Defining liberalism is tricky. For some, as Maurice Cranston puts it, “by definition a liberal is a man who believes in liberty.” But plenty of other political ideologies have stressed freedom: Plato emphasized the intellectual freedom that comes of perceiving the true and eternal forms; monotheistic doctrines stress that true liberty comes from submission to God and so on. Others think that liberalism is best understood as an argument for the minimal or night watchman state. In its classical form, liberals took issue with expansive state power and were keen to insulate individual rights from authoritarian coercion. Such a definition naturally appeals to many classical liberals and libertarians, but is problematic for historical reasons. The classical liberal state of the eighteenth and nineteenth centuries was heavily involved in grand imperial and colonial projects, which have brought lasting shame to many countries, and was often heavily involved in regulating moral behavior at home, often for the purposes of increasing economic efficiency. In addition, by the late nineteenth century, many liberal states came under considerable pressure to respect demands for democratic and social rights that had long been denied by ruling elites. Finally, some commentators define liberalism as a ruling ideology or discourse meant to defend and uphold a coercive regime of power and exploitation, which presents itself as a neutral or even scientific approach to politics, while subordinating all those who dispute its central tenets.
I would argue that liberalism is a modernist doctrine centered around two principles. The first is moral equality. In this, liberalism contrasts starkly with doctrines from Aristotelianism to Nietzscheanism that stress the fundamental inequality of human beings. From proto-liberals like Hobbes and imperfect statesmen like Thomas Jefferson to contemporary Kantians like Christine Korsgaard, liberals have rejected these older, more stratified outlooks. How moral equality is conceived and justified varies wildly, of course. For some, it merely means that all individuals have a right to be treated equally under the laws that govern them, while competing in a market system that generates highly unequal outcomes. For others, it means we must regard each person as an end in herself. Finally, egalitarian liberals like John Rawls and Martha Nussbaum argue that moral equality imposes a duty on the state to ensure high levels of material well-being for all citizens and perhaps even internationals. This commitment to moral equality is directly related to the second fundamental principle of liberalism: support for the highest levels of individual freedom—provide no one person’s freedoms impinge on those of others. Since all individuals are moral equals in this view, no one can assume she knows what kind of life would be appropriate for everyone. Consequently no one has a right to use coercion, especially state coercion, to try to impose her vision of the good life across the body politic—though anyone may, of course, try to persuade, incentivize, criticize and even shame. Many liberals view public deliberation as a virtue of the free state or open society, characterized by a robust public sphere in which issues can be debated in perpetuum. Coercion should be employed only in extreme—and inevitably controversial—circumstances in which views and actions prove so intolerant, disgusting or dangerous that the paradox of tolerance requires subduing them. All liberal societies have resorted to such coercion at some point: whether through restraining access to child pornography or banning Nazi parties from political participation.
A Critical Legal Examination of Liberalism and Liberal Rights
Liberalism gets a bad rap these days. It is under assault from both left and right. Despise the election of Joe Biden, many conservatives are still openly flirting with various forms of post-liberalism, often inspired by deeply reactionary authors like Carl Schmitt. Many liberals are also concerned about cancel culture and its potentially chilling effects on free speech and deliberation. While it is seriously jumping the gun to claim that liberalism has failed—especially since even its most determined enemies seem at a loss as to what is to replace it—we have come a long way from 1989, when it was considered to be the last doctrine standing at the end of history.
All this might make one wary of a new book offering yet another critique of liberalism. But liberalism’s survival has always been dependent on its adaptability. While ideological narratives about historical destiny are popular among liberalism’s most superficial defenders, commentators from Mary Wollstonecraft to J. S. Mill and John Dewey have recognized that nothing is more inimical to the liberal spirit than resting on one’s laurels. The society of freedom and experimentation applauded in On Liberty demands an open mind and a willingness to ponder the unconventional. My new book for Palgrave Macmillan, A Critical Legal Examination of Liberalism and Liberal Rights (available here) argues that liberalism has lost its way, giving into the inegalitarian and anti-democratic temptations of neoliberalism. Restoring its promise means embracing a kind of democratic liberal socialism in the vein of John Rawls or Seyla Benhabib, which can simultaneously restore our civic life and ensure everyone is capable of leading a life of dignity and flourishing.
In A Critical Legal Conception of Liberalism and Liberal Rights I argue that, while these principles of moral equality and individual freedom are sound, they have been insufficiently respected lately. Over the past few decades, commitment to moral equality has slipped, giving way to ever more hierarchical outlooks that stress the competitive nature of our society and the inevitability of winners and losers. This is often framed in economic terms, but has recently taken a very nasty ethnocentric turn with the rise of postmodern conservatism. The protection of basic liberal freedoms has also been corroded, including—most dangerously—the political freedoms that are often necessary to protect our other liberties. My new book focuses on how to both secure the achievements of liberalism and go beyond its contemporary limitations.
No longer enslaved or made dependent by force of law, the great majority are so by force of poverty; they are still chained to a place, to an occupation, and to conformity with the will of an employer, and debarred by the accident of birth both from the enjoyments, and from the mental and moral advantages, which others inherit without exertion and independently of desert. That this is an evil equal to almost any of those against which mankind have hitherto struggled, the poor are not wrong in believing. Is it a necessary evil? They are told so by those who do not feel it—by those who have gained the prizes in the lottery of life. But it was also said that slavery, that despotism, that all the privileges of oligarchy, were necessary.—J. S. Mill, Chapters on Socialism (1879)
I argue that the solution is liberal socialism of the kind J. S. Mill flirted with and John Rawls, Chantal Mouffe and others have advocated. A liberal socialist society would respect all the classical liberal rights, except the overly expansive right to private property argued for by more right-wing liberals. And it would entrench two further rights in the law.
The first would be a right to high levels of social freedom and democratic participation in law-making. This is in stark contrast to the position of conservative liberals like James Madison, who, in Federalist 10, expresses a deep wariness of democracy. We shouldn’t allow democratic majorities to trample on minority rights. But we should adopt more direct democratic practices: such as allowing citizens to propose legislation, as in Denmark; or opening the constitution up to more dynamic change through referenda, as in Ireland and Australia. This approach would be greatly preferably to elitist transitions driven primarily by courts. A right to social freedom would also commit us to workplace democracy and the breakup of economic elites, whose ownership of the means of production grants them a power over people’s lives that should make any committed liberal wary. This would bring about a renewal of the civic life that has largely fallen by the wayside. Democracy has too often been understood as little more than a set of decision-making procedures in which citizens’ only responsibility is to choose between two imperfect candidates or parties every few years. But, as democrats like Thomas Jefferson knew, at its best, democracy is about us all constructing the shared world that we all inhabit. The corrosion of our democratic life by neoliberal reforms that take responsibility and power away from citizens to insulate the market and state from pressure from the demos is in no small part responsible for the anger many feel towards both elites and each other. Getting back on track is a vital step towards restoring civic friendship and dialogue.
The second right we must enshrine is a right to equality of capabilities, except where inequalities are necessary to protect individual autonomy or work to the benefit of the least well off. The liberal socialist state must commit to ensuring a high level of substantive freedom for all its members, with certain vital exceptions to protect against statist intrusion and economic inefficiency. What it means to ensure equal capabilities for all will differ depending on the context. Ensuring someone is capable of leading a fulfilled and dignified life means something very different in rural India than in Utah. But there are certain clear steps we can take. We must ensure high quality education—including post-secondary education—healthcare and life opportunities for all. We must arrange urban spaces so that they are accessible to those with physical handicaps. We must prevent discrimination on the basis of gender, sexual orientation or religion. The right formula will look different depending on the socio-historical context and the problems different political communities face. As some conservatives might appreciate, we should also empower people to lead a rich cultural and religious life, so long as they do not use coercion to impose their traditions upon members of their communities.
This book is part of an ongoing project to demonstrate the long term compatibility of liberalism with progressive demands for radical reform. No doubt, many conservative liberals will be wary or even hostile to this: people like Ludwig von Mises have never really accepted the spirit of moral equality. They support liberalism because it justifies a competitive, stratified capitalist order, in which men of superior talents can rise through sweat and ingenuity. My book is therefore aimed at those liberals and socialists who are committed to moral equality and freedom, but unsure of what that might mean in practice. At its best, modernity has been defined by a moral impulse to reinvent society to make it work for everyone. In this calamitous year, the cracks have become very visible. It is time to be politically and socially innovative once again.