Liberal Rift

A new book from Harvard University Press, "In Ordered Liberty"  addresses the greatest rift that has occurred in legal liberalism in the last 60 years.  In order to understand this, we have to throw away the common conceptions of what constitutes "conservative" and "liberal."  Probably most Americans are "liberal" in the sense that they want people to have basic rights, opportunity, a chance for education, health care and the like.  The rift has come when the courts have either enforced "rights" or created "rights" but have eschewed a demand that emphasizes the "duty" of the citizen.  Some of those duties would entail being a contributing member of a "civil" society. And apply a discipline to improve oneself and the community at large.  The split comes in two schools of thought - one holds that individuals, once granted rights by the courts will become disciplined simply by the granting of "rights."  They need no other enhancement.  The state has no right to impose its view of "morality."  This has largely been proved to be a tenet of faith. The other school of liberalism insists that with rights comes a duty which must be imposed, if necessary. 

It is true we live in a liberal age.  It can be traced to the inculcation of Aristotle in the medieval university.  Aristotle is a more liberal philosophy than Plato.  From this has sprung western liberalism.  The idea flows from "natural moral law" - an concept from Aristotle (and originally from Persia) that all humans have certain "rights" simply by existing in nature.  With this comes duty.  Those duties would include an inner discipline to perfect the "self" and an outer discipline to participate in the larger community.  The "rights" argument, in the US in particular, has taken a strange course.  There has been a divorcing law from natural moral law, and a "belief" that imposition of "duties" upon those granted rights is inherently wrong.  That is the rift in liberal thought. 

Having spent a lot of intimate time with mainland Chinese students in chemistry grad school, it became clear the US concept of rights is entirely foreign. Even repugnant. To them, it is more important to be a member of "the group."  Any deviation from the group norm is humiliating and a source of embarrassment.  Much of the world sees US liberalism in this way. 

Emphasis of "individuality" leads to "balkanization" of society.  Particular behaviors tend to cluster, being avoided by and avoidant of, the society at large.  Efforts to enforce "normalization" through legal means has a mixed record of success. A society with a 10% single mother birth rate can exist and thrive.  One with 70% out of wedlock births will collapse into third world status. Aquinas addressed the issue in Summa Contra Gentiles in a simple manner.  No one is above the dictate of natural moral law, no matter how rich they might be. The fact that he mentioned it (about 1260 AD) indicates it is a persistent societal problem.  A society can tolerate a certain amount of chronic intoxication. But as the intoxication spreads, the society becomes dysfunctional and eventually non-functional in a number of ways.  This was seen after the US Civil War when half the surviving veterans were addicted to opiates.  This experience led to the restrictive laws of today.        

The book from Harvard appears largely to defend the status quo - the argument that granting of "rights"  needs no coercion of "duty."  It addresses the following arguments and criticisms of modern legal liberalism: "fostering of irresponsible behavior," "government neutrality,"  "inability to self govern" and "wrongness doctrine."  

Criticism:  Liberalism, Civil Society, and the Promise of Compassionate Conservatism (2/17/09)

Over the past few years “civil society” has become a subject of intense interest. However, the fact remains that civil society is more commonly invoked than it is carefully defined. Often the term is used in a broad sense to refer to the whole range of groups and institutions that stand between the individual and the state. Sometimes, however, “civil society” is employed in a narrower sense to designate intermediary institutions of a particular type, what Mary Ann Glendon describes as “communities of memory and mutual aid” or Jean Bethke Elshtain terms “non-utilitarian” forms of community.

Understood in this more restricted sense, civil society consists of the matrix of groups and institutions that are small, possess a highly personal character, and operate according to a very different logic than that which informs the world of the market—groups whose ties are solidaristic rather thaninstrumental or contractarian. Such groups include the family and the neighborhood, as well as religious, cultural, social, and fraternal associations.

It is in this latter sense that I will use the term here, for the simple reason that it was fears about the disintegration of these sorts of institutions that triggered today’s interest in civil society. There is growing agreement that the decline of such institutions has played a key role in precipitating many of the social pathologies and political dysfunctions that afflict us today. Indeed, the decline of civil society now threatens the vitality of our democratic institutions and raises the specter of a new “type of oppression” so powerfully portrayed by Alexis de Tocqueville in the closing chapters of Democracy in America.

My argument is essentially twofold. To begin with, I will contend that one of the primary causes of civil society’s decline is a particular vision of man and society that has established itself at the heart of our political culture. Secondly, while recognizing that a problem of this complexity admits of no simple solution, I will argue that a precondition for the revitalization of civil society is nothing less than the growth of a new public philosophy animated by a very different understanding of man’s nature, a public philosophy embodying an authentically pluralist vision of social life. Only against this backdrop, I will conclude, does it become possible to appreciate the true promise of “compassionate conservatism.”

Over the past several decades American culture has been transformed by an intellectual system that may be called Enlightenment or philosophical liberalism. By Enlightenment liberalism, I do not mean liberalism as opposed to conservatism as these terms are used in our popular political discourse.

Nor do I mean the broad political tradition supportive of the idea of constitutional government, limited in scope, subject to the rule of law, and responsible to the governed. Rather, by Enlightenment liberalism I mean a model of man and society that originated in the seventeenth century and which has come to dominate both modern political theory and contemporary American public argument.

To appreciate why Enlightenment liberalism has played so important a role in the erosion of civil society, it is necessary to understand its nature, to grasp the core commitments that make it a distinctive intellectual tradition. Perhaps liberalism’s most striking feature is its individualism. It insists, as R. Bruce Douglas and Gerald Mara have observed, that “politics is justifiable only by appeal to the well-being, rights or claims of individuals.” But this individualism must be seen within the context of liberalism’s further nominalistic and rationalistic metaphysical commitments; liberalism in the end is, as Roberto Unger has shown, not so much a theory of politics as “a metaphysical system.” And liberal metaphysics necessarily entails “the rejection of teleology,” the rejection of “the claim that there is a discoverable excellence or optimal condition . . . which characterizes human beings” as such—here, quoting Douglass and Mara again.

This vision of man has far-reaching implications for liberalism’s understanding of social and political life. To begin with, it causes liberalism to move inexorably in the direction of a progressively deeper, a progressively more radical, individualism. Liberalism, as Michael Walzer notes, is “a self-subverting doctrine” which “seems continually to undercut itself . . . and to produce in each generation renewed hopes for a more absolute freedom from history and society alike. Much of liberal political theory, from Locke to Rawls, is an effort to fix and stabilize the doctrine in order to end the endlessness of liberal liberation.” Indeed, the history of liberal thought is largely the story of the triumph of the will—the triumph of the subjective will of the individual over those elements in the political theories of earlier generations of liberal thinkers that had acted to restrain it. What results is a “sovereign self” unencumbered by any ends not of its own choosing and thus unable “to entertain the notion of relations as natural.” For liberalism, as Francis Canavan writes, “relations are external, accidental and adventitious, not the consequences of the natures of things.” All relations are essentially external, voluntary, and contractual. In other words, as Carl Schneider argues, all relations are market relations and human communities are only collections of “individuals united temporarily for their mutual convenience and armed with rights against each other.”

http://www.firstprinciplesjournal.com/articles.aspx?article=1201

Law And Politics Book Review 

In Ordered Liberty, Fleming and McClain defend "liberal theories of rights" against the general charge that such theories, and the practices they justify, fail to respect the importance of, and perhaps tend to undermine, "responsibilities, virtues, and the common good". Fleming and McClain identify four principal objections to legal liberalism, which they name the irresponsibility, neutrality, wrongness, and absoluteness critiques; the authors introduce and respond to each of these four critiques in turn.

First up is the "irresponsibility critique", which charges that "liberal theories of rights license irresponsible conduct instead of promoting ordered liberty". Mary Ann Glendon's Rights Talk serves in Chapter 2 as the representative exemplar of this familiar objection. In brief, Rights Talk argues that America's public, civic and political discourse has become colonized by the individualistic language of rights, leaving us with a morally impoverished political culture, inattentive to the language and practices of civic responsibility. In defense of their constitutional liberalism, Fleming and McClain begin by challenging the plausibility of the causal connection Glendon's work posits: "it is unclear," they write, how a culture of personal irresponsibility "is due to the recognition and enforcement of legal rights". Moreover, they contend that Glendon's critique is overdrawn; they argue that she has exaggerated the individualistic elements of legal liberalism and then objected to the caricature of liberalism that she herself has drawn. They invoke the work of Ronald Dworkin as representative of the legal liberalism they champion and point out several ways in which Dworkin is concerned with more than the bare protection of negative liberties. For example, when Dworkin defends his conception of rights grounded in respect for persons, he "envisions liberal citizens who care passionately about what they think is good and argue with and persuade each other concerning the good life".

Chapter Three continues the debate about the relationship between legal liberalism and responsibility by focusing on the right to abortion, which, Fleming and McClain claim, is the right that most frequently "draws the irresponsibility critique". In replying to the charge that the abortion right encourages irresponsibility, the authors distinguish two senses of responsibility: responsibility as autonomy and responsibility as accountability.

Opponents of abortion, they argue, endorse the latter sense of responsibility; Fleming and McClain endorse the former. In their view, to protect a woman's right to abortion is to guarantee that she will be responsible to her own conscientious best judgments about the nature and value of human life.

Fleming and McClain offer qualified praise for the joint opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, which, they note, "arguably moved the law in [Glendon's] communitarian direction". Like Dworkin, and like the plurality in Casey, Fleming and McClain ground "the right to decide whether to terminate a pregnancy in women's capacity to decide responsibly". To the extent that Casey may be read as permitting governmental action to facilitate responsible and informed decision-making, they agree with it, though they express concern that the governmental moralizing it endorses does not offer the sort of "balanced presentation of the parameters of responsible reproductive choice" they advocate.

Next is the "neutrality critique," which the authors take up in Chapters 4 through 6. This is the objection that liberal theories of rights "require neutrality among competing conceptions of the good life" and thus preclude government "from promoting good lives and inculcating civic virtues and public values". In Chapter 4, Fleming and McClain respond to the worries of critics to whom they refer collectively as "civil society revivalists," who hold that though a liberal society depends on the widespread diffusion of civic virtues, political liberalism tends to undermine such virtues. Their responses to these worries parallel their replies to the irresponsibility critique in Chapter 2. First, they question the causal relationship the critics posit; next, they argue that the constitutional liberalism they advocate is less individualistic than the critics suppose and, in fact, also recognizes the role civil society plays in the formation of citizens.

In Chapter 5, the authors contend that "the gap between political liberalism and its critics as to government's authority to foster citizens' capacities for self-government is not as great as is commonly assumed". Indeed, they endorse a role for the liberal state in promoting critical thinking and such civic virtues as "tolerance, civility, reciprocity, and cooperation".  Fleming and McCain prove to be more insistent than William Galston on the authority of the state to teach curricula designed to impart these virtues, even over parents' objections. Not only would they deny parents' the liberty to prevent their children from being exposed to specific curricular messages they happened to oppose, Fleming and McClain hold that parents cannot hinder the state from teaching civic virtues by opting for homeschooling either: "there is," they write, "sufficient justification to require that homeschooled children above a certain age participate, with other children, in a civics curriculum". In Chapter 6, the authors ask, "what limits must government respect ... when it regulates or encourages behavior to advance political virtues or values?". It emerges that there are few such limits, at least in the cases explored in that chapter, when the state aims to vindicate the value of equal citizenship through the enforcement of antidiscrimination law. There may be some room, according to the authors, for the prudential recognition of religious exemptions from laws recognizing same-sex marriage, but they also express the hope that the need for such accommodations will prove fleeting.

Chapters 7 and 8 outline and answer the  "wrongness critique", which alleges that "liberal theories ground rights of autonomy in empty toleration of wrong conduct instead of the substantive moral goods or virtues promoted by protecting such rights". Chapter 7 engages Michael Sandel's critique of arguments for gay rights that sound in the minimalistic, liberal values of choice and autonomy rather than resting upon a substantive account of the human goods advanced by same-sex relationships. McClain and Fleming respond that their constitutional liberalism sees no conflict between autonomy based  arguments and at least some forms of mild perfectionism. Indeed, they argue that the majority opinion in Lawrence v. Texas represents a step towards the mild perfectionism Sandel advocates, at least when juxtaposed against Justice Blackmun's dissent in Bowers v. Hardwick. And, they note approvingly,"Goodridge v. Department of Public Health ... may be the fullest realization in a judicial opinion to date of Sandel's call for substantive moral arguments in justifying civil rights". Even so, they insist, nothing in Goodridge is inconsistent with the political liberalism they advocate; Chief Justice Margaret Marshall's opinion is, in their view, "an exemplar of public reason". In Chapter 8, Fleming and McClain respond to Cass Sunstein's minimalism, which charges their constitutional liberalism with being excessively perfectionistic and thus insufficiently respectful of the citizenry's capacity for deliberation about constitutional values. They argue that, at the level of constitutional theory, Sunstein is no less a perfectionist than they; his minimalism turns out to be only a judicial strategy for dealing with controversial, constitutional issues. And Fleming and McClain see no particular reason why minimalist decisions will prove any less controversial in practice than the more robustly perfectionistic liberal approach they favor. Thus, they present their constitutional liberalism as a sort of middle ground between what they suggest is the excessive perfectionism of Sandel and the minimalism of Sunstein.

Finally, chapter 9 describes and seeks to refute the "absoluteness critique", which complains that liberal theories of rights "treat fundamental rights as 'trumps' or absolute exemptions from governmental pursuit of goods". Their response to this charge was intimated in Chapter 2, when they suggested that Glendon's image of liberalism was not a portrait but a caricature. Here, they argue that the seeming absolutism of the Supreme Court's jurisprudence under the Due Process Clause exists only in the opinions of the justices who oppose the protection of new fundamental rights. Thus one finds the clearest articulation of the dichotomy between fundamental rights that trigger strict scrutiny and non-fundamental liberties that merit only a very deferential rational basis review in Justice White's majority opinion in Bowers, in Chief Justice Rehnquist's opinion for the Court in Washington v. Glucksberg, and in Justice Scalia's Lawrence dissent. After a tour of due process cases from Meyer v. Nebraska to the present, Fleming and McClain conclude that these cases are best understood as embodying the "reasoned judgment" Justice Harlan called for in Poe v. Ullman; such judgment protects liberty while preserving a role for government in "encouraging responsibility [and] inculcating civic virtues in the ways prescribed by [their] constitutional liberalism"

http://www.lpbr.net/2013/07/ordered-liberty-rights-responsibilities.html

Another review of the book from Jotwell

http://juris.jotwell.com/liberalism-revisited/