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Preview: “A Critical Legal Examination of Liberalism and Liberal Rights”

(Olivier Douliery/Getty)

“While we may be cursed to live in interesting times, this presents an opportunity to rethink some of our basic assumptions about the democratic politics of liberal states…”

Introduction

This year, 2020, has been one of the most tumultuous in decades. The Coronavirus (COVID-19) crisis and subsequent recession have further exposed a post-Cold War order that was already under siege by post-modern conservatives and a seemingly rejuvenated socialist movement. Far from having “cut off the head of the King,” in Michel Foucault’s memorable formulation, global institutions seemed unable or unwilling to take firm action to halt the spread of the virus and compensate for the economic suffering that it bred. Consequently, millions turned to the liberal state for solutions in a move that generated ripples of concern among elites that citizens may come to support further and more expensive redistributive efforts if expectations were not put in check. This anxiety proved prescient, with an end to the pandemic nowhere in sight and many conservative administrations coming under fire for taking a blasé attitude towards people’s suffering or simply demonstrating remarkably consistent incompetence. While we may be cursed to live in interesting times, this presents an opportunity to rethink some of our basic assumptions about the democratic politics of liberal states and to have a frank conversation about the limitations of inegalitarian neoliberal economics. My new book A Critical Legal Examination of Liberalism and Liberal Rights, being releasing with Palgrave MacMillan (available here) is my contribution to these efforts.

An Argument for Liberal Socialism

“Historically one of the main defects of constitutional government has been the failure to insure the fair value of political liberty. The necessary corrective steps have not been taken, indeed, they never seem to have been seriously entertained. Disparities in the distribution of property and wealth that far exceed what is compatible with political equality have generally been tolerated by the legal system. Public resources have not been devoted to maintaining the institutions required for the fair value of political liberty. Essentially the fault lies in the fact that the democratic political process is at best regulated rivalry; it does not even in theory have the desirable properties that price theory ascribes to truly competitive markets. Moreover, the effects of injustices in the political system are much more grave and long lasting than market imperfections. Political power rapidly accumulates and becomes unequal; and making use of the coercive apparatus of the state and its law, those who gain the advantage can often assure themselves of a favored position. Thus inequities in the economic and social system may soon undermine whatever political equality might have existed under fortunate historical conditions. Universal suffrage is an insufficient counterpoise; for when parties and elections are financed not by public funds but by private contributions, the political forum is so constrained by the wishes of the dominant interests that the basic measures needed to establish just constitutional rule are seldom properly presented.”

– John Rawls in A Theory of Justice

As the title suggests, my book has many critical things to say about liberalism in theory and in practice. The two most significant objections are directed against liberalism’s long-standing ambivalence towards democracy and its failure to take seriously the implications of principled moral equality. From Locke through to Madison and down to Hayek, liberals have always expressed concerns about giving the demos too much of a say in the laws that govern them. Some of these anxieties were commendable, particularly when it came to the threats posed by tyrannical majorities imposing their will on the vulnerable. However, just as often, the wariness of democracy was due to liberals’ long-standing belief that democracy would pose a threat to private property. And they were correct to believe so. Liberals themselves claimed that all are created equal, indicating a staunch commitment to moral equality. Once these ideas took hold in the popular imagination, it was only a matter of time before citizens began to argue that people who are equal in principle should be more equal in fact.

Generations of critical thinkers on the political left and right have honed in on this tension in liberal doctrine and have, in turn, provided unique spins. Much of my book is taken up by examining this historical thread and highlighting where I think liberal thinkers were onto something, as well as where they missed the mark. But I also believe that we need to be careful not to get so caught up in critique that we fail to reflect on the genealogy of the critical enterprise. Liberalism has faced so many attacks in its time that for many—especially on the political right—being accused of being a liberal is tantamount to being called a spineless shill for an unjust society. But it is worth remembering that liberals have fought and died for their principles, and they have often accomplished a lot for the most vulnerable people on the planet. A Critical Legal Examination of Liberalism and Liberal Rights argues that far from abandoning liberalism, what we need to do is radicalize its potential. Following Roberto Unger what we need is a kind of super liberalism that takes far more seriously the principle of moral equality and is also imaginative enough to reinvent our politics to ensure that the 21st century is one in which the dignity of every human being is finally respected.

So the book concludes by spelling out my argument for what could be called—following John Rawls—a kind of democratic liberal socialism. It keeps what is most effective about liberalism (i.e. its respect for individual rights, reasoned deliberation, and universalism) and argues that these are best realized in a political context where people’s democratic rights are empowered and economic resources are organized to ensure that everyone is capable of leading a life of dignified self-authorship. Like John Stuart Mill, it endorses a romantic expressivist ethic of individual reflection and creation, while respecting that for many people a life of dignified self-authorship is found precisely through integration in well-established communities with venerable traditions. This liberal socialism would be a radical in the truest sense of the word radix (or rootedness). If carried out successfully, it would not be a break with the past but would result in the fulfillment of the deepest potential latent within liberal democratic societies from the very beginning.

Conclusion

Aristotle once claimed that democracy arises from the notion that those who are equal in any respect ought to equal in all respects. It seems to me that this would be going too far; demanding strict equality along every dimension of life would not only be unobtainable but would also so efface differences in human life and choices as to become a horror. However, between this extreme and the other extreme of the massive inequity that we see today is a chasm. And, all the while, it is comical to witness the degree to which defenders of power will treat any movement towards further equality as an attack on sacred privileges. The resources now exist to give everyone a shot at the good life: the chance genuinely to sink or swim on their own merits without being burdened by unnecessary poverty or precarity. It is long past time that we dreamed bigger and, hopefully, better.

Matt McManus is a professor of politics at Whitman College and the author of The Rise of Post-Modern Conservatism, among other books. He can be added on Twitter via @mattpolprof

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