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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.

Reader Discussion

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on February 07, 2018 at 07:33:11 am

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The Long Tail of Legal Liberalism | Top 100 Blog Review
on February 07, 2018 at 09:34:18 am

"Progressive liberalism" is not a real thing anymore than "Marxist capitalism" is a real thing.

Liberals want non-discrimination and equal-treatment, progressives want racial quotas, gerrymandered black voting districts, etc. These are mutually exclusive in the same way that Marxists doctrine is incompatible with capitalism (even in its most fascist forms).

Just because "left-liberals" call themselves progressives and "left-capitalists" call themselves marxists doesn't mean "progressive liberal" or" marxist capitalist" is a real thing. Just because people identify as a different biological sex doesn't mean they don't still have the same biology.

To see reality is to know reality, to believe what you are told by the left is to be delusional.

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Oceania's english
on February 07, 2018 at 10:20:07 am

I haven't read Deneen's book. But it seems to me that the US Constitution as originally designed and intended recognized the tendency of the state to overtake all subordinate forms of communal and political association, and therefore limited the power of the federal government to the end that it would be unable to encroach far into civil society. I see nothing in liberalism (classical) that logically necessitates its serial negation of all intermediate social institutions. Deneen may be attributing to liberalism actions that have been motivated by a profoundly anti-liberal sentiment. The history of political liberalism in this country has shown that the idea of a "rule of law, not men," is a fallacy. If men determine to reject the ethos of classical liberalism, no political structure, no written limits on state power, can stop them. It can only delay them.

Also, the economic issues seem less a natural consequence of political liberalism than of capitalism. At least, it is capitalism, and not liberalism so much, to which critics have routinely attributed the asymmetries of wealth distribution.

At any rate, I intend to read this book!

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QET
on February 07, 2018 at 12:06:27 pm

QET:

nice take on this!

" Deneen may be attributing to liberalism actions that have been motivated by a profoundly anti-liberal sentiment. The history of political liberalism in this country has shown that the idea of a “rule of law, not men,” is a fallacy."

Summing this up in a few phrases:

1) The German School
2) Woodrow Wilson
3) (progeny of #2) Progressivism
4) (progeny of #2 & #3) Rule by *scientific* experts

Deneen may as well have brought empiricism / scientific method into the equation.

What Deneen misses is that it is NOT the Constitution, nor the predicate tenets of Liberalism or the American regime that conduces to our present afflictions AND not even the demise of intermediate institutions, but rather the tempering effects of "virtue", properly understood and the limits recognized and realized and practiced by a soul who seeks to live a virtuous life (either religiously or secularly).

The fault, dear Mr Deneen is not in our COTUS but in our (presently) vacuous and ever striving souls.

BTW: Have missed Mr DeGirolami's essays. Keep 'em comin'!

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gabe
on February 07, 2018 at 12:09:29 pm

Oh, and here is a link to an essay at Mark Pulliam's new blog that shows just how much the legal world is designed for and by the shysters!!!!

https://misruleoflaw.com/2018/02/06/one-sided-loser-pays-is-the-worst-of-both-worlds/

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gabe
on February 07, 2018 at 14:29:38 pm

Your point about taking the oath to the Constitution rather than the nation (" 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.") concerns me.

Having served in the military and in elected office, my oath was to uphold and defend the US Constitution. This should never have meant making it a "sacral cultural object" but to reinforce our commitment to limited government and so, instead of perhaps defending the Constitution, we should have taken an oath to defend the nation using the Constitution and the limits it places on our government.

IOW we should take an oath to reinforce those limits, not defend government's abuses of them. I appreciate the distinction.

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Carolyn Flynn
on February 07, 2018 at 19:56:38 pm

Marc De Girolami refers to liberalism as "the leading political philosophy of the last 300 years." I'd like to suggest that this was definitely not the case in the British colonies in North America and in the early United States of America (not to be confused with the "United States" -- a phrase that properly refers to the federal government).

Back then, natural law was the cornerstone of the legal tradition that Founding Fathers studied as law students, and "liberty" included self-mastery and being free from selfish passions. Moral philosophy, as taught in the colonial colleges, was congruent with this natural law tradition, with the "perfection" of human nature being habitual virtue, opening the door to happiness.

And so we find, in opposition to John Locke, "virtue" as the central element in the Continental Congress's May 1776 definition of happiness, which fed into John Marshall's reference to happiness in Marbury v. Madison. I mention that in this brief article: http://startingpointsjournal.com/may-resolution-declaration-of-independence/

A longer article is currently being peer reviewed.

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John Schmeeckle
on February 07, 2018 at 20:07:22 pm

I have done neither, but I don't view the oath as making the Constitution per se a sacred object but rather, as you suggest, the structure of limited government the Constitution establishes, that structure being necessary to the freedom that has set this nation apart. So an oath to uphold the Constitution is an oath to uphold limited government. To the extent the Constitution is deformed over time, then I suppose there could come a time when to swear an oath to defend it would be inappropriate, and maybe that time is now, I don't know.

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QET
on February 07, 2018 at 23:51:47 pm

John Madison stated that "when there is an excess of Liberty, property of no sort is duly respected".
If then, everyone becomes free to "define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life", so that it is no longer God, but we, who declare what is Good, new laws will have to be created that "generate and consolidate greater power, wealth, and control" to the State. Rendering onto Caesar, what belongs to God, will always result in tyranny.

Although I have not read, "Why Liberalism Failed", it appears to support the notion that a well formed conscience, depends not on an excess of liberty, but rather, on a proper understanding of the complementary relationship of The Laws of Nature and Nature's God.

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Nancy
on February 08, 2018 at 07:01:15 am

"a well formed conscience, depends not on an excess of liberty" or an excess of government

if the government forcibly stops you from doing everything that's morally wrong, and/or punishes you for it--even though it doesn't harm yourself or others--you will never develop a well-formed conscience; you will rely on the government to decide what it is right and wrong, and believe whatever conclusions they come to--even if those conclusions change every 4-8 years

A well-formed conscience comes not from being punished by the government for violating their current social norms, but from thinking critically and developing your own complex sense of what's right and wrong.

The era of alcohol prohibition wasn't followed by more moral citizens, it was followed by the internment of the Japanese and McCarthyism. The current war on drugs has led to a 77% black out-of-wedlock birthrate.

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Molly New
on February 08, 2018 at 08:53:12 am

"Rendering onto Caesar what belongs to God will always result in tyranny."

Very good! Sooner or later, liberty of conscience is something all authoritarian regimes find the need to suppress. That was Roger Williams' great insight.

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EK

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