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

“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 released 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.