soon in the journal National Affairs that revisits and updates the central arguments of the book (and adds some new thoughts), having in mind the division among conservatives today about what we should and shouldn't embrace going forward.



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