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

“My new book, A Critical Legal Examination of Liberalism and Liberal Rights, holds that liberalism is best understood as a political and moral doctrine committed to two fundamental principles.”

Liberalism is an eminently contentious doctrine that has meant various things to many different people. For conservative liberals such as Ludwig von Mises and Friedrich Hayek, liberalism is best understood as protecting the property rights and associated freedoms needed to advance human welfare and prosperity through capitalism. In this reading, neither high levels of equality nor even democracy were necessary. In some circumstances, they were not even considered desirable. To Enlightenment activists like Mary Wollstonecraft and Denis Diderot, liberalism was about creating a society where knowledge and deliberation would take the place of tradition and authority in settling political disputes. This would often mean undermining or at least ameliorating the influence of institutions like the Church or the patriarchal family to open opportunities for the intelligent and talented to voice their opinions. This reformist spirit was carried in on the experimentalism of John Stuart Mill and John Dewey. Finally, egalitarian liberals such as John Rawls and Martha Nussbaum argued that liberalism is defined by its commitment to the substantive equality of all.

My new book, A Critical Legal Examination of Liberalism and Liberal Rights, holds that liberalism is best understood as a political and moral doctrine committed to two fundamental principles. The first is the moral equality of all individuals. This has been framed in many different ways. Conceived very narrowly, moral equality merely meant that all were to be given equal treatment by the law. More broadly, some drew on natural law arguments to claim all were “created equal” by God—or they appealed to reason and called on rational lawgivers to recognize that each individual had a fundamental dignity as an end in themselves, which put them “beyond price.” Then, there are those who argued that moral equality could never be squared with high levels of material inequality, meaning a just and fair liberal state needed to provide not just opportunities but also resources and capabilities for all. Whatever one’s take, the principle of moral equality is intimately related to the second (and more familiar) principle of commitment to the highest degree of individual freedom or liberty compatible with everyone else’s freedom. As Michael Cranston puts it, a “liberal is a [person] who believes in liberty.” Since all individuals are moral equals, this means that no one occupies a sufficiently superior status that would entitle this person coercively to impose his or her vision of what the good life should be on anyone else. This, of course, does not mean that one cannot try to persuade, cajole, or even shame and criticize others into adopting a given vision of the good life. Indeed, one of the virtues of a liberal society is that—in theory—it allows freedom in the public sphere for many different conceptions of the good life to compete and make their case. Only in exceptional circumstances should this freedom be curtailed; then, the onus is on proponents to justify the restriction clearly.

Going Beyond Liberalism to Liberal Socialism

There is a bad tendency among more conservative, liberals, and anti-liberal leftists to associate liberalism with one set of institutions and practices. Typically, these are figures like von Mises or vulgar, anti-dialectical Marxists who see liberalism as comprising a static set of laws and ideologies intended to insulate capitalism from political pressure by so-called “collectivists.” This ignores the tremendous capacity of liberalism to reinvent and rejuvenate itself, which was nascent in its principled experimentalism and egalitarian openness to ongoing debate from the very beginning. Of course, liberalism has all too often failed to live up to its basic principles. The slaveholding American Founding Fathers spoke ceaselessly about liberty and equality under God, while profiting greatly from one of the most evil forms of repressive domination yet devised.