The Long Tail of Legal Liberalism

Patrick Deneen’s Why Liberalism Failed is a powerful reflection on the leading political philosophy of the last 300 years. In its brisk and crisply written 200 pages, the book covers a lot of territory: politics, individualism, statism, culture, technology, education, sexuality, and social class. Its core claim is that the features of liberalism that made it successful have also created the conditions of its manifold failures. Liberalism suffers from a kind of fatal design defect that, Deneen argues, renders it irredeemable.

Liberalism’s promises of liberation from tradition, limited government, radical personal autonomy, and limitless opportunity to overcome human nature, have in reality been a virulent economic, cultural, and social acid. But unlike other rival political ideologies, says Deneen, liberalism’s corrosive work has been insidious rather than overt. Liberalism has masqueraded as neutral about human goods and ends while silently but systematically depriving people of the intermediating institutions and communal norms that best resisted its own program of control. The masks, he claims, are now being removed.

One of the book’s major arguments concerns the conceptual unity of classical, or right, liberalism and Progressive, or left, liberalism. While these are often perceived, especially in the United States, as opposed, Deneen argues that they enjoy a “profound connection” and operate in mutually reinforcing ways. The individual’s liberation to pursue his own self-made and endlessly re-made market and identitarian preferences—to become more and more a pure “consumer” of things as well as persons—requires the dissolution of communal bonds whose function was to inform, shape, and cultivate the wise exercise of liberty. The result is the swelling of the state, the only institution left standing, which exerts ever greater control on individual choices as to commerce and consumption. It moves “like a ratchet wrench, always in one direction, enlarging and expanding in response to civic grievances, ironically leading in turn to citizens’ further experience of distance and powerlessness.”

Drawing on Karl Polanyi’s famous quip that “laissez-faire was planned,” Deneen illuminates contemporary crises ranging from the loneliness of the technologically liberated self to the consumerized globalization of “winners” and “losers” in the modern economic world. Liberalism’s unceasing liberations, in his telling, are not true freedoms at all; they are a series of progressive enslavements to the appetites of the moment. We do not control these appetites of putatively self-chosen “deracinated vagabondage” (or, if you prefer, upward mobility). We eagerly succumb to them until the state tells us how much is too much.

Deneen argues that ideals of “pluralism,” “diversity,” and the recognition of self-chosen identities are precisely those that serve the economic interests of the liberal elite, since they are globally homogeneous, ideologically monolithic, fungible, and culture-less. Universities inculcate these anti-cultural desiderata because they provide university graduates with access to other elite social and economic ladders and simultaneously flatter feckless cries within the university for “social justice” as something for which the state is responsible. The university clerisy thus brings into being a new aristocracy of the educationally credentialed and economically strong over the un-diplomaed and the weak, which it works ceaselessly to maintain and entrench.

The liberal “best” who have been university-certified to pursue their respective, Millian experiments in living dominate the “ordinary” and the average. These latter are the groups that once benefited most from the traditional and communal social structures that are now defunct. I learned from Deneen that Mill advocated enslavement of backward and tradition-minded populations until they could properly be set on the path to economic and personal progress. If nothing else, that proposal might make one wonder just how many deplorable lifestyles must be subjugated or purged in the cause of liberal diversity.

The book arrives at an auspicious moment, for itself at least. Intellectual and political anxieties about liberal democracy in the United States and abroad have exploded in recent years, spawning a clade of books hawking quick fixes to make the world safe again for liberalism. Deneen goes another way. The book has already attracted critical notice, including at this site. It merits this attention—and doubtless will garner even more. All that publicity poses a problem for the would-be reviewer: how to say something new or different about a book that is already at least somewhat well known?

I will resolve it by recurring to the academic trick of disciplinary insularity. Happily, that narrowness of focus is warranted. For law is liberalism’s most potent instrument. Law plays a legitimating role in many political regimes, but it performs unique work in Deneen’s account of the liberal state.

Legal liberalism is the device that replaces non-liberal social structures and institutions—the very structures and institutions that once sustained it—and establishes itself as the exclusive fount of authority. Legal liberalism substitutes informal relationships derived from non-liberal institutions with administrative directives and centralized controls, whether of the surveillance state, the Title IX bureaucrat, or the carceral network. Legal liberalism elevates the Constitution to the status of sacral cultural object, in the process consecrating the legal state: new citizens and officeholders swear an oath not to the nation, but to the Constitution and the law. Legal liberalism trumpets the ceaseless progression of individual freedoms and rights, even as its laws generate and consolidate greater power, wealth, and control in the state. Legal liberalism’s contemporary master right, as announced by its oracles—to “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”—requires a correspondingly enormous and engulfing positive law and regulatory armamentarium. Legal liberalism is predisposed toward cosmopolitanism, globalism, and internationalism, and against local custom, culture, and tradition. And it seems to me that Deneen would take legal liberalism’s educational hubs—the elite American law schools—as archetypes of the sorts of pathologies afflicting institutions of higher learning.

Indeed, one might well suppose that the partisans of legal liberalism would be the least receptive to what Deneen has to say, devoted as they are to maintaining and enlarging the power structures and ideological commitments of the liberal status quo. Lawyers and legal academics will be particularly prone to dismiss Deneen. The legal elite is adept at inventing stratagems of self-validation. It is quick to enforce internal codes of civility, conformity, right thinking, and right speaking that mark membership in the club. It drives itself to distraction in the latest Supreme Court intrigues, investing its preferred justices with a superhuman heroism and a cult of personality (while demonizing the others). It jealously guards its own birthright. It will not like this book.

Yet even those within the legal liberal establishment who are inclined to hear him out might doubt that Deneen has shown that legal liberalism has “failed,” or that its weaknesses are so pervasive as to suggest imminent regime collapse. In the first place, legal liberalism, and the society that it has supported and been supported by, have generated vast economic wealth. To be sure, the allocation of that wealth has been, to put it gently, uneven. But its resources are nevertheless formidable. Second, legal liberalism has made several great social and political advances possible. It has helped to ameliorate, if not correct, certain profound injustices affecting various marginalized groups and it has expanded social and economic opportunity. These are genuine contributions. Deneen rapidly acknowledges this point early on, but the balance of the book does not demonstrate that the political and legal framework of liberalism either is an abject failure or has reached the point of breakdown.

What Deneen has shown, and to great effect, are a series of dynamics internal to the claims, logic, and aspirations of liberalism that produce extremely serious problems. Yet of all the variations of liberalism discussed in the book, legal liberalism is perhaps least likely to adapt to overcome these difficulties because of its deep investments in maintaining its own position. Deneen might welcome this resistance as the beginning of the end, since it would confirm a piece of the book’s thesis. But if the end is coming, legal liberalism’s tail is likely to be a long one.

There is one complaint about the book that, more than any other, should give Deneen some confidence: the “what-now?!” objection. One might have thought that studies like Deneen’s of the deep problems within the regnant political philosophy of the modern period would deserve a bit of room to breathe and develop. Not so. The critics cry that Deneen must immediately offer solutions to these problems. He must offer new marching orders. Such protests manifest just the sort of liberal obsession with the present that Deneen so acutely criticizes. This reviewer, at least, was glad that he largely reserves judgment about what’s next. It is an exciting and important time for diagnosis. And there is much more of it left to do.