Recovering the Conservative Liberal Nation State

Liberal constitutional theory, and liberal political theory in general, have increasingly defended the status of often newly created or invented minorities. These are defined more expansively with each new theoretical formulation, as the means to resolve all political and legal tensions.

Known by many names, including group rights, “aggregate collectivities” rights, multiculturalism, and the like, these approaches to governmental policy have tended not to diminish political tensions or promote democratic processes, especially in what Arend Lijphart has described as “deeply divided societies.”[1] At the heart of the matter is the divorcement of these theories from the historical realities that originally created the tensions, and a lack of appreciation for two things: the need for the rule of law, and the wisdom of diffusing governmental power.

Of the new theorists, Will Kymlicka has become a major and representative advocate of a liberal multiculturalism as the guiding principle of such pursuits.[2] Kymlicka takes the construction of artificial minorities further than other scholars, integrating the political theory of multiculturalism with the insights of empirical political analysis. Liberal multiculturalism, he argues, is an outgrowth of the longstanding emphasis upon human rights in international politics, and is not based upon notions of cultural relativism.

Kymlicka’s philosophical mission is to analyze “the current process of internationalizing multiculturalism” and the obstacles to implementation of the concept. He explores the success of liberal multiculturalism and the decline of traditional views of the state, sovereignty, and ethnic politics. His scholarship is devoted to explicating the “logic of liberal multiculturalism” and an exploration of the potential threat that “liberal multiculturalism” poses to existing understandings of human rights and state sovereignty.

As with most of the new liberal theorists, Kymlicka earnestly desires that international organizations utilize liberal multiculturalism in practice to promote political stability through a defense and ennobling of ahistorical groups of citizens. Although attempts to implement these theories have proven to be less than salutary, they have gained much influence in the academy—even as some of the more perspicuous national leaders in the West, including former British Prime Minister David Cameron and German Chancellor Angela Merkel, have stated that multiculturalism in all its modes has failed.

Yet a sophisticated and timely book, The Cultural Defense of Nations: A Liberal Theory of Majority Rights, offers a new twist on the conundrum of multiculturalism, especially in regard to the central issue of cultural assimilation. Liav Orgad, associate professor of law at Interdisciplinary Center Herzliya University near Tel Aviv, and a Marie Curie fellow at the Freie Universität Berlin, poses a significant challenge to the prevailing new liberal theories of the state and immigration by arguing for a majoritarian, cultural defense of global assimilation and migration.

Orgad, writing from within the liberal tradition, nonetheless posits that contemporary liberalism provides solutions that only exacerbate current domestic and international tensions. The amalgamation of lenient immigration policies and the retention of national cultures is the gravamen of the work. For the author, “managing global migration” denotes one of the greatest challenges to liberal constitutional and political theory.

The first half of The Cultural Defense of Nations is devoted to an analysis of the current international immigration situation, with an emphasis on the extraordinary nature of the issue in contemporary society and politics. Accordingly, the dynamic and ever-changing dimensions of global migration, especially between majority and minority groups, require scholars of international relations and political theory to envision new solutions. Religious, cultural, and political methods for confronting public hysteria related to immigration are presented with great clarity. The second half (chapters four, five and six) of the book serves as a guide for differentiating between “justifiable and unjustifiable” defenses of the liberal state and deserves closer scrutiny.

There Orgad rather convincingly argues that contemporary liberal theory violates the very values professed by liberals. In fact, he urges liberals to find an alternative to these patterns of theoretical and practical self-contradiction that has embodied liberalism’s response to most political and social crises in American and in Europe. In this attempt to “‘liberate’ the illiberal” from contemporary liberal thought, the author energetically provides his own corrective, a philosophical and policy-oriented triage of sorts, seeking to resuscitate liberal theory through emendations that will allow for new modes of defense and conflict-resolution.

Among the problems that liberal regimes and liberal theory must confront anew, Orgad believes immigration is the most vital, and immigration is also an issue that a more imaginative liberalism could best resolve. The juxtaposition of America’s neglect to evaluate an aspiring immigrant’s faith in liberalism, on one hand, as a citizenship requirement, and, on the other, the imposition of just such a requirement by most European countries, demonstrates the need for revisiting liberal theory’s contribution to a potential remedy.

The denaturalization cases, especially Knauer v. United States (1946) and Baumgartner v. United States (1944), along with pledge cases, suggest to Orgad that this country has lost its willingness to require potential citizens to affirm liberal values, but Europe has failed the cause to an even greater degree, preferring to exhibit a “muscular liberalism” to forcibly implant liberal values upon individuals seeking citizenship.

To defend a rejuvenated liberalism from external threats, and to ameliorate immigration challenges, Orgad turns to three elements of a potential recovery: state neutrality, liberal tolerance, and policy motivation. While state neutrality is an oxymoronic formulation in most cases, he suggests the concept has importance when it serves as the basis for limiting “non-neutrality,” and the manner in which the restrictions are employed.

His delineation of liberal tolerance is much clearer, and includes an appreciation of the need for religious tolerance as part of his defense of a revised liberal theory, and assumes the form of an invitation to immigrating populations to adopt a very amorphous moral code that has been transferred from one generation to another.

The final element to recovering liberal theory, policy motivation, serves as a “cultural defense” of liberal norms and values. With any cultural defense, however, certain immigrants may be refused citizenship because of an unwillingness to adopt or accommodate a particularist narrative of a country’s understanding of liberal theory and practice.

Given the intrinsic limits to the policy-motivation approach, Orgad articulates another related means of aiding liberal theory: the sharing and acceptance of “constitutional stories.” In accord with the necessity of possessing some aspect of a shared understanding of a political and constitutional order, these stories would provide the theoretical sinew necessary to allow for the successful assimilation into a liberal regime, while also prohibiting those seekers of citizenship who might be capable of “future intolerant behavior.”

In borrowing from other approaches for promoting a sense of political and moral community, including communitarian and narrative-inspired social thought,[3] Orgad advances the moral and ethical potentialities of liberal responses. As is the case, however, with the proposals of other theorists, the vitality of the community that is needed for a narrative movement to succeed contradicts liberalism’s established purpose. Liberalism “sanctifies individual freedom” more than other pursuits.

Liav Orgad’s reformulation of a liberal constitutionalism that can resolve longstanding issues is certainly commendable and useful. Regrettably, the innovations he proposes cannot resolve the problems he wishes to ameliorate. The author’s attempted return to the fundamental principles of truly protecting majority political activity within a constitutional order offers more promise, but it remains a remedy that will be unappealing to contemporary liberals.

[1] Arend Lijphart, “Majority Rule Versus Democracy in Deeply Divided Societies,” Politikon 4:2 (December 1997), 113-126.

[2] Will Kymlicka, Multicultural Odysseys: Navigating the New International Politics of Diversity (Oxford University Press, 2007).

[3] See Stanley Hauerwas, The Peaceable Kingdom (University of Notre Dame Press, 1983).